Genocide, a Crime of Which No Anglo-Saxon Nation Could be Guilty*
| Author: |
David Markovich BCom(Econ), LLB (Hons)
|
| Issue: |
Volume 10, Number 3 (September 2003)
|
Contents:
*Title Note: In parliamentary debate over the ratification of the UN Genocide Convention, Mr Blain argued that to ratify the treaty
was an affront to Australians and other Anglo-Saxon nations because “[i]t deals with a crime of which no Anglo-Saxon nation could
be guilty.” Post and Telegraph, House of Representatives, Second Reading of Genocide Convention Bill 1949, 30 June 1949, 1874.
I am not without my suspicions, nor are other honorable members, that [genocide] is still going on in some parts of the civilized
world, and for all I know may be going on in countries, one or more of which are signatories to [the Genocide] convention.[1]
- On a political level, various public and non-governmental reports, in particular the Bringing them home Inquiry, have found that the
governments violated domestic and international law in their treatment of Aborigines, and have called for reparations.[2]
Further, many commentators have suggested that the Commonwealth government has failed to fully implement the Bringing them home
Inquiry’s recommendations.[3]
- However, many criticisms have been levied at the Bringing them home Inquiry Report.[4]
Those criticisms arise, in part, because the report was based on other than a legal methodology. For instance, the Report did not
delineate between acts of so-called “cultural genocide” and acts of “physical genocide” as indicated by the Genocide Convention.
Further, the Report did not consider the temporal issues relating to the application of the genocide prohibition. Indeed, it is
suggested that it constituted a human rights report providing a political, sociological and historic analysis of events. As such,
I personally consider that the Report served its purposes excellently. However, without wishing to enter the political fray regarding
the validity of the Report, this paper intends to strengthen some of the conclusions of that Report by presenting those arguments
within what I hope is a rigorous legal context.[5]
- This paper considers violations committed under international human rights law and will attempt to establish a prima facie case on
which a criminal or civil case could lie. The discussion will briefly outline the international law of genocide under. It will
be suggested that the prohibition commenced immediately prior to World War II. That section will also consider definitional issues
concerning the crime of genocide. Genocide comprises both a physical and mental element. It is the latter which poses the greatest
evidential hurdle.
- The next step will be to provide an historical overview of the “half-caste” removalist policies, legislation and practices of Australian
governments; Territory, State and Federal. In so doing, it will detail the Aboriginal experiences of forcible child removals. This
paper suggests that these removalist policies comprised three stages: Segregation under a Protectorate; Protection with a View
to Absorption or Merger; and, Assimilation and Integration. These policies were enacted by the Legislatures and implemented by
Executive officers.
- Whilst disproportionate numbers of Aboriginal children continued to be removed under general welfare law during the latter of these
phases, the paper focuses on the systematic removal of Indigenous children and their attempted absorption or merger into the majority
European population during the second policy stage. The paper recognises that that policy stage commenced prior to genocide prohibition.
However, that second policy phase also continued beyond the commencement of the genocide prohibition. The analysis of the earlier
Segregation policy stage circumstantially reinforces that conclusion.
- These policies and practices will then be assessed against the Commonwealth’s international obligations. In particular, the paper
will determine whether a prima facie case of genocide lies against the Commonwealth government for failing to prevent and suppress
the crime of genocide.
- Within the limited evidential scope of this paper, focusing primarily on Western Australia, and putting to one side questions of Parliamentary
privilege, it is suggested that there lies a prima facie claim of genocide against the Commonwealth. The paper hopes that this terrible
conclusion will promote community discourse on the issue and will prompt the government to place greater emphasis on its current
responsibilities towards the Stolen Generations. It would be hoped that the discussion would turn next to the question of reparations.
- As is the case with many other fields of international law, the prohibition of genocide exists under written and unwritten law. Written
law, namely treaty law, by definition, provides an accurate date by which to set the genocide time clock. Nonetheless, unwritten
sources of international law constitute a significant source of state obligations. Unwritten law comprises both customary law and
general principles of law. In the case of unwritten law, only qualitative conclusions may be drawn regarding the date on which rules
of law gain the force of law.
- Genocide is prohibited by treaty, under customary international law and as a general principle of international law. The United Nations
General Assembly (GA) adopted the Convention on the Prevention and Punishment of the Crime of Genocide on 9 December 1948 (Genocide
Convention). Article I, Genocide Convention confirms that genocide is a crime under international law whether committed at a time
of war or peace.[6]
Significantly, Article I also requires parties to take positive steps to prevent the crime of genocide and punish persons responsible.
- Article II, Genocide Convention defines genocide as acts committed against a national, “ethnical”, racial or religious group as such
and committed with intent to destroy the group, in whole or in part. The enumerated acts include:
(a)
killing members of the group;
(b)
causing serious bodily or mental harm to members of the group;
(c)
deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d)
imposing measures intended to prevent births within the group; and
(e)
forcibly transferring children of the group to another group.
Persons who conspire, attempt, directly and publicly incite, or who are complicitous with an act of genocide also commit inchoate
genocide crimes.[7]
The Genocide Convention expressly applies to constitutionally “responsible” rulers, public officials or private individuals.[8]
Further, there is an obligation on states to prevent and prosecute the relevant criminal acts.[9]
- Significantly, statutory limitations do not apply to the crime of genocide. This is indicated by Article I(b) of the Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.[10]
This applies to the crime of genocide as defined in the Genocide Convention.[11]
Customary law adopts an identical definition to the treaty law definition for genocide.[12]
- Australia ratified the Genocide Convention on 8 July 1949, and became bound by its provisions 90 days after that date.[13]
The treaty itself came into force on 12 January 1951, and, at that time; Australia’s obligations became erga omnes in nature (or
bound against the whole world).
- However, it is beyond question that the act of genocide was already a crime under international law well before the international
community had formalised such law under treaty. It is axiomatic that Australia was obligated under this international law of genocide
well before 1951.
- As previously stated, Article I, Genocide Convention clearly expresses that, at the time of drafting, the crime of genocide already
had the force of law under customary international law.
- As noted above, Australia signed and ratified the Genocide Convention on 8 July 1949. Though Australia did not at that time become
bound by the treaty erga omnes, the act of ratification signifies Australia’s opinio juris, its opinion in 1949 that the content
of the treaty is obligatory.[14]
As such evidences the existence of a customary rule of international law.[15]
- Similarly indicative of the international community’s views, in 1948, the UN General Assembly Resolution 96(I) condemned genocide
as a crime under international law.[16]
- The above would tend to indicate that 1948 or 1949 was the point in time when genocide became contrary to international law. However,
the following factors indicate that the date was considerably earlier.
- First, perpetrators of the crime of genocide were convicted in Nuremberg under the Charter of the International Military Tribunal
on 30 September 1946.[17]
Notably, the International Military Tribunal felt that the Charter applied only to acts carried out at a time of war,[18]
and made convictions for acts perpetrated between 1939 and 1945. However, it would appear that Article 6(c) of the Charter had not
been intended to draw a nexus between acts amounting to crimes against humanity (of which genocide constitutes one such act) and
war.[19]
Accordingly, the Charter confirms that genocide was contrary to international law in the period following 1939, even if committed
during periods of peace.
- Secondly, the US Court of Appeal in Hugo Princz v Federal Republic of Germany stated that genocide was a crime under customary international
law prior to the outbreak of World War II.[20]
Similarly, the 1961 Eichmann Case reaffirmed that genocide was a crime under general principles of international as they stood during
World War II.[21]
- Accordingly it is concluded that, by the late 1930s, it was contrary to international law to commit acts of genocide in Australia.
- The following section will address a number of issues concerning application of the law of genocide.
- First, this paper adopts the orthodox view that the crime of genocide is limited to the physical destruction of a group and that “cultural
genocide” is not expressly prohibited under treaty law.[22]
It is noted that the need to focus on the physical destruction of groups has been recently reiterated by the Prosecutor of the International
Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.[23]
- Storey argues that the genocide definition contemplates a range of acts beyond strict physical destruction because it includes acts
such as the removal of children.[24]
It is suggested that this argument accords with the distinction between general and specific intentions[25]
of destruction but it does not follow that the genocide definition includes the concept of cultural genocide. This paper will not
argue that the Australian government violated international law by committing acts of cultural genocide.
- Nonetheless, commentators agree that acts of cultural destruction may evidence a genocidal intention to physically destroy a group.[26]
There are various ways in which this may occur. First, as indicated by a Memorandum on Crimes Against Humanity and Genocide prepared
for the International Criminal Tribunal for the Former Yugoslavia, “some of the more serious acts falling under the category of ‘cultural
genocide’ may constitute the causing of serous mental harm under Article II(b) of the Convention”.[27]
- Secondly, self-perpetuation of a group contemplates not only the physical reproduction of the group but also “continuation of the
features that define the group as a group, distinct from the broader community”.[28]
Thus, acts which constitute cultural genocide may amount to physical genocide if they are contemporaneously intended to cause the
group to cease to exist as a separate physical entity. This argument is supported by Article II(e), Genocide Convention, (the transfer
of children) which retains a vestige of the prohibition of cultural genocide.[29]
Nonetheless, something more is needed to establish criminality. The crucial point is that there must still be an intention to physically
destroy the group rather than merely cause its cultural destruction.
- The final way in which cultural genocide may evidence an intention to physically destroy a group is by a process which may be called
“deculturation”. Deculturation can threaten the group’s physical survival when the loss of culture is so severe as to destroy a
group’s self-esteem and its will to live.[30]
However, this will evidence the mental element of genocide only if it is foreseeable, or likely, that deculturation will lead to
that group’s physical destruction. Once again, an intent of cultural genocide alone is insufficient to indicate the crime of genocide.
- Secondly, it is necessary to elucidate some of the enumerated acts under Article II, Genocide Convention. The first genocidal act
concerns the killing of members of the protected group. It is suggested that this requires no comment other than to say that attempted
killings fall within the scope of that prohibited act.
- The second genocidal act involves inflicting serious bodily or mental harm. In Eichmann, the following examples were provided, “enslavement,
starvation, deportation and persecution … detention in ghettos, transit camps and concentration camps in conditions which were designed
to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and
torture”.[31]
It will in general include “acts of bodily or mental torture, inhumane or degrading treatment, rape, sexual violence, and persecution
… [and the] “serious harm” need not entail permanent or irremediable harm”.[32]
- The third genocidal act requires that the perpetrator deliberately inflict conditions of life intended to bring about the group’s
destruction. Some examples of such acts include imposing a subsistence diet, limiting access to medical conditions, and providing
inadequate housing.[33]
It would also include the systematic expulsion of the group from their homes.[34]
- The fourth genocidal act involves measures taken to prevent births and includes the forced separation of sexes, prohibition of marriage,
sexual mutilation, enforced sterilization, and forced birth control.[35]
Such measures may be physical or mental.[36]
- The fifth genocidal act involving the forcible transfer of children speaks for itself and will be explored in greater detail below.
Significantly, it includes any act of threat or trauma which would lead to the forcible transfer of children.[37]
- Thirdly, in attempting to establish an act of genocide by virtue of Article II(e) (transfer of children), it is necessary to demonstrate
the use of force. Namely, the parents and guardians did not consent freely to the removal of their children. The rules of interpretation
are pertinent and it is the ordinary meaning of force that will be sought.
- As a defence to forcible removal, the government could argue that Aboriginal parents consented expressly or implied from their conduct.[38]
It is stressed that such consent must be voluntary and genuine. Consent obtained through fraud or provided under duress or threat
cannot be considered voluntary and genuine.[39]
Furthermore, consent may be conditional and it may be revoked.[40]
- However, it is suggested that, in certain circumstances, the issue of consent poses especial difficulties. In particular, it is difficult
to imagine what free will a colonised Indigenous people may retain, once entirely suppressed, in its dealings with the colonising
power.
