"Suing governments is brutally hard"

The conservative government led by prime minister John Howard which led Australia from 1996 to 2007 refused to apologise to the Stolen Generations arguing that it feared calls for 'endless' compensation.

Most members of the Stolen Generations will find that a successful pursuit of a civil claim through the courts is technically impossible, or simply too painful. "Suing governments is hard, brutally hard, especially for people who are damaged," says Julian Burnside, a human rights lawyer and activist. ^[2]

For many claimants records might not exist or have been destroyed or lost which makes it very hard, if not impossible, to claim compensation. Witnesses might have passed on. Relevant documents have been, and still are, controlled by governments and institutions. Plaintiffs must also endure 'hostile cross-examination' and intense scrutiny of their private lives and those of their families, including health and social problems that they might have suffered as a result of their removal. ^[3]

In response to the lack of documents changes to the Aboriginal Trust Fund Repayment Scheme in New South Wales also allow oral evidence when considering applications. ^[4]

It'll be just as much a mystery in 20 years' time why the Stolen Generations are not being compensated properly, as it is a mystery now to white people of how the previous generation locked all of those kids up.

— Peter Read, Professor of Aboriginal History, University of Sydney ^[5]

As long as members of the Stolen Generations are denied reparations while governments spend millions of dollars defending Stolen Generations litigation, the injustice continues.

— Robin Banks, Chief Executive Officer, Public Interest Advocacy Centre (PIAC) ^[3]

Not all Aboriginal people are in favour of compensation though.

I'm not into [compensation]. For others, it may acknowledge their loss. But for me, nothing can be done now.

— Lee Willis-Ardler, Aboriginal film-maker ^[6]

Should Aboriginal people be compensated?
—Polls & opinions

The Human Rights and Equal Opportunity Commission's Bringing Them Home report made 54 recommendations. 34 out of these addressed reparations, 11 specifically the issue of monetary compensation.

Many non-Indigenous people seem not to be able to relate to the horror and trauma associated with the experiences of being stolen from one's family, hence the large percentage of nay-sayers in the polls.

Money, it seems, is viewed as something Aboriginal people get plenty of and ask for too much. But if you read about stories of members of the Stolen Generations you'll think differently.

NSW and Victoria in late 2015 announced their support for compensation for the victims of child sexual abuse, following the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse. However, compensation for the Stolen Generations is still not on the agenda.

Aboriginal opinions

[Compensation is] not what everyone wants—we need healing centres across Australia so people can move on and heal their incessant pain.

— Brenda McDonnell, 64, member of the Stolen Generations ^[7]

Those people stolen from their families who feel entitled to compensation will never be able to move on. Blackfellas will get the words, the whitefellas will keep the money.

— Noel Pearson, Aboriginal elder ^[8]

People win cases after being wrongly put in jail and are given compensation, while we've had the same thing for generations.

— Syd Jackson, retired Aboriginal footballer and member of the Stolen Generations ^[9]

Symbolism can be a cop out. It needs to be linked with something very very positive. If the government is ruling out compensation they will have an argument on their hands.

— John Moriarty, Stolen Generations member and former member of the NIC ^[10]

Compensation... is about people having the opportunity for the first time in their lives to buy a home.

— Bin Bakar, Chairman, Kimberley Stolen Generations Aboriginal Corporation ^[11]

Monetary compensation for the Stolen Generations is inevitable and essential to the fair and just resolution of the trauma and damage resulting from the forced removal of children from their families.

— Helen Moran, Indigenous co-chair National Sorry Day Committee ^[12]

For [my father], and many of the older ones that I've talked to, compensation wasn't an issue. But he always wanted someone to acknowledge that what had happened to him was wrong.

— Marion Scrymgour, Deputy Chief Minister of the NT ^[13]

Reparations and compensation is different: This [reparation] is about justice.

— Lyn Austin, Chairperson, Stolen Generations Victoria ^[14]

The fact remains that many Aboriginal people can be and have been traumatised by filling out claim forms because they have to relive terrible past experiences. ^[15]

Non-Aboriginal opinions

They need to prove there is a stolen generation first.

— Paul Gould, newspaper reader ^[16]

[The apology is] just another easy way for [Aboriginal people] to continue getting easy money. God help Australia now.

— Kerryn Robinson, newspaper reader ^[16]

Five months after Kevin Rudd's historic apology (and seven months after his election) a Senate committee rejected a suggestion of compensation of Australia's Stolen Generations, instead recommending a National Indigenous Healing Fund. ^[17]

A legal perspective on compensation

The apology to the Stolen Generations did not admit any act of illegality or negligence. Hence the apology does not expose any liability, say senior lawyers. ^[18]

In their removal being a lawful act at the time it happened, Aboriginal people would have to sue today's governments for compensation. Courts would only award compensation if Aboriginal people "could prove their removal was unlawful or tainted by negligence".

