CHAPTER 4
LOST INNOCENTS
4.1
This chapter provides a complete listing of the recommendations of the Lost
Innocents report and the government responses. Recommendations that were
not considered in chapters 2 and 3 are also addressed in this chapter.
4.2
Many of the recommendations set out below did not attract extensive
comment or evidence through the course of the inquiry. There are a number of
reasons that this may be so:
-
the specific issue has been addressed or is for other reasons
less relevant than at the time of the previous inquiry;
-
the specific issue is a subset of a more general recommendation
that was commented on; or
-
the recommendation was rejected by the government and the
relevant issues are substantially unchanged since the time of the original
inquiry.
4.3
As noted in Chapter 2, the Commonwealth government has expressed a
commitment to review the responses to the Forgotten Australians report,
which apply to former child migrants who spent time in institutional or
out-of-home care.
Recommendation 1
That the Commonwealth Government urge the State and
Territory Governments to undertake inquiries similar to the Queensland Forde
inquiry into the treatment of all children in institutional care in their
respective States and Territories; and that the Senate Social Welfare
Committee’s 1985 inquiry be revisited so that a national perspective may be
given to the issue of children in institutional care.
Government response
The government supports this recommendation and will
bring the recommendation to attention of the Community Services Ministers
Advisory Council, acknowledging that children in institutions are the primary
responsibility of the States and Territories.
The number of children in institutional/residential care
has decreased markedly from approximately 27 000 in 1954 to less than 2000
currently. Most states and territories have phased out large institutions, with
the majority of residential care now provided in small facilities caring for
three to eight children.
Implementation
4.4
The implementation of this recommendation is addressed in Chapter 2.
Recommendation 2
That British and Maltese former child migrants be treated
equally in accessing any of the services currently provided or as recommended
in this report, including access to travel funding.
Government response
The government supports this recommendation and agrees
that former British and Maltese child migrants should be treated equally in
accessing any existing or new services proposed in this response (Refer
recommendations 17 and 22).
The government, through the Department of Immigration and
Multicultural and Indigenous Affairs, (DIMIA) has funded the Child Migrants
Trust to provide counselling and family reunification services for former child
migrants since 1990. Services provided by the Trust are open to both UK and
Maltese former child migrants. The Trust provides support and assistance to
approximately 750 UK and Maltese clients per year.
Implementation
4.5
The implementation of this recommendation is addressed in Chapter 3.
Recommendation 3
That the Commonwealth Government establish the means to
accurately determine the numbers of child migrants sent to Australia during the
20th century to assist in determining the level of support services and other
assistance needed for former child migrants.
Government response
The government considers that statistics on the numbers
of child migrants sent to Australia during the 20th century are unlikely to
help to determine the level of support and assistance that child migrants
living in Australia today might require. Child migrants are not a homogenous
group in terms of their needs – some may be happily settled and not want to be
identified or need assistance, some may be living abroad, or deceased. The
government’s focus has been, and continues to be, on addressing needs through
the provision of counselling where child migrants have presented seeking
support.
In terms of providing further statistical information,
DIMIA provided as accurate an estimate as possible of the numbers of child
migrants to Australia in its submission to the Senate Inquiry. The statistics
were taken from quarterly statistical bulletins published from 1947 to 1961.
After 1961 these statistics were no longer published in this format and instead
were aggregated with other more general migration statistics, presumably
because the numbers of child migrants had declined substantially by that stage.
DIMIA also provided post 1961 statistics, taken from
various reports to Parliament recorded in Hansard over the next decade. However
these reports were intermittent and did not provide exact numbers involved. In
view of this, DIMIA is unable to provide more accurate historical figures than
those already provided to the Committee. Future focus will therefore be on
identifying levels of need for services, based on those former child migrants
seeking them.
Implementation
4.6
The Commonwealth Department of Immigration and Citizenship (DIAC)
advised that it could provide no further comment or update on the previous
government response.[1]
4.7
The Western Australian Department for Child Protection advised:
The Department for Child Protection has identified the exact
number of child migrants that came to Western Australia as part of the work in
creating the Former Child Migrants Referral Index. The total for Western
Australia is 2,941 child migrants.[2]
4.8
The Committee did not further consider this recommendation.
Recommendation 4
That in accordance with the 'Statutes of the Most
Excellent Order of the British Empire', the Commonwealth Government initiate
the process for Francis Paul Keaney’s membership of the Most Excellent Order of
the British Empire to be cancelled and annulled.
