Photo by Pierre Pouliquin on Flickr
Demands for compensation for the “stolen generations” seem to be reliable generators of fear and loathing on the part of many Australians, particularly (but not only) those of a conservative persuasion. RWDB QC and blogger Peter Faris is an extreme example. He seems to be spiralling into increasing paroxysms of lunatic outrage in the wake of yesterday’s Ruddian apology.
Back in the rational universe, Noel Pearson enunciates a nuanced but nevertheless equivocal response both to Rudd’s apology and the prospect of a rush of new common law damages claims in its wake. He points to the danger that the apology may further entrench a culture of passive victimhood among indigenous people, and raises some of the legal and practical issues that such claims inevitably face:
The truth is the removal of Aboriginal children and the breaking up of Aboriginal families is a history of complexity and great variety. People were stolen, people were rescued; people were brought in chains, people were brought by their parents; mixed-blood children were in danger from their tribal stepfathers, while others were loved and treated as their own; people were in danger from whites, and people were protected by whites. The motivations and actions of those whites involved in this history — governments and missions — ranged from cruel to caring, malign to loving, well-intentioned to evil.
Pearson also ponders the political implications of compensation demands:
If compensation had been part of the deal, electoral support for the gesture would have unravelled. For this reason there is no conceivable way Rudd will revisit the issue of compensation, no matter what the hopes of indigenous leaders.
He’s no doubt correct, just as Nicholas Gruen is correct that Joshua Gans’ suggestion of temporary increases to GST have Buckley’s chance of ever being entertained, whatever the idea’s intrinsic merit.
However, leaving aside the realpolitik of the situation, would it make sense to implement a statutory compensation scheme for the “stolen generations”? In my view a strong case can be made, at least on purely financial grounds (leaving aside also the question of fostering victimhood, in respect of which I share Pearson’s concerns).
The Bringing Them Home report found that up to 100,000 indigenous children were removed from their families over the period of about a century of large-scale removals up to around 1970. Given the spectacular lack of forensic rigour of that process, one would suspect that the real figure is significantly lower; other estimates suggest 50,000. However, even if we take the 100,000 figure as accurate, the vast majority of these people are long dead and therefore not potential compensation claimants.
Moreover, as Pearson points out, although undeniably quite a few of the survivors were in fact stolen i.e. removed against their parents’ will despite not being subject to abuse or neglect, many others were surrendered or removed for good cause. Still others have no real idea why they were removed and no prospect of ever establishing the reasons even on a relaxed standard of proof in a specially constituted statutory tribunal.
Around 1,000 indigenous people gave oral or written evidence to the Bringing Them Home inquiry, but quite a few of them did not themselves claim to have been stolen. I suggest a realistic maximum number of potential living claimants would be around 3,000 (and probably substantially less).
Thus a tribunal could be established with a cap on benefits of $100,000, in the confident expectation that the maximum total outlay would be $300 million, with another couple of hundred million or so for legal and tribunal costs to process and assess claims. Moreover, not only would quite a few of those claimants probably be unable to establish that they had been stolen on any reasonable standard of proof (e.g. with hearsay and non-expert opinion evidence allowed given the difficulty of establishing the facts so long after the events), but many of the successful claimants would be entitled to much less than $100,000 on ordinary common law principles of damages assessment.
Bruce Trevorrow, the only successful “stolen generations” litigant to date, was able to establish serious and ongoing psychiatric illness and loss of earning capacity as a result of his experiences as a child, and was therefore awarded $500,000 in damages. However, many members of the “stolen generations” (without in any sense minimising the dreadful nature of what was done) have lived fairly normal and productive lives without experiencing either serious psychiatric illness or loss of earning capacity. Those are the “big ticket” items in any tortious damages award. Without those elements, claimants would be likely to receive (say) $50-60,000 on ordinary common law principles.
Nevertheless, even if we make a relatively pessimistic estimate (from a government budgetary standpoint) of $400 million as the possible cost of a statutory compensation scheme of the sort I’ve outlined, that stacks up fairly favourably against the present “plan” of doing nothing and letting claimants litigate through the common law courts. In the wake of yesterday’s apology and the successful Trevorrow litigation, we can be sure that many more members of the “stolen generations” will embark on litigation. Slater and Gordon and others are undoubtedly already ramping up class actions. The costs of such litigation will be enormous. To give some idea of the scale, it is estimated that the total cost of the unsuccessful Cubillo and Gunner litigation some years ago was around $20 million. The earlier Kruger case no doubt also ran into many millions of dollars in legal costs and court time, because it went all the way to the High Court. The costs to all parties of the Trevorrow litigation plus the damages award would also amount to several million dollars, and the Tasmanian government is about to implement a scheme costing $5 million for 106 claimants (around $50,000 per person).
By contrast, a Commonwealth-sponsored stolen generations statutory scheme even with a generous cap of $100,000 per claim looks cheap, especially if the quid pro quo is that common law damages entitlements are abolished (as was done in several states and territories in relation to workplace injuries on implementation of statutory compensation schemes). Moreover, the scheme could reasonably be jointly funded by the Commonwealth and States, because most of the removals were carried out under the auspices of the latter. And the churches, which are also potentially liable for common law claims as the operators of most of the missions and orphanages where removed children were housed, might be asked to contribute to the cost of such a scheme as well.
I agree with Noel Pearson that the political realities make it highly unlikely that Kevin Rudd will touch a compensation scheme even with a very long barge pole. But that doesn’t negate the possibility that it would actually be an idea worth considering.