Bruce Trevorrow's claim for compensation in 2007 (see below) was successful because he could supply this evidence with the help of records he had found.

But even if such a case was strong, many claims could still be rejected because they simply come too late. "Statutory limitations" regulate the period within which claims for compensation must be lodged. They vary from state to state. Victoria, for example, has a three year period.

Millions for migrants, nothing for Stolen children

Getting compensation is hard, so much so that we remember the few occasions when it was offered to us without hesitation. Getting compensation as a member of the Stolen Generations in Australia seems to be extremely hard, close to impossible.

It seems governments are fighting toes and nails not to compensate Aboriginal survivors.

The refusal of Australian governments to compensate Stolen Generations survivors is frustrating at best and racist at worst.

Hundreds of British children were sent to the Fairbridge Farm School at Molong, 300 kms west of Sydney near Orange. They suffered similar abuse as the children of the Stolen Generations. But while the Fairbridge victims have been paid a record $24-million provisional compensation payment, the largest to victims of institutional abuse in Australia's legal history, ^[19] such a compensation is not extended to the Stolen Generations.

The similarities of both cases are compelling:

State governments offering compensation

Almost all states have offered compensation to their members of the Stolen Generations: Tasmania in 2006, Western Australia in 2007, Queensland in 2012, South Australia in 2015, New South Wales in 2017 and ACT/NT in 2021. Only Victoria is yet to catch up.

Often, brave Aboriginal people took their governments to court to get justice. Some were successful. But not without fighting on both sides.

Tasmania: First state to compensate Aboriginal people

Australia's Labour government which took office in 2007 apologised but also refused to compensate members of the Stolen Generations, anticipating large compensation claims. But in a courageous move, the state of Tasmania has made history.

For more than 20 years members of the Stolen Generations in Tasmania campaigned for recognition of their rights. First they demanded an apology, which was given in 1997, then compensation. ^[22]

In October 2006 the then Tasmanian Premier Paul Lennon released a $5 million funding package as part of his reconciliation efforts, making Tasmania the first state to compensate members of the Stolen Generations. He wanted to recognise "that in Tasmania's history Aboriginal people were dispossessed from their land, severed from their culture and taken from their families".

Under the Stolen Generation of Aboriginal Children Act 2006 compensation was distributed between living members of the Stolen Generations but also the children of those who had died. 106 Aboriginal people qualified for one-off compensation, 45 cases were rejected. ^[23] To qualify applicants had to be Aboriginal and been removed from their families between 1935 and 1975 for at least 12 months.

Many other Australian state governments shrink from apologising to or compensating Aboriginal people for fear of multi-million dollar payments.

Financial compensation doesn't fix things, it's a way of saying sorry.

— Michelle O'Byrne, State Community Development Minister, Tasmania ^[24]

South Australia: Suing paved the way for compensation scheme

The following story is a good example of both the suffering and the struggle for compensation of survivors of the Stolen Generations.

Ngarrindjeri man Bruce Trevorrow was 13 months old when he was sent to hospital with a stomach ache. The hospital falsely recorded that he had no parents and was 'neglected and malnourished', reason enough for authorities not to return him to his family. A decade would pass before Bruce was able to see his loved ones again. ^[25]

In June 1998 Mr Trevorrow sued the South Australian government for pain and suffering. During the trial it was established that Bruce

• lost his cultural identity,
• suffered depression and subsequently became an alcoholic and heavy smoker,
• was never told his mother tried to see him but was not allowed to,
• suffered from emotional problems which put him in and out of institutions, including jail,
• is chronically insecure.

The court was 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'. The court found that this had 'ruptured the bond' between Bruce and his family to a degree that he could not overcome the difficulties he encountered, contrary to his siblings who were not taken away and were able to "achieve their potential throughout life". ^[26]

I have reached the conclusion that the plaintiff has, thus far, generally had a miserable life.

— Justice Thomas Gray about Bruce Trevorrow

On August 1st 2007, 50-year-old Bruce Trevorrow was awarded $525,000 which made him the first member of the Stolen Generations to be awarded compensation by a court.

The ruling was facilitated by enough evidence found in records which backed Bruce Trevorrow's claims. Many other members of the Stolen Generations cannot access records because they were destroyed or lost.

