Redress for former forced adoption policies and practices
Evidence submitted to the committee by those affected by former forced
adoption policies and practices suggests that redress is required as an important
step towards official recognition of the injustices suffered, and towards individual
and community healing.
The committee considers that governments and institutions should take
concrete steps toward mitigating the harm done by former forced adoption
practices. These include an apology, formal grievance procedures, reforms to
ensure removal of unnecessary barriers to litigation, and the provision of specialised
trauma counselling for the different parties to past adoptions. Chapters 9 and
10 considered the prospect of an apology and the provision of counselling
services respectively. This chapter considers the issue of compensation, the
options for legal redress and the establishment of a grievance process.
Previous Senate Community Affairs Committees carried out inquiries into
child migration and those who experienced institutional care, collectively known
as Forgotten Australians. There were similarities in the issues that arose from
these inquiries, particularly around reparation and redress schemes, and the
difficulties in pursuing legal action as a form of redress. The committee
considered the reports of these previous inquiries, and government responses to
them, in order to inform its approach to the current issue.
During its inquiries into Forgotten Australians and child migrants the
committee considered the difficult issues involved in providing redress for past
wrongs. The issue of monetary compensation was as contentious in those inquiries
as it has been in this one. In this inquiry the issue of compensation was often
linked to an apology, with the apology being seen as the acknowledgement of
wrongs committed, and compensation as the tangible acceptance of responsibility
by authorities. As discussed in Chapter 9, the committee has recommended that
the Commonwealth Government issue a formal statement of apology that
acknowledges, on behalf of the nation, the hurt and distress suffered by many
mothers whose children were forcibly removed and by the children who were
separated from their natural parents.
Most submissions did not raise compensation as an issue, and some
thought that it would not be an effective form of assistance. During the
hearing in Adelaide, Mrs Roslyn Phillips was asked about compensation, and
expressed doubt about whether it would be an effective response:
Senator ADAMS: Some witnesses have been asking for
compensation from the government. What do you feel about that?
Mrs Phillips: I am not sure about that. I think the same was
said about Aboriginal children who had been separated from their parents.
Again, some of them mentioned it in your inquiry because they were forced to
put their babies up for adoption. It is very hard. Once you talk about
compensation, there is a matter of proving things and when it is a long time
ago, there can be court cases. I am not sure that is the best way to go. I
think it would be better to provide the best kind of counselling and other
assistance to help them get on with their lives.
Many submitters told the committee of how awful the experience of forced
adoption was. This led some to argue that compensation could not be effective,
because it not compare with the severity of the harm experienced:
I would like to see that this sort of thing never happens to
anybody else anywhere—all over the world, not just Australia. This is so wrong;
this is so, so wrong. There is no way there can be in any recourse or
compensation or anything else for the things that were done to us, the way we
were treated. It is just so bad. We were made to feel shame. I was never
allowed to talk about it. Even now with my family I am in trouble all over the
place. There are adopted children in my family and, because of what I have done
now in putting this submission forward, it is like I should not be around. They
are treating me like something you would scrape off the bottom of your shoe and
I cannot do anything about it. I do not know what to do about it, so who is
going to help?
Asked about compensation, one witness saw actions, not money, as the
important form of compensation:
Also, my idea of compensation is to get it out there in the
media and to let our kids know—we do not have to know because we know what went
on—that we were not the bitch, the slut or the whore that met a sailor when the
ship came in. In fact, I only ever met one person that that happened to. We
have to let them know that they were loved and there was no choice. We do not
know what the adoptive parents have told these kids or what has been rammed
down their throats for how many years. They need the second story out there in
the media. I do not mean talking about it on the computer or on Facebook
because these people are my age. I could not even send in a submission over the
internet. So that will not work. It has to be when they switch on the
television and bang it is there.
One of the commonest responses of submitters to the question of
compensation was to link it to an apology, and to other concrete measures.
The link between an apology and compensation
Ms Marigold Hayler's submission was typical of those that expressed the
connection between an apology and compensation.