- Initially, and for some time after early contact, Aborigines attempted to forcibly repel European settlers by armed conflict or guerrilla
warfare. An example of these events is the 1834 Murray River “Battle of Pinjarra” in Western Australia.[41]
At times, and well into the 1920s, government-orchestrated murder occurred.[42]
On other occasions, private individuals perpetrated acts of murder against Aborigines. These acts continued as late as the 1930s.[43]
In 1888, Speaker of the Western Australian Legislative Council spoke of guerrilla warfare.[44]
- It takes little imagination to contemplate that a subsequent response to European settlement was loss of hope on the part of the colonised
people. Certainly, the impact of colonisation on the free will of Indigenous people will be more overt in the early days of colonisation
in which they are subdued by violent force. However, it is suggested that the impact of colonisation may remain a veiled factor
to consider decades later, or perhaps even centuries later.
- In justifying its assimilation policies in 1948, it is clear that the New South Wales Aboriginal Welfare Board was cognizant of such
factors:
- Again the burden of ostracism and the stigma of inferiority, which have been the aborigines’ lot in the past, have left them with
a deep-seated resentment which must be overcome if constructive reform is to be carried out.[45]
- Fourthly, the mental element of intent to destroy a group is an essential element of the crime. However, the nature of that intention
must be determined. Must the direct actions or omissions be specifically intended to destroy the group or do actions or omissions
accompanied by general destructive intentions suffice? There is “considerable authority for the proposition that it is sufficient
to establish [a] general” intention.[46]
- This conclusion is evidenced by a number of factors. It is consistent with the US Genocide Convention reservation aimed at restricting
the scope of its obligations.[47]
The US reservation requires that the commission of the enumerated acts be accompanied by the specific intention to destroy a group.
- It is also consistent with a reading of Article II. In particular, Article II(c) imposes a specific intention requirement by making
it clear that the act specified in that provision must be carried out “deliberately”. Imposing a specific intention requirement
on the other enumerated acts would render that term redundant. Such an interpretation would be contrary to the standard rules of
construction.
- The general intent proposition is also consistent with Anglo-American criminal law whereby “an accused cannot avoid liability for
the foreseeable consequences of a deliberate course of action”.[48]
In the law of negligence, foreseeability acts as a judicial fiction attaching a general intent to actions which have not been shown
to accompany a specific intention.
- Accordingly, there exists a general intent to destroy a group if destruction of a group is a foreseeable, or a likely, consequence
of any of the enumerated acts.[49]
This applies regardless of any other specific intention, or motive, which may coexist with the commission of the enumerated acts
of destruction. Further, omissions may provide an evidential basis to determine an intention to destroy a group.[50]
There must be a sufficient degree of criminal negligence or recklessness in the defendant’s actions or omissions so that they must
reasonably be assumed to have been aware of the consequences of their conduct.[51]
- Fifthly, Storey argues that intent should not be equated with motive.[52]
Given the rules of statutory construction, this appears to be a reasonable reading of the Genocide Convention. Motive is defined
as “a strong reason or need that drives someone to do something”.[53]
In contradistinction, intention is defined as “the act of deciding upon some action or result; a purpose or design.”[54]
- It is noted that the Ad Hoc Committee included a “motive” requirement in earlier drafts of the Genocide Convention and considered
it an indispensable element of the crime.[55]
Nonetheless, it was seen as distinct from the intention element and it was subsequently excluded. Commentators agree that motive
need not be established as long as the requisite intent is present.[56]
- Some commentators have suggested that the inclusion of the words “as such” in the genocide definition may indicate a requirement to
establish motive as an element of the crime. However, it is argued that the preferred interpretation is that the phrase requires
that the intent to destroy be directed at individuals because of their membership of a protected group.[57]
This conclusion is supported by the International Law Commission.[58]
- This paper endorses the proposition that an intention to destroy part of a group may coexist with benevolent motives intended to benefit
some members of the group. It is suggested that this approach is consistent with a reasonable reading of the Genocide Convention
definition and conforms to the context in which the Genocide Convention was framed. For instance, the German National-Socialist
regime of 1933-45 had a perversely benevolent motive in a Nietzschian sense of the social betterment of the human race.[59]
However, this does not preclude one from considering the Nazi government’s acts of group destruction as being genocidal.
- It will be argued that whilst Australian governments may have had benevolent motives towards the individual Aboriginal children that
it removed, or for that matter the betterment of its civilised nation, there existed contemporaneously an intention to destroy part
of the Aboriginal people as a distinct group.
- Sixthly, in determining intent, it is critical to note that, as in the prosecution of all crimes or torts which contain a mental element,[60]
the prosecution or plaintiff will often need to infer the requisite intention from circumstantial evidence. Prosecutors for the
International Criminal Tribunal for the Former Yugoslavia have emphasised the need to rely heavily on circumstantial evidence to
establish intent.[61]
It is rarely the case that the prosecutor will possess explicit or overt evidence of intent. The smoking gun is a myth. For instance,
an intent to destroy a group may be inferred from labelling a protected group as an enemy of the state or the practice of systematic
and destructive behaviour patterns towards the group.[62]
- Accordingly, this paper will need to draw inferences from expressed government views and their actions or, for that matter, their
omissions to act. Admittedly, in determining whether government actions were genocidal, the physical element of the genocide definition
can only be established by actions taking place after the commencement of the genocide prohibition. However, in determining the
mental element, it is germane to consider government policies and actions prior to that period.
- Recent judgments of the International Criminal Tribunal for Rwanda have adopted the following approach in determining the question
of intention:
[I]t is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration
of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or
by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore,
the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding
the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.[63]
- The preceding discussion concludes the theoretical analysis of international law relating to the crime of genocide. The following
chapter will provide an historical overview of the experiences of Aborigines.
- This section of the paper will outline the legislation and policies of all States and Territories. By necessity, the discussion will
be cursory. The remaining sections will consider in great detail the circumstances of one State, namely Western Australia.
- The discussion of the genocide must be considered in the context of the extreme racism that existed in Australia in the period before
and after the genocide prohibition came into effect. Australia’s history of racism is appallingly evidenced by the 1901 Parliamentary
address of a prominent founder of the Federation, and the Commonwealth’s first Attorney-General, Alfred Deakin:
- There will be no mistake as to our meaning when these speeches are read, and when our votes are seen. Members on both sides of the
House [of Representatives], and of all sections of all parties – those in office and those out of office – with the people behind
them, are all united in the unalterable resolve that the Commonwealth of Australia shall mean a “white Australia”, and that from
now henceforth all alien elements within it shall be diminished. We are united in the resolve that this Commonwealth shall be established
on the firm foundation of unity of race, so as to enable it to fulfil the promise of its founders, and enjoy to the fullest extent
the charter of liberty under the Crown which we now cherish [emphasis added].[64]
- The Attorney General used similar language regarding the future of Aborigines:
We have power to deal with people of any race within our borders, except the aboriginal inhabitants of the continent, who remain under
the custody of the States. There is that single exception of a dying race; and if they be a dying race, let us hope that in their
last hours they will be able to recognise not simply the justice, but the generosity of the treatment which the white race, who are
dispossessing them and entering into their heritage, are according them.[65]
- Indeed, as has been placed on the Australian judicial record, there can be little doubt that throughout a great deal of Australia’s
colonial history, a general malicious intent existed against the Aboriginal group because of the group’s racial or ethnical characteristics:
Since the early days of the European invasion, Aboriginal children have been placed in the care of European foster parents. There
is little doubt about the purpose of the first such placements: it was the elimination of the child’s Aboriginal traits, and the
substitution of more “civilised” values and behaviour, and ultimately the separation of the children from their own people.[66]
- Within a quarter of a century of the First Landing in Sydney Cove, the Australian government instituted policies for the segregated
education of Aboriginal children. Missionaries and governments initiated these early Australian efforts to “educate” Aboriginal
children. Later, Australian States and the Northern Territory adopted largely similar policies of removing Indigenous children.
- Up to the 1970s, three general policy phases are identifiable, namely: segregation; absorption or merger; and assimilation.[67]
The period following the 1970s may be referred to as the post removalist era. The paper will primarily focus on the first two eras,
and in particular the absorption/merger era.
- In the early days of white settlement, colonial Australian governments were predominantly concerned with distancing the Aborigines
from the settlers. The earliest “legislative” forms of segregation policy are evidenced by an 1816 Proclamation by NSW Governor
Macquarie:
1.
Armed Aborigines were not to appear within one mile of any British settlement…
2.
No more than 6 unarmed Aborigines to lurk or loiter near any farm in the interior, on the pain of being considered enemies, and
treated accordingly.
3.
Aborigines were not to assemble in large numbers to fight and attack each other on the plea of inflicting punishment of a transgressor
of their own customs. This “barbarous custom was not to be practised, even in remote parts of the land…”
4.
Any Aborigine who wished the protection of the British government…could obtain a “Passport or Certificate” signed by the governor…[68]
Segregation later took the form of a protectorate system for Aboriginal adults and children.[69]
Missionaries were responsible for the children’s education while the protectors would enforce segregation.
- Aboriginal adults were expected to establish themselves in self-sufficient, and self-contained, reserves. NSW Governor Macquarie
opened the Native Institution at Parramatta in 1814.[70]
The Institution, the first of its kind in Australia, was intended to provide Indigenous children with a European education, to “inculcate
diligent subservience thought desirable in servants and the working class”, but also to separate children from their parents and
culture.[71]
- In 1819, the Rev. Robert Cartwright proposed to Governor Macquarie the establishment of another education institution whose purpose
was “to keep the black Natives entirely separate from our own people”.[72]
Reservations were also used to segregate Aborigines from the White population.
- It was established early in the colonial period that strict segregation was unsuccessful in protecting Aborigines. In 1835, the UK
House of Commons established a Select Committee on Aborigines.[73]
The Committee’s aim was to consider measures:
with respect to the Native Inhabitants of Countries where British Settlements are made, and to the Neighbouring Tribes, in order to
secure them the due observation of justice and the protection of their rights, to promote the spread of Civilization among them,
and to lead them to the peaceful and voluntary reception of the Christian Religion.[74]
- Smith suggests that if the Committee “aimed to protect races of “native Inhabitants” it also, in effect aimed at the ending of those
races” by turning them into civilised Christians.[75]
The Committee made clear that if need be the Empire should resort to force but before taking that option gentler means might be
attempted:
One of the two systems we must have to preserve our own security, and the peace of our colonial borders; either overwhelming military
force with all its attendant expense, or a line of temperate conduct and of justice towards our neighbours…The main point I would
have in view would be trade, commerce, peace and civilization. The other alternative is extermination.[76]
- Protectorate legislation was introduced throughout Australia and implemented similar policies:
*Protection of Aboriginal Children Act 1844 (NSW)
*
Aboriginal Orphans (Ordinance No 12 of 1844) 1844 (SA) [the Northern Territory was administered by South Australia until 1911]
*
Aborigines Protection Act 1869 (Vic) with a subsequent amendment in 1886 and the Aborigines Act 1889 (Vic)
*
Aborigines Protection Act 1886 (WA) with a subsequent amendment in 1892 and the Aborigines Act 1889 (WA), and
*
The Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) and An Act to make Provision for the better Protection
and Care of the Aboriginal Half-Caste Inhabitants of the Colony 1897 (Qld)
*
The Aborigines Protection Act 1910 (Cth)
- In describing these protectorate policies, various authors have described the legislative measures as intending to “smooth the dying
pillow” or a more humane synonym for segregation.[77]
Pattel-Gray further describes it as “simply a shift from outright extermination and enslavement towards more subtle and less obvious
forms of repression.[78]
- It is suggested that, following the introduction of protectorate regimes, the major change in government policy was semantic. Indeed,
the government saw segregation as entirely consistent with the Protectors’ dual role of guardianship and punitive pacification.[79]
It reinforced the earlier segregation policies now described in terms of protection.
