Redress for Stolen-Generations victims in the state of Victoria, Australia

In March 2020, the Victorian Government in Australia announced its intent to set up a redress scheme for Stolen-Generation victims. In this blog post, James Rischbieth, PhD Researcher at the Leuven Institute of Criminology, assesses the proposed Scheme from a transitional justice perspective. Analysis will focus primarily on its relationship with TJ principles and on comparisons with analogous efforts to provide material redress to Stolen-Generations victims in Australia.

In March 2020, the Victorian Government (VicGov) announced its intention to invest AUD$10-million in a redress scheme for Stolen-Generations victims and their families. Victoria follows Tasmania, South Australia (SA) and New South Wales (NSW) as the fourth Australian jurisdiction to implement a reparations scheme specifically aimed at providing material redress for Stolen-Generations victims. While Western Australia and Queensland have provided compensation to such victims, these responses were not specific to the Stolen-Generations, but to child abuse in state care.

The term, ‘Stolen-Generations’, is a ‘catch-all’; referring to the victims, events and government-mandated policies (Federal, State and Territory), involved in the systematic forcible removal of indigenous children from their families and communities from the 1800s to the 1980s. It is not within the scope of this blog post to describe the intricacies of the Stolen-Generations; it suffices to affirm that direct and indirect victims (including stolen children, their families, communities and descendants) have suffered severe harms and traumas due to grave violations of human rights and dignity.

Why is transitional justice relevant?

Described as a political crime, a series of gross human rights violations and even Genocide, the Stolen-Generations are highly relevant to the field of TJ. Although TJ was originally concerned with providing for holistic justice approaches in societies undergoing political transition, its scope has expanded. TJ’s core principles are now applied within post-conflict situations and societies recovering from large-scale human rights or humanitarian law abuses and/or state-sponsored political crimes. The latter context is relevant with respect to the Stolen-Generations.

At its simplest, TJ is an approach which seeks holistic justice for past abuses and crimes. It does so by taking local considerations and realities into account; ideally providing a tailored, transformative approach to justice through both judicial and non-judicial measures. TJ is typically described as consisting of four-pillars: criminal procedures (investigations, prosecutions, trials); truth-seeking mechanisms; the provision of access to substantive reparation for victims; and, reform of state institutions. ‘Pillar-Three’ (reparation) is the focus here.

The UN Basic Principles on the Right to Remedy and Reparation set out five forms of reparation. They are: restitution; compensation; rehabilitation; satisfaction; and guarantees of non-repetition. These Basic Principles are confirmed in international, regional and national jurisprudence, by state practice and within the academic literature. The ‘five forms’ are not mutually exclusive, but complementary. In practice, they should be used together to respond to a given situation. All forms of reparations aim at providing either symbolic or material redress (or both) for victims. Reparation must necessarily respond to the needs of victims, whilst simultaneously guaranteeing their rights to effective remedy. Finally, reparation should both promote recognition of the harm suffered and incorporate the taking of responsibility by the wrongdoer.

According to this understanding, the Victorian Scheme should incorporate a complementary assortment of the ‘forms’ of reparation and recognise both the harm suffered by victims and wrongs perpetrated by the Government.

While the remainder of this post will analyse schemes involving material forms of reparation, it is important to clarify that the Federal Parliament and all States and Territories of Australia have: made official apologies to Stolen-Generations victims; proclaimed days and ceremonies of remembrance; funded physical memorials; ensured the preservation of records of the policies and events of the Stolen-Generations; and, provided for programs offering counselling, disability/health support, family tracing and reunion services. Such examples of satisfaction and rehabilitation are delivered as symbolic forms of reparation. The Federal Government has so far failed to provide any form of material reparation.

The Victorian Scheme

The Scheme is a response to years of lobbying by Indigenous Victorians and the raising of the issue of compensation at the inaugural meeting of the First Peoples’ Assembly of Victoria (FPAV). The FPAV’s voice is crucial on the matter; it is an elected voice to Victorian parliament, tasked with representing Indigenous Victorians in Treaty negotiations with the VicGov and in setting up mechanisms for self-determination. The redress scheme is an important step along the pathway to the Treaty, which would be the first of its kind in Australia. The Scheme is also a response, albeit somewhat delayed, to Recommendation-Three of the 1997 Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Bringing Them Home Report). This prescribed that every Australian government should provide all ‘forms’ of reparation to Stolen-Generations victims.

Stolen-Generations victims have responded to the announcement with cautious optimism in the media; indicating that, while the Scheme will play an important role in promoting recognition of the events of the Stolen Generations and symbolic redress for their suffering, it can only offer a ‘bittersweet’ form of incomplete repair, especially given the severe and often irreparable nature of the harms and traumas suffered. Furthermore, victims’ responses have emphasised that it is crucial that indigenous people are involved in the design and implementation of the Scheme and that the program must ensure a holistic approach to reparation, which goes beyond mere compensation.

As public consultations regarding the Scheme’s scope and content are scheduled for late 2020, information about its particulars is limited. There are, however, some aspects of note within publicly available material. VicGov has suggested the Scheme will consider ‘a range of redress options including redress payments, counselling, funeral or memorial funds (and)…funding…towards helping survivors tell their stories.’ While the Scheme’s focus is compensation, other forms of reparation are thus tabled: the provision of counselling represents a form of psychosocial rehabilitation and it is encouraging that memorialisation and truth-telling are forecast as measures of satisfaction.