In my view there should be some compensation also, as well as
an apology. Apologies are excellent (think of the Truth and Reconciliation Commission
in South Africa). But, also, compensation is a tangible thing. 
The significance of compensation in validating the trauma and grief
associated with forced adoptions was also highlighted in another submission:
Apology—brings validation and healing
Redress—financial compensation and acknowledgement for the
In another submission, a mother argued that financial compensation and
acknowledgement of her forceful separation from her child was imperative for
the healing process.
Thus for some submitters, acknowledgement and financial compensation appear to
be two sides of the same coin: both allow mothers to feel that they have been
heard and have had their feelings of grief and anger validated.
Compensation can also reflect both the economic and intangible costs of
their past experience:
I also ask for legislation for compensation for the life-long
effects and costs of post-traumatic stress and unresolved grief.
Another submitter identified compensation as key to her recovery and to
the recovery of her children. Again, the act of acknowledgement and
compensation appear to be intertwined:
1. Payment for grief and loss counselling.
2. Compensation for personal injury.
3. Acknowledgement of my loss.
4. As my children are not old enough to fully understand what
has happened I would like them to be told about the adoption practices, and for
them to gain an understanding of what has happened to me so that when I meet them
they will benefit from information on adoption.
5. Compensation for my children who have had to live without
6. Recognition of past adoption practises.
7. Those people responsible for unethical and illegal
activities dealt with through the legal system.
Acknowledgement, vindication and compensation for suffering was also
highlighted in another submission, in which the following requests were made:
The results I would like to see come out of this Inquiry are
- That adoptees are made aware of the truth
- That mothers involved in forced adoptions be vindicated publicly
- That appropriate Psychological Treatment be made available to
mothers and adoptees, ASAP
- That financial redress be made to these mothers and their
children, who should be considered comparable to victims of crime...
Of the need for natural justice, and the role compensation would play in
achieving this, one submitter wrote:
These women are owed compensation as any other person who has
faced injustice under criminal acts. These women are owed compensation for the
illegal abduction/kidnapping of their babies and the abuse and trauma they
suffered at the hands of those who were supposed to care for them.
A precedent needs to be set so that this heinous episode
bordering on genocide (the taking of one group of people and giving them to
another group), will never again happen in this country's history.
Echoing the need for natural justice, another submitter argued that:
I am not a materialistic woman but I state powerfully and
strongly, us mums who were treated in such a barbaric and draconian manner...ask
for substantial compensation to be given for the pain and suffering and rejection
by family and society at the stigma that has followed us for a
One mother reasoned that compensation is essential for repairing the
damage caused and the grief she has suffered:
The others who got it wrong still owe all mothers and their
stolen babies an apology. What amount can repair a lifetime of grief? What
amount can cushion the theft of a child by a government eugenically oriented?
I believe there are a couple of things left to do.
and compensate for the damage...
Other submitters sought redress, without necessarily framing it as
financial compensation. The element of mental anguish was highlighted by an
adopted person who felt that their separation from their natural mother
dictated an isolated and lonely life, consistently feeling that they do not 'belong'
with their adopted family:
I also think that government needs to look at redress as so
many [lives] have been destroyed due to Forced Adoption leaving those with
little ability to earn an income or have what would be considered a normal
life. We all have been severely disadvantaged with Past Governmental Policies.
Another adopted person highlighted the consistent daily pain that he
battles with and the debilitating effects adoption has had on his life. When
asked how the Commonwealth could best assist in trying to repair the damage
inflicted he said:
I think that they should continue along the line that they
are with supporting CLAN with funding and supporting Open Place. Open Place has
things like they will pay for your medical provisions, and I do need medication
that I have had for quite some time...
The main thing now is that anyone who has been in an
orphanage warrants financial compensation. It is like they destroyed us...So I
think some sort of compensation is necessary because we lost our income, our
ability to earn an income. Most of us are on medications, and have been from a
very early age. It is just not fair that we never had the right to earn a
Compensation for this witness was linked to having been in institutional
care. He thought other forms of assistance than compensation should be
available, such as support for medical care.