Government response
The government notes the concerns expressed by some
former child migrants in relation to Francis Paul Keaney and sincerely regrets
the injustices and suffering that some former child migrants may have
experienced in institutional care. However the precedents for cancellation of
awards of British honours are based on proven criminal offences and would
generally result once due appeals processes were exhausted. The serious
allegations against Francis Paul Keaney have not been tested through court or
appeals processes and cannot be now that he is deceased. The award of OBE
ceased with his death. As a result of this, it is not possible to pursue this
recommendation.
Implementation
4.9
The Committee received no evidence on this matter and did not further
consider the recommendation.
Recommendation 5
That the Commonwealth Government continue to provide
funding for at least three years directly to the Child Migrants Trust to ensure
that the specialised services of tracing and counselling are provided or
accessible to former child migrants living throughout Australia.
Government response
The government supports this recommendation. The
government will continue to fund the Child Migrants’ Trust for the next three
years at an amount of $125,000 plus associated administrative costs per annum.
Implementation
4.10
The implementation of this recommendation is addressed in Chapter 3.
Recommendation 6
That the Commonwealth Government urge the British
Government to continue financial resources for the National Council of
Voluntary Child Care Organisations (NCVCCO) for the retention and expansion of
the Child Migrant Central Information Index.
Government response
This recommendation will be brought to the attention of
the British government.
Implementation
4.11
The Committee received no evidence on this matter and did not further
consider the recommendation.
Recommendation 7
That the Commonwealth Government urge all State
Governments to establish a comprehensive signposting index similar to that
established by the Western Australian Government.
Government response
The government supports this recommendation and will
refer it to the Community Services Ministers Advisory Council for consideration
by State and Territory governments.
Implementation
4.12
The Committee received no evidence on this matter and did not further
consider the recommendation. However, Chapter 3 considers the issues of
identification of and access to records of former child migrants and care
leavers more generally.
Recommendation 8
That the Commonwealth Government urge all State
Governments to co-operate to establish a national index of child migrants.
Government response
The government supports this recommendation and will
refer it to the Community Services Ministers Advisory Council for consideration
by State and Territory governments.
Implementation
4.13
The implementation of this recommendation is addressed in Chapter 3.
Recommendation 9
That the Commonwealth Government urge State and Territory
Governments to publish directories of information to assist all former
residents of children’s institutions to access records similar to the
directories published by the New South Wales and Queensland Governments.
Government response
The government supports this recommendation and will
refer it to the Community Services Ministers Advisory Council for consideration
by State and Territory governments who have not published such directories. The
government notes that there are already several directories in existence:
-
Good British Stock: child and youth migration (Barry Coldrey,
National Archives of Australia 1999), which describes records held by the
National Archives of Australia about child migration and provides information
about how to access them;
-
Connecting Kin Guide to records: a guide to help people
separated from their families search for their records, (NSW Department of
Community Services, 1998); and
-
Missing pieces: Information to assist former residents of
children’s institutions to access records, (Families, Youth and Community Care
Queensland, 2001).
Implementation
4.14
The implementation of this recommendation is addressed in Chapter 3.
Recommendation 10
The Committee recommends that a national group of all
receiving agencies, other relevant bodies and Commonwealth and State
Governments be established to develop uniform protocols for accessing records
and sharing information relevant to former child migrants, their families and
descendants and to coordinate services for former child migrants.
Government response
The National Archives of Australia will raise the issue
of developing uniform protocols for accessing records, coordinating services
and sharing information at future meetings of the Council of Federal and State
Archives (COFSTA), a national forum of government archivists. The National
Archives will also promote discussion of the recommendations of the Inquiry
within the archival community, which includes government and non-government
archivists, to increase understanding of the issues and ways of assisting
former child migrants.
The Archives has arranged for an article on the
recommendations of the Senate Committee to be published in the Bulletin of the
Australian Society of Archivists, the archival professional association. The
issues will also be raised in professional seminars and workshops.
The Privacy Amendment (Private Sector) Act 2000
(Commonwealth) signals the Government’s commitment to the principle that an
individual should be able to access records about him or herself. The
legislation came into effect on 21 December 2001. It grants a right to
individuals to access information about themselves held by a range of
non-government organisations. Although there are some exemptions to this right
of access, the Government urges non-government organisations holding records
about child migrants to make them available to those migrants.
As noted in Appendix 5 of the Report, the Government
recognises that much has already been done in both the government and
non-government spheres to assist former child migrants to access records and
services.
The Commonwealth, Queensland and New South Wales
Governments have published guides describing records about child migrants held
in their jurisdiction and providing information about how to access them. The
Western Australian government has produced the WA Former Child Migrant Referral
Index which assists child migrants to that State locate relevant records. State
and Commonwealth Governments actively assist former child migrants to access records
and provide, or fund, a range of other services including counselling. Many
receiving agencies also facilitate access by child migrants to records (see
Appendix 5 of the Report).
