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Social Justice Report 1998

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    • Chapter 4: Government Responses to the Recommendations of Bringing Them Home

    Introduction

    Bringing Them Home - the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (the National Inquiry) - made 54 'head' recommendations, 83 recommendations in total [1], to address what was referred to as 'the continuing devastation of the lives of Indigenous Australians'. The implementation of most recommendations requires action to be taken by the Commonwealth Government and/or State or Territory Governments. A follow-up project was undertaken by Human Rights and Equal Opportunity Commission (the Commission) to collate the various Government responses. The results of the project are presented in Bringing Them Home: Implementation Progress Report (the Implementation Report [2]). This chapter reproduces the research in that Report.

    The Implementation Report does not purport to be a comprehensive account of all actions taken by the nine governments in full or part response to the National Inquiry's 83 recommendations. The enormity of the task to compile such a matrix of individual and joint government responses to each recommendation is obvious and clearly beyond the bounds of the Commission's follow up project. In any case, such a task - like the painting of the Sydney Harbour Bridge - would never be finished. Rather, the aim is to provide a more general account of the governments' responses. This is reflected in the thematic structure of the Implementation Report, where related recommendations are grouped under broad headings and discussed collectively. The Implementation Report focuses on the principal initiatives that have been taken by governments (as well as those that have not) which bear significantly on the matters of concern raised by the recommendations. The Implementation Report is largely descriptive, though an effort has been made to place governments' responses in the context of the aims of the National Inquiry's recommendations.

    The Commission has continuing statutory responsibilities that relate to the Report of the National Inquiry. Pursuant to these responsibilities the Commission established the follow up project in order to facilitate the implementation by governments, in their individual and collective capacities, of the recommendations made in the Report of the National Inquiry. The project ran for a total of seven months, from early December 1997 until the Implementation Report was completed in late June 1998. [3]

    The project had four objects:

    (i) to fulfil statutory obligations

    Under section 46C of the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA) the Commission, through the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, is required to report on, and generally to promote, 'the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders'.

    Under sections 11(1)(e),(f),(g),(h) and (p), 13(1), 14(1) and 29(1) of the HREOCA the Commission is further, and more extensively, empowered to examine current or proposed enactments and practices regarding their compliance with human rights. It is also empowered to research into and to promote human rights in Australia in such manner as the Commission sees fit, and to report on its findings.

    The Commission's concern to see the recommendations of the National Inquiry implemented and its establishment of the follow up initiative to assist and assess that process clearly falls within each of these enumerated statutory obligations and provisions.

    (ii) to explain the findings and recommendations of the National Inquiry

    Though the recommendations are clear on their face, the Commission appreciated that there was a need for their scope and rationale - including the findings that lie behind them - to be more fully articulated, especially in the context of governments faced with the practicalities of implementing the recommendations.

    As author of Bringing Them Home, the Commission was well to do so.

    (iii) to facilitate inter-governmental communication

    As the nature of many of the recommendations requires a common or coordinated response from Australian governments, there is a need for an ongoing institutional and procedural framework for inter-governmental coordination and communication to facilitate this process.

    The Ministerial Council on Aboriginal and Torres Strait Islander Affairs (MCATSIA) has been charged with the primary responsibility for coordinating cross-governmental implementation of the National Inquiry recommendations at a ministerial level. There appeared, however, to be a need for communication and coordination between departmental officers on more informal terms and on a more regular basis than is possible through MCATSIA. The project, therefore, was viewed clearly as a supplement to the MCATSIA process, not a substitute for it. [4]

    (iv) to facilitate communication and mutual assistance between governments and the National Indigenous Working Group on Stolen Generations

    In so far as it was able, the Commission assisted in establishing lines of communication and understanding between governments and the National Indigenous Working Group on Stolen Generations. It was intended that the concerns both of governments and Indigenous people regarding the former's responsibilities to implement the recommendations would be more fully appreciated and better addressed in advance of implementation, as well as in the process of implementation. [5]

    Methodology of Follow Up Project

    In respect of each of the nine Australian governments, the Department or agency responsible for the construction and/or coordination of the government's response to the National Inquiry's Report, or, more generally, had carriage of the Aboriginal and Torres Strait Islander Affairs portfolio, was identified and the responsible Minister approached. In each case a meeting was sought initially with that Minister, the Director or Chief Executive Office of the relevant agency and other officers, as well as Ministerial advisers. Despite concerted efforts, it was not always possible for all of these people to attend the meeting in each jurisdiction.

    Meetings with each government were held, though the composition of the government representatives varied from jurisdiction to jurisdiction. In each case, however, the meetings were attended by Sir Ronald Wilson and Dr David Kinley, representing the Commission, and a local member of the National Working Group on Stolen Generations and/or a representative or representatives of other local Indigenous bodies. The meetings were conducted in each jurisdiction from February 1998 to late April 1998.

    Meetings were held with the responsible Minister in three jurisdictions. Meetings were held with representatives of appropriate departments in all jurisdictions. In the case of the Commonwealth Government, however, though meetings were held with officers of the Department of Health and Family Services (and with a member of the office of the Minister for Health and Family Services) and with officers of ATSIC, there were no meetings held with officers from the Office of Indigenous Affairs in the Department of Prime Minister and Cabinet or the Office of the Minister for Aboriginal and Torres Strait Islander Affairs.

    A constant feature throughout the progress of the project was the involvement of the National Indigenous Working Group on Stolen Generations, especially through its then co-chair Ms Carol Kendall. In particular, it was always the case that the Indigenous representative or representatives from each State and Territory that attended the Follow Up project meeting in that jurisdiction also sat on the National Indigenous Working Group on Stolen Generations. Invariably a meeting was held with the Indigenous representative or representatives immediately before the scheduled meeting with the relevant government.

    Questions and discussions in the meetings centred on each government's response where there was one (in the case of the Commonwealth, Tasmania and Victoria), or progress of response to the National Inquiry's recommendations, as well as issues and initiatives raised by each government in their respective submissions to the National Inquiry throughout its term.

    Pertinent information and materials were obtained from governments both during and after the meetings. Indeed, a significant part of the collection of material occurred by way of numerous communications with agencies representatives in the months that followed the initial meetings. Inevitably, some information will have been missed. Generally speaking, agencies were open and willing to provide all that they could and were frank in their answers to our many queries. But it is true that some were more cooperative than others. [6]

    Overview of government responses and implementation

    Progress of responses

    On 31 July 1998, one year and two months after the tabling of the National Inquiry's Report in the Commonwealth Parliament, five governments had delivered formal responses to the recommendations of the National Inquiry. They are, in order of delivery:

    Tasmania, 17 August 1997 (43 pages; including full recitation of each recommendation);

    Victoria, 17 November 1997 (60 pages; including full recitation of each recommendation);

    Commonwealth, 16 December 1997 (13 pages);

    Queensland, 7 April 1998 (18 pages; including abbreviated descriptions of recommendations);

    Australian Capital Territory, July 1998 (17 A5 pages; including full recitation of each recommendation). [7]

    Formal responses are in the process of being compiled in all of the other four jurisdictions. In respect of South Australia and Western Australia the process is well advanced, in that it is our understanding that completed drafts of the responses are awaiting Cabinet approval.

    In New South Wales, a detailed draft response was prepared by the government, but on its presentation to the Steering Committee in May 1998 significant concerns were raised as to its form and content. The government is currently reviewing how best it can meet those concerns in its response [8], but, in any event, anticipates making a response by September 1998. The Government published a brief Statement of Progress on 26 May 1998. In addition, however, it should be noted that the New South Wales Government made available a draft summary of its response (dated April/May 1998), on the condition that its use in the Implementation Report be acknowledged as such and that it be further noted, in particular, that the summary 'is not endorsed by either the Department of Aboriginal Affairs or the Minister for Aboriginal Affairs at this stage, as it is yet to be considered by Aboriginal communities and organisations' in forthcoming consultations (see further detail below).

    In respect of the response of the Northern Territory Government, it is our understanding that it has been approved in outline by Cabinet and is presently being finalised. In any event, in the meetings with each of the governments it was indicated to the project team that each of the governments whose response is outstanding expected to deliver their response within a matter of months, and almost certainly before the end of 1998.

    In the meetings with those governments yet to respond, the project team was told repeatedly that one of the reasons for delay was to await the delivery of the Commonwealth's formal response.

