LHJ Seminar: Reparations, Health, & Law

Calls for reparations for past harms have a long history. In terms of British colonialism, the first demand for reparations for slavery was debated and dismissed by the British government in 1820. While the history of reparations has largely been a history of failure, arguments for reparations have resurfaced with renewed vigour in the last two decades. This has seen some schemes introduced, such as those directed at Stolen Generations survivors across Australian jurisdictions. Public support for reparations has continued to grow in recent years, buttressed by unrest and protests in the wake of police killings of Black people and the racialised impacts of COVID-19. At the same time such support grows, the nature and focus of claims has evolved. In response, this Law I Health I Justice Seminar engages with the emergence of reparations in the context of health. Here, activists and academics have identified the need to repair a number of health-related harms that include: the enduring health impacts of historic harms, racialised health inequalities, the complicity of the medical profession in the subjugation of populations of colour, and harms inflicted in institutional settings. The speakers in this seminar address a number of aspects of this developing area.

PRESENTATIONS

Are Reparations a 21st Century form of blankets and rations, or can they make honest and principle grounded transformations for Aboriginal Australians?

Jennifer Caruso

Do financial reparations have the potential to deliver meaningful change and healing for Aboriginal Australians? Should Aboriginal Australians trust governments, organisations, the private sector and Reconciliation Action Plans to engage in the processes required to affect structural and systemic rectification? Will this change modes of practice and delivery of services leading to improvements across all measures of disadvantage - including health - for Aboriginal Australians? In July 2018, Independent Assessor the Hon. John Hill delivered his Report on the South Australian Stolen Generations Scheme. Hill noted that 343 applicants had satisfied the Scheme’s criteria, with 28 of these applicants removed from their families in the Northern Territory and brought to South Australia. There are two significant details which must be noted regarding Hill’s conclusions. First, the original eligibility requirements stated that the individual had to have been removed in South Australia. The inclusion of Stolen Generations people removed from the Northern Territory and transported to South Australia was occasioned by my intervention where I produce evidence that my removal (and that of my brothers and sisters) was based in 1898 South Australian Colonial legislation. Second, according to the National Healing Foundation (an Aboriginal organisation) more than 2,100 Stolen Generations Survivors were living in South Australia in 2018. How do discrepancies of such magnitude occur, and who benefits from these discrepancies? In this paper I discuss ‘reparations’, their impacts on Aboriginal communities, and whether they can lead to meaningful change and healing for Aboriginal Australians.

Recognition, accountability, change … now!: A framework for reparations for violence, abuse and neglect of people living with dementia

Linda Steele & Kate Swaffer

People living with dementia experience diverse harms in Australian residential aged care. To date, the wide ranging and ongoing impacts of these harms on people living with dementia and their care partners and family members have not been acknowledged and redressed. Our presentation will introduce a set of principles which provide advocates and policymakers with evidence-based guidance on the scope, form and processes for reparations for the harm of people living with dementia in residential aged care. The principles are informed by: (a) international human rights norms on access to justice and remedies, (b) empirical data from focus groups with people living with dementia care partners and family members of people with dementia who have been harmed in aged care, and advocates and lawyers, and (c) the design and lived experiences of other Australian redress schemes (institutional child sexual abuse redress scheme and Indigenous Stolen Generations reparations schemes). We will also discuss the four key interrelated concepts which our research established that must drive the approach to reparations: recognition, accountability, change, now.

A reparatory account of health inequalities

Michael Thomson

The question of reparations has a long and contentious history. While significant compensatory payments were made to slave owners as part of the Slavery Abolition Act 1833, reparation claims made by those affected by slavery and other colonial abuses have generally failed at state level. While some schemes have emerged – such as payments to Stolen Generations survivors – these are limited and the exception to a continuing global struggle. In response, and focusing on the UK, this presentation brings together reparatory justice and health justice. Health inequalities experienced by Black and minority ethnic communities in the UK have their origins, in part, in colonial practices and the inequalities these historic injustices have entrenched. Social Determinants of Health research has long linked socio-economic inequalities to poor health outcomes, and addressing these determinants can form one element of a broader reparatory programme. This response to the need to repair past wrongs acknowledges the moral case for both reparation and health equity, while meeting equality and health obligations in domestic and international law.

