The Inherent Limits of the Apology to the Stolen Generation

Abstract

The paper considers the possibility that laws empowering the State to remove Aboriginal children from their families in Australia represented an exercise of exceptional power unsustainable within a liberal democratic framework. To fully account for laws, policies and practices which resulted in the forced separation of Aboriginal children from their families, the State must revisit the question of Aboriginal sovereignty. In addressing Aboriginal sovereignty, the State must acknowledge that its own sovereignty in Australia is limited. The apology of the Rudd government acknowledges that the State should not have implemented policies of removal. But it needs to go the next step to say that the State cannot implement such policies. Such policies cannot be supported by law. There is no legal authority to pass them. The denial of their possibility is a vital demonstration of the limits of the State's sovereignty, and this limit needs express acknowledgement.

Keywords: apology, sovereignty, state responsibility, law, Aboriginal rights

JEL Classification: K10