Witnesses often linked the need for financial assistance to costs
incurred later in life (rather than as compensation for the action of forced
adoption itself). For example, one submitter informed the committee that:
Recompense would need to be addressed on a case-by-case basis.
Many mothers were rendered incapable of working or holding down a job of any
kind and as a consequence have not had the financial means of proper health
care or professional psychiatric help to try to unpack the experience they had resulting
in the damage sustained when their babies were forcibly taken from them.
Financial assistance would contribute to her attaining and maintaining the
semblance of a 'normal' life. Financial assistance is in some cases needed to
reunite mothers with their lost children and grandchildren.
As the examples outlined above have shown, the type of compensation
sought, and the reasons for it, varied. The most common request was not for
direct compensation, but for concrete actions that reflected their experience,
and support in addressing the ongoing costs that they experienced as a result
of past harm. This range of submitter requests, underpinned by a common call to
have their voices heard, was also a feature of the inquiries into child
migrants and children in institutional care.
Redress and reparations for child
migrants and children who experienced institutional care
The policies that led to the child migrants and children in
institutional care inquiries collectively involved placing upwards of 500 000
children into care for a substantial period, sometimes all of their early
lives. The damage done to these children, now adults, is documented extensively
in those reports. The inquiries into those episodes of Australian history
showed that the placement of these children in institutions was the result of a
coherent and conscientious policy at state and federal level, and a collective
responsibility for the neglect and abuse that occurred in the environments into
which the children were placed. In the case of Child Migrants the
findings of the inquiry included:
State Governments were unable or unwilling to ensure the
protection of the children and the Committee received evidence of shocking
physical and sexual abuse and assault perpetrated by those charged with their
Australian authorities ignored changes in childcare
arrangements developing in the United Kingdom and many child migrants were
placed in barrack-style institutions, isolated from the general community.
Connection with family was severed or actively discouraged by carers. Without
those connections, children lost their personal identity, culture and country.
The committee at that time recommended the establishment of the Child
Migrants Trust fund in conjunction with the United Kingdom. The purpose of the
Trust was to allow affected people re-engage with their country of origin and
attempt to rebuild familial links through the funding of travel between
Australia and the UK. Other functions of the Trust included funding specific
counselling services for child migrants and to:
develop strategies to improve former child migrants' access to mainstream
services as well as to improve the capacity of mainstream service providers to
respond appropriately to the needs of former child migrants.
In the case of the Forgotten Australians the committee also recommended
a number of diverse redress options. These included issuing an apology, the
establishment of a national reparation fund, addressing the barriers to legal
actions, ensuring a standardisation of church and institutional grievance
procedures, and the establishment of an external complaints review mechanism.
On the issue of the establishment of a national reparation fund for Forgotten
Australians there were issues with its implementation, particularly in
relation to the role of the states and the churches who had the primary
responsibility for the institutions where much of the abuse took place.
As highlighted in previous committee reports,
state redress schemes, where implemented, have fallen short of meeting the
requirements and/or expectations of abuse victims and there are issues
surrounding inequitable outcomes. This is attributed to the complicated
bureaucratic steps involved in processing claims, which are further complicated
by the fact that many victims of abuse reside in different states to where the
Moreover, the state schemes have very different criteria and payout
This creates inequity in the reparation schemes and often leaves victims
feeling resentful and at times re-traumatised by the bureaucratic process.
Moreover, some states assess payout figures in relation to the perceived
seriousness of abuse suffered. This multi-tiered system is highly subjective
and can further exacerbate the emotional stress applicants are already under.
Additionally, state-run redress schemes are undermined by the reluctance of
victims to come forward and lodge a claim because they experienced abuse in
state institutions in the first place. Consequently, many abuse victims have a
mistrust of bureaucracy.
Church administered redress schemes for Forgotten Australians have
also been problematic. During the inquiry the committee received many
complaints as to the deficiencies of such schemes.
