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The NSW Stolen Generations Reparations Scheme – Appropriate or Disproportionate?

Published on August 28, 2020 by Hayley AldrichHayley Aldrich

As first published in Precedent, the journal of the Australian Lawyers Alliance, issue 159, July/August 2020 (Sydney, Australia, ISSN 1449-7719), pp43-46

The Stolen Generation in NSW – A Brief Background 

The term ‘Stolen Generations’ is one that can generally be applied to any Indigenous child removed from their family by either the Australian federal government, the governments of the various states and territories, or assorted religious organisations, prior to 1969. It is acknowledged that the removal of Indigenous children from their kin continued to occur in some states and territories well into the 1970s. Fifty years after legislation ended the NSW Aborigines Welfare Board’s tenure, there remains an over representation of Indigenous descended children in the out-of-home care system.²

Establishing who is entitled to refer to themselves as a member of the Stolen Generations is not straightforward and the process may be quite fraught.³ However, for the sake of completeness, a short summary of the issues is provided below.

Like other states and territories, NSW enacted its own specific legislation to govern its Indigenous people. The main Act in force for this purpose during the 20th century was the Aborigines Protection Act 1909 (the Act). Over the decades there were many amendments, and the Act stayed in force until 31 December 1969, when it was repealed.

Significantly, the Act established the Aborigines Protection Board, which eventually became the Aborigines Welfare Board (the Board). The Act also established the Cootamundra Girls Home, and the Kinchela Boys Home outside of Kempsey, which were to be run by employees of the Board. These two institutions provided the main housing for Indigenous children who were removed from their families.

Some people, in both Indigenous and non-Indigenous communities, argue that in order to be considered a member of the Stolen Generations in NSW, a person must have been removed under the Act and/or placed into one or other of the
two Board-run institutions in Cootamundra and Kempsey.⁴ However, taking this approach excludes those Indigenous children who were removed from their families during the same period under the Child Welfare Act 1939 (NSW) (and its amending Acts).

The Child Welfare Act gave the then Child Welfare Department (the Department) the right to remove children from their families and, via a court order, have them declared as wards of the state. The Department also ran numerous institutions to accommodate state wards and organised foster placements. Foster parents were paid an allowance for the care of a ward.

For the sake of argument, it could be said that as the Child Welfare Department was able to remove any child, regardless of race, under the Child Welfare Act, neither this Act or the Department could be viewed as adopting an assimilationist policy. The Act and the Department were not definitively established to govern Aboriginal peoples, like the Board and
the Aborigines Protection Act were.

Notwithstanding this, a significant number of the over 250 Stolen Generations clients our firm has acted for were removed under the Child Welfare Act.

In some cases, children were removed under both Acts – to be ‘committed to the care of the state of New South Wales, to be dealt with as a ward committed to the control of the Aborigines Welfare Board and/or the Child Welfare Department.’⁵ In the eyes of many, for these children to be regarded as members of the Stolen Generations depends on which of the departments ran the institutions that they were placed in. When it comes to the NSW Stolen Generations Reparations Scheme, these children do, however, fare better than those children who were dealt with solely under the Child Welfare Act.

The NSW Stolen Generations Reparations Scheme

On 25 June 2015, the NSW Parliament’s General Purpose Standing Committee No. 3 was directed to inquire into and report on reparations for the Stolen Generations in NSW. In particular, the Committee was to focus on:

‘(a) the New South Wales Government’s response to the report of the 1996 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children and Their Families entitled “Bringing them Home” and the recommendations made in the report regarding reparations

(b) potential legislation and policies to make reparations to members of the Stolen Generations and their descendants, including approaches in other jurisdictions, and

(c) any other related matter.’⁶

The Inquiry was established with the aim of having its final findings and the government response ready by May 2017, in time for the 20th anniversary of the Bringing them Home report.The Committee’s report was tabled in Parliament one year after its initial referral, on 23 June 2016.

