The utilitarian case for stolen generations compensation

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. 

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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38 Responses to The utilitarian case for stolen generations compensation

  1. Jacques Chester says:

    I think that support might emerge for such a scheme after a few court cases, as a way to cap liabilities. When it gets pointed out that each case might cost millions instead of thousands, a statutory scheme seems sensible.

  2. Niall says:

    I can’t agree. Even a scheme of compensatory health care, along the lines of returned servicemen’s gold card entitlements would be next to impossible to administer. Who’s to say who is and who is not of the “stolen generations”? The very idea of compensation is unworkable.

    The saying of ‘sorry’ was never going to be sufficient for many. Evidence Michael Mansell’s radical stance and that also of Mick Dodson. Sure, they accept the apology, but just how highly did it rate over the pure symbolism of the act? I’d suggest not very highly at all, in the final wash-up.

  3. Jc says:

    Ken:

    The courts are perfectly adequate in dealing with loss for claims, so why not just let the courts handle it?

    And Jacques why cap the compensation as there are well established personal injury matrix. Capping claims is very unjust in this case.

    The claimant should have his day in court and the evidence ought be treated in the same way as any other personal injury case.

    Going the legislative route would be a case of where the legislature is stretching in ambit of responsibility.

  4. Patrick says:

    So much was, in effect, (part of) the reasoning behind the various State transport accident and victims of crime compensation schemes.

    But it seems pretty contentious here where there are fair grounds for thinking that money as such may be anything but the cure. Wouldn’t a sophisticated utilitarian case consider the utility of various solutions to the victims as well?

    Which also raises a point implicit in your post – that the scheme would require distinction between ‘stolen’ and ‘not-stolen’, and all the grievances this is likely to entail.

    I suspect that there is a better case here for socialised compensation. Particularly since the real damage is not the ‘stealing’ of any number of people but the cumulative effect of policies and attitudes over decades producing the present misery.

    Those points aside, a very good and well-reasoned post – I think you should offer it around as an op-ed, starting maybe with the AFR/Australian.

  5. James Farrell says:

    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 there’s the rub. isn’t it? Is it possible to close off all avenues of appeal to civil courts? If not, how do you contain the costs that will arise when people use those avenues.

    Whatever the answers to these questions might be, this is a very useful exercise, Ken. And you are spot on in emphasising the utilitarian nature of the argument.

  6. Ken Parish says:

    Thanks Patrick. Yes, the state and territory workers comp, MACA and crime compensation schemes are more or less the sort of tribunal I had in mind. That is, just as it is necessary to prove that you were in fact a victim of a crime (or that your injury occurred in the workplace), so it would be necessary for stolen generations claimants to prove that they had been removed against their parents’ will and for causes other than real abuse or neglect.

    The difference from MACA, CVA etc is that the events that constitute the proof of eligibility occcurred long ago and evidence admissible in an ordinary court of law may be hard to obtain. Hence I’m suggesting that the rules of evidence should be relaxed (though not obliterated) as a matter of basic fairness. There are ample precedents for that: most quasi-judicial tribunals (e.g. state anti-discimination bodies) are not strictly bound by the rules of evidence but can make awards in the nature of damages of $50,000 and more.

    Thus there is ample precedent for such matters to be dealt with by a statutory tribunal rather than by a court strictly bound by rules of evidence. If JC thinks that this “would be a case of where the legislature is stretching in ambit of responsibility”, he needs to explain why that isn’t the case with workers’ compensation, motor accidents compensation, and anti-discrimination complaints i.e. most of the high volume civil matters in the state and territory legal systems, since the system I am proposing is just like those schemes.

  7. Patrick says:

    My issue was not with the precedents but the specifics – notably:

    1) the exclusion of ineligible claimants and associated potential trauma,
    2) the potential inutility of the money, and
    3) the fact that this is not really the problem.

  8. Ken Parish says:

    “Is it possible to close off all avenues of appeal to civil courts?”

    It’s certainly possible for a State parliament to do so by ordinary legislation, and that’s precisely what many of the state MACA and workers’ comp schemes do – the tradeoff for universal “no fault” entitlement to compensation (no need to prove negligence and it doesn’t matter if the claimant was partly at fault) is that the entitlement to claim common law damages is abolished completely (though only partially in some jurisdictions, I think – this is not really my area of expertise). It avoids duplication, double dipping and unnecessary expense, and while claimants lost the possibility of a huge damages award they get the benefit of certain recovery of a reasonably generous capped amount irrespective of fault (and of the solvency of the defendant, because the state pays if the employer/other driver/offender can’t).

