Jason Allen

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the Australian Prime Minister’s formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted.

Then newly elected Labor Prime Minister, Kevin Rudd, made a historic statement of “Sorry” for past injustices to Australian Indigenous peoples at the opening of the 2008 federal parliament. In the long-standing absence of a constitutional ‘foundational principle’ to shape positive federal initiatives in this context, there has been speculation that the emphatic Sorry Statement may presage formal constitutional recognition. The debate is long overdue in a nation that only overturned the legal fiction of terra nullius and recognised native title to lan with the High Court’s decision in Mabo in 1992. This article explores the implications of the Sorry Statement in the context of reparations for the generations removed from their families under assimilation policies (known since the Bringing Them Home Inquiry as the Stolen Generations). We draw out the utility of recent human rights statutes—such as the Human Rights Act 2004 (ACT)—as a mechanism for facilitating justice, including compensation for past wrongs. Our primary concern here is whether existing legal processes in Australia hold further capacity to provide reparation for Australian Indigenous peoples or whether their potential in that regard is already exhausted. We compare common law and statutory developments in other international jurisdictions, such as Canada, as an indication of what can be achieved by the law to facilitate better legal, economic and social outcomes for Indigenous peoples. The year 2008 also saw Canadian Prime Minister Stephen Harper express his apology to residential school victims in the Canadian Parliament, providing thematic and symbolic echoes across these two former colonies, which, despite remaining under the British monarchy, both forge their own path into the future, while confronting their own unique colonial past. We suggest that the momentum provided by the recent public apology and statement of “Sorry” by the newly elected Australian Prime Minister must not be lost. This symbolic utterance as a first act of the 2008 parliamentary year stood in stark contrast to the long-standing recalcitrance of the former Prime Minister John Howard on the matter of a formal apology. Rather than a return to a law enforcement-inspired “three strikes and you’re out” approach, Australia stands poised for an overdue constitutional and human rights-inspired “three ‘sorries’ and you’re in”