- Governments subsequently turned to alternative policies to protect Aborigines. In developing these policies, it appeared clear to
all that the Aboriginal race was marching towards extinction.
- John Forrest, Chair of the 1883 Commission established to inquire into the Aboriginal situation, reported that the Aborigines were
“fast disappearing” and that “this was inevitable and usual among similar ethnic minorities in other parts of the world, and that
Aborigines were a “vagrant race”, unresponsive to measures for amelioration of their conditions.”[80]
- Commentators of the England cricket tour of 1867-68 expressed regret that the “smart cricketers” (Aborigines who had learnt to play
cricket) were members of “dying race” because it had been possible to raise some “above [their] natural level as … savage[s]”.[81]
- The social-Darwinist absorption or merger policies awaited the extinction of “full-blood” Indigenous persons.[82]
Social-Darwinists saw Aborigines as either the “missing link”[83]
or the subjects of degeneration, namely they were “man in a state of barbarism...inevitably and invariably [to go] downward towards
extinction”.[84]
Social Darwinism predicted that the Aborigines would die out because of the laws of nature; namely, survival of the fittest.[85]
Biological determinism advocated an activist approach to this process calling for the pro-active breeding out of Aboriginal blood.[86]
This breeding out approach was based on the science of eugenics.
- In the context of the Australian Aboriginals, the policy application of eugenic scientific theories was called “merger” or “absorption”.
Eugenics propounded that the children with the fairest skin colour would be most likely to lose their Aboriginal identity and, accordingly,
most readily absorbed into the non-Indigenous population. In contrast with the racial purification policies of Nazi Germany, it
was argued that the White community should accept “half-caste” children once the children were sufficiently White in complexion during
which time “full-bloods” would die out.[87]
- In a process that Smith refers to as “indigenisation”, the humanitarian discourse of protection turned to incorporating the Other
into the settler community and thereby displacing the natives.[88]
The protectorate policies, it was thought, were doomed to fail because the Aborigines were a dying race. Something more was needed
to protect individual members of the protected group.
- By the 1890’s, the NSW Board began to remove Indigenous children of mixed descent from their families and “merge” them into the non-Indigenous
population.[89]
The term absorption was adopted in Western Australia.
- Debate emerged throughout Australia regarding the best age at which the children should be removed so as to promote the efficacy of
the merger policies. A 1913 Royal Commission in South Australia failed to determine whether the children should ideally be removed
at birth or at the age of two years.[90]
The Queensland and Western Australian Chief Protectors deemed the age of four years as the preferred age of removal.[91]
With the exception of Tasmania, which until the 1960s continued to deny the very existence of an Aboriginal population in that state
(bar some “half-castes”), all states and the Northern Territory adopted “protectionist” (as opposed to protectorate) legislation.[92]
Under this policy, the Tasmanian government commenced removing the children of Indigenous Tasmanians in the 1930’s.[93]
- At varying times, in different States, the policy of protection with a view to merger or absorption gave way to policies of assimilation
and then integration.
- The 1936 Premier’s Conference determined that “there should be a conference of Chief Protectors and boards controlling Aborigines
in the States and the Northern Territory”.[94]
Paul Hasluck (who subsequently became Commonwealth Minister for Territories and held responsibility for Aboriginal Affairs) emphasised
that while the Commonwealth would coordinate the Conference and would seek from each State uniform legislation and agreement on general
principles, the Commonwealth would leave the details of administration to each individual State.[95]
- Up to this time, the States and Territories had developed their policies in a largely independent fashion. For the first time in
Australia’s history, the Australian states (except Tasmania) and the Northern Territory gathered at the 1937 Commonwealth-State Native
Welfare Conference of Commonwealth and State Protectors of Aborigines (1937 Conference) to discuss a uniform Aboriginal policy.
The participants decided in favour of a policy more interventionist than merger, that is, a “Policy of Assimilation”.[96]
Through a process of assimilation, Aboriginals were to take their socio-economic place in society in much the same way as poor Whites.
- The New South Wales Aboriginal Welfare Board’s 1948 Annual Report described its assimilation motives in the following terms:
Assimilation of the aboriginal into the general community is the keynote of the Board’s policy. When it is considered that 95 per
cent of the so-called aborigines in New South Wales are half and light castes, whose former social fabric has been torn asunder by
the onrush of Western civilisation, and who if left alone would have neither the traditional background of the aboriginal way of
life nor the culture of the white man to stabilise and guide them, the need for this policy should be abundantly clear.
The policy has a positive aim, namely, to make the aboriginal a responsible, active, intelligent citizen.[97]
- The rhetoric of assimilation soon displaced that of merger and absorption, but the new assimilation practices took considerably longer
to become facts on the ground:
In official government circles the era of “protection” of a disappearing people was replaced in 1937 by one of “assimilation,” but
this did not become effective until 1951. In 1965 the official definition of the policy was altered to recognize that assimilation
did not mean the surrender of identity, customs and culture.[98]
- Again, assimilation policies were to focus on children. Western Australian Chief Protector Neville emphasised this in his address
to the Conference:
The child is taken away from the mother and sometimes never sees her again. Thus these children grow up as white, knowing nothing
of their environment…it really doesn’t matter if the mother has half a dozen children.[99]
- Accordingly, following on from the earlier years of racially based merger and absorption under the semblance of “protection”, State
governments would begin to remove Aboriginal children under general child welfare law. As mentioned, actual implementation of this
policy was postponed for more than a decade. When finally put in practice, the legislation required courts to first determine that
children were neglected, destitute or uncontrollable before ordering their removal. Explicit racial targeting of children had ceased
but was continued in practice.
- What might be described as a prominent cry in the wilderness, the only Professor of anthropology up to the early 1950s, Elkin called
on the Commonwealth government to introduce assimilation policies to ensure the survival of the “full-blood” Aborigines and their
distinct culture.[100]
As early as 1932, he said:
The position demands that if [the Aborigine] is to survive, he must pass with great rapidity from the food-gathering stage of complete
dependence on nature, and from the socio-mystical organisation of tribal life, to a stage in which nature is exploited, and in which
mechanisation and economics control the outlook on nature and society.[101]
- Elkin denied that the Aborigines would die out because they were genetically incapable of advancement.[102]
Rather, that would result only if they were not given the opportunity to progress into society. As “intelligent parasites”, able
to exploit opportunities made available to them whether by nature or a superior culture, the “full-bloods” would survive the White
occupation. In 1951, he warned that the “full-bloods” would “completely disappear” unless his anthropological advice was heeded
by government policy makers.[103]
- Hasluck, the newly appointed Commonwealth Minister for Territories, responsible for implementing assimilation policy, rejected Elkin’s
advice which had been advanced in a “stream of letters”.[104]
Apparently, biological determinism (and the presumed inevitable death of the “full blood” race) remained pre-eminent in policy formulation
during the assimilation era.
- By the 1960’s, it was recognised that forced assimilation policies had failed. In response, Government policies were amended to include
an element of Indigenous will. Following the 1967 Federal Referendum amending the Race power, a Federal Office of Aboriginal Affairs
was established to promote the welfare of Indigenous peoples. A policy of integration was adopted in preference to assimilation
though little happened in practice.[105]
- A distinct shift in policy did not occur until the 1972 Federal election and the introduction of a policy of self-determination.[106]
In particular, the newly elected government provided funding to Indigenous groups to challenge the removal practices.
- In reviewing the evidence concerning the allegation of genocide, this paper will focus on the absorption and merger policy period.
However, it will also note the influence of the earlier protectorate policies aimed at segregation.
- This section of the paper focuses primarily on the Australian State of Western Australia and details that State’s legislative removal
measures. Only limited detail will be provided on the Aboriginal child removal practices of other States and the Northern Territory.
- This limitation is justified, in part, because more Aborigines have been affected by Western Australian government policies than the
policies of any other State government. Demographic statistics for the 20th century indicate that in absolute terms Western Australia
had the largest number of Aborigines of any State.[107]
Further, excluding two counts over the 20th century, in 1961 and 1971, Western Australia had a larger Aboriginal population than
the Northern Territory, the next largest region of Aboriginal inhabitation. Further, it has been argued that Western Australian
legislative controls were more harshly and vigorously applied than some other States, particularly during the period upon which this
paper focuses.[108]
Finally, the removalist legislation of a number of Australian States and Territories mirrored that of Western Australia.
- The following will step through the elements of the crime of genocide per Article II(e) concerning the forcible transfer of children
from one group to another.
- The first consideration is the identification of the protected group. The Genocide Convention does not define the term “protected
group” beyond it constituting a national, ethnical, racial or religious group, Article II, Genocide Convention. The travaux préparatoires[109]
do not expand on the defining characteristics of protected groups.[110]
Nonetheless, it is clear that Aborigines constitute a racial or ethnical group as understood by the terms of the Genocide Convention.
In particular, it is suggested that government policies and practices targeted a part of the group, namely, “half-caste” Aboriginal
children.
- It will be argued that they were removed not through any desire to save the group as such albeit that may have been intended for transferees.
Rather, the removals were intended to destroy the remaining part of the group, namely the remaining “full-blood” members of the
protected group.
- It is beyond question that, at a time when the genocide prohibition was in force, government policies explicitly targetted some members
of the group for transfer to another group. Racial targeting was loudly endorsed by the 1937 Conference in its resolution on the
Destiny of the race:
this Conference believes that the destiny of the natives of aboriginal origin, but not of the full blood, lies in their ultimate absorption
by the people of the Commonwealth, and it therefore recommends that all efforts be directed to that end [emphasis added].[111]
- Explicit racial selection of Aboriginal children for removal continued in the Northern Territory until 1953 when the Commonwealth
Minister for Territories Hasluck ordered that the practice cease.[112]
In Western Australia, the explicit targeting of child members of the group continued until 1963.[113]
- In support of this definition of group, I refer the reader to the citizenship status of Aborigines in the period 1944 to 1958. At
a time when Aborigines were not counted as Australian citizens under Commonwealth law, the Western Australian government passed the
Natives (Citizenship Rights) Act[114]
in 1944. Under this Act, adult Aborigines who obtained a Certificate of Citizenship were able to enjoy the rights, privileges and
immunities of a natural born or naturalised subject of Her Majesty” [emphasis added].[115]
The Act further guaranteed Aboriginal citizens full property rights.[116]
In 1950, the government amended the Act to allow for the citizenship certification of the children of adult Aboriginal citizens.[117]
- Significantly, the Act afforded the right of citizenship to only some Aborigines as defined by the Native Administration Act, 1905-1941.[118]
An applicant for citizenship was required to declare that “he wishes to become a citizen of the State, that for the two years prior
to the date of the application he has dissolved tribal and native association except with respect to lineal descendants or native
relations of the first degree, and … (b) that he is otherwise a fit and proper person to obtain a Certificate of Citizenship” [emphasis
added].[119]
Magistrates, empowered under the Act to grant the Certificate, were required, inter alia, to be satisfied that “for the two years
immediately prior [to the application,] the applicant has adopted the manner and habits of civilised life”.[120]
Upon being granted citizenship, section 6 of the Act provided that the holder of a Certificate “shall be deemed to be no longer
a native or aborigine” [emphasis added].[121]
Further, the Act made the right of citizenship contingent, inter alia, on the adoption of “the manner and habits of civilised life”.[122]
Namely, this required the Certificate holders to continue their disassociation from native and tribal affiliations.