    However, at Commonwealth level it’s more difficult for constitutional reasons. The Commonwealth is bound to give just terms for acquisition of property by s51(xxxi) of the Constitution. “Property” has been held to include common law causes of action in damages, even if they have expired at the time of attempted legislative extinguishment e.g. through the operation of statutory time limits on commencement of action. see the Georgiadis and Mewett cases. Thus, the Commonwealth could not abolish the stolen generations’ inchoate entitlements to common law damages without providing just terms compensation, which would rather defeat the purpose of the exercise. The states, however, could do so without legal (as opposed to political) difficulty because they aren’t subject to any such constitutional constraint. What would be needed would be a co-operative scheme where part of the heavy lifting is done by state legislation with state laws vesting compensation claims in a federal tribunal (or alternatively, in separate state tribunals operating under uniform state legislation).

    The legal aspects of all this aren’t terribly difficult, it’s the politics that makes it well nigh impossible. Whatever the Commonwealth did it would drastically alienate a very large constituency, hence the pragmatic politician does exactly what Rudd has done: nothing, but nothing expressed in very elegant rhetorical terms.

  9. Ken Parish says:

    “2) the potential inutility of the money, and
    3) the fact that this is not really the problem.”

    You can make the same case as (2) about motor accident, crime or workplace injury victims, at least to some extent. To the extent that stolen generations victims are suffering ongoing psychiatric illnesses, depression etc, compensation can help them obtain treatment. As for (3), one can make the same argument about defamation litigants, but it has always been accepted by the common law and parliaments that money damages are an appproriate way of soothing hurt feelings, psychic trauma and deemed loss of reputation.

    Moreover, and perhaps more importantly, a statutory scheme that operated efficiently and speedily (I would want all claims to be lodged within 12 months and determined with 3 years), would enable and even force claimants to achieve finality or that dreadful word “closure”. This is the counter-argument to Pearson’s point about fostering a victim mentality. By signalling in a concrete and final manner that the hurt has been recognised and compensated, claimants will know absolutely that this is all they’re ever going to get, that there are no more pots of gold at the end of the rainbow and that they must take responsibility for making the best of the rest of their lives with the compensation they’ve been given. If designed properly, it may help to achieve (at least with many claimants) the exact opposite of a permanent culture of passive aggrieved victimhood. This is a familiar syndrome with crime and personal injury tort victims as well: their lives are in a real sense in limbo until their grievance is heard and determined, but then they can (and must) put it behind them and move on. Most do, and hopefully the same will be true of stolen generation claimants, although they’ve had a much longer period for passive aggrieved victimhood to become an entrenched, immutable way of seeing and dealing with the world.

  10. James Farrell says:

    Thanks for the detail on appeals, Ken. As for the politics, could your scheme not be sold to the public as a way to prevent an army of litigation lawyers from reaping millions from the public purse?

  11. Ken Parish says:

    Possibly, but it would be a high risk strategy and Rudd isn’t a high risk kind of guy. Even Keating might well have shied away from this one.

  12. saint says:

    Thanks for a sane post Ken. I think one of the problems with the compensation issue and goes to concerns about vexacious claims, what’s this all about etc. is that the ‘stolen generation’ question has been intertwined with a much larger narrative that includes, (1) the very fact that Europeans have settled here is somehow a cause for ongoing blackfella victimhood/white man guilt (can we undo history? and if so, how far back do we even Pearson has elements of this in his article – “history stole… – although I appreciated how he grappled with the complex and at times contradictory positions) and (2) the children were removed because of a policy based purely on ‘race’ and/or with the explicit reason of eliminating Aboriginals/Aboriginality

    I am not sure that is entirely the case (why for example did we have ‘Protectorates’ and evidence of concern that various Aboriginal groups were dying out?) at all times in all cases everywhere around Australia. That is not to say racism etc did not exist/doesn’t exist now.

    Bruce Trevorrow for example, I think had a valid case but not on the basis thought by many ‘stolen generation’ activists (who are not necessarily ‘stolen’ or even Aboriginal themselves) but his case has been coopted to feed these narratives creating a sort of prison (I likened it to the ‘right of return’ arguments of Palestinian activiists on my blog; and there is also an element of judging the past on the basis of present conventions etc.)