In view of the administrative and legislative
arrangements already in place and the other initiatives outlined above, the
Government does not consider it necessary to establish a national group of
receiving agencies, Commonwealth and State Governments and other bodies.
Implementation
4.15
The Committee received no evidence on this matter and did not further
consider the recommendation. However, Chapter 3 considers the issues of
identification of and access to records of former child migrants and care
leavers more generally.
Recommendation 11
That the National Archives of Australia be provided with
sufficient funding to ensure continuation of the program of digitising its
records relating to child migration.
Government response
The government supports this recommendation. The National
Archives has recently introduced a digitisation service for archival records
held in its Canberra office and there are plans to extend the service to
National Archives offices throughout Australia, enhancing the accessibility of
its collection for all Australians. The Archives has a proactive digitisation
program targeting records for which there is high demand.
The National Archives has already made digital copies of
34 key files relating to Catholic institutions responsible for child migrants
available, in response to a recommendation made by the WA Christian Brothers’
Province Archivist in her submission to the Senate Inquiry. The National
Archives guide Good British Stock: child and youth migration identifies over
400 records in the Archives collection about child migration. The Archives will
investigate the number of publicly available records listed in the guide that
remain to be digitised, assess priorities and arrange for these records to be
considered for inclusion in its digitisation program.
Implementation
4.16
The Committee received no evidence on this matter and did not further
consider the recommendation.
Recommendation 12
That the National Archives of Australia liaise with the
Genealogy and Personnel Records Section of the National Archives of Canada in
relation to the technology, protocols, processes and procedures the Canadians
have implemented to facilitate access to their records for former child
migrants and their descendants.
Government Response
The government supports this recommendation. The National
Archives of Australia is aware of a number of the activities of the National
Archives of Canada concerning access to child migration records by former child
migrants and their descendants and has taken these into account in developing its
own policies and procedures. To ensure that the National Archives is aware of
details of the technology, protocols, processes and procedures the Canadians
have implemented, the National Archives has approached the Genealogy and
Personnel Records Section of the National Archives of Canada as recommended by
the Senate Committee. The National Archives looks forward to receiving a
response and to incorporating useful approaches into its policies and
procedures.
Implementation
4.17
The Committee received no evidence on this matter and did not further
consider the recommendation.
Recommendation 13
That the Commonwealth Government provide at least three
year funding to those agencies engaged in dedicated tracing in the United
Kingdom to assist former child migrants to locate their families, based on
applications by agencies undertaking that work.
Government response
The government agrees that supporting former child
migrants to trace and locate their families in the United Kingdom is an
important and practical form of assistance. However the government already does
so through its funding of the Child Migrants Trust. The government has given an
undertaking to continue to fund the Trust for the next 3 years (refer
recommendation 5).
Implementation
4.18
The Committee received no evidence on this matter and did not further
consider the recommendation. Recommendation 5 is discussed in Chapter 3,
'Delivery of services'.
Recommendation 14
That all organisations holding records pertaining to
former child migrants make these records available to former child migrants or
their authorised representative immediately and unconditionally.
Government response
The government supports this recommendation in principle.
The principle of an individual accessing records about him or herself is
consistent with Commonwealth, State and Territory archival, privacy and freedom
of information legislation and administrative arrangements.
The Archives Act 1983 (Commonwealth) provides a legally
enforceable right of access to Commonwealth records over thirty years of age.
The majority of records pertaining to former child migrants have now passed the
thirty year mark. Where Commonwealth records contain information that is not
suitable for public release under the Archives Act (for example, sensitive personal
information), access is given only to the subject of the record or their
authorised representative.
Commonwealth records less than thirty years of age are
generally available to the subject of the record under the provisions of the
Freedom of Information Act 1982 (Commonwealth) and the Privacy Act 1988
(Commonwealth).
As noted in responses to recommendations 10 and 15,
amendments to the Privacy Act made by the Privacy Amendment (Private Sector)
Act 2000 (Commonwealth) grant individuals rights of access to information about
themselves held by a range of non-government organisations. The amendments
commenced on 21 December 2001.
Implementation
4.19
The Committee received no evidence on this matter and did not further
consider the recommendation. However, Chapter 3 considers the issues of
identification of and access to records of former child migrants and care
leavers more generally.
Recommendation 15
That where any organisation holds primary documents,
including birth certificates, relating to any living former child migrant
without their express permission, former child migrants be entitled to recover
that document from the holding organisation.
Government response
The National Archives of Australia holds many primary
documents relating to the interaction of individuals with government although
this is more the exception than the rule in the case of child migration
records. Such records would more likely be held by those organisations that
exercised the role of guardian to child migrants.
