CHAIR —I welcome representatives from the Public Interest Advocacy Centre and the Australian Human Rights Centre. PIAC and the Human Rights Centre have lodged submission No. 69 with the committee. We have received that. Before I ask you to make an opening statement, do you wish to make any changes or amendments to that submission?

Prof. Durbach —No, thank you, Senator.

CHAIR —I invite you to make a short opening statement. At the end of that we will go to questions.

Prof. Durbach —Thank you Senator Crossin and members of the committee for the opportunity to address you. In 1997, in response to the recommendations of the Bringing them home report, and to provide an alternative to litigation as a means of securing redress for the harm suffered by members of the stolen generations, the Public Interest Advocacy Centre developed a proposal for the establishment of a stolen generations reparations tribunal. Three years later, PIAC presented a model of the proposed tribunal to the Senate Legal and Constitutional Committee on the implementation of the Bringing them home recommendations. The Senate committee report, Healing: A legacy of generations, recommended the establishment of a reparations tribunal to address the need for an effective process of reparation, including the provision of individual monetary compensation. That was in recommendation 7. Recommendation 8 of that report recommended that the model proposed by PIAC be used as a general template for the recommended tribunal and considered the most effective ways to deal with issues of reparation. Recommendation 9 recommended the details of the form and operations of the tribunal be finalised following consultation at a proposed national summit.

That model tribunal was developed by reference to two significant and authoritative sources: firstly, international guidelines and principles on the right to reparations for victims of gross violations of human rights—the so-called van Boven principles—which declared that every state has a duty to adopt special measures to permit expeditious and fully effective reparations, particularly where the violation of human rights includes systematic discrimination and forcible transfer of populations; and secondly, the tribunal model was shaped via a national consultation process, which PIAC undertook over several months, consulting with over 150 members of the stolen generations, representatives from Indigenous communities and every stolen generations organisation across the country. PIAC also received 40 written submissions.

While the Stolen Generation Compensation Bill 2008 seeks to address one component of measures of reparation—that is, monetary compensation—in our view it retreats significantly from the commitment clearly articulated by the Senate committee in its 2000 report, and, in so doing, we argue that a failure to implement that commitment by way of establishing a stolen generations reparations tribunal ignores Australia’s obligations to repair the enduring social, cultural and economic damage particularly endemic to the stolen generations experience. In failing to honour that commitment, it also suspends and accordingly prolongs the critical healing of stolen generations communities and undermines any real prospect of effective reconciliation. It would also continue to ignore key recommendations of the Bringing them home report and, instead, potentially would create a piecemeal, sporadic and short-term administrative mechanism of redress, as opposed to a more comprehensive and considered long-term strategy of reparations based on principles of rehabilitation, restitution and guarantees against repetition. It would also fail, in our view, to target the range of expressed and distinctive needs of the stolen generations both structurally, in terms of process, and substantively, in terms of its content.

In recognition of the documented and far-reaching impact of removal policies on stolen generations, our submissions seeks to address these considerations by proposing a slightly amended stolen generations reparations bill, an alternative to the compensation bill which would reflect the commitment made by this committee in 2000 to develop a tribunal that would meet the key objectives of validating the specific experience of the stolen generations and their identity, of ensuring that Indigenous people are involved in the shape, design and delivery of reparations processes and outcomes and of developing reparations measures in accordance with the van Boven principles. So it would serve the dual objectives, we argue, of redressing past harm—the act of forced removal—plus additional amounts to be paid for aggravated harm, such as sexual abuse and assault, and of creating measures of reparation that offer long-term social, cultural and economic benefits to those affected.

