Steve Watson


      Information: Opinions: My Opinion



Secret Lawyers' Business


On Wednesday (13/02/2008) Prime Minister Kevin Rudd made his famous Apology to the Stolen Generations - that is, to those Australian aboriginal children who were removed from their parents because of their aboriginality. The theory behind the term ‘Stolen Generations’ is that in doing so government agents were implementing a policy of the Australian government to eliminate the aboriginal race. The victims of this policy and their descendants continue to suffer from this removal to this day.


One would think that, this being the case, and the Apology constituting an apparent admission by the government that it is the case, there would be a clear moral argument for offering compensation for this damage, and that if it is not freely offered then a legal case could be mounted to compel compensation. Yet we are assured that no such compensation will be offered, and that we need not expect legal claims for compensation to be successful.


This assurance comes in two forms. In the first place, we are told that the Prime Minister sought and received legal advice on this matter before he made the Apology; and the clear implication is that the lawyers’ advice was that there is no reason to fear that compensation must necessarily follow from the Apology. At the moment we have no ability to judge the worth of that legal advice because the government has refused to make it public. Second, the assurance is sometimes given as a lesson from history. On ‘Insiders’ (ABC, 9am, 17/02/2008) Julia Gillard, seeking to reassure viewers on this matter, argued that similar apologies by state governments had not been followed by legal obligations for compensation being imposed on those governments. She did not, however, expand on why that might have been so.


We might note in this context that compensation claims have in fact been tested in the courts, and the judgement has been that they are without merit, for the very good reason that the courts could find no evidence that there was any such policy of racial elimination as the theory of the Stolen Generations supposes.


My guess is that the legal advice to the Government made note of this, and also gave strong grounds to believe that there never was such a policy at the federal level (whatever may have occurred at the state level.) No eliminationist policy would mean no Stolen Generation, which would mean no compensation for claimants on the basis of membership in that group. Now, on the one hand, that is good news for the federal budget, and for the actual moral standing of past Australian goverments and their agents; but on the other hand, it would rather spoil the effect of the Apology if it came to be known that the current government believed it was Apologizing for something that had never happened. In fact, if it was known that the government had deliberately and knowingly accepted on behalf of Australians the guilt for an attempted genocide that had not happened, the resentment of Australians at this slander might very well undo (and then some) any benefits that the symbolic action might have achieved.


If my guess is correct, therefore, we should not expect this advice to be made public any time soon.