Three Sorries and You’re In? Does the Prime Minister’s Statement in the Australian Federal Parliament Presage Federal Constitutional Recognition and Reparations?

摘要

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”.