For example, submissions to that inquiry expressed concern that after victims
took the painful steps to submit details of abuse or neglect to the church
authorities, the assessors found that the alleged abusing priest or nun was too
old, senile or dead, and therefore could not respond to the allegations.
Moreover, submitters alleged that the assessors often claimed a lack of
evidence for a particular form of abuse or neglect or that there was no
corroborating evidence for the allegations.
It was then further alleged by submitters that the plaintiffs received pro forma
letters from the relevant church authorities claiming that the matters raised
had not been substantiated and no further actions would be taken.
Additionally, many people will not use church redress schemes because of
their past experiences in these institutions. Effectively, victims are
required to go back to their abusers, undergo a potentially traumatic inquiry
process and then ask for money. As highlighted by the Forgotten Australians
report, this prospect is too humiliating and traumatizing for many victims.
The Commonwealth has not funded compensation schemes in either case. In
the case of children in institutional care, it argued that most recommendations
were matters for the states. The Community Affairs committee then suggested
that redress schemes should be set up by, and be consistent across, all states.
In the case of child migrants, the Commonwealth provided funding for redress
through measures focussing on support for travel, personal support schemes, and
for memorial activities.
As outlined in Chapters 5 to 7, this inquiry concluded that the
Commonwealth's role in adoption policy was (and remains) indirect, as adoption
legislation was a state and territory matter and the institutions where
adoptions were organised were not Commonwealth controlled or operated.
The committee is also acutely aware that the Commonwealth government
rejected the recommendation in the Forgotten Australians report for the
establishment of a national reparation scheme on the grounds that it did
not have direct involvement:
[The government] is of the view that all reparations for
victims rests with those who managed or funded the institutions, namely state
and territory governments, charitable organisations and churches. It is for
them to consider whether compensation is appropriate and how it should be
In the absence of direct Commonwealth responsibility for past adoption
policies and practices the committee does not agree on any recommendation to
establish a monetary compensation scheme funded by the Commonwealth. That said,
the committee recommends that the Commonwealth government should provide
leadership in the development of a national framework to address forced
adoption practices, just as it provided leadership in the 1960s in the
development of model adoption laws. The national framework is referred to
further in the final chapter.
The committee agreed that the primary responsibility for financial
reparation should be at state and territory level and that the Commonwealth
should have a coordinating role to ensure national consistency in the
establishment of reparation schemes.
The committee recommends that the Commonwealth should lead discussions
with states and territories to consider the issues surrounding the
establishment and funding of financial reparation schemes.
Formal grievance and complaint mechanisms
While the committee has not recommended the establishment of a national
compensation scheme, there are cases where individuals have been harmed by
former forced adoption practices, and where those practices may have involved
illegal or unprofessional conduct by state or privately-run institutions in
which adoptions were arranged.
People affected by these practices should not have to rely solely on
costly, difficult and sometimes inaccessible legal proceedings to seek redress.
People need a mechanism to address this concern. An institution or government
that had responsibility for adoption arrangements in the period from the 1950s
to the 1970s should have grievance mechanisms in place. These would create a
process for individual cases to be aired and, where appropriate, for
responsibility to be established that may result in redress for affected
parties. The committee heard a limited amount of evidence on this issue.
Catholic Health Australia gave evidence at one of the committee's hearings in
[S]ome mothers today continue to have grievances about the
specifics of their birth experience and particularly the consent procedure that
did or did not occur at the time of their child being adopted. Adoption was and
is a legal responsibility of the states. The processes that exist to hear
grievances about medical care and consent differ across states and they are
complex and challenging to access. Again, the Community and Disability Services
Ministers' Conference should develop a strategy for those who seek to have their
grievances dealt with and better system navigation could be offered to help
support those with grievances in dealing with this very fragmented complaints
process. We in Catholic hospitals have in place a protocol to respond to those
seeking these types of supports where a birth occurred within one of our
hospitals. Our protocols are by no means perfect and, indeed, they work slowly,
but we are least able to do our best to respond to those who come forward to
The committee appreciates that many of the institutions and
organisations involved in past adoptions have protocols that allow parties to
access records and information about their adoption experience. This is without
doubt extremely helpful to those searching. The committee would like to see every
organisation establish similar protocols to deal with grievances and complaints.