    Funding specifications

    Breakdowns of the financial implications initiatives are not provided in the responses of Queensland, Tasmania, Victoria and the ACT. Some specific sums are nominated (though in the case of Queensland, none of these appear to relate to newly funded initiatives established or to be established in direct response to the National Inquiry's recommendations) and these are referred to under the particular headings below. A total amount of new funding of more than $425,000 over two years was announced in a statement that accompanied the Victorian Government's response [9]. No such total sum of new funding has been provided by Tasmania, Queensland or the ACT.

    In anticipation of the publication of its response, the Western Australia Government, through the Minister for Aboriginal Affairs, Dr Kim Hames, announced on 20 May 1998, that '$1 million had been provided in the 1998-9 State Budget to begin the initiatives outlined in the response' [10]. These initiatives (as discussed further below) are concerned with records access and management, regional information and counselling services. The Minister also stated that approximately $600,000 would be recurrent funding for these services.

    The Commonwealth's response contains a broad outline of funding for the initiatives it proposes, as reproduced below. Details of the breakdown of the proposed expenditures were not provided in the response.

    Total Commonwealth funding package = $63 million ($54 million 'new' funds) over an average of four years:

    These figures are confirmed in the 135 page statement issued by the Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, entitled 'Addressing Priorities in Indigenous Affairs', delivered on the same day as the Budget was handed down (12 May 1998) [11]. Specific details of the breakdown of these amounts were not provided in the statement. However, the appendices to the statement do provide some additional general information about the departmental programs through which the funds will be channelled, as well as the expected outcomes. [12] This additional information is discussed under the appropriate sub-headings in section 7 below.

    Structure of responses

    The responses of Tasmania, Victoria, Queensland and the ACT specifically consider each of the National Inquiry's 54 recommendations (and sub-divisions, where appropriate), as regards the nature and extent of what the governments perceived to be their responsibilities. In each case, the responses begin with a brief overview of the background of the National Inquiry, the general strategies of the government in question in respect of Indigenous issues and specific initiatives (whether ongoing or planned) that bear on the issues raised by the Inquiry.

    Themes

    It was recognised by all governments that the broad scope of the National Inquiry's recommendations was not confined to the responsibilities of Aboriginal and Torres Strait Islander Affairs portfolios. The matters covered in the recommendations fall within the bounds of a number of government departments. Typically, the other 'mainstream' portfolios affected are those covering human, community and family services, health, education, youth affairs, records and archives, Attorney-General's, justice (and juvenile justice, if separate), police and finance.

    A direct result of this cross-portfolio responsibility was that a coordinated approach to the compilation of individual governments' responses was invariably adopted. This approach took the form of the establishment of a Steering Committee (in New South Wales) [13] or an Inter-departmental Committee (in Victoria, Western Australia and the Commonwealth). In the alternative, the Department or Office responsible for Aboriginal and Torres Strait Islander affairs acted as coordinator (in the ACT, Queensland, Northern Territory and South Australia), or the Offices of Premier and Cabinet Office (Tasmania and Western Australia), or Prime Minister and Cabinet (the Commonwealth) took on the role.

    Just as the breadth of issues encompassed by the recommendations required a coordinated, cross-portfolio response, so the implementation of the governments' responses will require a coordinated scheme of supervision and monitoring. This need has been foreshadowed by some governments. For example, the Office of Aboriginal Affairs in Tasmania has indicated that it will be undertaking a review of the Government's response by September 1998. The Victorian Government has proposed a more elaborate three-tier scheme for monitoring implementation involving regional reference groups, a monitoring Interdepartmental Committee, and a commitment from the Government to report annually to Parliament on the progress of implementation [14]. In respect of the other governments (including the Commonwealth) it is proposed or supposed that the Department that has carriage or primary carriage of Aboriginal Affairs will perform this coordinating and supervisory role. In the apparent absence of any cross-portfolio coordination in Queensland, the advisory and monitoring responsibilities are to lie with the Government's peak Indigenous advisory body, the Indigenous Advisory Council (see below). However, implementation would seem to remain the responsibility of the lead agency or the Department of Families, Youth and Community Care. Though the ACT's Aboriginal and Torres Strait Islander Consultative Council presently has responsibility for monitoring the Government's response to the Royal Commission into Aboriginal Deaths in Custody (RCADIC) recommendations, there appears to be no plans to extend its terms of reference to include monitoring of the implementation of the National Inquiry recommendations. [15]

    The question of Australia-wide, cross-government monitoring of governments' implementation of responses is yet to be fully addressed. The suggested structure that constitutes Recommendation 2 of the National Inquiry - that is, principally, the establishment of an 'Audit Unit' within the Commission to which peak Aboriginal bodies would provide evaluating advice and to which governments would submit annual reports - has not been favoured. The Commonwealth's response provided no indication whatsoever as to the process of monitoring, nationally, implementation at a national level. No funding, it appears, will be forthcoming for the establishment of the recommended Audit Unit (Rec. 2(b)), and none for ATSIC to assist Secretariat of National Aboriginal and Islander Child Care [SNAICC], National Aboriginal Community Controlled Health Organisation [NACCHO], and National Aboriginal and Islander Legal Services Secretariat [NAILSS] to advise the Audit Unit on behalf of Aboriginal communities (Rec. 2(c)).

    It was made clear to the project team that governments had no desire to follow the monitoring system employed for the implementation of the recommendations of the RCADIC, which, it was felt, had not been successful. It is our understanding that the Ministerial Council of Aboriginal and Torres Strait Islander Affairs (MCATSIA) indicated in its August 1997 meeting that the rigid, recommendation-by-recommendation style of the monitoring of implementation applied to RCADIC ought not to be applied to the monitoring of the implementation of the National Inquiry's recommendations. [16]

    It is understood, furthermore, that during the same MCATSIA meeting, it was resolved that a working-group be established with the broad aim of considering issues concerning implementation, including the monitoring of the implementation of responses. Victoria was charged with the responsibility for the setting-up of the working-group. At the time of writing the working-group has not yet been established. It is understood that the intention is to establish the body after - rather than in advance of - all governments having finalised and published their individual responses. The project team has been assured nonetheless by the Office of the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs that 'MCATSIA will be providing inter-governmental coordination mechanisms as required' [17]. It is unclear how this objective is to be achieved.

    Given the nature of the National Inquiry, the involvement of Indigenous people in the governments' formulation and implementation of responses to the National Inquiry's recommendations is particularly important. In any event, the necessity of Aboriginal and Torres Strait Islander peoples involvement in the making and implementation of policies that directly affect them has been unequivocally recognised by all Australian governments in the National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders [18], where it is stated that:

    [t]he Governments of Australia, in making the National Commitment, have as guiding principles:

    … the need to negotiate with and maximise participation by Aboriginal peoples and Torres Strait Islanders through their representative bodies, including the Aboriginal and Torres Strait Islander Commission, Regional Councils, State and Territory advisory bodies and community-based organisations in the formulation of policies and programs that affect them. [19]

    There are a number of levels at which Indigenous communities have been involved in the governments' compilation of responses, and could be involved in the future implementation of those responses.

    The level of representation of Indigenous communities stretches from government departments of Aboriginal and Torres Strait Islander affairs and governmental advisory or consultative bodies, through quasi-governmental or non-governmental peak Indigenous bodies, to specific small groups or individuals. Any of these, in turn, might be involved with government as a whole or with individual departments.

    The form of the involvement is equally variable, ranging from full consultation and collaboration, through the provision of advice to governments, to mere notification by governments of that which has been, or will be done. Involvement in the process of determining the content of a government's response has been through formalised and regular broad-based consultations, or advice sought, on all issues affecting Indigenous peoples (as is the case with the Commonwealth [20] and the ACT [21] and Queensland [22]), or has been through involvement related specifically to the matter of the stolen generations (as in New South Wales [23] and Victoria [24]). The relevant departments of Aboriginal Affairs also gauge the opinions of Indigenous communities through the links that their own Indigenous staff have with the communities and more informal liaisons. In the absence of additional consultative processes in some jurisdictions, it is this form that is principally relied upon in Tasmania, Northern Territory, South Australia and Western Australia.

    All governments have, to some extent, consulted and are consulting, with Indigenous peoples and representatives of communities, even if it is no more than is usual for the relevant department to undertake in the process of policy-formulation. With the exception of an initiative in New South Wales, however, it has not been possible for the project team to identify precisely when, in what manner, and how often Indigenous communities or Indigenous representative bodies were engaged in such discussion in respect of all governments.