- It is noted that section 6 of the principal Act, delineating between Certificate holders and other Aborigines, was repealed in December
1951.[123]
However, the continued disassociation requirements of sections 4, 5 and 7 remained in force until 1958.[124]
Accordingly, it is asserted that the Western Australian government continued to target part of the protected group by excluding
“full bloods” and their associates from citizenship rights.
- In the various Reports of the New South Wales Aboriginal Welfare Board, commencing in 1939 through at least towards the end of the
following decade, an express policy was adopted targeting part-Aboriginal children for removal and assimilation, especially those
of “lighter caste”.[125]
In Williams v The Minister, it was held that the New South Wales government applied racially discriminatory removal policies for
at least the first half of the Twentieth century since the enactment of the Aborigines Protection Act 1909.[126]
For instance, in 1940, of the approximately 10,600 Aboriginal children subject to that Act, less than 10 percent were of “full blood”.[127]
- It has been suggested that subsequent to the cessation of the period of explicit racial targeting, governments made their racial selections
of group members by oblique means.[128]
In the case of the Commonwealth, An Ordinance to Provide of the Care and Assistance of Certain Persons [emphasis added] selected
Aboriginal children because of “‘their manner of living’, their ‘perceived standards of social habit and behaviour’, their ‘personal
associations’ and their perceived ‘inability to manage their own affairs’”.[129]
Parry suggests that the selection of Aboriginal children on the basis of their membership of a protected group continued, under
Commonwealth law, until the late 1960s.[130]
- Implicit racial targeting appears to be confirmed by the 1970-71 Annual Report of the Northern Territory. It indicates that racial
targeting, particularly of “half-caste” Aboriginal children, continued throughout the period under consideration:
Racial factors of children fostered by the [Welfare] Branch at present 24% are of full-Aboriginal descent, 73% part-Aboriginal and
3% European. This breakdown is not representative of the Territory racial composition and it is extremely difficult to match the
child’s race to that of the foster parents. Most part-Aboriginal children have been fostered by White people, and full-blood Aborigines
by full-blood Aborigines.[131]
- The preceding excerpt indicates some consciousness of the government to place fostered Aboriginal children with members of their own
group and it appears that this was achieved in the case of “full-blood” Aborigines. No explanation is given as to why that result
could not be achieved for Aboriginal children of mixed descent. This outcome lends itself to the possibility that eugenist policies
continued to shape departmental practices well beyond the cessation of the explicit racial targeting period of government policy.
- Nonetheless, this is only one of many possible explanations. In applying a legal analysis of the nature of government policies of
destruction, this paper will restrict its analysis to the period of explicit racial targeting. Namely, the paper will investigate
the absorption/merger era under the Native Welfare Act, 1905-54 which remained in force until 1963. The reader is reminded that
these legislative provisions remained in force after the commencement of the genocide prohibition.
- The physical element of the crime of genocide per Article II(e) is the act of forcibly transferring the children of one group to another
group. This element may be broken down into two constituent components: the use of force; and, the transfer. The paper will consider
the second component first.
Transfer
- There should be no controversy over the question of transfer. In Marriage of B and R,[132]
the full court recognised that:
[f]rom at least 1814 when Governor Macquarie established the Native Home for young Aboriginal children in Parramatta … through to
the early 1970s a systematic policy was carried into effect of removing Aboriginal and especially part Aboriginal children, usually
of tender years, from their parents and placing them in institutions or in other white care.
- A brief survey of the statistics confirms that these transfers continued after the commencement of the genocide prohibition.
- In the Proceedings of the First Australian Conference on Adoption in 1976, it was reported that:
In the Northern Territory, “90% of all Aboriginal children in placement in the N.T. (whether for adoption or in foster care) are
with White families. Although official policy now is to place tribal children with tribal families (within the constraint of legal
marriage), these children of mixed races are not considered to be Aborigines. Thus no special attempts are made to locate Aboriginal
families to adopt or foster children of Aboriginal parentage.”[133]
In Victoria, “[t]he large majority of Aborigines in foster care or adoption are placed with white families.”[134]
- Other States did not report to the Conference details on the distribution of placements. Statistics from the South Australian Department
of Aboriginal Affairs indicated that in September 1966, 120 of the 180 Aboriginal children in foster care were placed in White homes
and a further 20 were placed in institutions.[135]
Other researchers indicate that in 1969, 13 percent of Aboriginal children in New South Wales were transferred to White care.[136]
As late as 1980, two thirds of Aboriginal children under the care of the Western Australian Department of Community Welfare were
placed with non-Indigenous people.[137]
The Northern Territory Administration Annual Report indicates that all known “part-Aboriginal” children were placed in the care
of White families in 1952-53.[138]
A Commonwealth Ministerial inquiry reported that, in the Northern Territory, 583 Aboriginal children had been removed in the period
1918 to 1953, and that 109 of these children were removed between 1946 and 1951.[139]
Significantly, they were removed to White institutions (including Catholic and Methodist churches, and departmental hostels) and
White adoptive families. Brock notes that “[t]hese [“mixed-caste”] children were not removed to their non-Aboriginal, biological
father’s family unit, but were made wards of the state and institutionalised or fostered to non-Aboriginal families to be trained
as domestic servants and unskilled labourers”.[140]
- The preceding establishes that the transfers transpired after the commencement of genocide prohibition. What remains to be established
is whether the children were transferred forcibly.
Force
- It is perhaps inane to speak of forcible government actions in a context in which a colonial or post-colonial government holds absolute
power to deal as it wishes with a colonised group. Force, may be defined as taking action “to make (oneself or someone) do something;
[to] compel” or “to overcome the resistance of”.[141]
- For Aborigines, at times only “half-castes”, at other times all “castes”, there was no possibility of effectively resisting government
actions. There is no requirement for force to be physical. In Cubillo v Commonwealth, the trial Judge stated:
To establish [false] imprisonment, it will be sufficient to prove that there was a constraint on an applicant’s will that was so great
as to induce him or her to submit to a deprivation of liberty; physical force need not be used. A mere taking and detaining will
be sufficient and it can be effected as a result of the accumulation of the actions of two or more persons. [142]
- What is the meaning of consent when the government retains full power, in law or de facto, to remove at will Indigenous children regardless
of the wishes or defects (however this is assessed) of parents? “Coercion legitimated becomes consent.”[143]
What is the value of consent for a subjugated group?
- The force of law applied to the Aboriginal group, to all aspects of their lives, in a way in which no other group was compelled to
comply.[144]
There was little or no judicial process involved in child removal policies.[145]
Given the absolute control of government over the lives of Aborigines, and in particular government guardianship powers, the author
opines that this legislative regime in itself creates a prima facie case indicating the use of force. Nonetheless, to further this
argument, the following evidences the nature of the force used, both legal and physical, and the absence of genuine consent.
- A discussion of the force used to remove Aboriginal children cannot be divorced from its use against Aborigines in a broader context.
It is clear that following the first period of colonisation, the government and private individuals (with government acquiescence)
often used physical force to subdue Aborigines. Pattel-Gray states that in the early decades of the 19th century “[t]he colonists
did not seem to worry about the use of force – often violent force – against the Indigenous Peoples, for there was a greater “Christian”
and civil good being dispensed”.[146]
The following evidence was provided to a South Australian Select Committee of the Legislative Council on the Aborigines Bill 1899:
Following the initial impact of settlement it was obvious that aborigines had succumbed to a virtual state of peonage and that “they
were treated just as any other chattel would be…used when (they) were required and sent about their business (when) there were not.”
Natives were attracted away from their tribal country by varying devices to resettle on the pastoralists’ runs, but once having
been taken away from his home country “the black (could) not get away” and the new employer practically made “a slave of him”.[147]
- Force may be applied in non-physical ways. It is asserted that Western Australian legislation targeted Aborigines for forcible transfer
to another group. Section 8, Native Welfare Act, 1905-54, made the Western Australian Chief Protector legal guardian of all Aboriginal
children up to the age of 16.[148]
The guardianship age was increased to 21 in 1936.[149]
A 1911 amendment extended the Chief Protector’s guardianship powers to enable the removal of an illegitimate “half-caste” child
to the exclusion of the rights of the mother.[150]
Namely, the Chief Protector was not required to obtain the consent of a parent or guardian before removing a child.
- Government restrictions were imposed on a range of rights of Aborigines including marital, cohabitation and sexual relations between
Aborigines and non-Indigenous people, freedom of movement and employment.[151]
Aborigines refusing to comply with statutory requirements were deemed to be guilty of an offence and liable to imprisonment.[152]
As a measure of the coercive nature of the protection legislation, the onus rested with an Aboriginal defendant to establish that
she or he was not an Aboriginal,[153]
or that she or he had attained a specified age.[154]
Aborigines offending against any provisions of the Act could be arrested without warrant.[155]
- The Western Australian Royal Commission headed by Dr Moseley (Moseley Report), established in the 1930’s, recommended further expanding
the powers of the Western Australian Commissioner of Native Affairs, formerly the Chief Protector.[156]
Marcus suggests that the powerlessness created by the legislative regime meant that “few, if any [Aborigines], were in a position
to challenge its administration”.[157]
- Evidence provided to the Commissioner confirmed the forcible nature of the removals. Mary Bennet, a journalist, was one contemporary
critic of Western Australia’s removal policies. She asserted that the children “are captured at all ages, as infants in arms” [emphasis
added].[158]
Another, Bessie Rischbieth, criticised “government administrators [who] were forcibly removing children ‘because it was cheaper
than providing the same system of support which operated for neglected white children’.”[159]
This is also indicative of the racially discriminatory application of government policies.
- Much of the following discussion pertains to the Aborigines Act Amendment Act 1936 (WA). This Act remained intact after commencement
of the genocide prohibition period until amended in 1954.[160]
It then became know as the Native Welfare Act, 1905-54. That Act remained in force until repealed in 1963.[161]
It is asserted that the following establishes that the legislation was intended to provide for and enabled the forcible transfer
of the protected group to another group regardless of consent. Accordingly, it is argued that the transfers were forcible by virtue
of the legislative regime. Nonetheless, evidence will also be provided to demonstrate acts of forcible removal.
- In response to the Moseley Report, the government extended (rather than diminished) its control over the lives of Aborigines. Owing
to an expanded definition of persons who might be designated as a native,[162]
the 1936 Native Administration Act authorised the Commissioner to forcibly remove virtually any child of Aboriginal descent. Under
the new provisions, the Act made the Commissioner the “legal guardian of every native child notwithstanding that the child has a
parent or other relative living until such child attains the age of twenty-one years” [emphasis added].[163]
In an address to the 1937 Conference, Chief Protector Neville proudly asserted that “[i]n Western Australia we have power under
the act to take any child from its mother at any stage of its life, no matter whether the mother be legally married or not”.[164]
- During passage of the 1936 Aborigines Act Amendment Act, Western Australian MP Mr Coverley reflected on the provision making all “natives”
wards of the state. Apparently, concerned with the implications of affording the Executive extensive powers and the potential for
an unwarranted use of force, he said that:
At first reading, it appeared to me to be harsh treatment that any person should have power to take charge of children irrespective
of the opinions or wishes of the parents; because, after all, the aborigines have just as much affection for their offspring as have
the people of any other race.[165]
- Nonetheless, the MP deferred to the Royal Commissioner’s recommendation, and was willing to accept that “this proposed power [would]
be necessary so that the Chief Protector can take charge of [Aboriginal] children and place them in an institution where they will
be educated and taught to be useful”.[166]
- During the 1936 debate, the Hon T Moore suggested “that in the past the general rule has been to take the half-castes away”.[167]
Despite the Chief Secretary’s vehement denial of the allegation of such a general rule, the MP asserted that:
I know there have been round-ups and the half-caste children have been taken away, no matter how they were cared for by their natural
mothers. It is hard, and I do not want that sort of thing to be perpetuated. It is a shame to take a child away from its mother.