These protocols should involve a set of measures for redress where wrongdoing
has been established.
While the committee is not endorsing any particular model for a grievance
process, it notes the principles set out by the Catholic Church in Australia in
its program 'Towards Healing'. The Church states that it will 'make a firm
commitment to strive for seven things' when dealing with complaints:
- Healing for the victims
- Assistance to other persons affected
- An effective response to those who are accused
- An effective response to those who are guilty of abuse
- Prevention of the abuse
The Benevolent Society, describing the lessons it is seeking to learn
from the past, described some similar values. It wrote about the importance of
determining truth, of 'ensuring that we learn and change', and of 'not
repeating the mistakes of the past'. It also emphasised the need for good
policies and procedures.
The committee suggests that these would extend to effective procedures for
The committee does not envisage a grievance procedure to be a
replacement for legal proceedings. The committee does envisage a system
whereby a complainant receives access to all of the information pertinent to
their experience, and is made aware of how the relevant institution undertakes
to respond in cases where the process has found evidence that wrongdoing
11.43 The committee recommends that institutions and governments that had
responsibility for adoption activities in the period from the 1950s to the
1970s establish grievance mechanisms that will allow the hearing of complaints
and, where evidence is established of wrongdoing, ensure redress is available.
Accessing grievance mechanisms should not be conditional on waiving any
right to legal action.
Legal avenues for redress
The committee has previously expressed its view about the difficulties
people face in attaining redress for their pain and suffering. In the 2004 Forgotten
Australians report, the committee expressed concern over the 'difficulties
applicants have in taking civil action against the unincorporated religious or
charitable organisations, and that this may be a device for deliberately
avoiding legal liability and accountability.'
The committee also argued that seeking compensation through civil action
is further complicated by the various statutes of limitation legislation.
The Forgotten Australians report had noted that this was a continuing
theme prevalent in many previous inquiries of that nature:
Just as Bringing them home noted legal impediments for indigenous
people seeking compensation for past actions, the child migrants' inquiry found
that while some former child migrants had suffered criminal assaults, various
legal impediments imposed by the statute of limitations prevented them from
taking legal action. Regarding physical assaults, the Forde Inquiry said that
the abuses went far beyond the prevailing acceptable limits, while the child
migrant inquiry found that some children had clearly suffered physical and
sexual abuse, similarly beyond anything that could conceivably be argued as normal
for the time.
Moreover, to apply for an extension of time to the statutes of
limitation, proceedings may cost between $10 000 to $15 000 for each side, and
there is no guarantee that leave to issue proceedings will be granted.
Should the applicant lose, they will be liable for not only for their own legal
costs, but also the legal costs of the other side.
However, it may be useful to note that the statutes may only operate
from when an applicant first made the connection between their injuries and past
This means that people suffering from post-traumatic stress disorder may still
have an opportunity to pursue legal action. However each appeal is subject to
the discretion of the Courts and leave is, more often than not, refused.
The adversarial nature of civil litigation was also cited as a barrier:
Victims often find the process of testifying and facing
cross-examination painful, as it brings back memories and opens old wounds.
Victims often complain that they feel as if they are the ones on trial because
they are forced to 'prove' what happened to them.
Civil action appears a less than desirable outcome for those affected by
forced adoptions. Litigation is a very costly process and the chances of a
successful prosecution are slim. Moreover, the adversarial nature of litigation
may be very distressing for the plaintiff.
In cases where illegality is alleged in the adoption process the
prosecution of those responsible should not be hindered by statutes of limitation.
The committee urges all states and territories to examine the limitations for
infringements of adoption legislation to ensure that they do not act as a
barrier to litigation by individuals who were not made aware of their legal
rights at the time that offences may have been committed. The committee does
not want people who have been damaged by their experience of forced adoption to
be damaged further by having to endure a long and bruising legal journey that
may ultimately be unsuccessful due to a legal technicality.
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