    In New South Wales, the Steering Committee established to oversee the compilation of the Government's response has, apparently, been successful in insisting upon the importance of consultations with Indigenous communities. In May 1998, the Government agreed to hold a series of public forums around the State in conjunction with Link-Up (New South Wales), with the aim of seeking advice 'on the most appropriate ways to target … programs and policies to better suit the needs of the Stolen Generations'. [25] Six such forums were held during July and August 1998. This initiative is important because the Government has effectively been prepared to forego its (by then) near complete draft response, which it will now use as a framework to produce a more direct and succinct document.

    Nonetheless, there remains some difficulty in measuring how successful any of these efforts (including the New South Wales initiative) have been, or will be, in reaching Indigenous communities and reflecting their concerns in the resulting policy initiatives of governments.

    The bulk of the National Inquiry's recommendations are directed towards the governments; to this extent it is the responsibility of governments (singly and collectively) to respond to them, and, where accepted, to implement them. But even in respect of those recommendations that are not apparently directed at government, they would best be implemented with the co-operation of government, or at least in parallel with governmental actions, initiatives, regulations or laws: see for example the commentary below on recommendations regarding access to private collections of records (Rec. 38); provision of counselling services by non-government bodies (Rec. 40); and, the consideration of the return of private land holdings (Rec. 41).

    The need for action on the part of all Australian governments must be understood within the broader context of the governments' collective commitment to 'improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders' made in the National Commitment. [26]

    Added to this, in respect of the Commonwealth Government, Senator Herron in his 1998 Budget day Statement Addressing Priorities in Indigenous Affairs, pronounced that:

    [t]he government came to office with a firm commitment to address the unacceptable level of disadvantage suffered by Australia's Indigenous people, particularly in the key socio-economic areas of health, housing education and employment'; [27]

    and that:

    [t]his government is committed to ensuring value for money in indigenous affairs by systematically targeting areas of greatest need, particularly in rural and remote communities where access to mainstream services is limited. [28]

    He further announced that:

    [w]e have implemented innovative and responsive policies such as the ATSIC/Army initiative, support for indigenous businesses, and the trachoma project. We are also providing generous levels of funding. We will spend over $700 million more in real terms in our first four years in office than we spent in the previous four years. [29]

    Certain recommendations of the National Inquiry are expressly directed towards specific governments or levels of government, while others are directed, or may be presumed to be directed, towards all or a number of governments. In the latter case, it was supposed by the National Inquiry that the most appropriate level or levels of government would assume individual, collective or parallel responsibility for addressing the issues raised and/or implementing the recommendations made.

    From the existing government responses, and from the project team's consultations with governments, it is clear that perceived demarcations of responsibilities between the Commonwealth, States and Territories are also instrumental in determining responsibility. The ready resort to federal divisions has had the unfortunate result of the responsibility for many issues being shunted between governments.

    National legislation

    The National Inquiry made a number of recommendations calling for the introduction of national legislation. A strict adherence to Federal divisions of responsibilities clearly presents an insurmountable obstacle to the implementation of these recommendations. Two forms of national legislation were proposed:

    (i) national framework legislation (Rec. 43) - such legislation, which would be structural in form, would have the object of promoting self-determination through consultation and cooperation between governments and Indigenous peoples at community and regional levels in respect of the development and implementation of policy and legislation; and

    (ii) national standards legislation (Recs 44-53) - such legislation, which would be more detailed and likely be binding at all levels of government, would aim to establish minimum and/or 'best practice' standards in government/Indigenous community interrelations in respect of policy and legislative initiatives.

    The specific areas covered under both proposals are broadly the same - namely, children's care and protection, welfare and adoption, and juvenile justice, including police, judicial and government departmental functions. [30]

    It was apparent from the project team's consultations with governments, that there is no consensus among Australian governments to pursue such uniform legislative goals through Commonwealth Office of the Attorney General (COAG) or appropriate Ministerial Councils. Indeed, quite the contrary appears to be the case. The current situation is that each jurisdiction is being left to pursue those goals relevant to the issues covered by the recommendations in a way, and to an end, that best suits its particular circumstances. [31]

    Senator Herron stated in the Commonwealth Government's response that for 'the Commonwealth to seek to override the legislative and related responsibilities of the states and territories in these circumstances would, I believe, be counter-productive for all concerned.' [32] In reply to this, the National Inquiry's recommendations do not require such an 'override' stance to be taken by the Commonwealth; in fact, quite the reverse. What they suggest is that the Commonwealth takes a lead in ensuring a cooperative approach to establishing common frameworks and setting common standards in achieving common goals.

    Although a 'top-down' approach to national legislation might be the most desirable and the most efficient means of delivery, it is clearly not an option that has found favour with governments. Nevertheless, the process of separate government responses and initiatives can yield best practice models which may, by way of a 'bottom up' effect, develop into national legislation. The particular, pragmatic advantage of this approach is, as a number of governments pointed out to the project team, that it reflects the political reality of federal/state relations, while still allowing for the goal of progressing towards some form of uniformity.

    The 'National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders' [33], the New South Wales Government's 'Statement of Commitment to Aboriginal People' [34], and the 'Victorian Koori Services Improvement Plan' [35] are examples of frameworks at the policy level, which conceivably form the basis for the establishment of framework legislation. To this end, the 'National Commitment' talks of a 'framework for improving outcomes' [36] for Indigenous peoples; the 'Victorian Strategy' talks of 'an 'umbrella' framework within which both existing and future … policies for Koori services will sit', [37] and the New South Wales Statement declares itself to be the 'foundation for moving forward'. [38]

    Likewise, in respect of standards, policy statements in one form or another exist in most jurisdictions in the areas of Indigenous health, welfare, education and juvenile justice (as discussed below). Individually and collectively (as most share common themes) these policies provide the basis for common legislative standards for consultations with, and the delivery of services to, Indigenous peoples and communities.

    However, with the notable exceptions of the widely adopted Aboriginal (or Indigenous) Child Placement Principle (ACPP or ICPP) and a patchwork of juvenile justice standards, the current position is one of potential rather than actual delivery. The potential of the policy statements, in other words, have yet to be translated into legislation.

    In the 'National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders' the Australian governments 'have agreed on the need to achieve greater coordination of the delivery of programs and services by all levels of government to Aboriginal peoples and Torres Strait Islanders.' [39] The same document also declares 'effective coordination in the formulation of policies and the planning and management and provision of services to Aboriginal peoples and Torres Strait Islanders by governments' to be one of the 'guiding principles' for governments. [40]

    Not surprisingly, given the insistence on the demarcation of governmental responsibilities, intergovernmental coordination has foundered. As noted above, the COAG never addressed the issue; the MCATSIA delegated the matter to a working group and the working group has not yet been convened.

    A significant dimension of the governments' responses has been the matter of making officially sanctioned apologies. It is fair to say that whatever else is contained or is to be contained in individual government responses, the character of that response is largely set by the fact of whether an apology is made or not, and where one is made, its form and tone.

    It is important to stress the context in which these apologies and refusals to apologise by Australian governments occurred. For the various local governments, trade unions, churches and other non-governmental groups, as well as a great many individual Australians (culminating in the 'Sorry Day' events on 26 May 1998), they were all moved to express in their own words messages of apology, acknowledgement or regret.

    Implementation in specific areas

    Apologies/statements of regret: Recommendations 3, 5, 6, 7

    Some heads of government and relevant ministers made statements of apology or regret in their own right, but the definitive statements of apology were those made by the corresponding Australian Parliaments. Seven of the nine Parliaments in Australia passed motions of apology expressing, in slightly different forms, feelings of deep or sincere regret for the hurt and distress suffered by Indigenous people as a result of the policies of forced separation of Aboriginal and Torres Strait Islander children from their families. [41]

    The two jurisdictions in which neither the government nor the Parliament issued statements of apology were the Commonwealth and the Northern Territory. In both cases the underlying reasoning for not doing so was the notion that the generations of today ought not to be held responsible for the wrongs of former generations.

    The Prime Minister proclaimed in his speech opening the Australian Reconciliation Convention in Melbourne on 26 May 1997 that 'Australians of this generation should not be required to accept guilt and blame for the past actions and policies over which they had no control'.