It is inhuman.
While the Chief Secretary did not respond, the Hon CB Wood retorted that “[i]t is a pity they do not take more away in some cases”.[168]
- The following excerpts from the 1937 Conference of the Western Australian Chief Protector Neville’s comments further indicates the
coercive nature of the 1936 legislative measures:
In Western Australia, we have only a few institutions for the separation of half-caste illegitimate children, but there are hundreds
living in camps close to the country towns under revolting conditions. It is infinitely better to take a child from its mother,
and put it [sic] in an institution, where it will be looked after, than to allow it to be brought up subject to the influence of
such camps. We allow the mothers to go to the institutions also, though they are separated from the children. The mothers are camped
some distance away, while the children live in dormitories. The parents may go out to work, and return to see that their children
are well and properly looked after. We generally find that, after a few months, they are quite content to leave their children [emphasis
added].[169]
- The extract highlights a number of considerations concerning the Western Australian government’s policies. It is clear that there
is a policy to transfer Aboriginal children from their own group to that of another. Neville justifies this policy by benevolent
motives. However, it also raises the question of consent to the removals. The paper suggests that what Neville considered contentment
on the part of mothers being separated from their children could also be described as despair and loss of hope of ever having their
children returned.
- Brock observes that some Aboriginal mothers “voluntarily” placed their children in missions so as to avoid having them removed by
the authorities.[170]
Providing evidence to the Moseley Royal Commission, a group of Broome women asked the Commissioner whether he would “like to think
that when you send your children to school that you would never see them again?”.[171]
Haebich and Delroy note that parents who attempted to prevent the removal of their children were subject to prosecution.[172]
- To avoid the removal of their children, Aboriginal parents commonly hid their “light-skinned children in the bush whenever a white
person, particularly a police officer, approached their camp, or [painted] the children’s skins with charcoal so they did not stand
out from their darker skinned relatives”.[173]
Other children were warned by their parents in the 1930s “to be on the alert and, if white people came, to run into the bush or
run and stand behind the trees as stiff as a poker, or else hide behind logs or run into a culvert to hide”.[174]
It is suggested that Aboriginal mothers consented to the removals only when faced with Hobson’s choice, that is, no choice. Genuine
consent was absent.
- The forcible transfers did not end at the point of removal. Force continued to be used to ensure permanent separation of some members
of the group from the remainder. Where parents may have initially consented to removal it is possible that it was often subsequently
revoked.
- In response to the question, “[w]hat happens to these children afterwards?”, Neville said:
You cannot change a native after he had [sic] reached the age of puberty, but before that it is possible to mould him. When the quarter-caste,
in which there are now nearly 100 children, was started [sic] we had some trouble with the mothers. Although the children were illegitimate,
the mothers were greatly attached to them, and did not wish to be parted from them. I adopted the practice of allowing the mothers
to go to the institution with the children until they satisfied themselves that they were properly looked after. The mothers were
then usually content to leave them there, and some eventually forgot all about them.
…When they enter the institution, the children are removed from the parents who are allowed to see them occasionally in order to satisfy
themselves that they are being properly looked after. At first the mothers tried to entice [sic] the children back to the camps,
but that difficulty is being overcome. [emphasis added][175]
- Again, Neville confuses the loss of hope of Aboriginal mothers with consent to the removal policies. Again, he considers that Aboriginal
mothers are content to be separated from their children. The following makes incontrovertibly clear the government’s policy of the
use of force in removing children:
Mr. Harkness – can your department take them by force up to any age?
Mr. Neville – Yes, up to the age of 21.
- The following parliamentary excerpt further illustrates the use of force to ensure permanent transfers of children from the protected
group. During parliamentary debate on the 1936 Aborigines Act Amendment Act, Mr Coverley said:
Recently a half-caste man who is no relation [to the children in question], but knew them as children, came to Perth on holiday.
He asked me where he would be likely to find the children. I did not know, but I telephoned the department and I found that they
were at the Moore River Settlement. The man asked me how he might get in touch with them. He wanted to see them so that when he
went back home he would be able to tell their mother how they had grown and what they had learned to do for themselves. He said
she would be pleased to hear about hem. I thought it was a good suggestion and rang the Chief Protector asking him for permission
to interview these children. He refused point blank to allow the half-caste the right to go to the place. He told me he would even
refuse me the right. I said “You will never get the opportunity; I have no wish to go there.” I think that was a fatal mistake.
Many children have to be brought away for education and if adults coming down were allowed to see them and talk with them and go
back and say how well [well] they are cared for, that would do some good and ease the minds of the aboriginal people who have to
lose their half-caste children. These people do not understand. They have not any idea where the children are taken and whether
they are dead or alive [emphasis added].[176]
- Force was also applied by stealth. It is suggested that this vitiates consent, if consent there was, and renders it involuntary.
The following testimonial evidence is demonstrative of an incident that occurred to a six year old in 1967:
On the day that we were taken away two officers from the [Western Australian] Native Welfare Department went to the school and said
that they were taking myself and my sister, Rosylin, home to talk to our grandparents. The welfare officers also said they were
going to take us down to town to buy some lollies. We actually thought that was what they were going to do. We started to eat lollies
in the back seat but instead of going to the reserve they continued on and took the turn off to Williams and then to Wandering Mission.
We hadn’t even had the opportunity to say goodbye to our grandparents. They knew nothing about us being taken away.[177]
- Mary’s testimonial, a 10 year old removed in 1941, whose removal extended into the period of the genocide prohibition, further evidences
the nature of some removals and the desperation of some parents to hold on to their children:
We really enjoyed it there [unnamed Western Australian town] until the Aboriginal Welfare come and pick us up from the school for
no reason. I don’t know why. But dad met them on the road. They had us in a truck like sheep; was taking us away to the mission,
the welfare people. And dad just stood in the middle of the road and he told them he was going to be trouble. He [father] wasn’t
going to move off that road. I believe he had a gun and he said he would blow that man’s brains right out if he took us away because
he had no reason to. He [father] said, “You better take these children back to school”. He [the welfare man] [per original text]
took us back to school. My parents came and picked us up after from school and he [my father] [per original text] explained to us,
and we were crying, and we didn’t know what was happening to us. See there was no warning, there was nothing.[178]
- Mary’s sister, who was 15 years old and working at the time, was less fortunate. She was successfully removed because her father
learnt about her removal too late.[179]
All of the children and their mother were subsequently removed. Her brother Wayne remained at Carrolup Settlement Mission for 13
years until 1954.[180]
Buti, a former researcher for the Aboriginal Legal Services, found that, based on departmental records, “[t]he reason given for
their removal was that Mary’s father was ‘creating trouble with other natives’ by securing liquor and using bad language. Further,
he purportedly failed to adequately provide for his family evidenced by the lack of food at their camp when the police constable
visited. The constable considered that the children would be better provided for at Carrolup.”[181]
- Given the stealth by which Aboriginal welfare officers operated, there is little wonder at the coining of the term Stolen Generations.
Two generations of this family were “stolen”.[182]
It must be emphasised that this outcome is not a coincidence or freak. During debate over the 1936 Act, a member of the Western
Australian Assembly described the provisions extending the definition of Aborigine (covering many “half-castes” not previously falling
within the powers of the Chief Protector) and raising from 16 to 21 the guardianship age of Aborigines as intending to “rope in another
generation”.[183]
At the 1937 Conference, Neville made it clear that the removal of successive generations was a matter of government policy. He
said that:
Our policy is to send them out into the white community, and if the girl comes back pregnant our rule is to keep her for two years.
The child is then taken away from the mother and sometimes never sees her again.[184]
- To avoid dissemination to Aboriginal communities of mass removal orders, the government resorted to the use of coded text when issuing
such orders by telegram.[185]
Haebich and Delroy assert that the government scrutinised ration lists to help the Aboriginal authorities identify “half-caste”
children for removal.[186]
- Lest there be doubt as to the nature of the force used, the following establishes that the government used physically forceful means
to remove children and that genuine consent was lacking. In Kruger v Commonwealth,[187]
the plaintiff submitted that in 1950 the Northern Territory “Government Secretary, RS Leydin, rightly observed:
I cannot imagine any practice which is more likely to involve the Government in criticism for violation of the present day conception
of ‘human rights’.”[188]
- A Northern Territory patrol officer involved in the removal process described his role in the following terms:
My patrol district included the Wave Hill/Victoria River Downs regions…In 1950 I was given instructions to remove a total of seven
children, mainly from Wave Hill and neighbouring stations. Despite my efforts to assuage the fears of both mothers and children,
the final attempt at separation was accompanied by such heart-rending scenes that I officially refused to continue to obey such future
instructions.[189]
In his report to his departmental seniors, he described the removal process as among the most “distressing scenes the likes of which
I have never wish to see again”.[190]
- In Cubillo v Commonwealth,[191]
the factual findings of which remained undisturbed at appeal,[192]
it was found that, on 23 July 1947, Native Affairs Branch Commonwealth Officers had, in concert with others, applied physical force
to remove 16 or 17 children from the Northern Territory Phillip’s Creek Settlement.
- Nonetheless, Cubillo’s claim of unlawful removal failed because she was unable to establish that she had a lawful guardian from whom
consent should have been sought prior to her removal. In the words of the appellate Judges, this was described as an “apparently
curious gap in the evidence”.[193]
Nonetheless, the Plaintiff did establish, prima facie, that her detention, subsequent to her removal, was unlawful.[194]
- However, the Plaintiff’s failure to establish an unlawful removal does not detract from the possible satisfaction of the physical
element of the crime of genocide. Namely, Article II merely requires that consent be withheld. It does not impose an additional
requirement that transfers be unlawful. For instance, a claim of unlawful detention could not have been brought under the Western
Australia statutory regime because it appointed the Chief Protector as legal guardian of all or most Aboriginal children and consent
was not required for their lawful removal.
- The significant findings of fact, for the purposes of considering the crime of genocide, were that:
1.
Commonwealth officers,[195]
namely a Northern Territory Cadet Patrol Officer under the delegated authority of the Director of Native Affairs, participated in
the planning and application of the removals of 16 or 17 Aboriginal child members of a racial or ethnical group,
2.
the removals were effected by the use of physical force. For instance, it was a “sad and traumatic event”,[196]
“an occasion of intense grief”,[197]
causing the children and their families “terrible pain”,[198]
and who exhibited “signs of enormous distress and extreme sorrow”.[199]
3.
the trial judge also accepted that the Plaintiff’s aunt, and putative guardian, and other members of the group, had physically
resisted the removal of the Plaintiff who at that time was a baby.[200]
In particular, his Honour quoted the Plaintiff’s response to the following question:
Were there other people, other Aboriginal people around the truck when this tussle was going on? – Yes, there were many. By this
time there was a commotion. There was a lot of people crying, people were hitting themselves with hunting sticks and blood was pouring
down their faces”.[201]
4.
it was “highly unlikely”[202]
that the adult members of the group had, expressly or impliedly, given their consent, or at least genuine consent, to the removal
of the children. For instance, his Honour said:
The distressing scenes that accompanied the children’s departure from Phillip Creek transcended the sadness that would have accompanied
a parting between a mother and child that was initiated by the mother.[203]
5.
the Commonwealth placed the children in an institution run by White Christian missionary, members of another group,
6.
one of the express purposes of the removal of these children was, at least, to assimilate them into white society, namely to place
them with another group,[204]
7.
the removals of Aboriginal children may have had the effect, in particular cases, of destroying the association and connection
of the child’s Aboriginal mother, family and culture[205]
The Phillip Creek Settlement removal incident occurred in the post-World War II period when genocide was prohibited.