Our submission draws the committee’s attention to a successful international reparations model—that of the Canadian Indian Residential Schools Settlement Agreement—which was devised to address a history of human rights violations comparable in many ways to that of the stolen generation. In designing that agreement the Canadian government acknowledged the express needs of survivors and the research of the Law Commission of Canada. In its report, Restoring dignity, it recognised that any mechanism of redress must: acknowledge the harm done; account for that harm; make an apology; facilitate access to therapy, education and financial compensation; provide resources for memorials; raise public awareness of the abuse; and allow for the sharing of individual experiences in a safe and culturally appropriate forum. It did this by setting up a Truth and Reconciliation Commission, which is not something we would advocate, given the work of the Bringing them home inquiry, but certainly what we would endorse is the setting up of a commemoration fund and a healing fund, whereby members of that community could approach appropriate services for assistance in the long term.

Finally, while New Zealand does not share the forced removal history of Australia or the residential schools policies of Canada, the Waitangi Tribunal, which investigates claims by Maori prejudiced by laws and policies of the Crown, offers a constructive approach. Generally the claims relate to large-scale dispossession—land transactions, confiscation of natural resources—and the tribunal makes recommendations to the government such as compensation, reparations or settlement packages. The words of the tribunal chairperson and Chief Judge of the Maori Land Court, Joe Williams, are particularly helpful in shaping our submission. I quote:

My colleague and co-author Laura Thomas will make a brief point on the actual compensation bill.

Ms Thomas —I would like to make one small point about the terms of the Stolen Generation Compensation Bill, particularly about the eligibility criteria. If claimants are required to prove or satisfy the tribunal that they were forcibly removed or that duress was involved in their removal, we know from the experience of stolen generation litigation which has been conducted that many people will not be able to prove or satisfy, no matter what standard is applied. The evidence simply will not remain—documentation, frailty of memory and the like. Based on PIAC’s experience in representing people before the Aboriginal Trust Fund Repayment Scheme in New South Wales, I would say that many people will experience not having successful claims as essentially a denial of their identity as members of the stolen generation. I really want to focus on that point: if you make the eligibility criteria too difficult to satisfy, for many people the experience of having their claims denied will mean that you have done more harm than good to those particular individuals.

PIAC’s proposal—and you can see it in our proposed stolen generations reparations tribunal bill, but it could equally be adapted to the compensation bill that you are considering—is that people should only have to show that they were removed prior to 1975 and then, should the government choose to challenge any particular claim, it should fall to the government to show that that removal was in the best interests of the child. That was the standard that was proposed in Bringing them home and we say that it is the most appropriate standard because, firstly, it should not fall to people to have to, after all these years, bring evidence that they were forcibly removed or that duress was involved in their removal. Secondly, we would say that that approach acknowledges that racist assimilation policies were behind most people’s removal, and it is about acknowledging the historical wrong generally as well.

CHAIR —It was put to us yesterday in Darwin that some members of the stolen generation thought the point you raised was very valid. They would have trouble trying to prove that they had been forcibly removed. Some thought the level of compensation in the bill was too low, but their view was that it is better than nothing. So where do we move that thinking from, ‘It looks a bit too hard,’ ‘It’s better than nothing,’ to your proposal that you have developed a best model?

Prof. Durbach —Certainly in the national consultations with members of the stolen generations, which are encapsulated in a lot of the reports, particularly the PIAC report called Moving forward—achieving reparations, there was exactly that consensus that monetary compensation was a significant and important contribution to make. But I think people felt that overall what they were seeking was an acknowledgment of the long-term harm of this experience and that that should be recognised beyond just money. Some members of the stolen generations felt that the provision of money would be divisive, that you can never compensate that kind of harm, which is why we shifted our approach to a more collective and enduring strategy which would allow for people to come before a tribunal to create measures of reparation which they felt really addressed their specific needs.

Some of the suggestions were: providing educational fellowships for children of members of the stolen generations, commemoration projects, memorials, oral history projects and healing centres, because people still say today that that experience is so entrenched in their psyche and they do not feel that they have been healed beyond that experience. Another suggestion related to parenting skills, with counselling services or specific services being set up. It was suggested that educational curricula be changed so that the history of the stolen generations is included in history generally for Australian school children. I think there was a desire absolutely that monetary compensation, as the van Boven principle suggests, is one important and significant aspect of reparations, but it does not deal with the whole picture and in fact it falls quite short of dealing with what Indigenous concerns were, certainly through our consultation process.