    I think therefore your idea of a utilatarian approach is potentially fruitful but it would need to have the issues clearly sorted out. We want to compensate those of you who were…mistreated or neglected in the instutions/families you were placed, removed forcibly or otherwise from your families without just cause etc. (I’m not lawyer so don’t know how it should be framed).

    Even so, until we manage to disentangle the garbled narratives a bit, the grievances will continue and be passed down from generation to generation on the basis of something that cannot be undone.

    Not sure if I made sense here. I’m about as conflicted as Pearson on some issues around this.

  13. Alan says:

    I’m not completely sure that victimhood is a good argument, although it’s admirable rhetoric.

    There’s a growing (if unadmitted) religion that if you think a thing it will happen, famously described of a queue outside Canadian Idoll where every single person interviewed ‘knew’ what would fix their fate was the level of their personal belief they’d Canadian Idol.

    Pearson’s victimhood discourse is in many ways just a mirror image of ‘Hello, I’m special’ that argues economic disadvantage is strengthened if you think of yourself as a victim. Perhaps ‘Hello, I’m not special’.

    There was a wrong. We deal with wrongs by granting compensation. It’s a weird position to argue that compensating a wrong disadvantages the person who suffered the wrong by interfering with their capacity for magical thinking..

    Rudd may say that compensation is not an issue. He may even believe it. But lines in the sand have a way of eroding over time.

  14. Jc says:

    Ken

    Relaxing principles of evidence creates a precedent for next time round and a serious moral hazard issue if it strays too far from the acceptable norms of evidence etc. Don’t you think?

  15. Ken Parish says:

    Joe

    You’re avoiding the real question. There is no dangerous, new or radical precedent whatever involved in what I’m suggesting. Why do you think that relaxing the rules of evidence for stolen generations claimants would create a dangerous precedent and a “serious moral hazard”, but you aren’t similarly worried by any of the scores of tribunals around Australia with similarly relaxed rules of evidence, many of which deal with issues every bit as complex, important and delicate and involving the awarding of amounts of compensation just as great as under discussion here? It’s hard to avoid the conclusion that you think there should be tougher rules applied against indigenous Australians than against others. Why?

  16. John Greenfield says:

    Ken Parish

    I am a HUGE supporter of a multi-BILLION dollar compensation payout, but as soon as you start quoting Bringing Them Home as an authority on anything, you instantly lose all credibility. If you wish to start thinking about credible sources of evidence and analysis vaguely within the realm of what we know as “social science,” Bringing Them Home is a shockingly unprofessional, mendacious, misrepresenting piece of propaganda.

    I am surprised you too have been so easily conned.

  17. Ken Parish says:

    John Greenfield

    This simply confirms what I have long suspected: you don’t bother to actually read things before commenting on them. Had you bothered to read my post, rather than just scan it in some strange stream of semi-consciousness mode, you would have noticed that I said:

    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.

    In other words, I’m making essentially the same point as you just did, but then adopting the Bringing Them Home figures as a “worst case scenario”. If a compo scheme is affordable on the (almost certainly very inflated) figures in Bringing Them Home, then it looks like a goer in financial terms anyway. That was the whole point of my post, but it seemed to escape you entirely. Oh well.

  18. John Greenfield says:

    Oops. In which case, 1,000 apologies and you may me whip me accordingly!

  19. Benjamin Linus says:

    Weird argument you have going Ken. You note Bringing Them Home for its “spectacular lack of forensic rigour” yet you then use it as a “worst case scenario”. Why use it at all?

    My own report produced just now found that up to 100,000,000,000 indigenous children were removed from their families over the period of about a century of large-scale removals up to around 1970. Please, feel free to use this as your worst case scenario and extrapolate backwards from that.

  20. Jc says:

    but you arent similarly worried by any of the scores of tribunals around Australia with similarly relaxed rules of evidence, many of which deal with issues every bit as complex, important and delicate and involving the awarding of amounts of compensation just as great as under discussion here? Its hard to avoid the conclusion that you think there should be tougher rules applied against indigenous Australians than against others. Why?

    `

    Not at all. I’m not a lawyer or know enough it about the law to be aware there can be different levels of evidence required in different areas.. As a non-lawyer all I know is that if you have personal injury case for example it goes to court or if you have building code dispute you end up in a tribunal. As this stuff resembles personal injury type of claims I thought it would go to a regular court

    Are there relaxed laws of evidence in various areas? Really. Ummmm.

