Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Hansard source

Today’s apology is an acknowledgement of guilt which will have far-reaching implications for current and future generations, both in Australia and internationally. It stems from the 1997 Bringing them home report, which found that nationally Indigenous children were forcibly removed from their families and communities between 1910 and 1970 to be placed in institutions, church missions and adopted or fostered where they were potentially at risk; ‘that welfare officials failed in their duty to protect Indigenous wards from abuse’; that under international law, from approximately 1946, the policies of forcible removal amounted to genocide; and that from 1950 the continuation of distinct laws for Indigenous children was racially discriminatory.

A key recommendation was that reparation include: an acknowledgement of responsibility and an apology from all Australian parliaments, police forces, churches and other non-government agencies which implemented the policies of forcible removal; guarantees against repetition; restitution and rehabilitation; and, most importantly, monetary compensation.

On 26 August 1999, then Prime Minister Howard moved a motion of reconciliation which reaffirmed commitment to the cause of reconciliation while acknowledging past mistreatment and expressing deep and sincere regret that Indigenous Australians suffered injustices under the practices of past generations. Given the divergence of views in Australia, that motion struck a fair balance. A motion in similar terms went before the Senate.

The primary justification for an apology is inextricably linked to the notion that a policy of genocide was deliberately instituted against our Indigenous community. As coalition senators noted in their dissenting report at the inquiry into the stolen generation, many Australians would not agree that there are direct parallels between the separated children experience and the sort of gross violations of human rights found elsewhere in the world, such as torture, genocide, slavery and executions.

The apology follows an acknowledgement that children were removed forcibly. This critically satisfies those international conventions that a policy of genocide was enforced against our Indigenous population. Therefore, an apology will support a tide of claims for compensation reinforced by an acceptance that human rights were breached. A flurry of legal activity will be driven by the principle—stated in the report—that states breach their obligations when they fail to prevent human rights violations by others, as well as when human rights are violated by state action. In either event, the victims have a right to reparation under international conventions such as the Universal Declaration of Human Rights.

Let us understand the extent of potential claims. Recommendation 4 requires reparation be made not only to the individuals but also to others whose ties with them were affected by the removal, such as family members, descendants and their communities. The Senate inquiry into the implementation of the report also advocated a reparation tribunal—a powerful precursor of what is likely to materialise.

The advocacy for compensation remains strong and is driven by a diversity of stakeholders who say that a symbolic apology without compensation is meaningless. In recent memory our nation has sought to expunge our psyche with notions of political correctness and divisive policies designed to overwhelm us with symbolism but which fail to deliver tangible and practical solutions to complicated challenges. Any objections to an apology in no way negate the tremendous need to support our Indigenous population. The disparity in their living standards and in their mortality rates is cause for great concern. Many remain destitute in a lifestyle surrounded by violence, addiction, poor health and low levels of education—a situation I saw when I was growing up one block away from an Aboriginal community in the Illawarra.

These challenges can only be addressed through practical responses such as the Northern Territory intervention. My concerns about the motion are: first, it exposes the taxpayer to potential ambit claims of compensation, including under international law; second, it solidifies an acknowledgement that a policy of genocide was deliberately instituted against our Indigenous population; third, it leaves an indelible mark on our history by supporting the notion that Aboriginal children were ‘stolen’, thus imputing some criminal intent on the actions of good men and women whose actions were motivated by rescuing or saving children from appalling conditions; fourth, it tarnishes our nation’s reputation and imputes guilt to the current generation for alleged transgressions over past policies and practices; and, fifth, it creates an environment whereby generations of students will be inculcated, through a curriculum, that Australia once adopted a practice of violation of human rights of Indigenous people.

Remember that some very good men and women from churches and other organisations acted legally and with the best of intentions to remove children from appalling conditions where they had been abandoned, abused or neglected. Many of those children went on to make important and varied contributions. What about the children and grandchildren of these good men and women? How are we making them feel?

Whilst many Australians may regret any injustices suffered under past practices, they do not believe that this constituted ‘stealing’ for which this generation should say sorry. A vocal coterie of interests has effectively created a pressure-cooker environment designed to stymie debate over an emotive issue stoked against our collective national interest. As Professor Windschuttle recently said, one thing, though, that this coterie has kept to itself is that the major pieces of legislation underlying these past practices were all passed by Labor governments.

As a lawyer with the Australian Government Solicitor for 15 of my 20 years in public sector employment, I saw instances of collective activism egged on by unscrupulous lawyers who had no hesitation in encouraging plaintiffs to pursue spurious claims against the Commonwealth, knowing that, at the very least, go-away money, together with their costs, would be paid. Naturally, prospective plaintiffs may have legitimate common-law rights to sue—such as Mr Trevorrow, who was awarded $525,000 for breach of duty of care by the South Australian government. Such legitimate legal rights of course continue to exist.

Should we go back into our history and consider reparation for other alleged injustices committed, however well intentioned or well founded? What about the many white children removed from appalling conditions for the same reasons of being abandoned, abused or neglected? Are they entitled to compensation for forced removal? What about those law-abiding migrants who suffered when interned during the war for no other reason than their nationality? Should they be compensated? Will we see emerging other groups who may legitimately argue that they too should be compensated for an alleged injustice? Should we now find these aggrieved people? Where do you draw the line?

More importantly, as Andrew Bolt recently stated in the Herald Sun, will the fear of liability for reparation mean that the welfare officials of today will be too scared to remove Indigenous children from dangers from which, ordinarily, children of any other race would be saved? On the other hand, will we see future claims for reparations because today, with the best of intentions, Indigenous children are being removed from circumstances of sexual abuse and neglect and other atrocious instances?

It is incumbent on us to remain true to our convictions and maintain the cohesiveness of our nation by enacting initiatives designed to benefit all Australians.

The motion omits compensation and reparation. It is illusory to think that an apology in itself will be sufficient. Many will want compensation, and, given the number of potential claimants, I believe reparations will run into billions of dollars. Rest assured that, in the future, we will be called upon to consider compensation legislation. Calls for compensation by key figures in the debate are only the beginning of a sustained campaign.

Some claim today’s motion provides finality and closure, but many believe it is the beginning of the next phase, in which this generation and future generations will be made financially responsible for past and, potentially, current actions towards Indigenous Australians. There are very diverse views held by Indigenous and non-Indigenous Australians on an apology, ranging from strong support to outright opposition. I know that my concerns and reservations are shared by many Australians. For this reason, I left the chamber when the motion was carried on the voices, thereby abstaining from the vote.