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Reparations Tribunal need not be litigious or costly.



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Reparations Tribunal Need Not Be Litigious Or Costly Robert McClelland, Shadow Attorney-General, and Daryl Melham, Shadow Minister for Aboriginal and Torres Strait Islander Affairs

Joint Media Statement - 14 August 2000

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A Reparations Board or Tribunal established to address issues of injustice suffered by indigenous children forcibly removed from their families during the stolen generation period need not be costly or litigious, according Shadow Attorney General, Robert McClelland and Shadow Minister for Aboriginal and Torres Strait Islander Affairs, Daryl Melham.

"A possible model for such a Tribunal would be State Victims Compensation Tribunals which operate on the basis of documentary evidence rather than protracted oral hearings involving lengthy and distressing cross-examination," said Mr McClelland.

"Furthermore, such tribunals are able to proceed without the conviction of an identified guilty party, provided that it is demonstrated that the events leading to the injuries occurred.

"While it is possible that there could be some initial administrative challenges arising from the findings of such a body, experience shows that once the parameters of the system are established, such further administrative challenges would be rare. In any event, an administrative challenge focuses upon the reasoning of the tribunal member according to strict administrative law criteria, rather than re-hearing the entire case.

"Without such a tribunal, there is very little likelihood that justice will be done for the great majority of victims of these events.

"For instance, in the Cubillo case, Justice O'Loughlin noted that to succeed, Mrs Cubillo was required to discharge a heavy onus of proof, to establish:

(a) that she was in the custody of an Aboriginal person; ● (b) that the consent for her removal was not obtained; and ● (c) that the Director of Native Welfare had not formed the opinion that "it [was] necessary or desirable in the interests of the Aboriginal or half caste" for her to have

been so removed.

●

"Bearing in mind that Mrs Cubillo was around 8 years old at the time of her forced removal, this is virtually an impossible onus to discharge.

"This difficulty was anticipated in the Bringing them Home report, recommendation 18 of which states:

'That an indigenous person who was removed from his or her family during childhood by compulsion, duress or undue influence be entitled to a minimum lump sum ●

payment from the national compensation fund in recognition of the fact of removal. That it be a defence to a claim for the responsible Government to establish that the removal was in the best interest of the child.'

In other words, applicants would still be required to prove that they suffered harm or loss as a result of forcible removal, however they would not be required to prove a particular state of mind on behalf of governmental officers.

"This would be more appropriate application of the burden of proof."

"The reality is that unless the Government establishes such a Tribunal which can deliver justice in the particular circumstances of indigenous children who were forcibly removed from their families, the Commonwealth will continue to incur substantial legal costs," said Mr Melham.

"Furthermore, many individuals and institutions which were involved in the removal and subsequent care of indigenous children will remain exposed to civil court actions.

"In the Bringing them Home report it was recommended that applicants be required to forgo their common law rights if they wished to submit a claim against the proposed National Compensation Fund.

"In short, the establishment of such a National Compensation Fund administered through a properly structured Board or Tribunal would provide cheap and efficient access to justice and a mechanism for members of the stolen generation to tell their stories and to achieve some closure of this distressing period in their lives.

Authorised by Geoff Walsh, 19 National Circuit, Barton ACT 2600.