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G4EBT > SORRY 10.03.08 11:06l 198 Lines 7415 Bytes #999 (0) @ WW
BID : 328198G4EBT
Read: GUEST
Subj: The question of compensation
Path: ON0AR<ON4HU<DB0RES<ON0BEL<GB7FCR
Sent: 080310/0955Z @:GB7FCR.#16.GBR.EU #:64323 [Blackpool] FBB-7.03a $:328198G4
From: G4EBT@GB7FCR.#16.GBR.EU
To : SORRY@WW
One issue which seems not well understood by Australians judging from what
I see on packet and Australian Newspaper forums, is that of compensation.
There's a body of uninformed opinion that this is something people can
take a vote on - "should we, or should we not award compensation"?
They're entitled to a point of view of course, but it has no bearing on
the outcome. Compensation was one recommendation in the Bringing The Hope
Report and I'll explain why this is almost inevitable.
When the state intervenes and removes children from their
families it takes on what's known as a "fiduciary duty".
A fiduciary duty is the highest standard of care at either equity or law.
A fiduciary is expected to be extremely loyal to the person to whom they
owe the duty (the "principal").
The fiduciary relationship is based upon good faith, loyalty and trust.
The word originally comes from the Latin 'fides', meaning faith, and
'fiducia'.
It's been said that fiduciaries must conduct themselves "at a level higher
than that trodden by the crowd" and that "the distinguishing or overriding
duty of a fiduciary is the obligation of undivided loyalty."
It must follow that any physical or emotional harm or neglect which befell
those children as a result of forcible removal would almost certainly be
seen by the courts as a breach of fiduciary duty ["obligation of undivided
loyalty"] by the State.
This has been established in the landmark court case of Bruce Trevorrow,
taken from his Aboriginal family as a young child - the first of the
Stolen Generations to win compensation.
His journey entered into legal history in August 2007.
It began a decade earlier on Christmas Day 1957.
Then just 13 months old, suffering from stomach pains, his father Joseph
asked neighbours to take him for treatment to the Adelaide Children's
Hospital, South Australia.
On admission the hospital recorded that Bruce:
a)had no parents
b)was neglected and;
c)was malnourished.
Three untruths that were to change his life forever.
They meant that Joseph Trevorrow - who died eight years later, would never
see his son again. The same Christmas a local woman - Martha Davies,
answered an advert in the local newspaper.
The advert sought white foster parents for Aboriginal babies. On 6 Jan
1958 she and her husband visited the children's hospital and decided to
take Bruce home.
Thinking he was still in hospital, Bruce's mother Thora tried to keep
track of her son's progress by corresponding with the local Aboriginal
Protection Board. (The family didn't have a car or phone).
"I am writing to ask if you will let me know how baby Bruce is," she wrote
five months after he was taken away, "and how long before I can have him
home."
Even though Bruce had already been fostered and was being raised by his
new family, the Aboriginal Protection Board hoodwinked Bruce's mother,
saying he was "making good progress" but needed to stay in hospital for
further treatment.
It was the cruellest of lies. Bruce became yet
another unwitting victim of the Stolen Generations.
Growing up in a white family was the most disorientating of experiences.
"I kept on asking my parents why I was different from other kids. They
said they had dark relatives".
Compensation:
Fifty years after being taken from his family, Bruce has not just
discovered the truth of his upbringing but has become the first
Aborigine to win compensation for being taken from his family.
Made all the worse by the knowledge that his siblings, left with
their parents, had prospered and had happy and successful lives.
In June 1998 he launched legal action against the government of South
Australia, arguing that his alcoholism, depression and inability to
hold down a proper job stemmed from being 'stolen'.
He also claimed he had lost his cultural identity.
The judge agreed and ruled that he'd been falsely imprisoned.
In Aug 2007 Bruce was awarded A$525,000 (œ220,000 GBP, US $447,000), the
first such payout to a member of the Stolen Generations in Australia's
legal history.
(The case is to be appealed by the State Government in Adelaide).
What about the other stolen children?
While some who were separated from their parents received a better
education and material benefit than they might otherwise have had,
overall the emotional and social cost was extremely high.
I'd concede that many of those who implemented this policy misguidedly
believed (and from comments of here some still do believe) that this
was all done "for their own good". (Not "stolen" - "saved").
Some children may have well been willingly handed over by their mothers
(not that they had a choice) in the hope that they'd get a better start
in life.
However, I would reiterate this was not the central purpose.
It seems to me that compensation can only be handled in two ways:
1) On a case by case basis.
Each case being considered on its merits by the courts as in the Bruce
Trevorrow case, the extent to which the State has failed in its fiduciary
duty being assessed, and the court putting a monetary value on that.
By this method, only those who could prove they've been disadvantaged
physically, mentally or in their life chances, would stand to win.
This process would drag on interminably and would overwhelm the courts.
In addition to compensation there would be the legal costs which would
fall upon the state. Lawyers would be key beneficiaries - not simply the
intended recipients. There may also be costly appeals by the state.
2) An agreed amount per individual. But agreed with whom, by whom?
No one single organisation speaks for the stolen generation.
And what about the many who've since died?
Would it be appropriate to compensate their estate - the beneficiaries
of which didn't personally suffer, but would gain a "windfall"?
The Bruce Trevorrow case is as bad as any case could be.
There may be worse cases, but hopefully not many.
There will also be cases where children have grown into adulthood and made
their way in the world, neither expecting, nor perhaps being deserving, of
compensation.
Given that Bruce Trevorrow at the higher end, received $A525,000, I'd have
thought a ball-park figure would perhaps be $A250,000 each - about
œ100,000 GBP.
Multiply that by potentially 100,000 claimants, and it comes to:
A$10,000,000,000.
That equates to a contribution of A$465 for every man woman and child in
Oz.
It puts the scale into perspective.
Maybe a more positive way to make amends would be to focus on the future -
not the past. Investment in health - closing the shocking gap in life
expectancy, in education, housing, employment etc.
A$10 billion would go a long way.
To put A$10 billion into perspective, Australia's total GDP for 2006
was A$867 billion. Thus, A$10 billion at 1.15% of annual GDP is easily
affordable.
Over a period of time, to improve the infrastructure, life expectancy and
life skills of this 2.5% of the population to bring them into line at
least with the poorest off white residents of Oz, such a trifling sum
would be a mere blip.
Just my point of view.
I'll have no more say in this than Australian citizens.
(There isn't a "do nothing" option).
Best wishes
David, G4EBT @ GB7FCR
Cottingham, East Yorkshire.
Message timed: 09:59 on 2008-Mar-10
Message sent using WinPack-Telnet V6.70
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