[LINK] [OT] "we say sorry"

Stephen Wilson swilson at lockstep.com.au
Thu Feb 14 10:42:33 EST 2008


I know that wording is important (both symbolically, and in the context 
of diplomacy and near subliminal legal implicature) but I reckon the 
influence that will be had on compensation claims by the apology is 
relatively small, perhaps negligible.

IANAL but it does seem clear to me that eligibility for compensation and 
the government's apology are separate (and properly separable) issues. 
Regardless of what was said by the PM yesterday, Aborigines have been 
subject to episodes of removal, which it is argued caused great harm. 
To determine what compensation is due, there are facts at issue which 
need to be uncovered and tested, sometimes in court.

The conservatives who seemed always to fear that some sort of genie 
would be released by the apology should realise that in any event, it's 
too late. The shape and scale of the stolen generation case was laid 
bare by all sorts of documentation, especially the "Bringing Them Home" 
report.

If compensation is due, then so be it.  Personally I feel that 
governments should put up compensation funds as a matter of policy.  But 
quite apart from that, there will always be formal legal processes for 
considering compensation.  I am not saying that the courts are a decent 
way to determine these matters, not at all, but on the important 
technical point of whether "liability" follows from the government 
saying "sorry", the outcome of legal processes will in the main turn on 
the facts of each case, and will not be much affected by public opinion, 
nor the fine wording of anyone's apology.

The apology was symbolic.  And it's tragic and quite unfathomable to me 
why so many opponents of the apology decry for being so.  Australia's 
conservatives rally energetically around the flag, Galipoli, the 
romantic idea of the 'outback', and the bloody Ashes.  You couldn't get 
more symbolic.

Cheers,

Steve Wilson.


Adam Todd wrote:
> At 12:53 13/02/2008, Roger Clarke wrote:
>> At 12:21 +1100 13/2/08, Brendan Scott wrote:
>>> Listening to the PM on the radio I found his phraseology odd.  I 
>>> would have thought we "are" sorry would be more direct and natural. I 
>>> recall reading somewhere that Graham Freudenberg et al have recently 
>>> been lamenting the decline of public rhetoric.
>>
>> A QC had advised that 'we are sorry' created greater risk of a 
>> successful lawsuit for a billion-dollar fund than 'we say sorry'.
> 
> I'd have thought "We say sorry" would place the liability jointly and 
> severally, rather than "we are sorry" which would narrow the liability 
> to the parties responsible at the time.
> 
> I can only go on 6 years of every level of court experience where such 
> tactile use of words has had very implicated meanings and harped on to 
> their nth degree.
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