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.

On Facebook, Australia Day and the eternal question, "Why should I be sorry for something I didn't do?"

Like 1.7 million Australians, I spend a lot of time on Facebook.

Originally, I signed up to stay in touch with family and friends after I moved interstate, but was quickly sucked in by the strange appeal of its mindless voyerism. Yes sirree, I became a certified addict within days of joining. I did it all, from reconnecting with old kindy friends to joining important social causes like "I wish yum cha trolleys would circulate through my workplace" and everything else that's only fun because you're supposed to be doing something else.

But beyond the self-important profiles, trashy applications and other procrastination aids, Facebook has a serious side. The site hosts hundreds of thousands of interest groups -- spaces where users can create groups dedicated to discussing any issue of their choosing and recruiting members to join in the dialogue.

With a potential Australian audience of 1.7 million and growing, and 62 million worldwide, Facebook groups can do big things in terms of mobilising public interest and support for causes. Most major advocacy and social justice organisations have jumped on the virtual bandwagon. Think people power, Gen Y style.

So, being interested in Indigenous affairs, and with the apology tipped to be delivered within the next few weeks, I decided to search to see if anyone had started any apology-related groups.

And lo and behold, they had. But the results were mixed. Although there are groups like "One Million Australians Feel Sorry" with memberships around the 17,000 mark, there are also numerous groups popping up with names like "NO I'M NOT BLOODY SORRY AND HAVE NO ONE TO BE RECONCILED WITH", "I don't have anything to feel sorry about" and "NO to sorry, YES to the real road to reconciliation".


Shortly after, I went on to read the results of an issues survey by the Herald Sun, claiming that two thirds of Victorians surveyed opposed Kevin Rudd's plan to apologise. Respondents made comments along the lines of "That's past history" and "It's not just Aborigines that had that situation, as in taken away from their parents. A lot of English were taken away from their parents in England and brought here."

Then we had yesterday's Australia Day celebrations. I think this headline from newslimited's website summed up the sentiment of the day pretty well.

PM's address puts focus on race relations

-- Skywriter scrawls 'sorry' across Bondi sky
-- Rudd shines spotlight on race relations
-- More than 3000 attend cockroach race

All of this confirmed a suspicion I'd been harbouring in the back of my mind for quite some time. It seems that many Australians oppose, or are disinterested in, the apology because of what I believe is a misunderstanding about its nature, meaning and effect.

It seems that most people who oppose an apology do so because they believe things like:

- it will force individual Australians to apologise for something they didn't do.

- the current government is not responsible for the actions of past governments, particularly when those previous governments thought that they were acting in Indigenous people's best interests.

- it means that Australians have to feel guilty about their past and cannot feel proud of it.

- it is merely symbolic and will do nothing to solve contemporary problems.

- apologising will make governments and people afraid of intervening in abuse, neglect or other welfare cases relating to Indigenous children because they will be accused of creating another stolen generation.

- Saying "sorry" will expose the government to expensive compensation claims.


Some other people hold slightly more extreme views like:

- Many Indigenous people are using the apology issue as a scapegoat for their own problems, and need to move on and take responsibility for their own life choices and situations like everyone else has to, rather than expecting special treatment.

- There were not any "stolen generations" because there is no conclusive evidence, like comprehensive lists of names of children removed on the grounds of race alone.

- Most Indigenous people removed from their families as children were removed on welfare grounds and were given better lives, with more opportunities.

But rather than making a novel out of this post, I'll offer a response to each of these arguments in separate posts.

Right after I get home from the opera :)

brb.

Thanks for joining me on the Road to Sorry

It's been a long time coming, but the Rudd government has promised to apologise to the stolen generations – in other words those Aboriginal and Torres Strait Islander people who were forcibly removed from their families as children, between the mid 1800s-1970.

The PM says the government’s keen to make the apology early in the piece. Update: On 30 January, Indigenous Affairs Minister Jenny Macklin announced 13 Feb as the date. The apology will be made in Parliament, with significant Indigenous participation, including a welcome to country ceremony in the Members Hall by Ngunnawal Elder Matilda House.

So with that in mind, the idea behind this blog is to create some space where everyone - no matter what side of the fence you're sitting on - can come and have a yarn about this important issue, and maybe discover a little more about what saying sorry is all about.

This blog isn't about trying to convert people to a particular way of thinking. There are a wide range of opinions in the Indigenous and non-Indigenous community about the apology, and I think that's a wonderful thing! My philosophy is simply that it's important we all understand the background and meaning of the apology, and come to our own informed conclusions about whether or not it will create a better future for all of us.

Sadly, in my travels around the www, I have noticed an increasing amount of misinformation out there, so over the next few weeks I'll be posting a bit about some the key facts (and myths) of the apology, as well as some links to helpful information. I'd love to hear your thoughts, so please have your say in the comments section of each post.

In the meantime, be sure to check out the new "Sorry" materials on Reconciliation Australia's interactive website, "Reconcile - It's All Our Story". I've found the FAQs there really helpful. The addy is: http://www.reconcile.org.au/getsmart/pages/sorry.php

Finally, reconciliation is about all of us - so please join the conversation and invite your friends, colleagues and perhaps even your enemies too! Feel free to post links on your Facebook or Myspace profiles.

Thanks for stopping by. Hope to see you round!

Christina