The Hardest Word - Part 3: Compensation

The issue of monetary compensation for the damage caused to individuals and families, as a result of the child removal policies of previous governments, appears to be difficult for many Australians to process.  We are, broadly speaking, perhaps very broadly speaking, supportive of the need for an acknowledgement of past wrongs.  But I can't help wondering if the idea of "giving more cash to blackfellas" is one affected by Hansonesque notions of indigenous Australians currently receiving more government benefits and handouts than "ordinary Aussies". 

The Federal Minister for Indigenous Affairs, Jenny Macklin, has already ruled out a compensation fund being set up -  

An inquiry into the Stolen Generations recommended reparations be made but Indigenous Affairs Minister Jenny Macklin has ruled out compensation as part of an apology.

"What we will be doing is putting the funding in to health and education services, and providing additional support for services needed for counselling, to enable people to find their relatives," she said.

"We think the best way to give force to the apology is to provide funding to close the gap in life expectancy between Indigenous and non-Indigenous Australians."

"So we won't be creating a compensation fund."

But there's no reason why the states and territories couldn't set up their own - Tasmania already has, for example -

It is the only state to offer a compensation scheme and Premier Paul Lennon is urging other government's to follow Tasmania's lead.

Mr Lennon says the 106 people will be compensated for being taken from their families.

"The Aboriginal children who were taken from their parents, for no other reason than the fact they were Aboriginal, were denied the right that children shouldn't have to argue for in our community, and that is right to be bought up in a family," he said.

There was also a significant case before the Supreme Court of South Australia last year, Trevorrow v State of South Australia, which determined that the state was liable for damages caused by failing to heed the advice of the Solicitor-General about the removal of indigenous children.  It's a long decision (1,240 paragraphs) so probably for legal geeks only, but here's an excerpt from the conclusion reached by Justice Gray -

1233	I am satisfied that the conduct of the State, amounting to misfeasance in public office, together with the false imprisonment of the plaintiff, has been a material cause of the plaintiff’s long-term depression. It was this conduct that ruptured the bond between the plaintiff and his mother and natural family. The breaches of duty of care that occurred were also a material cause of his depression and other losses. Those losses include the loss of his Aboriginal identity. Although there may have been other contributing causes, the conduct of the State was a material contributing cause.
1234	In the result, the State is liable to the plaintiff in respect of misfeasance in public office, false imprisonment and breaches of duty of care both in regard to his removal, placement and return. The misfeasance in public office and false imprisonment occurred in circumstances where the State acted deliberately and unlawfully and in circumstances where it was reasonably foreseeable that there was a risk of harm. The same damages are recoverable as a consequence of the common law causes of action for breach of duty.
1235	Where it is clear that a plaintiff has suffered loss the court should do its best to place a dollar value on that loss notwithstanding the paucity or absence of evidence. The court is not permitted to abandon the task through want of evidence, but a discretionary judgment should be formed.

 From what I remember and have read in one of the news articles linked to above, a case brought before the High Court of Australia in 2000 failed to get started as too much time had elapsed.  But the decision above, to me, highlights that legal remedies may be available, but it'd be a whole lot easier for everybody if we saved money on the legal fees and put it into an actual fund instead.  It's difficult to determine amounts, I know, but I remain confident that we're cluey enough to be able to work out a scheme that is fair and reflective of community expectations.

Ok, long post already.  Might do a part 4 instead about Australia Day to finish this up.

[Update 30 January] Last night, ABC Radio National's Australia Talks programme considered this issue as well and it's well worth a listen.  Go here to download the whole show.