Ms Thomas —If I can add that giving people broad options about what they might want to ask for as part of a reparations package is a way of giving them ownership over what they are getting out of the tribunal rather than just saying, ‘This is it.’

Senator BARTLETT —You would be aware, I am sure, of the model that was put forward and adopted by the Tasmanian parliament and implemented, as I understand it, with payouts not too long ago. We have also had reference to a scheme in Western Australia to do with people in institutions, which includes but is not specifically framed around stolen generations, as I understand it. Do you have any comment on the adequacy or otherwise of each of those systems, particularly the Tasmanian one? I think this legislation as it stands would exclude people who have received payments under that scheme from accessing this one.

Ms Thomas —Yes, I have a few comments about both of those schemes. I think the Tasmanian scheme has to be seen in its specific context in Tasmania. I would make a few comments about it. Firstly, in Tasmania they have already had a scheme, which has just recently been reopened to compensate people who experienced abuse while they were in state care. That element, which is covered by our reparations scheme, has already been addressed in a separate scheme in Tasmania, similar to Redress WA, which I think is the other scheme that you are referring to, Senator Bartlett. We would say that that is one factor that needs to be taken into account. That has already been done there.

I think that what was good about the Tasmanian scheme was the level of consultation and involvement with the Tasmanian Aboriginal community, but some people were nonetheless left out of that process. There are obviously a very small number of claimants overall in Tasmania, but there was a small cohort of unsuccessful claimants, who made up about 10 per cent of all applicants, who were unsuccessful because they were not able to prove Aboriginal descent, which is really unsurprising given the history of the stolen generation in Tasmania. Those people say that there was pressure on them or their families to assimilate and for that reason they were no longer able to prove descent. That is one issue that needs to be taken into account as well. The whole stolen generation scheme in Tasmania also needs to be considered in the context of the Tasmanian government handing back land to Tasmanian Aboriginal people. That has also already been done.

The other thing I would say about Redress WA is that we would support this. It is something which is also in our reparations package. It does allow for individual assessment of the harm that people suffered—physical abuse and sexual abuse—so that payments can be changed or scaled depending on the severity of the harm that people endured. We say that that is a good thing that can be implemented under our reparations tribunal model.

Senator BARTLETT —I know you have also been involved in court processes for some people regarding stolen generation issues. I suppose there are two aspects to my question. Firstly—and I think it is a related issue—the comment that is often made is that the parliament, having adopted a national apology, would open the floodgates et cetera to legal claims. Is there any substance to that? Is there a floodgate that you are about to open? Secondly, if there is not a scheme such as this, is there a likelihood of very many successful legal claims or even potentially successful claims? I guess you can never predict that regarding the stolen generation. How different are the benchmark and the processes compared to this type of scheme?

Prof. Durbach —Perhaps I could answer that. In relation to your first point about litigation, I do not think the apology is going to trigger a floodgate of litigation at all. In fact, the Trevorrow decision came prior to the apology and that case demonstrated very much that you have to have very substantial evidence in order to get through the threshold criteria in order to establish a claim. When I was at PIAC we had many, many members of the stolen generation approach us to litigate but they actually did not do so for a number of reasons.

Firstly, there was not the evidence to support the claim, because so many of the witnesses we needed to rely on were either not available or they were in different parts of the world. Secondly, a lot of the documentary evidence was never actually created, or it was destroyed, or it was insufficient. But, thirdly and most importantly, as we went along the track of litigation and exposed our clients to the various requirements to demonstrate their claim—going to see psychologists to get psychological reports about the extent of damage—we were in a sense forcing our clients to revisit that history and trauma in an adversarial setting, which was counterproductive to their healing. They then withdrew—partly with our acquiescence, because we did not feel this was the appropriate forum within which to pursue an action for redress. So I do not think there will be a floodgate. It is very difficult to demonstrate, support and substantiate claims. As our reports make clear, the adversarial system is not a mode of resolution that Indigenous communities appreciate. It is not a mode of resolution where there is comfort at all.