    In the same vein, Mr Tim Baldwin, the Northern Territory Minister for Aboriginal Development, stated in a debate on the issue of an apology in the Northern Territory Assembly, that 'any call for an apology for the policies of past Commonwealth governments does not involve this government, given that those policies pre-dated self-government in the Territory'. [42]

    Clearly, such concerns were not so dominant in the thinking of the other seven Australian jurisdictions.

    The cleavage between the past and present is echoed in the response of the Commonwealth Government in which the Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, stated first that '… we do not believe that our generation should be asked to accept responsibility of earlier generations, sanctioned by the law of the times …". However, Senator Herron then added that, 'we fully accept that we of this generation have an obligation to address the consequences of those actions and policies'.

    It is in this two-part approach that the heart of the controversy over the making of official apologies lies, for it is claimed that a critical feature of any meaningful 'addressing of the consequences' by governments has to be an acknowledgement and expression of regret on the part of those governments for what occurred in the past. The claim of a current government's lack of any direct responsibility for the actions of past governments is to overlook a fundamental and enduring feature of Australian democracy - namely continuing responsible government. As one member of the Northern Territory Parliament stressed during the Legislative Assembly's debate on the question:

    No one accuses this government of any wrongdoing in this matter. This government simply was not in existence at the time. No one accuses this current federal government of ill-doing in this matter. It is a very different government. It is a very different time. However, this government and the federal government are the bodies politic Y the only authorities that can 'say' sorry, that can issue an apology on behalf of all Australians. [43]

    In respect of State Police Forces, the New South Wales Police Commissioner, Peter Ryan, stated publicly on 21 May 1998:

    On behalf of the New South Wales Police Service, I offer a sincere apology to members of the 'stolen generations' and to all Aboriginal and Torres Strait Islander people for the prominent role that police played in enforcing past unjust laws. [44]

    No other police force has formally apologised. The Queensland Government notes, however, in its response that '[t]he historical role of the police in the removal of children was acknowledged during the Inquiry by Inspector Col Dillon, formerly Inspector in Charge of the Cultural Advisory Service'. [45]

    26 May 1998, which marked the first anniversary of the tabling of the Bringing Them Home Report in the Commonwealth Parliament, was decided upon by the National Indigenous Working Group on the Stolen Generations (NIWGSG) to be the most appropriate to mark the commemoration of the history of forcible removals and its effects (Rec. 7). The NIWGSG formulated a one page statement articulating the objects of the Sorry Day and facilitated the holding of events across the country. Certain Governments and certain agencies within government actively encouraged and participated in these events. The NIWGSG received a grant of $20,000 from ATSIC to assist it in its organisation of Sorry Day activities.

    It is not yet settled whether the Sorry Day will be an annual event.

    Telling, recording, keeping and accessing stories: Recommendation 1

    At the national level, the Commonwealth has provided $1.6 million for an oral history project to be run over four years by the National Library. The objectives of the project are:

    Documentation of personal and social experiences of Indigenous Australians who were affected by the various separation programmes and of those involved in administering and implementing these programmes. [46]

    There will be an initial 'pilot project', to commence in 1998 and to run for 12 months, during which time 30 'oral history interviews' will be undertaken. The object of the pilot project is, according to the Commonwealth, to test the feasibility of a full scale project and to determine arrangements for its establishment should it be considered feasible. The envisaged outcome is 'a permanent national record of a significant period in Australian history, and a publication based on the testimonies of participants in the oral history project'. [47]

    No details as yet have been provided as to the extent of the full-scale project - that is, the number of histories to be recorded, and the methodology of the project, how the histories will be collected, where and by whom.

    Also at the national level as noted earlier, ATSIC is to increase its funding of the 20 or so regional language and cultural centres by $9 million over the next three years. This additional amount is not 'new money' but rather will be drawn from ATSIC's General Purpose grant [48]. According to the Commonwealth Government these funds 'will be targeted to areas of greatest priority in relation to culture and language maintenance'. Furthermore, the Government anticipates that 'extensive' community consultations will precede the setting of any funding priorities. [49]

    At the level of States and Territories' language and cultural initiatives, the landscape of current and future schemes is varied.

    In its response, the Victorian Government announced that the pre-existing Koori Oral History Program, administered by the Koori Heritage Trust, is specifically 'to record the stories of Aboriginal people affected by separation from their families'. [50]

    The New South Wales Government has indicated that the 'State Library would work with the relevant Government and Aboriginal Organisations to establish an oral history strategy' [51]. The Government also pledged $40,000 seed money to the New South Wales Stolen Generations Memorial Foundation [52]. It is a primary intention of the Foundation that a 'keeping place' be built as a monument and memorial to those affected by the policies and practices of separation.

    It should be noted that under a grants scheme operated by the Community and Personal Histories Section of the Queensland Department of Family Services and Aboriginal and Islander Affairs, funding (up to a maximum of $5,000) can be obtained to aid, among other initiatives, the establishment or maintenance of oral history, family or community history projects.

    The ACT Government has allocated $2.5 million for the construction of an ACT Aboriginal and Torres Strait Islander Cultural Centre (to be opened in 2001). The Cultural Centre's vision is 'to retain, maintain and share cultures of contemporary Indigenous peoples in the ACT region, with special recognition of the traditional owners - the Ngunnawal people'. In its response the Government expanded on the Centre's 'underlying philosophy', indicating that it is 'to build a place for all people to visit, learn and experience Indigenous cultures as presented by Indigenous peoples themselves. This will include oral histories, exhibitions and associated materials relating to the stolen generations'. [53]

    Compensation: Recommendations 14, 18, 41, 42

    The National Inquiry's recommendations are based on three foundation principles for monetary compensation:

    (i) the reasons for compensation, or 'heads of damage' (Rec. 14) - these cover both loss (in the sense of cultural, land, or economic rights) , and damage (as occasioned by racial discrimination, loss of liberty, abuse, and pain and suffering);

    (ii) the establishment and operational structure of a fund from which compensation would be paid; and

    (iii) the bases upon which compensation claims will be heard/assessed and the entitlement to a minimum lump sum.

    Though no express indication was provided in the Implementation Report as to the precise form or process by which compensation payments would be determined, there are essentially three alternatives:

    (i) by way of litigation in the ordinary courts;

    (ii) administered through a government department or other agency; and

    (iii) by way of a tribunal.

    No government showed any inclination to be proactive in providing compensation or reparation under the second and third of these mechanisms (the first mentioned requires, of course, no facilitative action on the part of the state beyond maintaining the pre-existing court structures), though some had considered certain possibilities. In the case of three governments, Victoria [54], Queensland [55], and the ACT [56], the unequivocal view is that no monetary compensation ought to be or will be paid. It was repeatedly put to us by governments that no matter how far their own thinking had developed on the issues, the matter was unquestionably a national one and therefore would necessarily require a coordinated national initiative. Tasmania, for example, indicated that it would support discussion of the issue at COAG or ministerial council levels. All governments were content for the time being to wait and see what the outcome will be of the various cases currently on foot. All governments were aware (at different levels of acuity) of the various litigation on foot - namely:

    The 'watching brief' adopted by governments in respect of these cases has, invariably, two points of focus: first, the grounds (if any) that courts indicate would provide sufficient basis for damages to be awarded; and, secondly, if awarded, the magnitude of damages.

    Another issue of particular concern for governments is whether the provision of assessed or ex gratia payments under any administrative (that is, non-curial and non-tribunal) scheme, would necessarily displace any additional civil action in the courts concerning the same issue (as would appear to be the intended effect of Rec. 20). State and Territory governments, in other words, are especially concerned over the possibility of being exposed to a 'double jeopardy' in respect of compensation payments.