‘Within the final report, the Committee acknowledged the numerous civil claims that our firm had commenced on behalf of members of the Stolen Generations against the state.⁷
Nevertheless, the Committee recommended the establishment of a reparations scheme (Recommendation 2):
‘That the NSW Government establish a reparations scheme for Stolen Generation survivors, in accordance with the principles of self determination and doing no further harm, with the scheme to:

• be developed in close consultation with Stolen Generation survivors
• complement the current group action involving Stolen Generation survivors
• provide appropriate communal and individual responses, including a personal letter of apology from the Premier and Minister for Aboriginal Affairs
• include a right of appeal
• consider learnings from the South Australian and Tasmanian reparation schemes.’⁸

On 2 December 2016, the NSW Government responded to the Inquiry’s recommendations. On that date, the Government announced that it would establish a Stolen Generations reparations scheme to enable ‘ex gratia payments to all surviving children removed by the Aborigines Welfare Board, in recognition of their loss of connection to their family and culture’.⁹

It is not possible to reconcile the Committee’s recommendation with the Government’s announcement. The glaring omission in the state’s response is obvious: the Committee’s recommendation did not limit the application of a reparations scheme to those who were removed, made a ward of, or placed into one of the Board’s homes. Indeed, the Committee’s Chair, the Hon Jan Barham MLC, specifically noted in the foreword to the report that: ‘All Aboriginal children who were wrongly stolen from their families under the government’s past forcible removal policies and practices are entitled to reparation’ (emphasis added).¹⁰ By limiting access to the reparations scheme in this way, the NSW Government has excluded a large number of Indigenous people who were also removed from their families by a state entity, and who identify as members of the Stolen Generations.

The NSW Stolen Generations Reparations Scheme provides ex gratia payments of $75,000 to living survivors who were removed from their families and committed to the care of the NSW Aborigines Welfare Board or its predecessor, the NSW Aborigines Protection Board, with an additional one-off payment of $7,000 also available to survivors to assist with the cost of funerals.¹¹ Those excluded from the scheme will miss out on this $82,000 payment.

Historical documents viewed by our firm reveal a practice of removing lighter-skinned children under the Child Welfare Act, due to the belief that these children would more easily assimilate into white society. It seems particularly harsh that these children cannot make a claim for additional payments, which are made ‘in recognition of the harm these removals caused’.¹²

The silver lining of the scheme is that for those who were removed by the Board, it is a relatively simple process to apply. Applicants need to complete the requisite form, attach two forms of identity, and can choose to attach additional information if they wish.

Responses in Other Jurisdictions 

Prior to the establishment of the NSW reparations scheme, only Tasmania and South Australia had implemented restitution programs¹³ for Indigenous children who had been removed from their families.¹⁴

The Tasmanian scheme, established in 2007 and worth $5 million (total), saw members of the Stolen Generations receive approximately $58,000 each.¹⁵ Children of Stolen Generations members who had died prior to the implementation of the Tasmanian scheme could also apply and receive approximately $5,000.¹⁶

South Australia’s reparations scheme was established in 2015. Of a total of $11 million, $6 million was set aside for ex gratia payments, with the remainder to go to funding healing initiatives.¹⁷ In 2018, eligible applicants received $20,000.¹⁸ The state is currently in the process of granting a further $10,000 to these applicants.¹⁹

In comparison to these other two states, the NSW scheme is more generous; its ex gratia payment of $75,000 is $17,000 more than in Tasmania and $45,000 $55,000 more than in South Australia. This is even before consideration of NSW’s additional one-off payment of $7,000 to assist with funeral expenses.²⁰
On 18 March this year, Victoria announced that it would be the last state to establish a Stolen Generations redress scheme.²¹ Expected to come into effect in 2021, the scheme will reserve $10 million for counselling services, a funeral expenses fund, and ex gratia payments.²² To date, no further details have been disclosed.

While it is encouraging that the NSW scheme is quite comprehensive and generous compared with the other Australian schemes,²³ it lags behind international models.
Canada remains the ‘shining example’ of how an entire country should accept and acknowledge the actions of its past leaders and policy makers, and provide more adequate redress to survivors, without unnecessary obstruction.²⁴ After previous grants of CAD$350 million to The Aboriginal Healing Foundation, and a personal compensation package worth CAD$1.9 billion,²⁵ a further CAD$750 million²⁶ was dedicated for victims of the ‘sixties scoop’ – the approximately 20,000 Aboriginal children who were taken and placed into foster care between the 1960s and 1980s.