- It is suggested that, especially in the context of the extended familial responsibilities of traditional Aboriginal society, these
removals were in clear breach of the physical element of the Article II(e), Genocide Convention prohibition.
- The preceding discussion shows how children from the protected group were removed by force during the period of the Native Welfare
Act, 1905-54. Their transfers to another group were compelled by force of law, by stealth, and physical force. Genuine consent
to the removals was lacking at the time of the children’s removal or, if initially offered, was subsequently revoked. These forcible
transfers continued well into the era of genocide prohibition. Accordingly, it is argued that the second element of the crime of
genocide has been established beyond reasonable doubt.
- This section will return to and enlarge upon the legislative developments surveyed in the historical overview provided above. In
particular, it remains to be shown that the government intended to destroy a part of the protected group as a distinct group. As
has been argued above, the element of intent need not be specific to the act of removing child members of the group.
- To enable a more detailed discussion of the legislation and policies, this section will solely consider Western Australian legislation,
parliamentary debate and the words and actions of State agents to ascertain the intention of the Western Australian government.
- However, before embarking on the following discussion, it is necessary to address the findings in the trial of Cubillo’s claim against
the Commonwealth in as far as they relate to the intentions and purposes underlying government’s removalist policy. Namely, the
trial Judge found no malign purposes in the application of the removalist policies or that, in 1947, the year of Cubillo’s removal,
or in 1956, the purposes underlying the Commonwealth’s policies were what may be described as cultural genocide.[206]
Further, it was held that the policies were not intended “to breed out ‘half caste’ people and protect the primacy of the Anglo-Saxon
community”.[207]
On the face of these findings, it would appear that the conclusion sought by this paper is from the outset contradicted by judicial
findings concerning at least the Northern Territory Ordinances.
- However, there is a significant point of departure of this paper from the basis of the Cubillo determination. Namely, this paper
does not restrict its discussion by the Parliamentary immunity restrictions imposed on a municipal Australian court. Inevitably,
the trial Judge held that:
This Court has no jurisdiction to review the desirability of policies underlying Acts of Parliament. It is therefore not open to
this Court to review the policies that were enacted in the Ordinances and embodied in the powers conferred by the Ordinances.[208]
- This paper will consider in great detail the policies underlying the 1905 Western Australian statutes as amended in 1936.
- It should also be noted that in Cubillo it was argued that the removal of the “half-caste” children was intended to lead to the destruction
of that part of the Aboriginal group. To the converse, it will be argued in this paper that the removal of the “half-caste” children
was intended to lead to the destruction of the “full blood” Aborigines.
Focus on Western Australia’s 1936 Legislative Developments
- It is emphasised that this is not an exhaustive study. At the risk of repetition, the discussion will progress chronologically through
the first two stages of Aboriginal policy discussed above, focussing on the absorption and merger era.
- Particular attention will be paid to the 1936 legislative amendments to the Native Welfare Act, 1905–54. Admittedly, these changes
to the 1905 principal act were made prior to the genocide prohibition era. However, they were the last legislative changes to be
made prior to the commencement of the genocide prohibition and the changes remained in force well beyond the commencement of the
prohibition. Similarly, it is recognised that the policy phase of segregation under a protectorate precedes the genocide prohibition.
However, again it is suggested that the momentum of this and preceding policies carried on into the subsequent phases.
- Following an enquiry in 1905, the Western Australian government did not instigate a new investigative inquiry into Aboriginal affairs
until the appointment of Bateman in 1947.[209]
Following this investigation, the Western Australian government appointed, in 1948, a Special Committee on Native Matters to investigate
the cost of “providing adequately for the requirements of natives in Western Australia”.[210]
This signalled a move towards the development of new policies from those set in place under the 1936 legislative changes.
- Further, the Bringing them home Report notes that by 1951, Western Australian “children were more likely to be removed under the Child Welfare Act 1947 [(WA)] by the Child Welfare Department than by the Department of Native Welfare acting under the 1936 Act”.[211]
Again, this is indicative of a policy shift away from the 1936 legislative changes to the principal act.
- However, it is clear that Aboriginal children continued to be removed under the 1936 racially-based legislation. In fact, 20 percent
of Aborigines remained under the Department’s direct control in 1947.[212]
Furthermore, no legislative changes were made to the 1936 Act until 1954[213]
and the Act was not repealed until 1963.[214]
By that time, the genocide prohibition was in force pursuant to treaty obligation.
- Accordingly, analysis pertaining to the 1936 amendments is particularly germane. It was the last opportunity the Western Australian
government could have used to change its treatment of Aborigines before genocide became a crime under international law. It is reiterated
that the Commonwealth government, as the state party to the Genocide Convention, bears responsibility for any genocidal acts which
transpired within its sovereign territory.
Methodology
- The argument to be developed in this section is as follows. The paper will initially present the presumed government argument denying
an intention to destroy the group. The government will claim that there is not a single piece of legislation indicating an overt
intention to destroy the group as such. The government would most likely argue that it took concrete steps to try to save the group,
or at least those most readily saved. It did so by removing “half-castes”, thereby ensuring at least their survival if not that
of other members of the group.
- The government would further argue that, as indicated by legislating to protect and provide for Aborigines through government assistance
programs and by segregating them from the harms caused by the White population, it attempted to forestall the inevitable destruction
of the Aboriginal group. Any failure to adequately provide for the Aborigines was a result of the stringent economic conditions
that existed throughout the world in the interwar period and in particular the financial straits of Western Australia.
- The government would highlight its benevolence albeit at best such that would be viewed as paternalistic by today’s standards. It
is presumed that the government would point out that its policies and practices were contingent on the prevailing standards and perceptions
of the times and that they should be judged by those contemporary standards.
- The paper will then present the plaintiff’s claims. This paper concurs with the government’s argument that it did not expressly legislate
to destroy the protected group. It accepts that the government took some limited measures to ameliorate the health, well-being and
living standards of “full-blood” Aborigines. It agrees that, during the period under review, the government adopted measures advocated
by some contemporary commentators calling for removals so as to save those members of the group. However, there marks the point
of departure.
- First, the paper denies that these measures indicate an intention to save the group as such or even stave off its destruction. The
paper argues that there is a distinction between the government’s motives and intentions. It is suggested that at best government
policies were intended to “smooth the dying pillow”.
- Secondly, it is suggested that, in the very least, government inaction to save the remaining members of the group constitutes an omission
to act where action was foreseeably required. Such government responsibility arises constitutionally and legislatively. It is argued
that the economic conditions of the time do not present a lawful excuse for inaction in circumstances where discriminatory government
policies and practices were employed.
- Thirdly, it is argued that the government made overt its intention to destroy the group by expression and deed. This intention was
general to the totality of its treatment of the Aboriginal group. In particular, the removal policies constituted positive actions
intended to accelerate the process of destruction. It is suggested that this evidences a prima facie case of an intention to destroy,
in part, the group as such.
Government’s Case
- The government’s case revolves around the proposition that it took steps to save the group or to prevent its destruction. That being
the case, it could not follow that the government contemporaneously intended to destroy the group, either in whole or in part. Numerous
Western Australian parliamentary bills and acts evince positive motives (and, it would suggest intentions) towards Aboriginals.
This section of the paper will determine whether these motives and alleged intentions countervail the plaintiff’s claim of genocide.
- The discussion commences with the policies of segregation under the protectorate era. Although Royal Assent was refused, in 1840
the Western Australian Parliament passed a Bill to allow “Aboriginal Natives” to give sworn evidence in criminal cases.[215]
This may be seen as an early attempt to promote the position of Aboriginals and create greater racial equality with other Australians.
- Similarly, the Western Australian Constitution preamble states:
Whereas laudable efforts have been made to introduce Christianity and civilisation amongst the aboriginal race of this Colony by instructing
their youths of both sexes in schools, and admitting them as domestic servants into families of the colonists…[216]
- In 1886, Western Australia enacted legislation “to provide for the better protection and management of the Aboriginal Natives of Western
Australia” [emphasis added].[217]
The mandate of the newly-created Aborigines Protection Board was to apportion moneys for the benefit of Aborigines;[218]
distribute blankets, clothes and other relief;[219]
submit to the Governor proposals for the care and protection of Aboriginal children;[220]
provide medical assistance;[221]
and, “[t]o exercise a general supervision and care over all matters affecting the interest and welfare of the Aborigines, and to
protect them against ill-treatment, imposition, and fraud” [emphasis added].[222]
- In passing the Western Australian Constitution in 1890, the government incorporated a constitutional provision requiring that a considerable sum of money be appropriated out of
the Consolidated Revenue Fund for “the welfare of the Aboriginal Natives”.[223]
In particular, the monies were to be “expended in providing them with food and clothing when they would otherwise be destitute,
in promoting the education of Aboriginal children (including half-castes), and in assisting generally to promote the preservation
and well-being of the Aborigines” [emphasis added].[224]
- To further promote policies of protection with a view to merger or absorption of the protected group, the Western Australian government
passed the Aborigines Act in 1905.[225]
This legislation was enacted following the concerns over the poor state of Aboriginal affairs expressed by the 1904 Roth Royal Commission.[226]
Significantly, the full title of the Act, at that time, was AN ACT to make provision for the better care and protection of the Aboriginal
inhabitants of Western Australia.[227]
Reminiscent of the 1886 Aborigines Protection Act, the Act charged the newly created Aborigines Department “with the duty of promoting
the welfare of aborigines, providing them with food, clothing, medicine and medical attendance, when they would otherwise be destitute,
providing for the education of aboriginal children, and generally assisting in the preservation and well-being of the aborigines”
[emphasis added].[228]
- The Chief Protector was made the legal guardian of “every aboriginal and half-caste child” up to 16 years.[229]
A prohibition was introduced to prevent the removal without the Protector’s permission of children under 16 years and all female
“aboriginals” or “half-castes” from a “district”.[230]
The Act reiterated the Department’s custodial duties in the exact terms specified in the earlier Aborigines Protection Act of 1886.[231]
- The Act also empowered the Governor to set aside Crown lands for Aboriginal reservations[232]
and restrict entry to reserves[233]
or camps.[234]
The Act imposed restrictions on the employment of Aborigines[235]
and reposed in the Chief Protector discretionary powers over property held by Aborigines.[236]
Purportedly, for their own good, female Aborigines were prohibited from being within two miles of a river or inlet used by pearlers
or other sea boats.[237]
The 1905 Act controlled virtually every facet of life and it was ostensibly for the better protection and care of the Aboriginal
inhabitants of Western Australia.[238]
- Notably, the parliamentary debated included statements which indicated an intention to protect the Aborigines. Some parliamentarians
thought their racist policies were ordained by God:
The Almighty Governor of the Universe has…so directed it, that in the fitness of things, the black must give way to the white. All
we can do is to protect them as far as possible and leave nature to the rest. It is a case of the survival of the fittest but let
the fittest do their best [emphasis added].[239]
- However, it is emphasised that eugenist ideology underlies that benevolent sentiment. Eugenics, it will be recalled, is a scientific
theory based on biological determinism calling for the breeding out of the Aboriginal group. Nonetheless, the parliamentary excerpt
indicates a desire to protect the dying group.
- Adopting many of the Moseley Report recommendations, the government made significant amendments in 1936 to the Aborigines Act 1905.[240]
These amendments were intended to further the government’s Aboriginal protection goals.
- In the second reading of the 1936 Aborigines Act Amendment Act,[241]
the Western Australian Premier expressed a desire to implement the Moseley Report recommendations so as to benefit Aborigines.[242]
For instance, he expressed great concern over the moral risk posed to young Aboriginal girls.[243]
To further this goal of protection, the parliament expanded the range of persons falling within the powers of the then Aborigines
Department. This was achieved by deleting the term “Aborigine” and replaced it with the term “native” which would include many “quadroons”
ostensibly beyond the powers of the Chief Protector.[244]
The Act made wards of all Aborigines under the age of 21.[245]
The 1936 Act provided for expanded medical examination powers, by penalty of law.[246]
Again, these measures were all intended to benefit the “natives”.
