Bringing-Them-Home-Report-Web

destroyed. In these cases, the burden of proof should be on governments to rebutotherwise credible claims. Governments should be able to defend a claim if they canestablish that removal was in the best interests of the child. The reversal of the onusof proof to the extent proposed in Recommendation 18 is necessary as a ‘specialmeasure’ under the Racial Discrimination Act 1975 (Cth). Special measures in favourof one ethnic group (or ‘race’) are permissible where needed to secure adequatedevelopment, advancement and protection so that they can enjoy, fully and equally,their human rights and fundamental freedoms.The proposed monetary compensation mechanism is intended as an alternative tothe cumbersome and often prolonged processes of civil claims. Accordingly, itsprocesses should be straight-forward and non-technical and should ensureconsistent results for claimants. The approach adopted finds support in thesubmission made to the Inquiry by the Tasmanian Aboriginal Centre.We contend that such tribunals be empowered to make monetary awards to Aboriginalpeople affected by such separations. Empowering legislation could prescribe a minimumamount of damages to be awarded to each person on proof that they were displaced.Claimants wanting larger awards could be required to provide further particulars of theirseparation and the debilitating effect of such separation (submission 325 page 14).The Chilean Commission for Truth and Reconciliation also recommended payment ofequal compensation to all without regard to their particular social, economic orcultural circumstances, although in Chile a pension scheme was recommended inpreference to payment of a single lump sum (Danieli 1992 page 206).Minimum lump sumRecommendation 18: That an Indigenous person who was removed from his orher family during childhood by compulsion, duress or undue influence be entitledto a minimum lump sum payment from the National Compensation Fund inrecognition of the fact of removal. That it be a defence to a claim for theresponsible government to establish that the removal was in the best interests ofthe child.Proof of particular harmRecommendation 19: That upon proof on the balance of probabilities any personsuffering particular harm and/or loss resulting from forcible removal be entitledto monetary compensation from the National Compensation Fund assessed byreference to the general civil standards.Everyone who can establish forcible removal and everyone who can establish harmor loss resulting from the forcible removal of any person should be entitled to claimmonetary compensation regardless of the date of removal. The principal basis for theInquiry’s recommendations on reparations is that forcible removal was a grossviolation of human rights norms legally binding on Australia since late 1946.However, this is not the only basis for compensation. Many of the harms that can beestablished were the result of actions contrary to common law well before 1946.In addition, the Inquiry’s recommendations do not rest on legal entitlements alone. Acrucial justification for reparation, including monetary compensation, is a moral one.