While Canada as a country has a greater gross domestic product (GDP) than Australia ($1.797,10 trillion compared with $1.279,361 trillion),²⁷ this does not excuse Australia as a whole, or the states and territories individually, from allocating further funds to assist redress and reconciliation. It is the hope of advocates of survivors that this will be possible for those who have cruelly missed out so far on restitution.

Conclusion 

Taking all of the above into account, is the NSW Stolen Generations Reparations Scheme an appropriate or disproportionate response?
When compared with the schemes in other Australian jurisdictions, it could be seen as superior if judged purely on the financial restitution available for an individual. However, when compared with overseas jurisdictions, the shine fades somewhat.

The strict and prohibitive eligibility requirements of the NSW scheme could risk doing more harm than good, driving a further wedge within the Indigenous community by classifying who can be considered a member of the Stolen Generations depending on which legislation they were removed under. This goes against the objective of the reparations scheme, which was set up to provide recognition of the harm caused by the past governments.²⁸ Therefore, in order to be truly successful, the NSW scheme should seriously consider expanding the eligibility criteria to allow reparations for all Indigenous children who were removed from their families during the agreed time period. That would result in a far more appropriate and inclusive reparations scheme.

Notes

1 Parliament of NSW, Inquiry into reparations for the Stolen Generations in New South Wales,<https://www.parliament.nsw.gov.au/committees/inquiries/Pages/inquiry-details.aspx?pk=1645>.

2 This claim is unfortunately difficult to ascertain with complete certainty because data on this issue does not appear to be collected on all child removals. However, in 2016 the Australian Broadcasting Commission reported that figures from the Australian Government’s Productivity Commission ‘indicated Indigenous children were 9.55 times more likely than non-Indigenous children to be in out-of-home care on the night of June 30, 2015 … [and] 9.16 times more likely to have been placed in out-of-home care at least once during the year to June 30, 2015’: RMIT ABC Fact Check, ‘Fact check: Are Indigenous children 10 times more likely than non-Indigenous children to be living out of home?’, ABC News, 13 April 2016, <https://www.abc.net.au/news/2016-04-13/are-indigenous-kids-ten-times-more-likely-to-live-out-of-home/7177866>.

3 See a previous article from the author: H Aldrich, ‘The Stolen Generations Group Action: An alternative model to redress a traumatic past’, Precedent, Issue 141, August 2017, 22–6.

4 This opinion has been conveyed to the author from clients and their family members who were only removed under the AWB policies and placed into AWB-run homes. Additionally, Stan Grant in his Quarterly Essay discusses the impact that classifications of who was or could be removed from their families, or who could be considered ‘white’ and who could not, continue to have on the Indigenous community (S Grant, ‘The Australian dream: Blood, history and becoming’, Quarterly Essay, Issue 64, 2016).

5 This wording has been personally sighted by the author in the court orders of clients.

6 General Purpose Standing Committee No. 3, NSW Legislative Council, Reparations for the Stolen Generations in New South Wales: Unfinished Business (Report 34, June 2016) (Unfinished Business Report), v, <https://www.parliament.nsw.gov.au/lcdocs/inquiries/1645/Reparations%20for%20the%20Stolen%20Generations%20in%20NSW%20-%20Report%2034%20-%2023%20June%202016.pdf>.

7 For more on this group action and the alternative dispute resolution process that entails, see Aldrich, above note 3.

8 Unfinished Business Report, above note 6, xvi.

9 NSW Government, Unfinished Business: NSW Government Response to the General Purpose Standing Committee 3 Report into Reparations for the Stolen Generations, 2016, 7<https://www.parliament.nsw.gov.au/lcdocs/inquiries/1645/Government%20response%20-%20Reparations%20for%20the%20Stolen%20Generations%20in%20New%20South%20Wales%20-%20received%202%20December%202016.pdf>.