- The government’s benevolence is further evidenced by numerous parliamentary statements during the second reading of the 1936 Aborigines
Act Amendment Act:
*
Mr Stewart commented that “[t]here is nothing to prevent half-castes rising to a higher level, and we should do what we can to bring
that about”[247]
*Mr Latham said “by legislative action we are endeavouring to protect them against white people and we are asked also to endeavour
to improve the conditions of the half-castes so as to make them more like human beings than they are to-day”[248]
*the Minister for Agriculture Frank Wise expressed a desire to care for young Aboriginal girls[249]
*Mr Latham recognised that Whites had taken the “native’s” land and went on to say that “[w]e cannot deprive other people of the right
to live because their colour is not the same as ours” and that the Imperial government placed a duty on the State to “see that our
[White] habitation of this land is not to their [Aboriginal] detriment.” He expressly asserted that the 1936 Act aims to further
improve the conditions of the “natives”,[250]
and
*in deflecting criticism of the operations of the Aborigines Department, the Chief Secretary said that “we have a constitutional obligation
in regard to natives in this State, and also that this department was originally created to protect the interests of the natives.”[251]
This constitutional obligation was reiterated by Hon JJ Holmes though in his opinion, Western Australia governments had “not lived
up to their responsibility”.[252]
- Neville called on the Federal government to increase funding to allow him to provide greater protection to the Aborigines.[253]
In particular, he noted that the Western Australian government had limited resources with which to implement its protection policies.
- During debate of the 1936 Act, the Chief Secretary acknowledged that a funding crisis had arisen but that it had been caused by the
1930s depression.[254]
He stated that “[t]he main reason why a number of the matters [to improve the conditions of Aborigines] have not been done is the
fact that [Western Australian] Governments have not been able to provide sufficient money to enable the [Aborigines] department
to do all that it wished”.[255]
- Accordingly, it could be argued that the Western Australian government failed to protect Aborigines because of inadequate funding
resources rather than any lack of concern for the Aboriginal group. The government would claim that any neglect that may have occurred
was not due to an omission to act to protect the group, let alone an intent to destroy the group.
- In the assimilation stage of Aboriginal policy, the Western Australian government revamped all existing legislation concerning Aborigines
and enacted the 1954 Native Welfare Act.[256]
Among the first of the Act’s provisions was an amendment to the long title of the principal act, replacing the words “better protection
and care” with the word “welfare”.[257]
Presumably, this was intended to reduce the overt paternalism of the legislation and break the nexus with the protection era.
- Further, the amending Act afforded the Minister for Native Affairs discretionary power to “assist in their [the Natives] economic
and social assimilation by the community of the State”.[258]
These and various other amendments evince a strong parliamentary intention to promote the welfare of Aborigines.
- As stated, the preceding legislative provisions remained in force until repealed in 1963. Under the Native Welfare Act of 1963, the
Minister for Native Affairs was charged with the duty of promoting the welfare of the “natives”.[259]
The policy focus was now one of integration.[260]
At this point, removals of Aboriginal children ostensibly ceased to be carried out on the basis of race but rather on socio-economic
considerations. However, as stated above, racially discriminatory practices continued. Nonetheless, the paper will restrict its
analysis to the period of explicit racially-based removals, namely the period 1905 to 1954 per the Native Welfare Act 1905-54 (WA).
- In summary, the above lends some support to the government’s position that it possessed benevolent motives and perhaps intentions
towards the Aborigines. The government would argue that it was simply an objective observer in a process of death ordained by God
or nature. By removing some children, it tried to “save” those members of the protected group from the inevitability of biological
extinction. In a positive light, this merely meant survival of the fittest, but in the negative, meant the destruction of the weakest.
Given this contemporary view, how could the government contemplate interceding in the work of God or nature, and what could it do.
- The government would claim that it possessed no intention to destroy the group. It certainly did not expressly legislate for the
group’s destruction. Rather, it took tangible steps to ameliorate the conditions of Aborigines not removed and who were destined
for destruction. Finally, the Western Australian government faced budgetary constraints in implementing welfare policies. Without
more, inadequate funding of government programs could not indicate an intention to destroy a group.
- The paper accepts the factual validity of the information presented in the government’s argument. However, it proffers an alternative
interpretation of the evidence. In the author’s opinion, the government case does not countervail the plaintiff’s arguments which
point to ulterior intentions. The case for the plaintiff is now presented.
Plaintiff’s Case
- This section of the paper will argue that the government intended to destroy a part of the Aboriginal group. The plaintiff’s case
consists of three points. First, the government protection policies are largely indicative of motive and not intention. As such,
the preceding section advancing the government’s defence does not countervail the Plaintiff’s claim. Secondly, the government omitted
to act where it was foreseeable that omissions would lead to the destruction of the group. In the context of racially discriminatory
policies and practices, this circumstantially evidences a general intention to destroy the group. Thirdly, it is argued that, by
active measures and express references, the government evinced an intention to destroy the group. These measures include the transfer
of some children from the group and other actions. To circumstantially support these claims, it is suggested that at all times,
the result of destruction was foreseeable and foreseen and that the actions were taken in an atmosphere of extreme racial discrimination.
- Before commencing the plaintiff’s case, two introductory remarks are made. Initially, the paper recognises that government officers
may have committed, or failed to prevent, acts of murder with a possible intention to destroy the protected group. However, it is
suggested that such acts or omissions occurred during earlier periods of history, and that all such actions ceased prior to the genocide
prohibition. Accordingly, the paper makes no suggestion that the government of Western Australia intended to destroy the Aboriginal
group by killing members of the group per Article II(a), Genocide Convention.
- Secondly, the paper will utilise extrinsic materials to determine the intent of the statutory regime as a whole.[261]
To determine parliamentary intent, it is necessary to refer to an elementary rule of statutory construction. In Gehardy v Brown,[262]
the High Court reiterated the need to construe Acts emanating from the same legislature “so as to avoid absurdity” and to allow the
provisions of pertinent Acts “scope for operation”. This has two implications in the current context. First, when construing the
provisions of any one Act it is necessary to contemplate the construction of any other pertinent Act emanating from the same parliament.
Secondly, it is noted that Gehardy v Brown[263]
provided obiter for the proposition that the Race Power could be used in a racially discriminatory sense as well as a beneficial
sense.[264]
Analogously, the provisions of an Act or even entire Acts which indicate benevolent parliamentary intentions towards the statutory
objects cannot be seen to be conclusive on the question of the parliament’s holistic intention.
- In the current context, the parliamentary intentions indicated in the Western Australian statutes presented in the preceding section
must be considered in light of provisions and Acts which evince a more sinister design, and possibly an intention to a destroy a
group. In fact, if one is so bold as to contemplate that Australian parliaments may have possessed genocidal intentions then one
might view legislation purporting to benefit Aborigines as part of an overarching but understated plan. Words may belie their true
meaning.
- Having made this preliminary point regarding statutory construction, it is also noted that the paper does not restrict its analysis
to mere statutory interpretation. That was an exercise carried out in Kruger v Commonwealth.[265]
Buti has pointed out that the High Court’s decision (rejecting the plaintiff’s claim) did not decide whether the government had
committed genocide but rather whether Northern Territory Ordinances authorised genocide.[266]
Buti also notes that the Kruger case was interlocutory and had not been preceded by a trial.[267]
Accordingly, the High Court did not undertake a “comprehensive analysis of the practices conducted pursuant to the impugned provisions
of the Ordinance.[268]
This paper will look beyond legislative powers and statutory objects and consider the parliament’s intentions in a broader evidential
context.
Motives not intention
- The plaintiff’s first argument counters the government claim that the legislation and parliamentary discourse indicated an express
intention to prevent the destruction of the group. To the extent that that may be true, it could indicate inconsistency with an
alleged intention to destroy the group. However, it is also possible that the government had mixed intentions. Namely, while making
some efforts to promote the group, or prevent its destruction, the government could also have taken countervailing measures containing
an element of destructive intent.[269]
Moreover, it is also possible that the statutory provisions indicated only that the government possessed benevolent motives and
little more. These motives, it is suggested, have little bearing on the question of intent.
- The discussion of intent harks back to the late 19th century, prior to the genocide prohibition. In 1871, Western Australia legislated
to provide for the death penalty.[270]
Before then, the death penalty had existed in Western Australia as British common law inherited at the time of settlement. The
1871 statute required that executions take place within the walls of the prison.[271]
However, within four years of the passage of that Act, the Western Australian Parliament passed new legislation to allow for the
public execution of Aboriginals.[272]
In contrast, that statute maintained the requirement that all other persons continue to be privately executed. The law requiring
the public execution of Aboriginals remained in force until repealed in November 1952.[273]
This was after the commencement of the genocide prohibition era and demonstrates the degree of negative racial discrimination in
State legislation.
- It is argued that this extreme instance of parliamentary racial discrimination sets the tone for interpreting government benevolence.
I refer to the Attorney’s General comments during the second reading of the bill for that Act:
The object of this measure was to strike terror into the heart of other natives who might be collected together to witness the execution
of a malefactor of their own tribe … The Bill had been framed in no vindictive spirit, but in the belief that it would operate beneficially
… .[274]
Such sentiments are extremely cruel by today’s standards. However, they were also cruel by contemporary standards. Clearly, such
measures were not fitting for condemned Whites. The legislation highlights that the government targetted condemned Aborigines for
cruel and unusual and humiliating treatment vis a vis others awaiting execution.[275]
- It is emphasised that the legislative provisions required private executions for all other races. In the case of this legislative
provision, it is a simple task to determine legislative motive and intent because the Honourable member expressed both. The legislature
was driven by a motive to benefit Aborigines while intending to strike terror into their hearts. Herein lies a clear pattern of
government behaviour that, it is suggested, would be repeated over and over again, namely benevolent motives and malevolent intentions.
- This motive-intention dichotomy is further evidenced by a number of public statements attributable to the government. In 1944, Chief
Protector Neville distinguished between motives and the forcible means used to obtain intended results:
The native must be helped in spite of himself! Even if a measure of discipline is necessary it must be applied, but it can be applied
in such a way as to appear to be a gentle persuasion … the end in view will justify the means employed [emphasis added].[276]
- Interestingly, Neville’s statement distinguishes between the avowedly regrettable use of force necessary to remove children, which
helps rationalise such actions, but it also highlights the consciousness of stealth in the minds of the policy makers. It is emphasised
that government action must appear to be gently persuasive.
- What ends did Neville feel required justification? Two inferences are suggested. First, and this would appear to be relatively uncontroversial,
it is suggested that the government intended to save members of the group with “White blood” so long as they abandoned their culture
and joined the dominant culture. It is suggested that this indicates an intention to commit “cultural genocide”. While not a crime
under international law, such intentions may circumstantially evidence an intention to physically destroy the group.
- The second inference, being more contentious, indicates that, in combination with other factors, it evinces an intention to destroy
those members of the group who were not removed. The factors that make this assertion plausible will be presented below in the section
dealing with express intent.