The Government notes this recommendation may have
differing implications for government, non-government and community
organisations holding these records, (see recommendation 14), depending on the
legislative framework in which these organisations operate. Recovery of
documents held by State and Territory authorities is obviously a matter of
consideration for those governments. In the Commonwealth context the National
Archives would, in most circumstances, consider these primary documents to be
Commonwealth records and therefore would need to comply with the Archives Act
1983 to transfer ownership to another party. It would not be consistent with
the Archives’ role as custodian of records of archival value to do this.
As noted in response to Recommendations 10, 14 and 16,
government archives are responsible for ensuring access to such records and
protecting the privacy of child migrants where needed. The Privacy Amendment
(Private Sector) Act 2000 (Commonwealth), which came into effect on 21 December
2001, grants individuals rights of access to information about themselves held
by a range of non-government organisations.
Implementation
4.20
The Committee received only two submissions on this issue. New South
Wales advised:
The NSW Government has...amended the Children and Young
Persons (Care and Protection) Act 1998 so that original birth certificates,
school reports, medical reports and photographs, greeting cards and similar
personal records on archived ward files can now be removed and given to former
wards. This amendment prevails over the provisions of the NSW State Records
Act[3]
4.21
The Western Australian Department for Child Protection advised:
The Department for Child Protection has made every effort to
return birth certificates, where held, to former child migrants. The Former
Child Migrants Referral Index created by the Department also indicates where
the Department holds a birth certificate.[4]
4.22
The Committee did not further consider the recommendation. However,
Chapter 3 considers the issues of identification of and access to records of
former child migrants and care leavers more generally.
Recommendation 16
That all sending and receiving agencies be required to
extend access to their records to descendants of former child migrants.
Government response
The Government urges all receiving agencies in Australia
to continue to assist descendants of former child migrants to access records
and so facilitate family tracing and reunion. The Government will convey this
recommendation, together with the report, to the UK Government for the
information of sending agencies in the UK.
As noted in recommendation 14, Commonwealth records held
by the National Archives of Australia about child migrants are already made
available to former child migrants or their authorised representatives on
request. Where records sought are not suitable for public release but the
applicant is the subject of the file or can demonstrate a close relationship
with the subject of the file or a particular need for access, the National
Archives of Australia will consider granting access to that person, subject to
the protection of privacy of third parties. Similar arrangements apply to State
government archival records.
In the case of non-government organisations which hold
records about child migrants, the Government suggests that such organisations
consider allowing access by descendants provided such disclosure does not
amount to a breach of any person’s privacy.
Implementation
4.23
A number of organisations identified the provision of access to
descendants of former child migrants as being problematic. Barnardos advised
that it rejected the recommendation on the basis of consultation with its members
as well as practical experience with this issue. Mr Bill Hoyles, Senior
Manager, Youth Affairs, observed:
We have taken advice from our own child migrants and many of
them are unhappy about the idea of having their personal information released
to their relatives after they die, particularly recently because a number of
books have been published in which they have told their story and the story
that they have told is not necessarily reflected in the files that we have. In
many cases they have reinvented their past. They believe that many other people
in the community do not have files kept on them. I do not have a file kept on
me of my early childhood. I could be anybody that I wish. They want to have
that same opportunity.[5]
4.24
Ms Margaret Humphreys OAM, International Director, Child Migrants Trust,
acknowledged the issues of individual privacy and choice around the granting of
access to third parties to former child migrants' records. The CMT currently
dealt with this issue on a case-by-case basis.[6]
4.25
The Committee did not further consider the recommendation. However,
Chapter 3 considers the issues of identification of and access to records of
former child migrants and care leavers more generally.
Recommendation 17
The Committee recommends that the Commonwealth
Government:
-
confer automatic citizenship on all former child migrants,
with provision for those who do not wish to become Australian citizens to
decline automatic citizenship; and
-
that a special ceremony conferring citizenship be conducted
for former child migrants.
Government response
The government does not consider that automatic conferral
of Australian citizenship is always in the best interests of former child
migrants. Automatic conferral could have implications, for example, for a
former child migrant’s existing citizenship/s as well as any legal or other
claims they may have overseas.
The government will, however, examine ways to fast-track
applications for grant of Australian citizenship from former child migrants,
and extend to Maltese former child migrants the fee exemption currently
available to British former child migrants. This fee exemption for applications
for grant of Australian citizenship is currently available to British former
child migrants who entered Australia from the United Kingdom between 22
September 1947 and 31 December 1967. The Government believes that this is an
appropriate and symbolically important concession.
The Government will arrange special citizenship
ceremonies for former child migrants as appropriate.
Implementation
4.26
DIAC provided the following update to the previous Commonwealth
government response:
The Australian Government did not agree to automatic
conferring of Australian citizenship for former child migrants.
