Submission of the National Sorry Day Committee to the Senate Legal and Constitutional References Committee Inquiry into the Stolen Generations

The National Sorry Day Committee (NSDC) is a voluntary organization established in 1998 to implement the recommendation of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families (Recommendation 7a):

That the Aboriginal and Torres Strait Islander Commission, in consultation with the Council for Aboriginal Reconciliation (CAR), arrange for a national "Sorry Day" to be celebrated each year to commemorate the history of forcible removals and its effects.

The Committee was formed following discussions in CAR and consultations with ATSIC. It brings together representatives of the people who were removed from their families with interested non-indigenous people. The NSDC organized the National Sorry Day on 26 May, 1998, launched the Journey of Healing on the same day in 1999, and is now planning events for 26 May, 2000.

The NSDC has a keen interest in the implementation of the recommendations of the Bringing Them Home report, and welcomes the opportunity of making this submission.

SUMMARY OF SUBMISSION

Over half a million Australians signed Sorry Books. Had the books been available more widely, this number would have been far higher. Thousands of events took place around the country on Sorry Day, organised by local churches, schools, councils and community organisations. Tens of thousands of people have taken part in Journey of Healing events.

Many of the stolen generations have said that on Sorry Day they felt the empathy of the wider community, often for the first time, and this was a healing experience. The NSDC believes that the immense community concern offers an opportunity to overcome the continuing ill-effects of a tragic chapter in our history and, in so doing, to dramatically improve the well-being of Aboriginal Australians and the harmony of Australian society.

So much could be achieved were the Federal Government to accept the leadership role outlined for it in the Bringing Them Home report. Sadly, so far it has largely refused this role. We hope that it will become wholehearted in its response to the report. But we recognise that this will only come through a reappraisal of its approach to Aboriginal concerns in general.

The Government has opposed using the term, ‘self-determination’, to describe its approach to Aboriginal issues. The Prime Minister has said that he opposes ‘anything that encourages separate development’. But the less Aboriginal people are given authority to make decisions for their people, the more these decisions must be made by non-Indigenous people. At present the responsibilities of ATSIC are being pared back, and the Office of Indigenous Policy (OIP) in the Department of the Prime Minister and Cabinet is said to be increasingly shaping Indigenous policy. According to The Sydney Morning Herald, only four of the OIP’s 42 staff are Indigenous.

Aboriginal leaders are no more perfect than non-Aboriginal leaders. But the devastation wreaked on the Aboriginal community by non-Aboriginal authority means that little moral legitimacy remains for its continuance, particularly since Australia lags far behind comparable countries in redressing the situation. Aboriginal people must be offered the chance to run their own affairs. This does not mean non-Aboriginals can abandon responsibility. All of us are needed if we are to bring an end to Aboriginal disadvantage. But Aboriginal people must be given the means to take leadership, and that necessitates Aboriginal structures of governance.

When the present Government came to office, they argued that Aboriginal interests had won too many concessions, and that they would ‘swing the pendulum back’. Bringing Them Home challenged this view, which may explain the Government’s lukewarm attitude towards it. Now their lawyers are arguing, in the Gunner-Cubillo court case, that the Government’s action in removing Aboriginal children was benign. Those who were removed fundamentally disagree.

This issue is crucial to relations between Indigenous and non-Indigenous Australians. Reconciliation is the only alternative is growing frustration, anger and conflict. But it is only achievable if both sides can reach agreement on the truth of past events, and on measures to overcome the continuing adverse consequences of those events.

At present the Government acts as if it can dictate the terms of reconciliation. A humbler attitude is needed, which recognises that reconciliation can only be achieved through genuine negotiation. Other countries have done this, and have reached a large measure of agreement.

The National Sorry Day Committee therefore proposes that the Government establish a new statutory body, which might be called the Aboriginal and Torres Strait Islander Mediation Commission. This body would listen to the grievances of Indigenous people, and would be empowered to negotiate settlements with groups and individuals across the country.

 

DETAIL OF SUBMISSION

  1. The inadequate and counterproductive response of the Federal Government
  1. Failure to acknowledge the history

    2. The removal of children over several generations has left much of the Indigenous community with distrust, fear and anger towards the dominant society. The Federal Government has not adequately acknowledged this history, nor the trauma which it has caused to successive generations, and the continuing effects on the families of those who were removed.