These proceedings are also very protracted and very expensive, and I think there are a number of factors which militate against litigation being run. Having said that, a couple of weeks ago I was at a national meeting with members of the Aboriginal Legal Service, and we were talking about the compensation bill and their response to it. I was quite surprised to hear that still there were people coming to those services seeking redress through the courts. People still feel that they have not been heard, they still have not been acknowledged, and ultimately, in the absence of anything else, litigation becomes the last resort option. I think there is a push from within the community to keep pursuing these, difficult as they are.

Ms Thomas —PIAC is certainly very much focused on finding a political solution to stolen generations reparation at the moment, but we would never foreswear taking on stolen generations litigation in the future. I do not think there is any legal reason why the apology would open the floodgates, but it has energised the Aboriginal community and perhaps the legal community to a certain extent as well. But the Trevorrow decision has been far more important in energising a lot of Indigenous people to want to follow that litigation path. We certainly get inquiries about it all the time and we know that in other states—Victoria, South Australia and Western Australia—there are a lot of people who would like to pursue litigation in spite of all the difficulties that are involved.

The last thing I would say is that even if there are only a handful of cases, the cost—not only the social cost to the applicants but to the government—is enormous. So you do not really need to open floodgates of claims in order for that cost to be just something that the government should avoid if at all possible.

Prof. Durbach —I think Laura is absolutely correct in saying that the apology has energised an interest in claims, but so did the Trevorrow decision. I think people saw $520,000 as the outcome in damages and believed: ‘If Mr Trevorrow can establish the harm and get that sort of amount, then perhaps there is some sort of precedent there that we should pursue.’ I do not think it is closed. Together with the apology, I think the Trevorrow decision has really opened up that possibility in people’s thinking. But also Laura made the point that the Gunner and Cubillo case alone cost over $10 million to run, and that was unsuccessful. So just the actual cost to government and to the community of mounting this kind of litigation is extraordinary.

Senator HOGG —How does one achieve the balance between personal compensation and the broader consequences of the stolen generation and then, in context, the balance between that and the need for broader Indigenous funding policy out there in the community? That is a very difficult issue to grapple with.

Prof. Durbach —Yes, and I think a very important one, because so much of the discussion around compensation has been addressed via the notion of practical reconciliation—that, rather than addressing, as we would suggest, through a reparations model, the harm, it would be better for the Indigenous community overall to get measures on education, health care, housing et cetera in that practical reconciliation framework. What we argue is that there is a very specific experience endemic to the stolen generations that impacts the Indigenous community overall that needs to be addressed. Through the reparations tribunal model, on the one hand we are saying you do need to serve, as Senator Bartlett’s bill calls for, compensation in a notional way, but what is more important is to serve the collective harm of that community through allowing people to come before the reparations tribunal to shape and design measures of reparation that go beyond individual monetary compensation and actually address the collective and long-term needs of that community. Whether it is through commemorative projects or education or healing centres, that is for the community to design with that tribunal. We see that as an opportunity to try to redress the bigger questions.

Senator HOGG —I am trying to get at the practicalities faced by any government, regardless of its complexion—so this is not partisan politics—with a bucket of money to allocate to a funding proposal. Without going into policy issues, I am trying to get an appreciation of how a government, in allocating funds, achieves a balance between satisfying the requirements of those people who have a claim for personal compensation, satisfying the broader consequences of the stolen generation—and I can understand your point quite well—and addressing even broader Indigenous policy issues that need to be addressed. How does a government go about coming up with a model that adequately satisfies all the desires, needs and competing interests in those circumstances?

Ms Thomas —I would first of all reiterate Andrew’s point that the stolen generations have to be seen separately and the experience that they have had has to be seen separately from Indigenous disadvantage broadly. So this is about justice—providing reparation for the harm that they suffered—and also, because reparation packages are designed to fulfil people’s needs, which could be health and counselling, there is an element to which that might satisfy the provisions of services which we would otherwise be wanting to provide to all Australians, including Indigenous Australians. Beyond that, we would say that the Closing the Gap initiative and those types of initiatives to do with health and education go to Indigenous people’s human rights. That is completely separate to the stolen generations’ issue, in my view. I would add that I think that it is a false assumption to say, ‘If we provide compensation or reparations to the stolen generations, that money has to be taken away from providing services to Indigenous people more broadly.’