10 Unfinished Business Report, above note 6, xiii (Chair, Ms Jan Barham MLC).

11 See <https://www.aboriginalaffairs.nsw.gov.au/healing-and-reparations/stolen-generations/reparations-scheme>.

12 Ibid.

13 Unfinished Business Report, above note 6, 93.

14 There have been reparation schemes within states relating to ’stolen wages’, the term coined to describe ‘all wages, savings, entitlements and other monies due to Aboriginal or Torres Strait Islander people during the periods (approximately from the Federation era to the 1960s–1970s, and the 1980s in some Queensland reserves) where governments sought to control the lives of Aboriginal people by making them wards of the State or otherwise placing them under the power of “protectors”, Aboriginal Protection Boards or similar government institutions. These institutions or their governments nominally held the wages and other entitlements of Aboriginal workers in trust (as Aboriginal people were not considered capable of managing money), but the moneys were frequently not paid, used for other state purposes, or stolen by “protectors”’: J Haughton, ‘Compensation payments to Aboriginal and Torres Strait Islander Australians’, FlagPost (online), 7 August 2019, <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2019/August/Compensation_payments_to_Indigenous_Australians>.

15 J Gibson, ‘Tasmania pays $5m to stolen generations’, The Sydney Morning Herald (online), 23 January 2008, <https://www.smh.com.au/national/tasmania-pays-5m-to-stolen-generations-20080123-gdrxxb.html>.

16 Ibid.

17 Unlike Tasmania, which did not set aside any funds for healing initiatives. See <https://www.dpc.sa.gov.au/responsibilities/aboriginal-affairs-and-reconciliation/reconciliation/stolen-generations-reparations-scheme>.

18 Ibid.

19 Ibid.

20 See <https://www.aboriginalaffairs.nsw.gov.au/healing-and-reparations/stolen-generations/reparations-scheme>.

21 J Longmore, ‘Stolen Generations redress scheme announced in Victoria’, ABC (online), 18 March 2020, <https://www.abc.net.au/news/2020-03-18/stolen-generations-redress-scheme-announced-in-victoria/12067572>.

22 R Hocking, ‘From reparation to cultural camps – the road to healing’, NITV News, 26 May 2020, <https://www.sbs.com.au/nitv/article/2020/05/26/reparations-cultural-camps-road-healing>.

23 Like the NSW scheme, eligibility for the Tasmanian and South Australian reparations schemes was also determined by past legislation. However, unlike NSW, the Tasmania scheme allowed eligibility of applicants under a number of different acts, rather than just one, including the Infants’ Welfare Act 1935, the Children, Young Persons and Their Families Act 1997, and the Child Welfare Act 1960 (Stolen Generations of Aboriginal Children Act 2006, s5). In South Australia, eligibility was determined via an application form, with the criteria that an applicant must be Aboriginal, must have been removed from their family, removed prior to 31 December 1975, removed without a court order, and at the time of removal the usual place of residence was SA, or they were removed by SA authorities. This vague criteria created complications when assessing who could claim reparations, as noted in the Independent Assessor’s report on the Stolen Generations scheme (J Hill, Report of the South Australian Generations Reparations Scheme Independent Assessor, July 2018, 15–8, <https://www.dpc.sa.gov.au/__data/assets/pdf_file/0020/45704/Report-of-the-south-australian-stolen-generations-reparations-scheme.pdf>.

24 For a summary of the Canadian redress and reparation schemes see Aldrich, above note 3, 26.

25 Ibid.

26 Reuters in Ottawa, ‘Canada will pay compensation to thousands of indigenous “stolen children”’, The Guardian (online), 7 October 2017, <https://www.theguardian.com/world/2017/oct/06/decades-after-government-seizure-of-children-indigenous-canadians-will-receive-compensation>.

27 International Monetary Fund, World Economic Outlook Database, April 2020, <https://www.imf.org/external/pubs/ft/weo/2020/01/weodata/index.aspx>.

28 See <https://www.aboriginalaffairs.nsw.gov.au/healing-and-reparations/stolen-generations/reparations-scheme>.