    This refusal to hear and acknowledge the pain, copiously documented in the Bringing Them Home report, has had an extremely negative effect on the people who were removed from their families. The refusal of the Government to apologise to them, and to the Indigenous community as a whole, symbolizes the refusal to acknowledge the history. This refusal is a denial of the pain they have endured, and a denial of the integrity of the people who have revealed that pain.

    When the Prime Minister responded to the plight of the dismissed National Textile workers in February, he said that their suffering was an unintended side effect of the policy of lowering tariffs, and he felt sorry for them. Why is it so difficult to acknowledge as wholeheartedly the unintended effects of government policies on Aboriginal people?

  2. Inadequate Government funding allocation

In proportion to the size of the disaster created by the removal policies, the Government’s response has been inadequate. Canada has half a million Indigenous people. Its Government allocated $350 million for reparations to their Indigenous people who had been forcibly removed from their families. In comparison, the Australian Government’s allocation of $63 million over four years appears miserly.

(c) Partial implementation of recommendations

There has been little sense of urgency in ensuring that the $63 million has reached the people it was intended to help. It was allocated by the Government on 23 December, 1997, to partially implement seven of the 54 recommendations. ATSIC was required to provide $9 million of this from its own budget for language and cultural centres. (Recommendation 12).

  • The $11.6 million allocated to Link-Ups was delayed for over a year because the Government demanded a review of Link-Up procedures, carried out by KPMG. Their first review was so inadequate that it had to be entirely redone. The Link-Up organisations now have improved equipment, and some have more staff. But their staffing levels are still far from coping with the thousands of people seeking their services.
  • $33.25 Million went to the Commonwealth Department of Health and Family Services to increase counselling services to people who had been removed, and research, support and parenting programmes. However, our investigations suggest that much of this is being used in general Indigenous mental health programmes, rather than for the specific task for which it was allocated.
  • Two year later, action to apply $5.4 million over 4 years for indigenous parenting and family well-being programs is still in the preliminary stage of fact finding and service mapping.

The Human Rights and Equal Opportunities Commission’s Social Justice Report for 1998 considers that only a quarter of the recommendations have been implemented, many of them only partially. We have little evidence that the situation has improved since then. There are no measures to deal with reparations as outlined in recommendation 3 and 14 - 20. There has been no apology from the Federal Parliament (recommendation 5), and apologies passed in the Senate have been over-ruled by the Government in the Lower House. There has been no action to implement the Genocide Convention, recommendation10.

State Governments have, on the whole, been more positive. For instance, the NSW Department of Community Services has compiled a large reference book on how former inmates of NSW institutions which catered for removed children can access the records of those institutions.

But recommended changes in the juvenile justice system have been largely ignored. Indeed some Territory and State Governments have continued to promulgate laws which run counter to the strong recommendations of the report in the area of juvenile justice. We must stress the relevance of the mandatory sentencing laws of WA and the NT to the stolen generations. The Royal Commission into Aboriginal Deaths in Custody found that of the 99 deaths it investigated, 43 were of people who had been separated from their families as children. This was crucial to the decision to set up the National Inquiry into the removal of Aboriginal and Torres Strait Islander children from their families. Bringing Them Home’s recommendations are fundamentally opposed to mandatory sentencing, in particular Recommendation 46a and b, 48 and 53b.

(d) No consistent monitoring of implementation

The main problems has been the lack of central co-ordination in implementing the report. The Ministerial Council of Aboriginal and Torres Strait Islander Affairs (MCATSIA) agreed on 15 August 1997 to set up a standing committee to monitor the implementation process, in partial response to Recommendation 2(a). That standing committee met a year later on 29 July 1998 and agreed that Victoria would coordinate responses from the States and Territories. A further meeting is not expected until mid-2000. And this standing committee is not mandated to evaluate progress, only to report on implementation measures.

  1. The Government response to Bringing Them Home’s proposals on reparations

The Government’s refusal to set up a reparations tribunal has meant that the courts offer the only avenue through which those who were removed can seek recognition of, and redress for, the harm done. Those who have chosen this path have found that the Government is prepared to spend, seemingly limitlessly, to deny them recognition and redress. Their lawyers argue, in the Gunner-Cubillo case, that the removal policies were motivated by welfare considerations. We agree that there were cases in which children were removed for welfare reasons. Often this was because the social fabric had been so damaged by dispossession and dispersal that those children were deprived.

