It's about more than money

Another key misconception about the apology is that it will lead to massive compensation claims against the government. Comments by members of the community to the effect of "it's all about the money" and labels like "the Stolen Generations Industry" are, sadly, very common.

So why don't I think an apology will open the floodgates?

I can think of four good reasons:

(1) The apology is about admitting moral, as distinct from legal, responsibility

In 1997, the High Court held that previous child removal laws in the Northern Territory were constitutional in Kruger v the Commonwealth. This means that the government had the legal power to pass those laws. In apologising, the government is simply saying it was morally wrong to exercise that legal power. There is no question, however, that it was not acting illegally in doing so.

The South Australian Supreme Court decision of Trevorrow suggests that stolen generation members would have to prove at least one of two things. They would have to show that their removal from their families or placement into State care was illegal, for example the government did not follow its own established laws or policies. Alternatively, they would have to prove that their removal or placement was negligent, such as where a child was placed into an abusive environment.

This means that anyone who wants to bring a court case seeking compensation for their wrongful removal as children must have existing legal rights. These rights are totally separate to any government apology. In this sense, a “stolen generations” claim would be no different to any other case that comes before the courts.


(2) The Commonwealth was never directly responsible for a centrally administered child-removal policy

The federal government never ran a national child removal policy. Instead, each of the States had their own laws and programs. The only exception was in the Northern Territory, where the federal government had responsibility for passing child removal laws due to constitutional reasons.

However, the federal government endorsed assimilation as the official national objective in Indigenous affairs at the Commonwealth/State Conferences on Native Welfare in 1937 and 1951. In this sense, it helped to set the policy environment in which child removals occurred, but it did not directly participate in the removal of Indigenous children in each of the States

This means that, in most cases, State governments or private care providers such as churches or religious orders would be the appropriate defendants, not the Commonwealth.


(3) An apology made in parliament is protected by parliamentary privilege

As the Senate Legal and Constitutional Affairs Committee observed in its "stolen generations" inquiry, Healing: a Legacy of Generations, all statements made within the parliament are protected by parlimentary privilege. Section 16(3) of the Parliamentary Privileges Act 1987 (Cth) explaims that:

In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

As the Federal Court has acknowledged in Hamsher and Ors v Minister for Immigration, Local Government and Ethnic Affairs, this provision is "expressed in terms of an absolute prohibition" which "cannot be waived in the absence of objection".


(4) The experience of the States and the Territories suggests otherwise

All of the State and Territory governments, along with other non-government organisations involved in the removal of children, have apologised. Interestingly, there has only been one successful court case since then, being the 2007 Trevorrow decision in the South Australian Supreme Court, in which the claimant was awarded $525K.

All of this tends to suggest that floodgates type arguments are based on a fear that is more hypothetical than real.

back like a virus ... disputing the "personal responsibility" argument

After a brief hiatus - due, in part, to another blogger's return during the week - I was pleasantly surprised to see that my ramblings here were picked up in Crikey's "Blogwatch - Sorry Edition" feature yesterday.

Figuring that was probably a good sign to stop neglecting my own patch of cyberspace, I thought I'd get back into the swing of things today and go through some of those common misunderstandings about "sorry" I talked about last time.

Up first, the personal responsibility argument.

Former PM John Howard was the major proponent of this view, so I'll let him explain in his own words ...

I have frequently said, and I will say it again today, that present generations of Australians cannot be held accountable, and we should not seek to hold them accountable, for the errors and misdeeds of earlier generations.

***
The Australian people do not want to embroil themselves in an exercise of shame and guilt. The Australian people know that mistakes were made in the past. The Australian people know that injustices occurred. The Australian people know that wrongs were committed. But for the overwhelming majority of the current generations of Australians, there was no personal involvement of them or of their parents. To say to them that they are personally responsible and that they should feel a sense of shame about those events is to visit upon them an unreasonable penalty and an injustice ...

So, it seems that Howard's conception of "sorry" boiled down to individual shame and guilt, rather than pride, in the past and inter-generational or "inherited" blame.

Viewed on these terms, an apology sounds highly undesirable. But is that what it's really about?

Not according to the recommendations in Bringing Them Home. Recommendation 5a(1)specifically urged all Australian parliaments to "officially acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal".

The reference to "parliaments" implies two things:

1. The apology is by parliament, as distinct from the Australian people, in recognition of its predecessors' wrongdoings

No one is asking individual Australians to accept guilt, shame or responsibility for the actions of previous generations. Rather, the apology is about the parliament accepting responsibility for the (morally) wrongful actions of past parliaments and governments. In short, this is about parliaments saying sorry for previous parliaments.

As some people have quite correctly observed, the parliament is obviously elected to represent the Australian people. However, representative democracy is not the sole function of parliament, and does not automatically mean that the parliament is apologising in the name of the Australian people.

Instead, the basis of the apology is the concept of continuing responsible government. That is, the notion that the government must hold itself accountable to the Australian public.

When seen in this light, the apology is simply about the government coming clean" or holding itself accountable to the people through parliament, for the racially motivated child removal policies of its predecessors, which it views as morally wrong and therefore requiring acknowledgment and acceptance of responsibility.

Of course, it would make sense that, if individual Australians want to take pride in their past, it would be logical to acknowledge that there were also some negative chapters, and to feel regret and empathy. However, a government apology does not force anyone to do so.

2. Parliament, as distinct from the Australian people, is capable of inheriting responsibility for the actions of its predecessors.

Although there are compelling arguments against "inherited guilt" in the case of individual people, institutions are different.

Unlike individuals, the institution of government does not die with individual members. So in this sense, it does not matter who is in power on the day. It is what the institution - the body politic - stands for.

This means that the government can apologise for the actions of previous governments, even if those previous governments. Although it is true that those governments considered themselves to be acting in the best interests of Indigenous people, the point is that the present government, with the benefit of hindsight, is entitled to acknowledge that the laws did not, in fact, have that effect.

So, we can see that an apology, as recommended by the Bringing Them Home Inquiry, was never about individual guilt. It would seem that the latter narrative was constructed by the government.

As the Senate Legal and Constitutional Affairs Committee commented in its review of the government's responses to the implementation of Bringing Them Home's recommendations:

[T]he Commonwealth Government appears to have changed the nature of the argument from one of governments accepting responsibility for the outcome of past policies and practices, by suggesting that Bringing Them Home requested a personal or ‘generational’ responsibility in which individual Australians should feel guilty.