The Apology given by Rudd means that the Aboriginal people must be fully compensated. I say this for legal and moral reasons.

Labor, who want to “say but not pay”, have chosen to give this heartfelt apology from Cowards’ Castle, that is, under Parliamentary privilege. If Rudd is sorry, then let him say so from the steps of Parliament. It is said that privilege prevents the Apology being used in court to support a claim. To that I say four things:

  • First, I am not so sure that the legal advice as to the operation of the privilege is correct: time will tell, as the extent of the privilege will inevitably be examined in the courts.
  • Second, the Apology will be repeated outside the Parliament by Rudd by reference and adoption. It cannot be that he will never mention the Apology in the real world. This is akin to calling someone a criminal under privilege but as soon as you say it outside you can be sued for defamation.
  • Third, in any claim for compensation the Apology will be the elephant in the court-room, particularly before a jury.
  • Fourth, it is inconceivable that Rudd, when an Aboriginal sues the Commonwealth, will instruct his lawyers to submit that the Apology cannot be used. This would be gross hypocrisy.

Morally, an Apology, being an admission of terrible wrongs done to all Aboriginals by all the Governments of Australia, must be a basis for compensation. How can Rudd say these things and then seek to admit morally just claims in court by using legal technicalities.

I have drafted an imaginary Statement of Claim:

John Aboriginal and 500,000 Others – Plaintiffs

and

The Commonwealth of Australia and Others – Defendants

Statement of Claim

1. In this Statement of Claim, “the Apology” means the Apology made by the Prime Minister of Australia in Parliament on 13 February 2008 and “the Report” means “Bringing them Home – Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families April 1997”.

2. The Plaintiffs bring this action as a class action.

3. The Plaintiffs are all the Aboriginal people of Australia (including the Torres State Islanders).

4. The Defendants are Commonwealth of Australia, the Northern and the Australian Capital Territory and the States of New South Wales, Victoria, Queensland, South Australia, Tasmania and Western Australia.

5. The last-named Defendant is the United Kingdom.

The Claim

6. The Plaintiffs claim is for damages.

7. The claim is for $500,000 for each Plaintiff plus interest.

8. The Defendants are liable jointly and severally.

9. The Defendants owed a duty of care to provide full human rights to all of the people living in the country now known as Australia.

10. The Defendants breached that duty of care and caused loss and damage to all the Plaintiffs.

Particulars of Breach of Duty of Care

11. Deliberate genocide against the Aboriginal race between 26 January 1788 and 13 February 2008 as admitted in the Apology and set out in the Report and elsewhere;

12. Removal of Aboriginal children from their families and communities during that period as admitted in the Apology and set out in the Report and elsewhere;

13. Deliberate breach of Article 55(c) of the Charter of the United Nations 1945 “universal respect for, and observance, of human rights and fundamental freedoms for all without distinction as to race, s-x, language or religion”;

14. Deliberate breach of the Universal Declaration of Human Rights 1948 –

a. the right to be born free and equal in dignity and rights (Article 1),

b. the right that everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, s-x, language, religion, political or other opinion, national or social origin, property, birth or other status. (Article 2)

c. the right to liberty and security of person (Article 3),

d. the equal protection of the law (Article 7),

e. the right to a fair and public hearing by an independent and impartial tribunal in the determination of their rights and obligations (Article 10),

f. freedom from arbitrary interference with their privacy, family, home and correspondence (Article 12), and

g. the right to a free elementary education and the right of parents to choose the kind of education to be given to their children (Article 26).

15. Deliberate breach of the International Convention on the Elimination of All Forms of Racial Discrimination 1965;

16. Deliberate breach of the Convention on the Prevention and Punishment of the Crime of Genocide 1948.

The Admission of Liability

17. In the Apology (made in Parliament but adopted elsewhere outside of Parliament), the Prime Minister of Australia, on behalf of all the Defendants admitted liability in the following terms:

a. There would be a “righting the wrongs of the past”;

b. That “successive Parliaments and governments that have inflicted profound grief, suffering and loss” on the Plaintiffs and their ancestors since 1788;

c. By implication, that the United Kingdom governments is one of those “successive … governments” and is liable for the Colonial period.

The Admission of Damage

18. In the said Apology (made in Parliament but adopted elsewhere outside of Parliament), the said Prime Minister made admission of the damaged caused in the following terms:

a. The infliction of “profound grief, suffering and loss” by the Defendants upon the Plaintiffs;

b. That of “the pain, suffering and hurt of these stolen generations, their descendants and for their families left behind” where the said stolen generations arose from “the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country.”

c. The “breaking up of families and communities”.

d. The “indignity and degradation .. inflicted on a proud people and a proud culture”.

e. “Injustices” causing “the gap that lies between [Aboriginals and other Australians] in life expectancy, educational achievement and economic opportunity”.

AND THE PLAINTIFFS CLAIM DAMAGES AGAINST THE DEFENDANTS – $250 BILLION PLUS INTEREST

FOR TRIAL BY JUDGE AND JURY

[Note from Peter Faris QC: this is not a real legal document and does not offer legal advice. If you want legal advice, get a lawyer. The drafting contains much simplification and poetic licence.]

The critical words of the Apology are at the beginning: it is time for the “righting the wrongs of the past”. An apology is just words but righting wrongs is something else: the only way wrongs can be righted is by compensation. The Apology is an acknowledgement that all the governments of Australia and the UK should and would compensate all Aboriginals.

Let me analyse the Apology.

Who committed these wrongs? Answer: The “laws and policies of successive Parliaments and governments” – there is no temporal or geographic limitation. This would seem to operate from the time of British settlement, so the UK Government is apparently liable for the colonial period and after that the Commonwealth and the State and Territory governments.

What were the wrongs? Answer: The “profound grief, suffering and loss” caused by the removal of Aboriginal children which in turn caused the “breaking up of families and communities” and “their pain suffering and hurt”.

What is this worth? Answer: The recent Adelaide case put a figure of $500,000 for compensation. There are about 500,000 Aborigines so if it was all averaged out to compensation of (say) $100,000 then the total would be (500k x100k) $50 billion. Of course, 500K each would be $250 billion, which means that the 361 word Apology would cost each taxpayer $ 692,520,775.62 per word, which is fairly expensive, even for Labor (any arithmetical errors are cause by my poor education in a Government school).

This would right the wrongs of the past.

How can this be financed? Answer: Rudd was elected on a promise of $31 billion tax cuts. These cuts can be cancelled and the $31 billion paid directly to Aborigines in cash. This is a pretty good start for righting the wrongs of the past. The other $19 billion can be taken off Aboriginal welfare payments which will no longer be necessary. Remember that the UK Government must pay its share.

Alternatively, we could have a Sorry Tax. Every Australian taxpayer (except Aborigines) could be levied in July to raise the $50 billion. God knows how much this would be per taxpayer.

If Rudd is sincere, he must pay. History demands it.

Peter Fray

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