    The only evidence of consideration of an appropriate mechanism by which such compensation or reparation might be delivered has been by the New South Wales Government. This came by way of a proposal put forward by the PIAC for an 'Indigenous People's Reparation Tribunal' (IPRT). This proposal was submitted to the New South Wales Government and formed part of the Briefing Material issued by the New South Wales interdepartmental Steering Committee which is coordinating the Government's response. The proposal which was based on consultations with Link-Up (New South Wales), Tranby Aboriginal Co-operative College, Aboriginal legal, medical and children's services, and members of the stolen generations was conceived as an alternative both to seeking redress for legal wrongs through litigation in the ordinary courts and the National Inquiry's recommendation for a nationally administered Compensation Fund to be established (Recs 15 & 16). The new Tribunal, it has been suggested, might be based on the form and procedure of the existing New South Wales Victim's Compensation Tribunal, thereby avoiding the potentially traumatising adversarial features of court-room litigation. The PIAC proposal indicates that,

    [i]t would be given powers to make orders relating to compensation, based on oral or written submissions, and would also be authorised to make Recommendations relating to the other aspects of reparations as set out in Bringing Them Home; ie apologies, guarantees against repetition, measures of restitution and measures of rehabilitation. [60]

    Awards made by the Tribunal could be formulated to give classes of people benefits rather than simply limiting relief to individual claimants. [61]

    As some of the remedies envisaged are very different from anything that is currently available from existing tribunals, there is some doubt over how, or indeed whether, the proposed IPRT would be able to deliver them. It is expected that some indication as to how practicable (as well as politically acceptable) the proposal is will be provided in the eventual response of the New South Wales Government.

    Reunion and records issues: Recommendations 12, 21 - 31, 38 - 40

    Record keeping (access; archiving procedures and transfers) [62]

    Access to, and maintenance of government held records was an important focus of the National Inquiry. It also featured prominently in governments' responses and preparations of responses, and in the project team's meetings with governments. It is true that serious problems continue to exist (especially in providing counselling services), but equally it is fair to say that out of the stolen generations issues addressed by governments, improvements in record keeping have been notable. At least one of the reasons for this would appear to be the relative immediacy of beneficial results that can be attained. The fact that the records are, in the main, still in existence and held by the governments has meant that establishing procedures by which the records can be accessed has been readily foreseeable and practicable.

    At the national level, the National Archives of Australia (NAA; formally, 'Australian Archives') has been especially active. It established in March 1997 a 'Memorandum of Understanding' (MOU) in respect of access to records held by the NAA in the Northern Territory, with a number of Aboriginal and Torres Strait Islander peak bodies including the Northern Territory Stolen Generations Combined Reference Group. The essential aim of the MOU is to:

    facilitate access to open period Commonwealth records in the custody of Australian Archives relating to Aboriginal people, including records or information which would otherwise be exempt under s.33(1)(g) of the Archives Act 1983 [that is, unreasonable disclosure of the personal affairs of an individual]. [63]

    Specifically, the MOU is intended to assist Indigenous people affected by separation policies.

    It is understood that a similar initiative is under consideration between the NAA and the Public Records Office of Victoria. [64]

    The Commonwealth Government has also provided $2 million over four years to the NAA to compile name indexes, copy and ensure the preservation of Indigenous family records, and to publish 'detailed finding aids which will enable individuals and organisations from all parts of Australia to locate relevant records more easily'. [65]

    There would also appear to be some expectation of intergovernmental coordination on the question of records. As foreshadowed in the Commonwealth's response, the Council of Federal, State and Territory Archives (comprising the head archivists in each jurisdiction), has moved in this respect. It is understood that a 'References and Access Working Group' established by the Council is to convene at a forum in Perth in August 1998 with the express aim to share ideas and consider the possibility of initiating a joint agreement on common keeping and access standards for records relevant to Indigenous people affected by separation policies. Such an initiative would provide a sound basis for meeting the demands of Recommendations 24 and 25 for governments to enter into memoranda of understanding for dealing with the tracing of records interstate and minimum access standards.

    Interestingly, in handling interstate enquiries, the Queensland Government notes in its response that its experience 'suggests that formal memoranda of understanding between States dealing with interstate enquiries may not be necessary'. The Government based this contention on the fact that the practice in the Queensland system on receiving requests for records information from interstate was simply to send copies of the material direct to the persons concerned. However, while such an approach may satisfy the need to access information, it does not take account of important ancillary needs such as counselling which might have to be the subject of some intergovernmental agreement.

    The ACT Government, on the other hand, supports of the development of memoranda of understanding between governments for dealing with interstate enquiries. This is hardly surprising given the peculiar position that exists in the ACT where, as its response notes, 'a significant number of ACT records were held previously by the Commonwealth or NSW governments, and a number of people now living in the ACT were forcibly separated from their families in other jurisdictions'. [66]

    Records Taskforces

    The National Inquiry's Recommendation 23 that there be established within the Commonwealth and each State and Territory joint records taskforces has not been universally adopted. The idea of such taskforces being 'joint' is not just to ensure that all relevant government departments work co-operatively, but also that non-governmental record-keeping bodies (such as the churches) and Indigenous representatives might also be involved. As yet, however, the involvement of non-government representatives has been inconsistent. Only the South Australia Records Taskforce reaches beyond government departments to include representatives of non-government records holding agencies and Aboriginal groups; though the Tasmanian taskforce has non-government Indigenous representation. The Records Taskforce established in New South Wales has consulted with church groups, in its joint initiative with the Department of Community Services 'Connecting Kin' Project [67], and in Western Australia the Government intends to expand its taskforce to include representatives of non-government agencies. When its taskforce is established, Victoria intends to have both Indigenous and non-government bodies represented, as well as government agencies.

    In Queensland, the functions of the taskforce are undertaken by the Community and Personnel Histories Section of the Department of Families, Youth and Community Care. [68]

    In the ACT, there is a contact point in the Adoption Information Service which also acts as a contact point for state and Northern Territory taskforces. [69]

    Access fees

    Access to personal or family history records for Indigenous peoples is generally free (in that there is no fee or it is invariably waived) or at a minimum cost, and is available by right [70]. Though freedom of information (FOI) legislation exists in every jurisdiction except the Northern Territory, it was made clear to the project team by all governments except the ACT Government, that there was usually no need to resort to such legislation to secure access. Rather, such access is provided under the adoption, welfare or archives legislation. In the ACT, perhaps because of the limited use made of any access provisions, use of FOI legislation seems to be more readily anticipated [71]. In any case, fees and charges for FOI requests are waived in the ACT if the records relate to people affected by separation. [72]

    In the Northern Territory, where there is no archives legislation [73], access is provided either through the above-mentioned MOU in the case of relevant Commonwealth records, or the Protocol on Access to Northern Territory Government records by Aboriginal People researching their families (October 1997) (which in large measure mirrors the MOU).

    There is also no archives legislation in the ACT. [74]

    Assisting access

    A crucial factor in the practical accessibility of records is the 'user-friendliness' of the procedures put in place by the agencies to whose records access is sought. Recommendation 27 of the National Inquiry highlights the desirability of a 'one stop shop' (or 'first stop shop') for access. This has proved to be a challenge for all governments. At base, they are faced with a dilemma where on the one hand, the central records keeping agency (ie the archives office) is best placed to provide access to records originating from across all government agencies. On the other hand, the agency responsible for Aboriginal or Indigenous affairs may have the appropriate or greatest expertise and be the agency with which Indigenous communities are most familiar and have most contact. The situation at present varies with each government.

    The Victorian Government is still in determining how it will respond to this question. The Public Records Office of Victoria plans to hold a series of 'Public Records Forums' around the State in order to disseminate information concerning current access provisions as outlined in the well received 'My Heart is Breaking' Guide [75]. The Forums will gather information from Indigenous communities to identify the access problems they encounter and how best they might be resolved through modified or new access procedures.

    The Tasmanian Government has made a short-term appointment of an Indigenous officer within the Department of Health and Community Affairs whose remit has been to 'develop a policy framework and establish protocols and procedures that ensure that Aboriginal people have appropriate access to personal information held by the Department and other agencies' [76]. It is understood that this officer has also provided a point of entry to government held records for Indigenous people seeking access to them. It is as yet unclear what long term access provisions and staffing will be made in Tasmania.

    The Adoption Information Service within the ACT Department of Family Services operates as the contact point for access to records. There is a relatively small demand for the Service: since its establishment in June 1996 there have been less than 10 enquiries. [77]

    Under the Northern Territory Government's Protocol on access to its records the first point of contact is the Northern Territory Archive Service. The staff of this Service facilitate access directly where possible or direct the applicant either to the appropriate Northern Territory Government agency [78], or to the NAA (under the terms of the MOU described above). Though not a 'one stop shop', this process appears to be working well [79]. An apparent gap in this system is that of access to non-government held records. It is unclear what, if any, consideration is given to bringing such records under the umbrella of the government regime, or what assistance or advice is provided for the establishment of separate but appropriate records keeping and access standards.