    Not kidding, here. Some of us have very little to do with lawyers except in contract origination which is not necessarily a bad thing.

    Just to emphasize the point I am in full agreement in compensating people if the state has wronged them.

  21. Thx for the post Ken.

    I must say that I’m surprised that compensation for the stolen generation is likened to increasing the GST as a measure of its electoral impossibility. I think that’s just an indication of how much people have been cowed by the previous government into accepting some things as normal.

    How about these for some bottom lines?

    1) There will be a sizeable portion of Australians who will hate it – the ones who voted for One Nation. 20% of the population max. There are at least an equal number, but probably closer to 40% who would strongly support it. The remaining 40% don’t care that much. They want tax cuts and stuff and they don’t want favouritism of any group rubbed in their noses. If the politics of it went bad, if we had pictures of aborigines trashing government supplied four wheel drives, then it could become a symbol around which disaffection could grow – as it did under Whitlam. But failing that, I can’t see it as anywhere near as hard to bring about as a rise in GST (Joshua was talking about a 5% increase – albeit temporary).

    2) So the cost estimates of Ken’s suggest that it’s no big deal.

    I don’t think it’s easy for Rudd to do. I’m not going to moan and prate about how he’s sold the aborigines down the river. But give it a while for people to forget about Howard (It’s already almost as if he was a kind of dream – so little did he get done in terms of institution building), a few nasty and very expensive high court cases and a bit of clear leadership and things could be brought around. When those things happen, they have a habit of sneaking up on us. It might be just a few years when it suddenly goes from being taboo to being inevitable.

    It would be the just thing to do of course – so I’m in favour of it.

    But I also don’t think it’s that important in the scheme of things compared with the broader wellbeing of those in aboriginal communities. What’s important is to stop the bashing and the rapes and the hopelessness and the lawlessness and horror of social breakdown. Not an easy thing.

  22. Bill Cushing says:

    Trevorrow appears to have been a clear-cut case of a failure of duty of care.

    No doubt other ‘stolen’ individuals could bring forward similar, provable, claims.

    As could many of the ‘white’ children who were institutionalised and ill-treated in those places.

    So, let the law take its course.

    But, I don’t think that is the point here.

    Equitable ‘compensation’ to individual Aboriginal Australians claiming to have been unwarrantedly separated from parents/guardians is most probably impractical.

    But some kind of amends seem necessary for what is now seen as past (and present-day) policy and service-delivery failure.

    Perhaps this is best done by looking to the future for Aboriginal families in general. ‘Compensation’ might then take the form of funds dedicated specifically to (say) more intensive support of Aboriginal family life (eg infant health & advice services, parental counselling), and specific measures to accelerate the betterment of educational opportunities of Aboriginal youth (boarding school facilities, access to ‘School of the Air’, more classroom support for learning difficulties, etc). Another managed ‘set-aside’ out of the ‘Future Fund’ could do the trick — making sure this was clearly ‘on top’ of the regular budgetary allocations. How to distribute such funds to the appropriate service entities without creating another ATSIC-type mess I leave to others to figure out.

  23. Patrick says:

    But I also dont think its that important in the scheme of things compared with the broader wellbeing of those in aboriginal communities. Whats important is to stop the bashing and the rapes and the hopelessness and the lawlessness and horror of social breakdown. Not an easy thing.

    Equitable compensation to individual Aboriginal Australians claiming to have been unwarrantedly separated from parents/guardians is most probably impractical.

    But some kind of amends seem necessary for what is now seen as past (and present-day) policy and service-delivery failure.

    That was what I meant by number 3 above and by the reference to ‘socialised’ compensation further above – ie something that distinguishes this from transport and ordinary crime compensation is that what we are compensating for is not really the problem we are worried about.

  24. Ken Parish says:

    OK I see what you were getting at. However I see the two as separate things. The measures Bill C is talking about would largely affect the bush or young indigenous people in the towns. They certainly should be done, but they don’t deliver the sort of finality and tangible recognition of suffering to the stolen survivors themselves that will be neceesary to allow many of them to move on (though some never will) and all but the most intransigent political advocates to accept that the issue has been addressed. The stolen survivors are by definition middle aged or older and overwhelmingly live in cities and towns rather than remote areas.