The SA government did not contest the ruling as such and initially considered establishing a compensation fund for the Stolen Generations, similar to the one created by the Tasmanian government in 2006. ^[24]

However, in February 2008 the SA government appealed the decision because it set an "important precedent" and the government wanted to get clarity on future liabilities, ^[27] one of the reasons being that governments still take away children from their parents if these are abusive, drug-addicted, alcoholic or criminals. The government lost their appeal in March 2010.

A lot of people have said we made up our stories but the court case proved it was wrong, they done wrong.

— Bruce Trevorrow ^[27]

Sadly, on 20 June 2008, Bruce Trevorrow passed away aged 51 after a long illness. ^[28] Despite his compensation he continued to feel the impact of "dislocation from his family origin, incomplete cultural identity and the many injustices he experienced", said his family. ^[29]

SA government establishes compensation fund

Eight years after Bruce Trevorrow's case, in November 2015, the South Australian government finally announced an $11 million reparation fund, making it the second state government to create such a scheme after Tasmania.

What had changed their minds was a parliamentary committee report in 2013 that found a reparation fund would be cheaper for the government than fighting legal claims and meant victims could avoid court.

An estimated 300 members of the Stolen Generations will be eligible for payments of up to $50,000 under the scheme. ^[30]

However, only around $6 million of the $11 million scheme will be distributed as ex gratia payments to claimants, the remaining $5 million are be used for indirect reparations, such as memorials, counselling and support programs, scholarships and exhibitions telling the stories of the Stolen Generations. ^[30]

New South Wales: Compensation scheme opened in 2017

Members of the Stolen Generations can apply for $75,000 compensation from 1 July 2017 until 30 June 2022. The $73 million package also includes a grant-based Stolen Generations healing fund of $5m over 10 years, which will be used to support healing centres, memorials and keeping places, and a separate fund to help fund the funerals of Stolen Generations members.

It is estimated that about 700, but possibly as many as 1,300, survivors were alive in NSW in 2017. ^[31]

Victoria: Compensation found out of court

In June 2011 Neville Austin became the first victim of the Stolen Generations in Victoria to gain compensation. ^[32]

Mr Austin became a ward of the state because his mother fell behind in payments for the St Gabriel's Babies Home where he had been put when his mother gave him up because she could not properly look after him.

During the following 12 years Mr Austin lived in several foster families, growing up without knowing who he was. "I didn't know I was Aboriginal for a long while," he said. "I thought I was Maltese or Italian. I lived the identity I was told to be.". ^[32]

I lived the identity I was told to be.

— Neville Austin, member of the Stolen Generations ^[32]

Mr Austin sought compensation for pain and suffering caused by the state's breach of duty. His mother had tried for 8 years to find out how her son was, and none of her letters were passed on to him. Meeting his mother as a 13-year-old traumatised Mr Austin considerably.

Now proud of being a Koori Aboriginal man he can start his journey of healing.

Mr Austin's case was settled out of court and the amount of money was not disclosed. It carries no weight as a legal precedent.

Western Australia: Redress Scheme open for Stolen Generations

In 2007 the Western Australian government set up the Redress Scheme, offering compensation for the "Forgotten Australians" which included members of the Stolen Generations. The scheme was open for applications from May 2008 to April 2009.

Redress WA had a total budget of $114 million, $90.2 million of which was set aside for ex-gratia payments. Initially the government offered a maximum of $80,000, but due to a "large number of [severe] claims" lowered that amount in late 2009 to $45,000 ^[33].

However, to qualify for this amount a person must have suffered "very severe abuse and/or neglect with ongoing symptoms and disability". ^[34]

Over 10,000 people in Western Australia registered with Redress WA by the time the scheme closed on April 30, 2009. Almost half of them were members of the Stolen Generations. ^[35]

However, many refused to lodge a claim because they didn't want to go through all the suffering and pain again for "menial" returns. For them, it's not about the money.

Queensland

The Queensland government established a $100 million Redress Scheme in 2012 to provide redress for past mistreatment of children in state care, which included members of the Stolen Generations. ^[36] The scheme provides payments payments ranging from $7,000 to $40,000 to people who experienced abuse or neglect as children in a detention centre or licensed institution in Queensland.

You could trip over a pavement in the street and be paid more in compensation than what they're offering under Redress.

— Dale Jamieson, member of the Stolen Generations ^[35]

Northern Territory & ACT

In August 2021, two decades after the Bringing Them Home Report and after the federal government reversed its opposition to a compensation scheme, the Northern Territory and Australian Capital Territory announced that survivors of the Stolen Generations in their territories will get up to $75,000 each, starting in March the following year. ^[37]

For the territories, the Commonwealth is responsible for paying compensation because the Stolen Generations primarily occurred before those jurisdictions were granted self-government.

The offer also includes a chance for survivors to tell their story to government officials and receive an apology.