But when a mass of evidence suggests that the motives for the policy were often more dubious, and its implementation often caused horrific trauma, the Government’s approach is short-sighted. Healing will only come from a genuine attempt to reach the truth. Yet in choosing to defend past policy in court, the Government is forcing vulnerable people to expose deeply traumatic events to an adversarial system in which many of the participants are more concerned with victory than with the truth. This has shamed the nation because it suggests that Australians are more concerned with denying reparations than with attempting to heal the harm done. And the sledge-hammer tactics of the Government’s principal barrister have done nothing to allay this suspicion.

The tragedy is that the court scenario could well have been avoided. We are convinced that, had the Government responded with greater understanding to the story which the report revealed, many who have turned to the courts would not have done so, and the $10 million spent so far on the Gunner-Cubillo case could have been used to heal and unite, rather than divide and anger. Three years ago the churches urged the Government to establish a National Compensation Fund and offered to contribute. The Government did not respond.

RECOMMENDATIONS

  1. The establishment of a Mediation Commission

    2. The National Sorry Day Committee wishes to offer a better approach. Could we, as a society, set ourselves to answer the just grievances of Indigenous Australians in this generation?

    Many grievances concern land, and the Mabo judgement has at least established a basis on which those can be answered. With improvements to the Native Title Act, and a greater readiness on the part of the wider community to recognise Indigenous rights, many of these grievances could be answered in the coming decade.

    But many Aboriginal people cannot claim land and, in recognition of this, the Government established the Aboriginal Land Fund. We propose that the Government extend this approach by entering into a bi-partisan agreement to establish what might be called the Aboriginal and Torres Strait Islander Mediation Commission.

    This statutory body would have authority to hear the grievances of the Indigenous people, and to negotiate settlements with groups and individuals across the country. Its Commissioners would be a small group of nationally-respected people, both Indigenous and non-Indigenous. Their decisions would be binding unless overturned by a vote of the Parliament.

    This is the approach which the New Zealand Government decided upon in 1990, and their experience during the past decade is that overwhelmingly the Maori people wish to resolve their grievances, rather than pass them on to their children. Agreement has been reached on over half of New Zealand’s land area and the process is expected to be completed within four or five years.

    Their experience, and that of South Africa’s Truth and Reconciliation Commission, suggest that the settlements would be diverse in character. The Mediation Commission would need to be empowered to negotiate many different forms of compensation. Some will want to return to their land and people, and will need financial help such as a deposit on a house. Some will want a monument or other means of commemorating the suffering of their people. Some will want help in negotiating access or ownership of sites of significance. Some will seek more effective ways to meet the educational and health needs of their communities.

    There are already mechanisms in place to meet some such settlements – such as the Aboriginal Land Fund – and in these cases the Commission’s role would be to liaise with the relevant institution and ensure a satisfactory outcome. But other types of settlement will need the authority of the Commission for their implementation.

    We have yet to see whether the Government will implement a structure to co-ordinate the implementation of the Council for Aboriginal Reconciliation’s national strategies for reconciliation. The strategies include a renewed commitment to implementing the recommendations of Bringing Them Home and the Royal Commission into Aboriginal Deaths in Custody. They are crucial to answering Indigenous grievances, and the Mediation Commission could take responsibility for monitoring and evaluating their implementation.

    We believe such an approach would achieve a great deal, as long as 1) there were a commitment from both sides of parliament to negotiate as long as necessary to settle the grievances arising out of our shared history; and 2) the Commission were to be adequately funded. In New Zealand the Government set aside $1 billion for the task.

    If this proposal is considered too ambitious, a Commission could be established with the specific task of mediating on reparations to those removed from their families. Should this prove effective, the larger concept could then be initiated.

    The recent Newspoll found that 80% of respondents considered that reconciliation is ‘important’. If the Government presents a clear vision of how to achieve reconciliation, we believe it would gain the support of a substantial majority of Australians. The concept we have outlined offers a path which has been found effective in New Zealand and elsewhere.