    I agree with Bill’s implicit point (which may well be Patrick’s as well) that in some ways there is nothing to distinguish the hurt of the stolen generations survivors from (say) the hurt of single mothers from the 50s and early 60s who were forced to surrender their babies for adoption, or Barnados children treated brutally in institutions, and so on. However (though with hesitation) I think the situation of the “first Australians” (leaving aside the race they probably extinguished when they arrived) can reasonably regarded as needing special measures to achieve a workable long term accommodation/reconciliation.

  25. The remaining 40% dont care that much.

    I’m not sure that’s right, Nicholas.

    I’ve chatted to a couple of friends over the last couple of days both of whom work in the public service. They both told me that a lot of their workmates, who’d been in support of the apology, were grumbling about compensation “demands”. And the sort of comments made were along the lines of “will it ever end?”, “won’t it wreck the economy?” (that $50 billion figure conjured up by Windschuttle is doing its vicious work), “isn’t an apology enough?”, etc. Now from what I’m told these are intelligent people, not without good will, and largely Labor voters. Public sector workplaces, remember.

    It’s always useful when discussing public opinion to stop and remember that very few of our fellow citizens follow politics in any where as much detail as we do.

    Now, I’m not sure how much such people actually care absent of a stimulus from the media and events. But it does seem to me Rudd has done the politically realistic thing – and I also think he has quite a talent for persuading and educating. We have to also remember that most views on this matter have been formed over the last ten years.

    It seems to me that the first thing proponents of compensation should turn their mind to is the work of public education and persuasion. A key part of that might be pointing to the fact that a compensation scheme, along the lines that Ken suggests, is hardly likely to bring the walls crashing down. I think I heard on SBS the other night that there’s a similar proposal out there which has been around for a long time from the Public Advocacy Centre or some similar name?

    Basically I agree with this:

    But give it a while for people to forget about Howard (Its already almost as if he was a kind of dream – so little did he get done in terms of institution building), a few nasty and very expensive high court cases and a bit of clear leadership and things could be brought around. When those things happen, they have a habit of sneaking up on us. It might be just a few years when it suddenly goes from being taboo to being inevitable.

    It would be the just thing to do of course – so Im in favour of it.

    And Ken, I’m not so sure Rudd isn’t a risk taker. He’s certainly capable of acting boldly. The apology itself, and the way it was done and presented, was a bold stroke. I’m starting to think he just has a very good sense of timeing and knows how to prepare the ground and when to act boldly – a useful contrast to Keating.

  26. that in some ways there is nothing to distinguish the hurt of the stolen generations survivors from (say) the hurt of single mothers from the 50s and early 60s

    Yes, there is.

    What distinguishes it is that what they suffered was very often racially motivated and if not explicitly so, far more likely to occur to them because of their race. That’s the nub of this whole issue.

  27. John Greenfield says:

    Mark

    that $50 billion figure conjured up by Windschuttle is doing its vicious work

    How? By simply applying the formula in the very government document upon which Rudd made the Apology? You, yourself have been an incessant champion of Bringing Them Home and laying explicit legal and moral culpability on the officials and state of the time.

    Rudd could not have been clearer in endorsing Bringing Them Home as fact. Indigenous groups and leaders across the nation are demanding compensation.

    If you are not prepared/brave enough and lack the integrity to attack these Aboriginals as “vicious” and “shameful” then your whole campaign over the past few years has been a fraud and you a hypocrite. It is time either to step up or to apologise to Windschuttle and shut up.

  28. Ken Parish says:

    Mark

    You make a fair point in one sense. However perhaps you’re over-emphasising the race factor and understating the gender issue. Alison Broinowski’s article in today’s New Matilda is worth reading in that regard. She argues that the most important motivating factor for removal of half-caste children was to cover up the evidence of the squattocracy and its sons bonking black women, and the social embarrassment it would otherwise have caused.

    To a considerable extent, I suspect similar factors were at work in pressuring young unmarried white women to surrender their babies for adoption, especially where there was a marked social class disparity between the pregnant young woman and the bloke who impregnated her.

    As a sociologist, I’m sure you’re even more acutely aware than I am that we’re talking about a different era when social values and expectations differed markedly from today, and not only in relation to issues of race.

    Thus, I’m not at all sure that there’s a radical moral distinction to be made between apologising to the stolen generation and to women forced to surrender their babies (or to those babies who now don’t know who their natural parents are). The difference is largely a pragmatic one: indigenous people have a collective identity and voice that makes itself heard very effectively, whereas ageing former single mothers and former Barnardos wards don’t.