There is no provision in the Australian Citizenship Act
200l for automatic conferral of Australian citizenship on former child
migrants. However, the fee exemption for Australian citizenship applications,
which was available to British former child migrants, was extended to include
Maltese former child migrants from 1 July 2005.
The department undertook to arrange ceremonies for former
child migrants as appropriate. However there are no records to suggest that any
special citizenship ceremonies have been requested by former child migrants.[7]
4.27
Barnardos' cited one example of a recent case in which a former child
migrant was deported to the UK:[8]
...a child migrant, who had been in the country for 52 years, [was
deported] on the grounds that they had committed an offence that was [punishable
by imprisonment] in excess of 12 months...[We do not in any way condone the
crimes that he committed but it was the fact that he was deported after 52
years in Australia, having served in the Australian Army and having a wife and
two children here.[9]
4.28
However, representatives of the International Association of Former
Child Migrants and Their Families advised the Committee that the issues around
citizenship for former child migrants had generally been resolved.[10]
Ms Humphreys advised that she believed there was currently fewer than five
cases in which former child migrants were experiencing issues related to (lack
of) Australian citizenship.[11]
DIAC was not aware of the cases referred to.[12]
4.29
DIAC advised that it did not have records which could specify the number
of former child migrants who have become Australian citizens since arrival in
Australia.[13]
Recommendation 18
That the Commonwealth Government urge the United Kingdom
Government to extend its contribution to the Child Migrant Support Fund for at
least a further three years beyond its anticipated end in 2002.
Government response
This recommendation will be drawn to the attention of the
UK Government along with other relevant recommendations. Further funding of the
Child Migrant Support Fund is a matter for the UK government to consider.
Recommendation 19
That the Child Migrant Support Fund be supplemented by
funding from the Australian Government, State Governments and receiving
agencies; and that this funding comprise:
-
a Commonwealth Government contribution of $1 million per year for
three years initially;
-
a combined contribution from State Governments of $1 million per
year for three years initially; and
-
a contribution from receiving agencies, and that this be funded
by a levy or other means on receiving agencies not currently providing travel
assistance, in proportion to the number of children placed under their care as
a result of the child migration schemes during the 20th century.
Government response
As an alternative to supplementing the Child Migrant
Support Fund, the government will contribute towards a new Australian travel
fund for former child migrants from the UK and Malta. Further details are
provided in response to Recommendation 22.
Recommendation 20
That the eligibility criteria for access to the Child
Migrant Support Fund be broadened to:
-
permit visits to family members and other relatives, including
aunts and uncles, cousins, nephews and nieces; and for other related purposes,
such as visits to family graves;
-
be available for all former child migrants, including the Maltese
and those who may have undertaken previous visits at their own expense;
-
provide for two further visits but with a reduced level of
assistance, limited to the payment of airfares and associated travel expenses;
-
provide, in exceptional circumstances, travel funding for a
spouse, child or other person as an accompanying carer; and
-
be subject to no means-testing requirements.
Government response
Funding will be contributed by the Government towards an
Australian travel fund. Funds will also be sought from State governments.
Eligibility criteria will need to be determined in the context of the total
pool of funds available from all sources. Refer Recommendation 22.
Recommendation 21
That the Commonwealth Government, together with other
stakeholders, undertake a review of its participation in the Child Migrant
Support Fund after three years to determine the adequacy of funding from
Australian sources for the fund and the extent of continuing demand for travel
from former child migrants.
Government response
The government will seek data on the usage and
effectiveness of the travel fund in order to monitor the efficacy of the
scheme.
Recommendation 22
That, should the Child Migrant Support Fund not be
extended by the United Kingdom Government, the Commonwealth Government
establish a separate Australian travel scheme to assist former child migrants
to visit their country of origin, and that this scheme be funded by contributions
from the Commonwealth, State Governments and receiving agencies as detailed in
Recommendation 19; and that the scheme have a broad set of eligibility criteria
as detailed in Recommendation 20.
Government response
The Government supports the establishment of a new
Australian travel fund and will contribute $1m per year, plus associated
administrative costs, for 3 years in recognition of the importance of enabling
former child migrants to return to their country of origin to re-establish
connections and reunite with family members. The Commonwealth will also ask
State Governments and receiving agencies to contribute to the fund.
The administration of the fund will be contracted to a
suitable provider, following a competitive process. The scheme will commence in
the 2002-03 financial year. Former British and Maltese child migrants who
arrived under approved child migration schemes and were placed in institutional
care in Australia will be eligible for the scheme.
Implementation
4.30
The implementation of recommendations 18 to 22 is discussed in Chapter 3.