    The position in Western Australia - where until recently there were two parallel records access systems in two separate departments - has been recently rationalised and reformed in response to the National Inquiry's recommendations. The Department of Family and Children's Services has established a Family Information Tracing Bureau (FITB), which became operational in mid 1998. The Bureau's object, as foreshadowed by the Western Australia Aboriginal Affairs Minister, is to 'provide a comprehensive family and information tracing service to Aboriginal people through a central point of search rather than people having to go to a raft of agencies'. [80]

    What is more, the reach of the FITB will be extended through the 23 regional offices of the Aboriginal Affairs Department: $400,000 has been assigned to the FITB for 1998/9, as well as $400,000 provided for the enhancement of the keeping and management of relevant records, particularly, to transfer them to CD-ROMS. A sum of $440,000 has been pledged in recurrent funding. [81]

    The Department of Human Services in South Australia provides access to records relating to those affected by past separation policies through the single Link-Up officer located in the adoption unit of the Department. It was made apparent to the project team during its meeting with the Government that this scheme does not work well, not least because the officer in question is effectively having to play two roles (ie facilitator of reunions and of records access) which reduces the effectiveness with which records are made available and accessed. Certainly, given the staffing levels of the other States' records access schemes, the position in South Australia would appear to be under resourced.

    In Queensland the Community and Personal Histories Section of the Department of Family Services and Aboriginal and Islander Affairs provides Indigenous peoples with access to the Department's historical records relating to their forebears and the history of the communities they belong or belonged to [82]. Established in 1992, largely in response to a recommendation of the Royal Commission into Aboriginal Deaths in Custody (Rec. 53), the services provided by the Section are widely accepted as the most progressive in Australia and serve as something of a model for other jurisdictions. The Section is well staffed, both in numbers and Indigenous staff; a 'user-Friendly' Records Guide is available (price: $25) that advises what is available and how the process
    of records access works [83]; and, there is a grants program which funds individual, family and community searches up to a maximum of $5,000.

    The employment of Indigenous archivists and/or historical researchers across the States and Territories ranges from more than half of the staff employed in tracing stolen generations records (as in Queensland) to none (as is the present case in Victoria, though in its response the Government has pledged $60,000 over two years for the training of two Indigenous archivists) [84]. There is also a grants program which funds individual, family and community searches up to a maximum of $5,000.

    Prohibition on records destruction

    In respect of prohibiting the destruction of relevant records (Rec. 21), the governments' responses have been varied: in Tasmania, for example, the Government notes in its response that the types of records referred to in the recommendation have not been destroyed and 'will continue to be protected by the provisions of [Archives] Act [1983]' [85], and in New South Wales a moratorium of one year has been set on the destruction of records [86]. The Northern Territory Government has stated that it 'will consider withholding from destruction [relevant] records' [87], and the Commonwealth has placed an indefinite freeze on destruction pending the National Archives of Australia taking the 'necessary steps' to identify which records are to be withheld from destruction [88]. In Victoria, records destruction is unlawful unless in compliance with a relevant standard. However, there is no standard for records concerning the separation of Aboriginal children from their families, 'nor', in the words of the Government's response, 'is there any intention to issue such a standard' [89]. The position in the ACT (where there is no archives legislation) is unclear in respect of the matter of records preservation. The Government has, however, indicated its intention to 'examine the whole records management regime'. [90]

    Counselling

    An important dimension to accessing stolen generations records is the matter of parallel and/or subsequent counselling for those who are seeking or who have obtained access to records. Such is the nature of the records and the circumstances of their access that the effects on individuals and family are potentially traumatic. The need for counselling services is, therefore pressing and constant. It is true to say that all governments recognise the importance of this factor; indeed, some even stipulate that counselling is compulsory for those seeking this type of information (this is the case in Tasmania, for example) [91]. However, in all cases, the provision of counselling through governments' resources or offices is minimal. None automatically provide initial 'on-site' counselling nor subsequent counselling. Rather, the relevant government agencies provide to those who are seeking access to records advice on counsellors (which may be either or both private and state funded) that may be contacted. During our meetings with governments the concern was repeatedly expressed by Indigenous representatives in each jurisdiction, that to leave it entirely to the individual concerned to determine whether and when to seek counselling was not as responsible a course of action as could be taken by governments. At the very least, more advice as to the objects of, and potential need for, counselling should be provided to individuals as they embark on the process of seeking access to such records. This is what was envisaged in National Inquiry Recommendation 30(b), specifically, points 3,4 and 5.

    Throughout our consultations with State and Territory governments it was made clear to us that many officials saw the $39+ million allocated to health and counselling issues (specifically the foreshadowed engagement of 50 new counsellors) by the Commonwealth Government in its response as going a long way to filling the lacunae each recognised in its counselling services. Though governments did not go so far as to say that such services are the responsibility solely or even primarily of the Commonwealth, all were happy to rely on the uncertain prospect of this funding (see further below) as a reason not to commit themselves in this respect. The Commonwealth initiative in this regard is discussed in more detail below.

    Link-Ups and reunion

    A vital role is played by State and Territory Link-Ups and like organisations or services. In effect, these bodies provide the essential link between Indigenous people who have been affected by the policies and practices of separation and their present needs - that is, access to information about their past and help and advice as to what to do with that information, including the possibility of reunion with family or communities. The largest, most established and successful Link-Ups are those in New South Wales and Queensland. Though funded through a combination of ATSIC and State government funds, they operate independently of government, though by way of their expertise and their constant interaction with government agencies, they are intimately familiar with 'how bureaucracy works' and how best to assist their clients in accessing the material and services they require.

    Accordingly, how governments relate to Link-Up type services - how important they regard them and to what extent they support them is of the utmost importance. This is reflected in National Inquiry Recommendation 30(a) which calls upon COAG to 'ensure that Indigenous community-based tracing and reunion services are funded in all regional centres with a significant Indigenous population'. No such action has been taken by COAG.

    At the federal level the important role of Link-Up services is alluded to: 'all Link-Ups reported an increased demand for their services as a result of the … National Inquiry …' [92]. The thrust of the Commonwealth Government's response in this regard is based on a pledge of $11.25 million over four years to support the establishment of a national network of Link-Up organisations based on an equivalent of the New South Wales and Queensland services' [93]. The funds are to be used 'to expand the existing New South Wales and Queensland services and to establish similar services in other jurisdictions' [94]. Though the Commonwealth has stated that the funds will be administered through ATSIC [95], an independent needs assessment is being undertaken which, it is anticipated, will largely determine how and where ATSIC will direct funds. ATSIC is working with both the Office of Aboriginal and Torres Strait Islander Health Services (OATSIHS) in the Department of Health and Family Services and the National Aboriginal Community Controlled Health Organisations (NACCHO) in developing these Link-Up services [96]. As discussed below, OATSIHS is also talking directly to Link-Ups and like organisations about the relationship between them and the proposed 50 new counsellors.

    Notwithstanding this increase in funds, the Commonwealth has stressed the fact that although Link-Up services are largely supported by the Commonwealth through ATSIC, the 'proper responsibility' for such support lies with the States and Territories. The reality is, however, that with two possible exceptions the States and Territories do not provide, nor is there any immediate prospect that they will provide, significant support for independent Link-Up type services. Exceptionally, the New South Wales Government has pledged $100,000 to be granted to Link-Up New South Wales, for one year only [97], and the Queensland Government has announced, without details, that it is to develop a 'specifically targeted cross-cultural awareness training program to assist reunification of members of the stolen generations with their families and culture and promote understanding of Indigenous culture within the non-Indigenous families involved' and has employed an individual to work on the project [98]. Once again, the Commonwealth's allocation of funds for health counsellors discussed above, the temptation yielded to by the States and Territories has been to adopt a 'wait and see' approach as to how far the allocation of Commonwealth funds within their jurisdiction will go and with what effect, before considering what they might contribute. The response (to Rec. 30(a)) of the Victorian Government is typical in its pledge to 'make strenuous representations to the Commonwealth seeking its support for the provision of additional funding for Link-Up'. [99]

    Outside the New South Wales and Queensland institutions, Link-Up services are mostly provided by Aboriginal or Aboriginal and Torres Strait Islander Child Care Agencies. This is far from ideal, as such bodies do not have the funds, personnel or expertise to undertake such a task. The objects of such bodies are, in any case, not necessarily suited for the specific task of providing tracing and reunion services to people affected by separation policies. Such people are now almost invariably adults, even if their relevant experiences occurred when they were children, and therefore the work of a child care agency is ill-suited to their needs. Indeed, it would seem that this very mismatch is one of the reasons why State and Territory governments have not funded them to provide tracing and reunion services.