OUR SPEAKERS

Jennifer Caruso is an Eastern Arrente woman whose research, writing and speaking focuses on Aboriginal history across the 20th Century. As with many Indigenous peoples, Dr Caruso’s academic career has followed its own pattern, gaining her undergraduate and honours levels as a mature student while lecturing in Indigenous Cultures and History at the University of Adelaide. The foundations underpinning Jenni’s approach in History is that Aboriginal experiences since the time of colonisation is an imperative education for all, but more so for the empowerment of Aboriginal people. She utilises an Aboriginal knowledge position and historical methods, aiming to deliver a more accurate comprehension of the ongoing impacts of colonisation for Aboriginal and Torres Strait Islander peoples. Jenni graduated in 2018 with her Doctoral thesis titled "Dream Phantasy of a Utopia" which uncovered the interactions between church, state and academia (particularly anthropology) in the setting up of the Methodist Overseas Half-Caste Children’s Mission of Croker Island. As a member of the Stolen Generations Dr Caruso’s work also focuses on discourses of trauma and the impacts of removal on the social and emotional wellbeing of Stolen Generations people. She is currently Chair of the South Australian Stolen Generations Aboriginal Corporation, a member of the National Healing Foundation Reference Group, and will be a CI on an upcoming SAHMRI research Project Dementia, Aging and Aged Care: Connecting aged care, health care and social services systems to support older Aboriginal and Torres Strait Islander people to live their best lives. Dr Caruso is also the recipient of the prestigious Gladys Elphick Quiet Achiever Award (2017), the 2018 South Australian NAIDOC Lifetime Achievement Award, shortlisted for the 2019 Premier’s NAIDOC Award, and most recently included in the South Australian Women’s Honour Roll.

Linda Steele is a socio-legal scholar whose research focuses on the role of law, human rights and transitional justice in perpetration and redress of violence against disabled people. She is currently leading a program of research 'Truth Justice Repair' through which she is exploring how we reckon with and repair the harms associated with violence, institutionalisation and segregation of disabled people. She is CI on the project ‘Redressing Neglect and Abuse of People Living with Dementia in Residential Aged Care’ (with AI Kate Swaffer and project partners Dementia Alliance International and People with Disability Australia) funded by Dementia Australia Research Foundation and the project ‘Listening to People with Intellectual Disability about Disability Institutions’ (with Phillippa Carnemolla and Council for Intellectual Disability). She has recently co-edited (with Justine Lloyd) a special issue of Space & Culture titled ‘Place, Memory and Justice: Critical Perspectives on Sites of Conscience’ and is currently co-editing (with Elisabeth Punzi) 'Sites of Conscience and the Unfinished Project of Deinstitutionalization: Place, Memory and Social Justice' (under contract with UBC Press).

Kate Swaffer is an independent researcher, with a focus in her work on human rights, disability rights, and desegregation and deinstitutionalisation of people in residential care homes. Kate is an and a speaker and author, and a, award-winning campaigner for dementia to be managed as a disability, and for the rights of all people with dementia and older persons. Swaffer is a Co-founder and the human rights advisor, Dementia Alliance International. Swaffer has a Master of Science in Dementia Care, a Bachelor of Psychology, a BA, a graduate Diploma in grief counselling, and is a retired nurse. She is a co-founder and the human rights advisor, and past CEO and Chair of Dementia Alliance International. Kate continues to work locally, nationally, and internationally, including with the World Health Organisation, the United Nations, and many other organisations. Swaffer is an Honorary Associate Fellow, Faculty of Science, Medicine & Health, University of Wollongong, International Fellow, Impact Research Group, University of East Anglia, and an Ambassador for the Australia Day Council SA, and for Step Up For Dementia Research Australia.

Michael Thomson is Professor of Law at University of Technology Sydney and University of Leeds. At UTS he is the Director of Law I Health I Justice. His research interests span the fields of health law, children’s rights, and legal and political theory. He has written on the legal regulation of reproduction, non-therapeutic interventions on children, and social and political theories that centre the body as a means of rearticulating the responsibilities of the state. His current work explores the role of law in addressing health inequalities. Recent publications include: ‘Health Inequalities: Law & the Pain of Others’, Social & Legal Studies (2022); ‘A Capabilities Approach to Best Interests Assessments’, Legal Studies (2021); ‘Conscience, Abortion, and Jurisdiction’, Oxford Journal of Legal Studies (2020) (with S. McGuinness); and A Jurisprudence of the Body (edited with C. Dietz and M. Travis, Palgrave, 2020).