Prof. Durbach —May I add one point, and that is that we would endorse the kinds of amounts suggested in the compensation bill because we simply see those as notional amounts. You cannot ever address the absolute harm.

Senator HOGG —I was not trying to pin you down to a figure; I just want to be clear on that.

Prof. Durbach —I appreciate what you are endeavouring to do. It is a difficult question. When we were doing this project we thought, ‘If we are proposing a national model, do we seek resources for that from each state, from the churches who were complicit in a lot of the institutional harm?’ There are other bodies that might want to contribute to a fund which could support these kinds of innovations. The point that we want to highlight is that the amount of individual monetary compensation must be nominal. That way you can contain and perhaps have more resources available for the broader reparations measures that would be introduced.

Senator HOGG —All right. Thank you.

Senator BARNETT —Thank you very much for your submission. I appreciate it very much. It is very comprehensive. Following on from those questions and your answers, in terms of Tasmania—and I am a Tasmanian senator—and those compensation arrangements having been set up and paid and sorted, what more could be done in Tasmania? For example, to deal with the collective harm, would you be recommending that a healing and commemorative fund be set up that would apply in Tasmania, and the individual compensation arrangements have then been sorted, or would there be more that needs to be done in that regard?

Ms Thomas —The way that issue is addressed in our bill is slightly different from the way it is addressed in the Stolen Generation Compensation Bill 2008 in that our bill says that any compensation that a person has received under a state scheme or in the courts is taken into account when you assess their reparations package more broadly. So it would be up to members of the stolen generations and their communities in Tasmania to come to the federal reparations tribunal and propose to that tribunal what reparations packages they feel could be of further use to them in addressing the harm that they suffered as members of the stolen generations and their communities. As I said earlier, I think other things have been done in Tasmania, including compensation for physical and sexual assault that occurred in state care and the handing back of land, which might mean that the reparations packages that they might ask for might be more limited than what people in other states that have not had those steps taken would ask for.

Senator BARNETT —So in essence you would leave it to the reparations tribunal to ensure that there was no doubling up or double payments or whatever. No problem.

Ms Thomas —Exactly.

Senator BARNETT —Thank you for that. In terms of a few other areas, you indicated earlier that the issue of the ‘sorry’ and apology via the parliament and the recent litigation have energised further interest in compensation claims and so on. Why do you think the government are refusing to allow us to see their legal advice with respect to the impact and the consequences of that parliamentary resolution? Can you understand why they would be so resolute in denying this committee access to, firstly, the instructions to their legal counsel and, secondly, the legal counsel’s advice regarding the impact and consequences of that parliamentary resolution?

Prof. Durbach —I do not think we can answer that directly, but when we were devising the PIAC project we sought advice from senior counsel about the impact of an apology and whether that might assume liability on behalf of the government in relation to potential claims by members of the stolen generation. The advice from very significant senior counsel in Australia and from one of the biggest law firms was that no liability would attach to that apology and that it would certainly not be relied on by the courts other than just an indication of a government approach at a particular time, but nothing more than that. It would not be an indication of taking responsibility or accepting responsibility for past acts. That is probably as far as I can take it.

Senator BARNETT —That is most informative. Is it possible, either on notice, in confidence or in any respect, for us to review or to access either the content of that advice or the advice in and of itself? You might need to take that on notice.

Prof. Durbach —I am happy to take that on notice.

Senator BARNETT —And even if you believe you cannot give us the exact advice, perhaps you could give us the thrust or the content of it. Perhaps you could take on notice the summary of your response just then and flesh that out so that we have a better understanding of your legal advice in terms of the impact of a parliamentary resolution.