    In some jurisdictions, a Link-Up type service is provided from within a government agency. This is currently the case in South Australia (through the Department of Human Services) and temporarily at least, in Tasmania (through the officer currently employed in the Department of Health and Community Affairs). Debates as to whether it is appropriate to provide such services from within government rather than independent of it are being pursued with vigour in both South Australia and Western Australia.

    In our meeting with the Western Australia Government it was made clear that from the Government's point of view there was much to commend locating such a service within government; not least of the attractions was that it would avoid duplication of services. Further, it was argued, the responsibility to provide such a service falls to government. Alternatively, the view was put to the Government that the service was expressly intended to be community and not government based for the fundamental reason that government - no matter how differently it functions today - was the very agent of the separation policies that led to individuals seeking Link-Up type services. For such individuals, a government agency may still be seen as too confronting an institution to deal with directly. The very success of the non-governmental New South Wales and Queensland models appear amply to support the need for, and effectiveness of, their role as independent intermediaries.

    Health care; counselling, well-being, parenting skills: Recommendations 33-37, 42

    The obvious and significant health implications for those affected by past separation practices and policies forms the basis for the National Inquiry's recommendations on health care. Physical and mental health questions arise both directly from the immediate and long-term effects of separation and indirectly from the subsequent actions taken to trace family and community. The health care difficulties are not clearly defined nor are their effects fully understood. As a result, the present and ongoing health problems are potentially enormous.

    Governments' responses to the National Inquiry's recommendations may be significantly aided by the existing and planned framework for Indigenous health care, particularly at the federal and intergovernmental level, but also at the individual level of some States and Territories. Most importantly, the Commonwealth has now concluded Aboriginal and Torres Strait Islander Health Framework Agreements with every State and Territory [100]. The aim of the Agreements is 'to achieve a health system that is more accessible and responsive to the needs of Aboriginal and Torres Strait Islander peoples, as well as more appropriate services, better linkages between heath services and measurable outcomes' [101]. The Agreements also envisage:

    joint planning processes which allow for full and formal Aboriginal and Torres Strait Islander participation in decision-making and determination of priorities;

    improved cooperation and coordination of current service delivery, both Aboriginal and Torres Strait Islander specific services and mainstream services, by all spheres of Government; and

    increased clarity in the roles and responsibilities of the key stakeholders.

    The Agreements provide the structural framework through which the Commonwealth's 'Aboriginal and Torres Strait Islander Emotional and Social Wellbeing Action Plan' [102] (the Plan) is being implemented across the country. The particular significance of the Plan is that it is the vehicle for implementing the Commonwealth Government's specific health-related responses to the National Inquiry's Recommendations [103]. What is more, as the Plan was devised, and is being implemented, in consultation with the National Aboriginal Community Controlled Health Organisation (NACCHO), it provides a base upon which the need for further research as outlined in National Inquiry Recommendation 32 of can be met.

    The Commonwealth's responses to the National Inquiry's recommendations on health care focus on Recommendation 33 and are targeted largely at Indigenous mental health. General health issues, it seems, are picked up within the related broader policy goals of the Commonwealth which it declares are to "address directly the effects of severe socio-economic disadvantage suffered by Indigenous people through improved outcomes in health, housing, education and employment' [104]. Further, Dr Wooldridge, in a statement accompanying the 1998 Federal Budget, pronounced that 'Indigenous health is a major priority, not only for the Government, but for the nation'. [105]

    In fact, the part of the Commonwealth Government's response targeted at Indigenous health issues constitutes by far the largest portion of the total response. At $39.15 million over four years, [106] it comprises significantly more than half of the total budget. This amount is distributed across three principal initiatives:

    (i) engagement and training of 50 new counsellors 'to assist those affected by past policies and for those going through the reunion process' ($16 million); [107]

    (ii) expansion of 'network of regional centres for emotional and social well being, giving counsellors professional support and assistance' [108], with the addition of 3 centres (planned, one each, for New South Wales, Queensland and Western Australia) to the 11 existing centres ($17.25 million); and

    (iii) 'further development of indigenous family support and parenting programs funded through the Health and Family Services Portfolio' ($5.9 million). [109]

    The 50 additional counsellors are to be distributed (on a pro rata basis) across the 11 (+3) regional centres of the Commonwealth Department of Health and Family Services established, or to be established, throughout the States and Territories under the 'Wellbeing Action Plan'. In practice, the regional centres exist and operate either in their own right or within pre-existing State or community controlled Indigenous health centres. Necessarily, therefore, the first two initiatives listed above will be implemented, and will operate, jointly. It is the understanding of the project team that each regional centre will be responsible for the training and support of the new counsellors to be placed with them. It is expected that much of the training will be sub-contracted to appropriate local educational institutions.

    Under the 'Wellbeing Action Plan', the development of Indigenous family support and parenting programs was already underway; it is understood that the additional funding indicated above will, supplement that work through gathering empirical data on the ongoing effects of separation on families.

    In each of these initiatives the Minister has undertaken to ensure his key advisory body on Indigenous health matters - the Aboriginal and Torres Strait Islander Health Council - is involved in monitoring their implementation and in advising the Minister accordingly [110]. Dr Wooldridge has also indicated that the Office for Aboriginal and Torres Strait Islander Health Services (OATSIHS) in his Department 'has been discussing an implementation strategy with the NACCHO', as well as working with, both ATSIC and NACCHO on the expansion of Link-Up services [111]. Further, it is understood that the OATSIHS is currently meeting and discussing with Link-Ups and like organisations across the country the placement of the 50 new counsellors; in particular about the prospects for their placement within, or their availability to, such bodies.

    In the States and Territories, it is difficult to identify specific health initiatives adopted in direct response to the National Inquiry's recommendations. There appear to be two reasons for this. One is that such 'new' initiatives are placed within existing policy frameworks (usually drawn up in consultation with the appropriate local peak Indigenous organisations), as well as the Commonwealth/State and Territory Agreements. What, in other words, was already in train, is now, or soon may be, modified to address particular issues raised by the National Inquiry's Report. This is not necessarily a criticism - especially as the overall objects of the State or Territory Agreements (including community consultation and control) commonly correspond with those of the National Inquiry's recommendations, and the integration of new initiatives with pre-existing ones is often most effective. But this does make it difficult to distinguish the new from the existing. [112]

    The second is that State and Territory governments have been unwilling or unable to make any significant commitments to health care reform following the National Inquiry's recommendations, until they are clearer about the details of the Commonwealth's commitment of $39.15 million to health issues in its response. In particular, precisely where, how much and by way of what administrative mechanisms, would the funding be expended in each jurisdiction are matters of concern. This much was repeatedly made clear to the project team throughout its meetings with governments.

    The Project Team understands that while the specific Commonwealth, State and Territory health care responses to the National Inquiry's recommendations are not scheduled for discussion at the next meeting of the Ministerial Council on Health, it is on the agenda of the next meeting of the intergovernmental, officer level meeting of Community Services Administrators. Consideration has also been given to convening a joint Ministerial Council meeting of health ministers and community services ministers (where the portfolios are separated) to discuss these issues.

    The State and Territory health services forums provided for under each Commonwealth/State and Territory Framework Agreement are all scheduled to discuss the various health related initiatives that bear on the Bringing Them Home report's findings. These forums, which meet on average every three months, comprise Commonwealth and State or Territory health department representatives, ATSIC representatives and representatives from local Indigenous health care organisations. It is anticipated that these meetings will provide the opportunity to discuss in detail the mechanics of the Commonwealth Government's health care initiatives; any foreshadowed local initiatives; how best to ensure that local and Commonwealth actions complement each other; and what problems exist or can be foreseen.

    Such meetings may lead to a greater understanding of their respective initiatives (especially of the Commonwealth's), and could form the foundation for more coordinated, and therefore more efficient and effective, implementation strategies.