Recommendation 23
That, to ensure that choice in counselling services
remains available to former child migrants, the Commonwealth Government urge
agencies and other State Welfare Departments providing counselling services to
maintain those services and expand them where necessary.
Government response
The government supports this recommendation and will
refer it to the Community Services Ministers Advisory Council for consideration
by State and Territory governments. Former child migrants currently have access
to counselling services available in states and territories from government and
non-government counselling organisations.
Implementation
4.31
The implementation of this recommendation is discussed in Chapter 3.
Recommendation 24
That the Commonwealth and State Governments in providing
funding for boarding house and supported accommodation programs recognise the
housing needs and requirements of former child migrants.
Government response
The government recognises that some former child migrants
may require housing assistance. The Commonwealth provides supported
accommodation and related support services to help people who are homeless or
at risk of homelessness to achieve the maximum degree of self reliance and
independence through its Supported Accommodation Assistance Program (SAAP).
SAAP’s goals are to resolve crisis, re-establish family links where appropriate
and re-establish the capacity of clients to live independently of SAAP. The
government notes that SAAP may be an appropriate response for former child
migrants in crisis situations.
The Commonwealth provides funding for housing assistance
to the States and Territories through the Commonwealth State Housing Agreement
(CSHA). States and Territories are responsible for service delivery under the
CSHA, and provide public and community housing as well as a range of other
housing assistance. The guiding principles of the CSHA specify that:
-
priority of assistance should be provided to those with the
highest needs;
-
assistance should be provided on a non-discriminatory basis;
and
-
housing assistance should be responsive to the needs of
consumers.
Implementation
4.32
Neither DIAC nor FaHCSIA directly addressed the implementation of this recommendation
in their submissions to the inquiry.
4.33
However, the Western Australian Department for Child Protection (DCP)
provided some comment on the Commonwealth government's development of a
National Affordable Housing Agreement (NAHA), which would incorporate funding
for a Commonwealth-State Supported Accommodation Assistance Program (SAAP). DCP
described the NAHA as a 'comprehensive long-term national approach to tackling
homelessness including early intervention, breaking the cycle of homelessness
and connecting the service system'.[14]
However, it was not clear that any program under the NAHA would explicitly
recognise the housing needs and requirements of former child migrants.
4.34
The Committee notes that the Commonwealth and State government responses
to recommendations 25 to 28 of the Forgotten Australians report
addressed the issue of recognising care leavers more generally in the funding
and development of health, housing, aged care and education programs. This
issue is discussed in Chapter 3, 'Delivery of services'.
Recommendation 25
That the Department of Health and Aged Care commission a
study into the aged care needs of former child migrants; and that Commonwealth
funding be directed into areas of need identified in that study.
Government response
The government will ensure that Aged Care Planning
Advisory Committees and Aged Care Assessment Teams are sensitised to the needs
of former child migrants. The government believes that the needs of this group
are adequately catered for under the aged care planning, funding and assessment
processes provided by the Department of Health and Aged Care. In view of this,
the government does not consider that a study of this nature is needed.
Implementation
4.35
The Committee received no evidence on this matter and did not further
consider the recommendation.
Recommendation 26
That the Commonwealth Government urge the British
Government to ensure that former child migrants living permanently in the
United Kingdom are not disadvantaged in gaining access to income support
payments following termination of the Social Security Agreement with the United
Kingdom.
Government Response
The government considers that in practice there is little
or no likelihood of any former child migrants being disadvantaged as a result
of the termination of the Social Security Agreement. The termination of the
agreement made provision that all people receiving payments under the Agreement
would continue to receive those payments. The UK Government has announced that
it will continue to recognise periods of residence in Australia, accrued until
6 April 2001, for the purposes of claiming contributory benefits under the
(former) Agreement.
It should also be noted if a former child migrant from
the UK has qualified for an age pension in Australia, he or she may return to
the UK and reside there, and still be paid the Australian age pension.
Means-tested income support payments (similar to
Australia's social security payments) are also available to residents of the
UK. Relevant Australian income support payments continue to be payable in the
UK under Australian social security law (the Agreement did not affect their
payment or the payment of UK pensions in Australia).
Implementation
4.36
The Committee received no evidence on this matter and did not further
consider the recommendation.
Recommendation 27
That the Commonwealth Government provide a prospective
one-off grant of $10,000 to former child migrants wishing to return permanently
to the United Kingdom or Malta who can prove that they will permanently
relocate in those countries.
Government response
The government is unable to support this recommendation
as it poses considerable practical difficulties in terms of establishing proof
of permanent relocation and ensuring that the grant is used for its intended
purpose. However, should a former child migrant wish to return to the UK or
Malta to live permanently, they may be able to do so through the proposed
Australian travel fund.