  29. John Greenfield says:

    Ken Parish

    Having re-read your OP, my original criticism is closer to the mark. You say

    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.

    How much lower than 100,000? You do not hint at any disagreement with even the 50,000 made by unidentified “others.” What about “others” such as Andrew Bolt who claim only 2 or 3 digit numbers? Given there has been significant dialogue between Andrew Bolt and The Luvvies’ Numero Uno Australian public intellectual and Stolen Generations expert, the absence of the Bolt/Manne deabte from your post makes your claim that “In other words, Im making essentially the same point as you just did” disingenuous.

    It is yet another example of cowardly refusal to call Aboriginals out who make claims, while hiding behind the politically-correct apron of loud denunciations of “RWDB, Windschuttle” and so on.

    The REAL damaging racism in this debate comes from the Luvvie Left not the “rednecks”

  30. Ken Parish says:

    John

    I don’t know the true number, nor does Andrew Bolt. Nor did Sir Ronald Wilson. All he did was provide a forum for indigenous people who had been removed from their parents as children to tell what they knew of their stories. However, those children in most cases weren’t/aren’t in a position to give evidence of the reasons for their removal either. They were mostly removed (or surrendered) at an extremely young age when they could have had no comprehension of such things. Some have remade contact with extended family or their former local community and managed to reconstruct some version of the reasons it happened, though even then whether it’s the full story won’t often be clear.

    Bruce Trevorrow’s was a rare clear case because full documentation and contemporary evidence was available, and it proved that he was removed against his parents’ will when he wasn’t neglected or abused and was well cared for.

    To be blunt, I’m really not interested in getting into a debate about how many children were stolen and how many weren’t. if you want to have that sort of discussion, then toddle off to Andrew Bolt’s place where you’ll be among like-minded souls. As I said, I used the Bringing Them Home numbers (or at least the numbers of people who gave evidence to the enquiry) only as a rough indicative guide to the maximum number of likely claimants, and then suggested that we could expect that a lot of them would probably fail in their claims even on relaxed rules of evidence. I don’t see any point whatever in arguing about how many children were “stolen”, not only because it’s probably impossible to know but because, whether through the courts or a statutory tribunal as I’m suggesting, no-one is going to get compensation unless they can prove on satisfactory probative evidence that they were in fact stolen (and not surrendered or removed for neglect or abuse).

  31. saint says:

    I can see even in this thread, the evidence of people who are keener to make a political point/promote an ideology then to redress the wrongs that may have been done.

    I think what you said here Ken is spot on

    …not only because its probably impossible to know but because, whether through the courts or a statutory tribunal as Im suggesting, no-one is going to get compensation unless they can prove on satisfactory probative evidence that they were in fact stolen (and not surrendered or removed for neglect or abuse).

    Two other things (and I admit to being a bit coloured here by the only person I know who could conceivably fall into the class of ‘stolen’ except he doesn’t think he was) is
    * not every survivor wants compensation, although even there, as is the most human and understandable desire of many (all?) to want to know about their blood families – something that can be hampered by surviving members of their families and clans because of “culture” and
    * even if you posited a worst case scenario in terms of numbers of those still alive, and even if you offerred a generous compensation, it would not drive Australia broke and/or should not be used as a reason not to consider compensation for those with valid claims (i.e removed without good reason). To do so would create what I call another Palestinian style “right of return” mantra which just keeps people imprisoned in this endless cycle of recrimination without reconciliation or recompense.

  32. Saint – regarding your comment – In the 1980s some time my father was offered compensation by the Government of Germany for the Holocaust. His mother was deported to Theresienstadt in the early 1940s and thence (we believe) to Auschwitz after which she was seen no more.

    He declined. Odd for an economist who might have onpaid it to to some charity. But that’s what he did. I think my Dad was a consequentialist – but not on that it seems!

  33. saint says:

    I’m not surprised to hear that Nicholas for reasons that are too long and complex to go into now.

  34. Ken, I see that point. I haven’t looked at Broinoiski’s piece yet.

    I also wouldn’t bother responding to JG at 27 because you’ve made the point eloquently at 30, but I suppose I must having been called a “fraud” and a “hypocrite”.

    John, I usually try to be patient with you because you occasionally show signs of some intelligence and in any case I believe except under a lot of provocation in treating others civilly, but in view of your puerile propensity to hurl unjustified insults, I’m hardly surprised that others show less restraint.