Prof. Durbach —I am happy to take that on notice. I probably should also just add the proviso that the advice of another counsel, another law firm, might have been completely in contradiction to the one that we got.

Senator HOGG —It is called ‘lawyer shop’!

Prof. Durbach —That is right.

Senator BARNETT —I am aware of your views, being a fellow lawyer.

CHAIR —I think this committee, more than any other committee of the parliament, understands that.

Senator BARNETT —I have a final question in terms of your submission to the legal and constitutional committee some years ago. I think it was pretty much endorsed at the time that they supported your views on the merits of a reparations tribunal, so congratulations on that. That was some years ago. What has changed since then, in your opinion or in your view, with respect to how we should deal with this matter?

Ms Thomas —If I could say one very bleak thing to start: a lot of members of the stolen generation have died in that time. I know, because I have been working at PIAC for only six months and several of my clients have died in that time. It is a very bleak thing to say but I think it is a very important thing to keep in mind.

Prof. Durbach —I think it is also a consequence of almost a decade of dismissing the stolen generation. We had a member of the previous government even say as much—that there is no such thing as the stolen generation. There was a kind of general dismissing of that experience, a dismissing of their identity. In my conversations with members of the stolen generation over the last few years, I think there has been a dampening of spirit and I think that dampening of spirit actually manifests in illness, drug addiction and alcoholism. The fact that this bill has now been presented is an enormously important and valuable validation of that experience once again, and people are feeling there is now possibly an opening up again of being heard and redressed in some form. We would welcome the bill very much for that reason.

Senator BOB BROWN —I thank PIAC very much, particularly for the model legislation. It is extremely helpful to a committee like this to have alternative legislation to look at in tandem with Senator Bartlett’s Stolen Generation Compensation Bill. Ms Thomas, you were just talking about the point that people in the stolen generation are dying. The urgency of addressing this issue has repeatedly come before this committee. The practicality of it is: if we are left with the potential for another few years of procrastination or with having this bill go ahead in its simple form, which would you choose?

Ms Thomas —I do not think that you have to choose if you are a little bit creative in the way you set up a slightly more complicated system like our stolen generation reparations tribunal. For example, in Canada where they have a more multifaceted approach as we are proposing, there was a common experience payment which would be analogous to the payments that are proposed under the Stolen Generation Compensation Bill. That element was implemented extremely quickly. You could also get, if you were particularly elderly or very sick, an interim, immediate payment. That sort of interim payment system has also been a feature of other compensation schemes, such as the scheme to compensate people who were abused in state care in Ireland, I believe. In Canada they are moving on to the process where they assess compensation for specific harms—sexual abuse and physical abuse—and to the Truth and Reconciliation Commission and those other elements of their scheme now that they have rapidly rolled out their common experience payments.

Senator BOB BROWN —Does your model legislation incorporate a common experience reparation payment?

Ms Thomas —That is what it is called in Canada, and that is the idea that you can have a flat amount. I think in Bringing them home they say a ‘minimum lump sum payment’. So it is something that everybody gets, as opposed to payments where you might have to show specific harms to do with sexual abuse or physical abuse, analogous to the payments that have been proposed in a compensation bill.

Senator BOB BROWN —Does your bill facilitate that approach as well—that is, a common payment and then further investigation of the complications of specific claims of harm that people who are part of the stolen generation have experienced?

Ms Thomas —Our bill just allows the tribunal to award monetary compensation, although we do say in our submission that the approach of having this type of flat payment, as proposed in the compensation bill, could easily be part of what the reparations tribunal does.

Senator BOB BROWN —Yes. The concern I would have is that a tribunal set-up might take a long time to look at some hundreds or thousands of claims. In the meantime, members of the stolen generation may not survive. But, if there were a common payment up-front, as Senator Bartlett is suggesting, of $20,000 or some figure like that, people like the witnesses we had before us just yesterday—and these were elderly witnesses—have indicated that they would feel that some very big step had been taken in recognising the hurt and harm that they had dealt with as well as giving them monetary compensation, which goes beyond that, actually: it would be quite symbolic that they had been recognised and that something had been done in return. Would your tribunal be able to say at the outset: ‘We want to take this course of action of having a general payment to people who are part of the stolen generation’?