Implementation
4.37
DIAC advised:
The Australian Government did not agree with this
recommendation. However, eligible former child migrants were able to travel for
family reunification in the UK or Malta with support from the Australian Travel
Fund.[15]
4.38
The Committee did not further consider the recommendation.
Recommendation 28
That the Commonwealth and State Governments widely
publicise the availability of remedial education services and associated adult
education courses to child migrants and child migrant organisations.
Government response
The government supports this recommendation and will
refer the recommendation through the Ministerial Council for Employment,
Education, Training and Youth Affairs for the States and Territories to act
upon.
Implementation
4.39
The Committee received no evidence to indicate that this matter was
referred to the Ministerial Council for Employment, Education, Training and
Youth Affairs.
4.40
Only two States commented directly on this recommendation, with both
responses indicating that former child migrants are not specifically targeted
by advertising for the remedial or adult education services. South Australia
advised:
The South Australian Government widely promotes supportive
educational services so that all citizens who may require assistance are well
informed of programs available. The primary Australian support and advocacy
service, the Child Migrant Trust, are aware of service provision of the
Government and non-government services available in South Australia. Within the
Department for Families and Communities, Families SA provides services for
individuals who are affected by child migrant adoptions through Adoptions and
Family Information Service and for those in State care, the Post Care Service
provides information, advocacy and support to meet identified needs, including
education.[16]
4.41
The Western Australian Department for Child Protection advised:
A range of adult education courses, including literacy and
numeracy are available in Western Australia and are publicised on the internet
and in print media.[17]
4.42
The Committee notes that the Commonwealth and State government responses
to recommendations 25 to 28 of the Forgotten Australians report
addressed the issue of recognising care leavers more generally in the funding
and development of health, housing, aged care and education programs. This
issue is discussed in Chapter 3, 'Delivery of services'.
Recommendation 29
That the Commonwealth Government urge the
Attorney-General of Western Australia to urgently review the recommendations of
the Law Reform Commission of Western Australia Report on Limitation and Notice
of Actions with a view to bringing the Western Australian law into line with
other Australian jurisdictions.
Government response
The government supports this recommendation in principle.
The Attorney-General will send a copy of the Senate Committee's report to the
Attorney General of Western Australia. However any change to Western Australia
limitation law is a matter for Western Australia.
Implementation
4.43
The Committee made this recommendation on the basis that the law in that
State did not allow for extensions to limitations periods for the bringing of
civil actions related to allegations of historical sexual abuse.[18]
4.44
The Western Australian Department for Child protection advised:
The Western Australian Department for Child Protection
concurs with the views previously expressed by this Department...that any
retrospective change would need to be treated with considerable caution both
because of its effect on the general principles against retrospective
legislation and its effect on individual cases.
The Limitation Act 1935 does not give discretion to
the Courts to extend the limitation period for personal injury (other than
asbestos disease type cases). Case law such as the decision in Bennett v Minister
for Community Welfare (1993) 176 CLR 408 may, however, allow certain cases
to successfully be brought after the expiration of the limitation period for
the primary claim on the basis that a common law duty of care is owed by the
guardian to the ward in his/her care to obtain independent legal advice on
proper instruction in relation to potential actions for damages arising from
injuries occurring while the ward was in the guardian’s care, and advice that
the action might become statute barred. The common law duty is breached by
failure on the part of the guardian to obtain that legal advice, and a
secondary cause of action, will arise on the expiration of the limitation
period for the primary claim. The scope and duration of this secondary cause of
action is yet to be tested in the Courts.
Western Australia has in recent years undertaken reviews of
limitations law through the Law Reform Commission leading up to the enactment
of the Limitations Act 2005. The Act makes specific provision for
limitations periods applicable to children: Part 3 allowing for the extension
of limitation periods beyond 3 years upon application to the Court in certain
circumstances. The legislature did not make special provision in the Limitations
Act 2005 for an extension of the limitations period for historical cases of
institutional child abuse.
...
The Department is of the view that the implementation of the
Redress Western Australia scheme provides a suitable alternative to victims
without the need for further retrospective legislative amendments to the Limitation
Act 1935 or the Limitation Act 2005.[19]
4.45
The Committee does not consider the response of the Western Australian
Department for Child Protection to squarely address the intent or spirit of the
Committee's original recommendation. The Committee does not expect that
potential cause of action identified in Bennett, as yet untested in terms of
scope and duration, offers sufficient certainty for potential claimants. Given
the potential financial and emotional consequences of pursuing an unsuccessful
claim on this basis, this cause of action does not appear to the Committee to
be an adequate alternative to the reform of the State's limitation act to allow
judicial discretion to extend the limitation period for matters involving the
sexual abuse of children.