    It is very clear that Windschuttle did his little political calculus mischievously in order to magnify the likely consequences of compensation. I’ve said I regard this as a specious and blatantly political act, and I’m hardly inclined to either resile from that view or apologise to Windschuttle at your instance. Nor have I ever said that Bringing Them Back Home is sacred writ, and my view of it is identical to Ken’s. I defy you to find – with your well known googling skills – any evidence that I’ve ever discussed it much at all. Just because Sir Ronald Wilson and his colleagues recommended a certain figure doesn’t bind me, or anyone else, to it even if we agree there should be compensation. I’ve already stated on this thread my support for the sort of scheme Ken recommends.

    It must also be clear to everyone that many of the 100 000 (if that is indeed the number, and I don’t assert that it is) are deceased, and therefore multiplying that number by 500k is an absurdity. Windschuttle is not a fool, so he must be being disingenuous. I don’t know whether or not you are a fool, but if not (and I hope that’s the case), you should be able to admit that it’s a specious demand.

    Nor has anything like that ever been mentioned in the context of the current debate by any Indigenous leaders.

    I find it difficult to understand, given the tack you take on these issues, why you went to so much trouble to go to Martin Place in the rain on Wednesday morning, as you were very loudly trumpeting. Like Ken, I’d have thought that you’d feel more at home with Andrew Bolt and his epigones.

    However, that’s your affair. Let me just close by saying that your rudeness and hyperbole do little to enhance this discussion, as with many of your other interventions.

  35. John Locke says:

    Ken, you’ve got me perplexed.

    My first Australian ancestor was brought here in chains for the Irish uprising of 1798 at the age of 14, worked his way on the Great Western Highway to gain his Ticket of Leave to settle down in 1822 at Mt Druitt and adopt, so it would seem, my real ancestor from a widower. For all I know I am the bastard son of no one. Am I owed an apology? Can you give me the numbers of like cases?

    My wife’s ancestor was a pig thief brought here for his crimes. Should she apologise for that?

    For what crime should my children apologise? What are the exact numbers that we should countenance at night to include in our contrite prayers?

    What are the names of the children we should include in our remittances, we children of the Australian scourge? People like you leave me impressed by your nobility, with your magic hands that wave away all hurt and know the truth of all matters. Who are the right and who are the wrong, please tell us oh mighty one.

    It seems that you have reached an almost God like omniscience in your righting of wrongs. It’s just that I’m confused as to who are wronged and who are righted. What with all these Anglo-Scots-Irish-Aboriginal names registered in the book of Sorry days I can’t tell who has the claim to victimhood. Please, just list their names, oh powerful, oh compensatory one.

    Just name them here and now so that I may personally deliver my apologies.

  36. The Man says:

    Hello Ken, my name is Anthony Mundine and I am seeking guidance from a mind as brilliant as yours.

    I am told that my ‘Christian’ name derives from the Etruscan, Antony, and is one of the oldest known Christian names in ‘the West’. It would seem that my name is even associated with ‘St’ Anthony the 3rd Century monk who founded the Christian monastic order. It sickens me to know of such things.

    My surname is derived from the English Munden being a compound of “protected” “Valley”.

    To whom do I give or receive an apology from? Do I apologise to myself and pay requisite compensation for the disaster that I have brought upon myself or do I seek an apology from the ancestors of the Irish whom my ancestors brought here in bondage? It’s confusing, but I am sure a mind as wise as yours, Solomon like, can divide the truth and bring justice to the matter.

  37. Michael Faraday says:

    Dearest Ken, it may seem odd that I write from beyond the grave but I’m sure that a mind as all time encompassing as yours will countenance such a happenstance.

    I am seeking compensation for my theorums resulting in the present day micro-wave oven. As you are, no doubt, aware, my theory of the electrostatic charge always remaining on the exterior of a charged conductor has resulted in many wonderful inventions like the mobile telephone, not to mention protection for unionised workers in the field of electrical supply.

    However, unfortunately my heirs are now subsisting on a diet of vampire finches, galapagos turtles and rodents with rice.

    I know you have your abacus out calculating important things like who carries the greater sin but I am hoping that you might include at some juncture the small matter of my heirs and what is their due. I am not sure they are owed anything, they are white after all, but please do consider their welfare in your current calculus.

    Yours electrically,

    Michael Faraday.

  38. saint says:

    Blood oath John, you should just apologize to yourself (I know, with my heritage I have, and some of you lot need to too)

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