Prof. Durbach —I think our bill would adequately accommodate what you are suggesting, and I think it is a very vital point that there is nothing to stop the tribunal making that immediate recommendation for payment, given the circumstances of particular claimants. The simple add-on to the bill in our reparations model is that, where people wish to create more enduring and communal reparations, they have that opportunity. The whole foundation and rationale for our bill is exactly to pre-empt a situation where people get some monetary compensation now, and then years later think, ‘Well, now what?’ What we are trying to do here is serve two purposes. One is exactly the point you are making, which is to address immediately the obvious harm of the past and, to some degree, of the present if there were sexual or physical assault. But in addition, very simply, what we are asking for is a simple expansion of the role of that tribunal to create the opportunity for more enduring measures to be put in place, shaped by members of the stolen generation in the long term. So there would be two processes going on, in a sense. The first is that immediate payment, as you described, and the second is where people come before the tribunal to design measures which would address the more long-term harm.

Senator BOB BROWN —Whereas the bill we have before us would do the first, but then you would have to create a new process to do the second?

Prof. Durbach —Yes. But I think it is a dual process. I think you simply tell claimants when they come before the tribunal that they have two options and they can take one or both. One is to seek that notional amount, the $20,000, and the other is to seek a broader reparations measure in consultation with the tribunal.

Senator BOB BROWN —Thank you very much. The only other question I have is about schedule 1 of your proposed bill. It says that it would set out the details of the powers the tribunal would have to investigate, how a claimant might be legally represented and other matters such as staffing and appointments. That is generally not a very complicated process to set up, is it?

Prof. Durbach —No. In fact, a lot of work that we did in relation to that was looking at existing administrative models and tribunals—veterans, equal opportunity et cetera. We looked at existing models of those sorts of administrative tribunals and in fact suggested that they simply be an add-on role for an existing model if that were suitable. So it is not creating this whole new mechanism. It actually draws on existing institutional arrangements.

Senator BOB BROWN —Thank you very much.

Senator KIRK —Thank you for your submission and also for the work the PIAC has done. My question today is, in a sense, quite a narrow one. I am really just seeking your view in relation to it. Yesterday we were in the Northern Territory, so we heard from a number of people up there who have been victims or part of the stolen generation. They pointed out to us that they are in a unique position because many of them were removed under the Aboriginal Ordinance 1911. As they pointed out to us, they are a unique group to whom the Commonwealth is responsible. It got me thinking about the practical realities and the world in which we live, and I wonder about your view as to whether or not we could look at the Commonwealth showing some leadership by taking a stand and perhaps setting up some kind of fund or tribunal in relation to just that group of persons. I know that obviously you would like to see this operating at a broader level, but I would welcome your comments in relation to that.

Prof. Durbach —They would envisage a separate tribunal to a national one, specific to their experience?

Senator KIRK —Yes. It would be set up by the Commonwealth but it would have jurisdiction—I suppose you would say—in relation to only those persons affected in the Northern Territory—

Senator BARTLETT —And try to pressure the states—

Senator KIRK —Yes, showing some sort of leadership on the part of the Commonwealth, and then hopefully the states would follow suit and do something similar.

Ms Thomas —I think a much better approach would be for a national scheme that would treat all members of the stolen generations equally, but I would certainly support the Commonwealth government encouraging the state governments and, indeed, the churches to contribute to the fund that payments are made from in recognition of their responsibility for creating the stolen generations.

Prof. Durbach —I would endorse that, and I think it is something that could be brought to a national tribunal’s attention when people from the Territory actually make claims that they are in a specific category, if you like. But I would certainly endorse that approach.

CHAIR —Thank you very much for your evidence this morning and certainly for the work that you have done in relation to this matter over many, many years. It has not gone unnoticed. It is certainly appreciated.

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