4.46
Equally, the Committee does not consider the availability of the Western
Australian redress scheme as representing an alternative to civil claims where
any such claim is in part or wholly motivated by a desire to 'see justice
done'. The suggestion that to allow the bringing of actions in cases involving
the sexual abuse of children is a matter of compensation alone is to
fundamentally misapprehend the nature and effect of such offences, as well as
the suffering of its victims.
4.47
State statutes of limitation were also in addressed in recommendation 3
of the Forgotten Australians report. This recommendation is considered
in Chapter 5.
Recommendation 30
That the Commonwealth Government issue a formal statement
acknowledging that its predecessors’ promotion of the Child Migration schemes,
that resulted in the removal of so many British and Maltese children to
Australia, was wrong; and that the statement express deep sorrow and regret for
the psychological, social and economic harm caused to the children, and the
hurt and distress suffered by the children, at the hands of those who were in
charge of them, particularly the children who were victims of abuse and
assault.
Government Response
The government regrets the injustices and suffering that
some child migrants may have experienced as a result of past practices in
relation to child migration. The government supports the Committee’s emphasis
on moving forward positively to concentrate on improving support and assistance
for those former child migrants who may need or want such services, as noted
throughout the recommendations.
Implementation
4.48
The implementation of this recommendation is discussed in Chapter 2.
Recommendation 31
That all State Governments and receiving agencies, that
have not already done so, issue formal statements similar to those issued by
the Western Australian and Queensland Governments and the Catholic Church and
associated religious orders to former child migrants and their families for
their respective roles in the child migration schemes.
Government response
The Commonwealth government urges State governments and
receiving agencies to consider the importance of this recommendation, in
recognition of the hurt and distress that may have been experienced by some
former child migrants as a result of former migration and institutional
practices.
Implementation
4.49
The implementation of this recommendation is discussed in Chapter 2.
Recommendation 32
That the Commonwealth and State Governments, in
conjunction with the receiving agencies, provide funding for the erection of a
suitable memorial or memorials commemorating former child migrants, and that
the appropriate form and location(s) of such a memorial or memorials be determined
by consulting widely with former child migrants and their representative
organisations.
Government response
The government supports the concept of a memorial(s) to
former child migrants in commemorating the contribution child migrants have
made to Australia. The Commonwealth will contribute up to a total of $100,000
towards any suitable proposals for memorials initiated by State Governments in
2002-03. This funding would be distributed equally amongst those State
Governments intending to establish a memorial to child migrants, and it is
envisaged that those governments would seek to involve child migrants and
relevant receiving agencies in determining the form and location of any such
memorial.
Implementation
4.50
DIAC submitted that the Australian government had committed
$100 000 in total to the cost of erecting memorials, divided equally
amongst the six States that received child migrants. The six memorials had been
completed at:
-
Australian National Maritime Museum, New South Wales (23 March
2006);
-
St Joseph's Home, Neerkol, Rockhampton, Queensland (5 August
2003). Queensland advised that it had also established a number of other
reconciliation and memorial projects relevant to care leavers, which are
discussed in Chapter 5 under the consideration of Forgotten Australians
recommendation 34;
-
Migration Museum, South Australia (18 November 2005). The
Catholic Church contributed to the statue, which was erected in the grounds of
the museum. South Australia advised that it had also dedicated a plaque to British
Child Migrants at the museum in February 2001;[20]
-
Launceston Museum and Art Gallery (4 October 2005) and Hobart's
International Wall of Friendship, Tasmania (5 October 2005);
-
Immigration Museum, Victoria (28 September 2006); and
-
Maritime Museum, Western Australia (10 December 2004).
-
CBERS Consultancy advised that it had participated in the
development of the Western Australian memorial to former child migrants:
The Western Australian child migrant memorial, unveiled in
2004, was the product of wide consultation with former child migrants,
undertaken by the Department for Community Development, and largely facilitated
through the CBERS newsletter. The newsletter, which is posted to approximately
450 ex-residents and a further 400 agencies and service providers in Australia
and overseas, provided progress reports on the memorial project, and gave
former child migrants an opportunity to participate in the planning process.[21]
Recommendation 33
That the Commonwealth Government support and promote
international initiatives that facilitate the sharing of professional best
practice, and that ensure uniformity of protocols relating to work with former
child migrants and their families.
Government response
The government agrees that international initiatives
which facilitate the sharing of professional best practice and uniformity of
protocols are important. For example, this is already being done through the
National Archives' approach to the National Archives of Canada (see
Recommendation 12) on archival protocols and procedures, as recommended by the
Committee.
Implementation
4.51
The Committee received no evidence on this matter and did not further
consider the recommendation.
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