A study by the Australian Institute of Health and Welfare (AIHW) indicated that 608 Stolen-Generations survivors (aged-50+) were living in Victoria in 2018. An alternative, although unreferenced, total estimate is offered by the Australian Greens Victoria political party at 1,029 survivors. The Scheme will aim at providing compensatory redress, not only for these direct victims, but also to their family members. Even applying conservative beneficiary estimates, it is clear that individual monetary awards will be relatively limited; especially given the severe harms involved and Australia’s relative prosperity. It is thus highly-unlikely that reparation will be proportional to the harm suffered. While $10-million seems substantial, its face-value is put into context through comparison with a $525,000-order awarded in favour of Australia’s only successful Stolen-Generations litigant. Other Victorian political parties have recommended significantly augmented compensation figures which would more adequately reflect the severity of suffered harms.

Regarding governmental recognition of harms suffered by victims and the taking of responsibility, VicGov made its responsibility for both wrongful acts and the provision of material redress clear. All other Australian jurisdictions have failed to do the same in relation to compensation. Instead, their schemes have involved ex gratia payments, based not on the legal responsibility to provide reparation but on moral grounds.

VicGov’s announcement is also noteworthy because it recognises the importance of victims’ interests. VicGov has promised to provide funding and include measures to ensure victims are ‘appropriately supported in making redress applications.’ This statement is encouraging, as access to reparation is an essential component of any redress scheme. Similarly encouraging is VicGov’s express recognition of the importance of engaging with Stolen-Generations victims, their families and communities. It is vital that mechanisms of TJ are guided by victims’ voices; no external observer can ever hope to appreciate the victims’ needs without thorough consultation.

Other Stolen-Generations compensation schemes

In 2006, Tasmania set-up a $5-million fund to provide ex gratia payments to eligible claimants. 84 victims received payments of $58,333.33, while 22 descendants received compensation of $5,000 or $4,000. Being a purely compensatory scheme, no further forms of reparation were included. Concern has been raised vis-à-vis the Tasmanian scheme regarding a lack of both adequate victim consultation and accessibility.

SA put its $6-million Stolen Generations Reparations Scheme into operation in 2015 and pledged a further $5-million for community-based projects. One point of consternation was the choice of 31 December 1975 as the cut-off date for eligibility. This date was somewhat arbitrarily chosen on the dual basis that it was the year when the Commonwealth Government passed the Racial Discrimination Act and the date chosen by the Tasmanian scheme. That some forcible removals appear to have occurred after this date has left some victims without access to the SA scheme. Of 449 applicants, 343 were found eligible by the Scheme’s Independent Assessor. However, only 312 victims were awarded ex-gratia payments of $20,000 by the Minister for Aboriginal Affairs and Reconciliation. No indirect victims were considered. In 2019, each of the 312 victims were awarded a further $10,000 when $3-million of unspent community-project funding was diverted.

NSW’s 2019 Stolen Generations Reparations Scheme and Funeral Assistance Fund form a $73-million compensation package. Additionally, a $5-million collective healing initiative is aimed at providing symbolic reparation. Compensation (maximum $75,000) is ex-gratia and only available to direct victims. Local lawyers have expressed concern over the Scheme’s narrow scope.

In 2018, AIHW identified 540 living Stolen-Generations victims in Tasmania and 929 in SA (it only considered victims aged 50+). When considering the limited eligible claimants from the SA and Tasmanian schemes (in 2008 & 2016), it is clear that serious barriers limited access to reparation. Both Tasmania (six-months) and SA (one-year) set unnecessarily limited application windows, while all-three schemes incorporated complex application procedures; leaving many victims, often lacking knowledge and resources, without adequate access.

Finally, while State compensation schemes are positive developments, the size of the awards are insufficient in terms of their proportionality to the harms and injuries inflicted on victims. Inadequate material reparation is, in effect, symbolic reparation.

Conclusions

While it seems VicGov will employ a holistic approach to material reparation, it must ensure it follows through on all promises. It must learn from the shortcomings of other schemes and from engagement with victims. Victims have diverse needs and these must be assessed and considered through thorough consultation. Moreover, it is crucial that victims can actually access reparation; time-limits for applications should be non-restrictive and application procedures simple and cognisant of applicants’ needs. As the Scheme’s proposed funding is limited, inadequate compensation payments remain a foreseeable outcome. VicGov should ensure it provides compensation which adequately responds to assessed harms. This necessitates the injection of further funds. Finally, VicGov should engage thoroughly with the vast literature on reparation and TJ. This will help ensure that Victoria formulates a Scheme which represents best TJ practice.

Postscript For those interested in exploring the Stolen-Generations in detail, I would recommend that readers refer to the Bringing Them Home Report. To gain an understanding of the damage done to the lives of victims, I recommend sourcing one of the many memoirs penned by individuals removed from family and community. Additionally, the following hyperlinks will take you to collections of oral testimonies presented in an audio format: National Library of Australia: Bringing Them Home Stories of the Stolen Generation Project & Stolen Generations Testimonies.  For an understanding of the compounding health and welfare-related harms victims of the Stolen-Generations continue to suffer, refer to the following report: Australian Institute of Health and Welfare. For the reader with limited time to spare, the Australian film Rabbit Proof Fence offers a powerful glimpse into the Stolen-Generations.

James Rischbieth is a lawyer and criminologist. He was born and raised in South Australia, before moving to Belgium in 2016. He holds a Bachelor of Laws (LL.B) from the University of Adelaide, a Master of Laws (LL.M) from KU Leuven and a Master of Criminology (M.Sc), also from KU Leuven. He is a doctoral researcher within the Human Rights and Transitional Justice Research Line at the Leuven Institute of Criminology. His doctoral project is focussed on reparative State responses to the needs of victims of gross violations of international human rights law and serious violations of international humanitarian law.

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