    Education and training; schools, professional bodies, and community: Recommendations 8, 9

    The Bringing Them Home Report raised the question of education in the history and consequences of the separation policies and practices within the context of guaranteeing against repetition [113]. Such education, it is believed, if instituted at all levels from school through tertiary institutions and professional bodies, to the wider community, would ensure a better understanding and appreciation of the nature of the past practices and thereby protect against their repetition through design, neglect or ignorance.

    No specific initiatives in this regard have been instituted by the Commonwealth Government as it is of the view (not disputed by the States and Territories) that the relevant recommendations are primarily the responsibility of the States and Territories [114]. It is pertinent to note, however, one national initiative that has broader community education goals. The nationwide Stolen Children's Support Fund was established as a trust on 25 August 1997. The trustees are Peter Nugent MP (Liberal), Senator Margaret Reynolds (Labour), Senator Vicki Bourne (Democrats), and Professor Marcia Langton. Its objects are essentially educational and support the broad educational aims of the National Inquiry's recommendations. At present it has a relatively small funding base (approximately $12,000). On 26 May 1998, the Prime Minister announced that donations to the fund are tax deductable. [115]

    In schools

    At the State and Territory level certain specific actions have been taken in direct response to the recommendations of the National Inquiry. The most conspicuous and significant of these have been the decisions in New South Wales, Western Australia, South Australia and the ACT [116] to provide every school with packages of material relating to stolen generations issues, including copies of the 30-page Community Guide of the Bringing Them Home Report and the Bringing Them Home video. In Queensland, the Community Guide has been placed on 'the Education Queensland website Murri Thusi for access by schools and other community members'. [117]

    The bulk of existing or planned initiatives in each jurisdiction that are relevant to the recommendations are systemic, in that they presently constitute or will constitute parts of broad policy platforms and operational strategies. Certainly, in school education, each State and Territory has a specific Aboriginal and Torres Strait Islander education policy within its general education policy [118]. It was made clear to the project team in each of the meetings with governments that it would be through these existing broad policy outlines or consultation arrangements (as in the ACT) [119] that any future specific initiatives responding to the National Inquiry's recommendations would be executed. Some education departments have ensured (as in Tasmania) [120] or recommended (as in Queensland) [121] that schools include the history of separation policies and practices in appropriate subjects in curricula.

    At present, Indigenous culture or history courses in public schools are compulsory only in New South Wales, South Australia and Tasmania [122]; they are elective courses elsewhere. However, as was pointed out in our meetings with governments, such Indigenous specific courses are not the only vehicle through which the history and continuing effects of forcible removal of Indigenous children from their families might be taught. The standard Australian history course ought properly to include such material.

    An important part of the process of incorporating these matters in school curricula is the extent to which there is a coordinated national approach. At the broadest level, Indigenous Education Agreements (1997-9) have been concluded between the Commonwealth and all state and territory governments under the Indigenous Education Strategic Initiatives Program. The broad objectives set by these Agreements provide the framework within which the specific goals of Recommendation 8 of the National Inquiry Report could be achieved. At the particular level of developing a nationwide, compulsory Indigenous studies course, there was some suggestion earlier this year that the matter might be pursued both at intergovernmental officer level and Ministerial Council level, but at the time of writing no such action has been taken.

    Of relevant professionals and public servants

    There has been no national or coordinated intergovernmental initiative on including stolen generations information in courses. At the State and Territory level initiatives have been sporadic and particular. For example, the Victorian Government response outlines cultural awareness training courses in various forms for police; criminal justice personnel; judges and correctional services personnel. [123] The Tasmanian Government response refers to a 'range of training opportunities provided within the public service … which seek to provide cross-cultural awareness'; [124] it was indicated to us in our meeting with the Northern Territory Government that similar induction and continuing training exists in the Northern Territory. The Queensland Government response refers to general public service training on cultural awareness; training for front-line child protection and youth justice workers ('Family Services Officers') in the Department of Families, Youth and Community Care in relevant matters including the history and effects of forcible removal; and, the current development of appropriate cultural modules for teacher training courses. [125] In the ACT, Youth Justice staff receive training on Aboriginal culture and the effects of forcible removal, and cross-cultural communication workshops are made available to Family Services staff [126]. The Australian Federal Police's cultural awareness training includes consideration of the effects of the forcible removal of Aboriginal and Torres Strait Islander children. [127]

    Typically, governments consider the inclusion of appropriate courses in University education and the training provided by professional bodies to be a matter for these institutions (if not the Commonwealth) to determine for themselves [128], and would, in any event, likely require further consultation and consideration. [129]

    Issues of contemporary separation: Recommendations 42-54

    All of the recommendations made by the National Inquiry have a contemporary focus to greater or lesser extents, but none more so than those which relate to continuing and/or contemporary separation of Indigenous babies, Indigenous children and Indigenous young people from their families or communities.

    Recommendations 42 to 52 of the National Inquiry Report relate to both the deep societal questions of Indigenous self-determination and social justice, and the minutiae of laws, regulations and policies governing families, adoption and child welfare, and juvenile justice. The deep and the detailed go hand in hand. Neither set of questions is more important than the other. The challenge is how to ensure that their integrated relationship is understood and issues they raise are addressed as effectively as possible. It was not, and is not, denied that specific relevant initiatives have been taken, as referred to below and as discussed in Chapters 20 to 26 of the Bringing Them Home Report. However, it was the very fact that they have been taken largely in isolation, without clear reference and linkages to other initiatives in the same jurisdiction let alone reference to corresponding initiatives in other jurisdictions, that forms the basis for the recommendations in this area.

    It was the need for co-ordinated and integrated response that led to the recommendations with such a strong focus on national legislation, or at least intergovernmental cooperation. At base, it was considered that where nationwide strategies for the twin goals of self-determination and social justice for Indigenous people could be set, the problems associated with the gross over-representation of Indigenous people in matters of child welfare and juvenile justice would begin to be addressed and concerns over contemporary separations correspondingly allayed.

    Self-determination and social justice

    At the broad level, the view adopted by the National Inquiry was that the most appropriate and the most effective means by which to establish a stable and lasting framework for achieving greater self-determination and social justice was by national framework legislation and national standards legislation.

    However, as is detailed earlier, there is no immediate or even long-term prospect of such national legislation being introduced. There is no consensus among Australian governments to act in such a concerted manner. As so much of the leadership responsibility for such an initiative falls to the Commonwealth Government, without its active support - or worse, in the face of its opposition to the idea [130] - the initiative will not eventuate.

    Incorporation of Genocide Convention: Recommendation 10

    The enactment of legislation by the Commonwealth to give effect to the Genocide Convention, as suggested in Recommendation 10 of the National Inquiry, would constitute an important part of official recognition and acceptance in Australia of the fact that the separation polices of the past are over and will not be repeated. There are not now, nor have there been, any sound reasons not to enact such legislation following Australia's ratification of the Genocide Convention in 1948. Indeed, such legislation would appear to be required to comply with constitutional convention in Australia, which dictates that ratification only occurs once domestic law is brought into line with the requirements of the international instrument being entered into.

    In its response, the only reason provided by the Commonwealth Government for its decision not to enact such legislation amounts to a non sequitor. Its proposition that in the Kruger case [131] 'the High Court rejected assertions that the Northern Territory law authorised genocide' [132] fails to address the rationale behind the recommendation. The point at issue in the recommendation is not whether past laws governing the forcible removal of Indigenous children from their families authorised or even effected genocide, but rather that the enactment of legislation outlawing genocide or any genocidal action in Australia would help ensure that such an abhorrent phenomenon would not occur today or in the future, whether or not one accepts that it occurred in the past.

    Child welfare and juvenile justice: Recommendations 44-53

    The recommendations relating to Indigenous child welfare and juvenile justice fall within the broad ambit of the National Inquiry's call for national framework legislation and they constitute the basis of the suggested national standards legislation. In light of this, such responses of governments to these recommendations as there are suffer fundamentally from the lack of support for such a nationwide approach. In particular, the rejection of the base recommendation for the institution of national standards legislation - namely Recommendation 44, which calls upon COAG to negotiate with relevant national Indigenous peak bodies (including SNAICC and NAILSS) on such legislation - has been fatal.

    There has not been a complete absence of intergovernmental coordination in response to the National Inquiry's recommendations in these areas. On Indigenous welfare issues in general (including child welfare) the next scheduled intergovernmental meeting of Community Services Administrators is to address the question of coordination and cooperation (as discussed earlier under 'health care'). Furthermore, on Indigenous criminal just