Knowing when to say 'sorry'

I'm often told that an apology should not be supported because of the possible legal repercussions, as if the $17 billion surplus was buckling against the weight of a Halmosian army of litigious Kooris determined to bring the nation to its financial knees.

Where does this fantasy come from? Geoff McDonald? The Daily Telegraph? Let's run with this for a minute. The Bringing Them Home report estimated that 100,000 children were taken from their parents until 1970. Assuming (arbitrarily) that half of these people have since passed away, let's say that each of the 50,000 surviving Stolen Children is able to argue their cases as successfully as Bruce Trevorrow was recently able to, and is awarded $500,000. Total cost to the Australian state? $25 billion: less than 4 per cent of Australia's GDP.

The likelihood of such a result is nil. Hardly anybody has Mr Trevorrow's prospects for success, even assuming away the 10-year wait he endured in the South Australian court system.

As we’re constantly reminded by the same commentators who keep pressing the panic button, O’Loughlin J in the Federal Court in 2000 could not find any evidence of any systematic government policy of child removal in the Northern Territory. A similar finding had been made in New South Wales by Abadee J in 1999. Further, in neither case did the judge find evidence of activity by officials that was unsanctioned by the requisite state or territory legislation, which is what must be proved under Australian law. Merely proving the past existence of a properly-constituted Parliamentary law which the present generation finds loathsome does not, without additional legislation, afford the right to compensation.

For the record, Mr Trevorrow was able to prove that, on the balance of probabilities, the state of South Australia had breached its duties toward him - duties which flowed from its own legislation.

I might also remind the anti-apologists that most of the legislation authorising the removal of children until 1970 was enacted in state and territory parliaments, and in the nearly eight years since the last of the state parliament apologies (and in the six and a half years since the NT parliament apologised), there has only been one successful Stolen Generations claim - that of Mr Trevorrow in SA.

From all this, we must conclude that the total liability of the Australian state following a national apology would be a miniscule fraction of the $25 billion quoted above.

In any case, the litigation argument completely misses the main point of the apology, which I’ll address as soon as I deal with the incredibly mean-spirited, illiberal logic of that aspect of the anti-apology position which focuses on potential damages. The logic goes thus: it is conceivable that the Stolen Generations might have a case for compensation (i.e., it is obvious they were wronged and they suffered loss because of that wrong). Given this, “we” should be worried about the potential effects of an apology, which could be taken as an admission of wrongdoing - so we should not make the apology.

Based as it is upon liberal principles of respect for the individual, the Australian legal system allows for compensation to be claimed by any individual who is able to prove, in a court of law, that s/he was the victim of wrong-doing by another and that the wrong-doing caused her/him loss.

If members of the Stolen Generations can prove this, then they must - like everybody else - be entitled to seek compensation. To seek to deny people this opportunity by wilfully denying that the wrong ever took place goes against the very spirit of the liberal-democratic principles upon which the legal system is built.

To argue that compensation should not be available because the original wrongdoing was so large is eerily reminiscent of the logic of that observation by the Greek social reformer Epaminondou: “If you kill one person you are a murderer. If you kill ten people you are a monster. If you kill ten thousand you are a national hero.” It is to argue that the historical fate of a few thousand Indigenous people is irrelevant to the fate of the Nation and certainly to the present lives of most of the 21 million Australians who never did anything wrong (perhaps this sounds familiar?).

But the public debate about this apology should not be primarily about issues of compensation, or even blame. The overarching aim of a national apology is to set the nation on a path of healing. Insofar as a national identity is important to us as individuals - and it does seem to be, given the everyday expressions of national pride we see around us - our identity cannot be properly whole while the nation remains diseased at its core by superficial comforters which deny the truths of our national past.

Our identities as individuals do not contradict our identities as “Australians”; indeed, they inform one another. The 1992 High Court decision which overturned the “terra nullius” comforter was a first step in this national healing. An apology to the Stolen Generations will be another.

I want to mention the “basic principles on the right to reparation for victims of gross violations of human rights and humanitarian law”, commonly referred to as the “van Boven principles” (after the Dutch jurist Theo van Boven, who was instrumental in their formulation while he was UN Special Rapporteur between 1986 and 1991). These principles, which were specifically invoked by the authors of the BTH report, recognise the obligation of nation-states to ensure respect for human rights and international law, and one irrevocable duty of such is to ensure that “adequate legal or other appropriate remedies are available to any person claiming that his or her rights have been violated”.

The principles are based, at their foundations, on the ideas of National Healing which have also informed the various Truth Commissions in places like South Africa, Sierra Leone, East Timor, Ghana, Chile and, perhaps most relevant to our own history, Canada.

Of course, these obligations are mostly moral and not, under Australian law, binding. But our actions today will determine the future shape of our world - and those actions must be informed by our ideals of that future.