  2. Invitation to Sir Douglas Graham

We propose that the Government invite Sir Douglas Graham and one or more Maori leaders to visit Australia. Sir Douglas was the Minister in charge of Treaty of Waitangi Negotiations from 1990 to 1999, as well as New Zealand’s Attorney-General. In August 1999 he outlined his Government’s approach in the attached speech.

3) New focii for education

The NSDC is of the opinion that four focii for education ought to be developed and resourced:

  1. It is standard practice in many European countries that they only publish school history books once the text has been approved by respected historians in those countries with whom they have been in conflict. Thus the French will not publish a school history book until German historians have approved it, and vice versa. We propose that Australian school history books should require approval by respected Aboriginal historians. The States should be encouraged to include an adequate study of Aboriginal history in the agreed national curriculum.
  2. Learning Circles could be much more widely promoted if the funds are available. We hope that Federal and State Governments will commit themselves to funding the continuing reconciliation process.
  3. Special attention needs to be given to the education needs of affected Indigenous people – including access to language, culture and history.
  4. In-service and professional training must become a requirement for all who develop policies and programs for Indigenous people, or who allocate funds and evaluate services for them.

CONCLUSION

Indigenous Australians are not yet persuaded that the wider community cares greatly about them. Despite the acknowledgement by the Prime Minister that the treatment of Indigenous Australians is Australia’s greatest shame, a sense of superiority still lingers in the mainstream, with attempts to deny the harm done. Government leadership can do much towards more just and respectful relationships. The healing we seek will require careful honest listening to Indigenous grievances, and negotiation of mutually acceptable settlements. If we do this, we believe we will see immense improvements in the well-being and harmony of our society, Indigenous and non-Indigenous.

Appendix:

Sir Douglas Graham, Attorney-General and Minister in charge of Treaty of Waitangi Negotiations, New Zealand, August 1999:

The Maori people came to New Zealand a thousand years ago. Two hundred years ago, British settlers started to arrive. The two peoples signed the Treaty of Waitangi, guaranteeing the rights of the Maori under British sovereignty.

However, as the number of settlers increased, their demand for land increased. Maoris grouped together to try and prevent sales. That was deemed to be a rebellion. Troops were imported, wars began, and Maori land was confiscated. Then we established the native land court to break down communal ownership into individual titles and make land sales easier.

By 1900 the Maori people owned only 5% of the land of New Zealand and were dying out, disheartened. They had no way of seeking redress for their grievances.

In 1975, as a result of Maori protests, we established the Waitangi Tribunal to hear the grievances. By 1990 there were 700 claims. At that point we decided that we would attempt to address all the claims. We were not motivated by guilt, because we were not alive when the wrong was done. But we have an obligation to correct the wrong.

It fell to me as Minister to begin. I started with a blank piece of paper. How do you value losses suffered a hundred years ago?

Well, we've tried. In the last 10 years we have settled claims which cover a little over half of New Zealand. Maori people now own more than half the commercial fishing in New Zealand. It has cost the tax-payer about $700 million so far. The tribal groups have invested these funds, and are able to provide their own education scholarships, their own health care in their own way.

The settlements will not be durable unless the negotiations are fair. So they are unusual negotiations. They are not commercial. They are spiritual. We begin each time with the Karakia, a prayer. We sit around the table, not across. There are a lot of tears. The burden is great on the Maori leaders. But they recognise that to pass on the grievance to the next generation would be unhealthy for Maori and for New Zealand.

The settlements have three parts. The first is a formal apology from the Crown, which details what happened; and an apology from the Government on behalf of New Zealanders, which we will deliver in person at the Marae. The second is cultural redress – the return of burial sites, the recognition of interests in rivers and lakes and geothermal power and mountains. We recognise the holistic way that Maori people view those resources and the life force that they see in all of them. Thirdly there is commercial redress, which we hope is enough to get people started again financially.

It has been ten years of hard work. There are moments when you get frustrated and wonder whether it is going to work, and whether you can take the population with you. You have the red necks on one side and the radicals on the other, and you aim for those in between, and say to them, "The vision is there. Your sons, mine, our grandchildren, will live together in greater harmony". You know that you are trying to bring justice for the betterment of New Zealand and hopefully for all humanity.