- It is suggested that superficial indicators of benevolent legislative motives and intentions (protection) can mislead and conceal
other intentions. This is exemplified by the legislative measures restricting sexual relations between the races,[277]
and in particular between the “White” and “Black” or “coloured” races. Apart from being expressly racially discriminatory, the provision
may superficially be seen as an attempt to protect Aborigines. However, when commenting on the amendment to the Native Welfare Act,
1905–54, the Hon Angelo said that “[t]he Bill deals with the native question, but the object of this particular provision is not
so much to protect the natives as to protect White people from syphilisation”.[278]
Accordingly, the provision would appear to have little to do with protecting Aborigines. Rather, it was intended to protect the
non-Indigenous population. Perhaps a similar intention lay in the mind of the legislature in providing for the “compulsory examination
of diseased aboriginals”.[279]
- During the debate, the Chief Secretary indicated that the provision extending the age of Aborigines falling within the power of the
Chief Protector was, in part at least, intended to prevent “half-castes” from enjoying “all the privileges [and rights] of the white
race”.[280]
Superficially, it may have been seen merely as an attempt to broaden the range of persons who would receive governmental protection.
- Similarly, provisions requiring Aborigines to obtain work permits were “in the interests of the employers and not the natives”.[281]
Again, there may well have been benevolent albeit misguided motives driving such legislative provisions but this remains logically
consistent with a potentially systematic pattern of behaviour indicative of an intention to destroy the group in part.
Fiscal Constraints or Discriminatory Budgetary Policy
- Similarly, the Western Australian budgetary constraints do not serve as a defence to the alleged intention to destroy the group.
Having emerged from the Great Depression, it is undoubtedly true that governments were faced with tight budgetary constraints. There
would certainly have been limited economic resources with which to care for “full-blood” Aborigines, and as such these constraints
alone may have prevented the government from taking further action to ameliorate the position of Aborigines.
- However, there is no evidence to suggest that the government would have done more had the resources been available. To the contrary,
the following suggests that the fiscal constraints operated only to curb the removal process.[282]
Neville and others attending the 1937 Conference made repeated calls to increase Federal funding of Aboriginal policies. Neville
makes his intention clear that the purpose of any increase in funding should be allocated to the purpose of “half-caste” removals
and absorption:
My calculation is that, excluding the 10,000 full-blooded natives in Western Australia who are considered to be outside the influence
of civilisation, the cost estimated to ensure the well being of each native is 30s 2d a head…The per capita cost of educating a white
child in Western Australia is about £10 10s a year, yet in that State 30 Shillings a year is supposed to cover everything,
including food, clothing and education of one of the native population. It is a ridiculous sum, but my State is not in a position
to expend a large amount of money on these people…In my State there are certain situations, such as cattle stations, in which the
[“full-blood”] natives are housed. These are almost self-supporting, so we do not need capital for them; but money is needed in
other directions [emphasis added].[283]
- Western Australian government’s budgetary difficulties do not exculpate it. For a start, the government’s limited expenditure on
Aboriginal needs stands in stark contrast to the “vast sums of money and energy [which] were committed to building up and moulding
a White Australian citizenry”.[284]
The Chief Protector’s own words indicate the extreme disparity of expenditures on the education of White children. Namely, many
times more money was spent solely on White education relative to that spent on the education and full board of Aboriginal children.
- Neville also notes that the actual expenditure on Aborigines was one sixtieth of the amount he considered necessary. In circumstances
of such extreme discriminatory budgetary policies, it cannot be said that the government of the day failed to adequately provide
for Aborigines because it was restrained merely by a lack of finances. As such, the very real economic constraints of the day do
not justify government’s omissions to act to help save the group. Rather, the discriminatory budgetary practices would tend to show
that the Western Australian government did not want to ameliorate the conditions of “full-bloods” and spent grossly inadequate sums
on the persons the government had appointed itself legal guardian.
- It is argued that the destruction of the group was objectively foreseeable and subjectively foreseen. In the same speech to 1937
Conference, Neville said:
There are a great many full-blooded Aborigines in Western Australia living their own natural lives. They are not, for the most part,
getting enough food, and they are, in fact, being decimated by their own practices. In my opinion, no matter what we do, they will
die out.[285]
- With these words, the Chief Protector contradicted his earlier claims that the “full-bloods” were self-sufficient. Rather, he notes
that they have inadequate means to subsist. Further, he evinces his eugenicist views on the survival of the Aboriginal race. Where
the government was aware of the inadequacy of its expenditures on “full blood” Aborigines, in the context of the extremely discriminatory
budgetary policies, the government’s omissions to act may circumstantially evidence an intention to destroy the group and this will
be considered in the following section on omissions. The fact that the government foresaw and foretold of the destruction of the
group adds probative weight to the argument.
- Throughout this discussion and the preceding section dealing with the Removalist Policies, the evidence has shown that the government
may have acted with benevolent motives – a desire to promote the greater good of society and, in particular, the good of “half-caste”
Aborigines. However, there is no reason to believe that these motives, the factors driving the policy makers, should be viewed as
the policy objectives of the legislation particularly as they related to “full bloods”. At best, the policies indicate an intention
to save only part of the group and not the entire group. In any event, these motives are not inconsistent with an intention to destroy
the remainder of the group. It is accordingly suggested that there still remains the possibility of establishing a case of genocide
per Article II(e), Genocide Convention.
Omissions foreseeably leading to the destruction of the group
- When presenting the government’s defence, it was suggested that the government would assert that it had attempted to protect both
the removed members and the segregated members of the group. To the contrary, in the next section, it will be argued that the government
actively sought to destroy the segregated part of the group. However, for the moment, it will be assumed that the government saw
fit to focus its protective measures on saving removed Aborigines while not actively seeking to destroy the remainder of the group.
- It is acknowledged that an intention to save only part of a dying group does not, without more, infer an intention to destroy the
remainder. For instance, it could be argued that the perceived futility of government action vis a vis “full-blood” Aborigines prevented
it from taking further action. What would be the point of taking ameliorative action where destruction of the group as a distinct
entity, or at least the “full-blood” part, is inevitable regardless of any government intervention? It may be an incredibly callous
position to adopt but it is, it appears, a part of the alleged thinking of the time. However, to infer that the government had an
intention to destroy the group requires something more. That something is outlined in the following discussion concerning omissions
and in the next section regarding government expressions and practices indicative of destructive intent.
- In the following section, it is suggested that the government omitted to take action where it should have. Where it is foreseeable
that inaction will cause the destruction of a group, omissions may indirectly evidence an intention to destroy that group. As there
is unequivocal evidence to show that the government subjectively foresaw the destruction of the group, it is unnecessary to pose
an objective foreseeability test to examine what a reasonable government would have done in the circumstances. All that remains is
to consider the omissions.
- This discussion is premised on the basis that the Western Australian government bore constitutional and legislative responsibilities
to protect the group. Its responsibilities arose not only as a matter of motive but of object. It is clear that the legislative
and constitutional[286]
arrangements obligated the government to take action to prevent the destruction of the group. The Western Australian parliament
recognised that the Imperial government had placed a duty on the State to “see that our [settlers’] habitation of this land is not
to their [Aborigines’] detriment”.[287]
- While the government’s failure to meet its obligations towards Aborigines does not directly evidence an intention to destroy that
group, the government’s continuous and long-standing breaches of constitutional and statutory obligations serves as circumstantial
evidence of an intention to destroy the Aboriginal group in part.
- The discussion of omissions commences with the parliamentary debate of the 1936 Aborigines Act Amendment Act.[288]
The entire debate was premised on an underlying assumption that the “full-bloods” were dying out and that the “half-castes” were
breeding rapidly. In not one of the debates regarding the passage of that legislation did the government assert its duty to prevent
the destruction of the whole group. Rather, it was always premised on the basis that part of the group, namely the “full-bloods”
would die out and the legislation might hope to save the “half-castes”. The “half-castes” were to be saved not by allowing them
to remain as an independent group but by absorbing potential survivors into the majority. That alone circumstantially evidences
destructive intent.
- Anticipating the destruction of the group in part, the Chief Secretary said that “[t]he [Aborigines] department is expected in time
to take on … the function of a native trust department”.[289]
The Minister did not divulge his meaning in plain terms. Presumably, however, he meant that, upon the death of the Aboriginal race,
the “full-bloods” would pass their estate on to their “half-caste” beneficiaries.
- In an impassioned plea, Mr Seward said that “[w]e never know what we can do until we try, and we have not tried yet”.[290]
He urged the government to train Aborigines in farming and other trades; to set aside farming land so as to give Aborigines employment;
and, to create opportunities to enable them to become self-sufficient. His was perhaps the solitary parliamentary voice that contemplated
that the Aborigines might survive as a group and that government measures should be taken to enable their survival. The government
did not heed his concerns.
- The Western Australian Chief Secretary recognised the potential to save the entire group and noted that the “rapid disappearance [of
full-bloods] has probably been arrested by ameliorative measures” taken by the government.[291]
In so saying, the Chief Secretary foresaw the destruction of the “full-blood” part of the group, and recognised that it was possible
to take action to prevent, at least in the short term, their destruction. However, the Chief Secretary expressed no joy or relief
at the prospect of arresting the destruction of the “full-bloods” and there was clearly no desire on his part to take further ameliorative
action. The dialogue indicates that preventing the destruction of the “full-blood” group was entirely secondary to the main problem
of the growth in the “half-caste” population. The problem of course with their growth in numbers was that they would remain a distinct
group and would retain Aboriginal customs and practices. It is suggested that this evidences a decision to not act where the need
to act was apparent to the House.
- Omissions occurred with the government’s decision not to take adequate ameliorative actions in the face of calls to do so. The government
ignored repeated calls for further action during the 1936 parliamentary debate.
- Seeking further protective measures, MP Latham stated that it was “deplorable to find on a reserve people almost white living in humpies
under most degrading conditions”.[292]
Numerous members of the House urged the government to adopt the Moseley Report recommendations to create additional government posts
(regional protectors) to ensure that government protection measures were more responsive to the regional needs of the varied Aboriginal
communities.[293]
The government rejected these suggestions.
- Haebich and Delroy note that, during the depression of the 1930s, government funding of Aboriginal Settlements fell to an all time
low.[294]
By way of comparison, the government spent just under £10 on Aborigines in Settlements and over £64 per inmate of Fremantle
Prison.[295]
The authors describe Settlement buildings as “overcrowded and riddled with vermin”, and highlight the inadequate dietary intake
of children, inadequate schooling, poor hygiene and serious medical problems.[296]
- In debate over the passage of the 1936 Act, the Hon JJ Holmes stated, “[t]hat the aborigines have been neglected is an established
fact. I could produce sworn evidence of blood-curdling conditions under which some of the aborigines are allowed to exist”.[297]
The government member directly blamed the Chief Protector for neglecting Aborigines albeit recognising that the blame lay in inadequate
funding.[298]
- During that debate, the Hon HV Piesse described the conditions of a particular native camp as terrible.[299]
However, despite all the criticisms of inadequate government remedial action, the government MP noted that not one of the speakers
had suggested that funding be increased.[300]
For his part, he sought an increase in funding solely to allow greater segregation of “full bloods”. It can only be concluded that
the MP had no desire to alleviate the “terrible” conditions in which they lived.
- Criticism came from other quarters as well. Rischbieth, a witness to the Moseley Royal Commission and speaking on behalf of the Australian
Federation of Women Voters, criticised the assistance provided to Aborigines.[301]
In rejecting the government’s “neglect” justification for child removals, she asserted that “government administrators … were forcibly
removing children because it was cheaper than providing the same system of support which operated for neglected white children”.[302]
- As stated in the section presenting the government’s case, it could be suggested that the Western Australian government’s hands were
fiscally tied, that it was simply a matter of inadequate State resources which prevented the government from taking further action
to prevent the anticipated destruction of the “full-blood” group. However, that would ignore the racially discriminatory government
budgetary policies, in both relative and absolute terms. Namely, as discussed above, Aboriginal children within the State received
disproportionately less government funding than did the children of other races. Further, as will be seen below, by comparison with
other States, Western Australia was spending far less per capita on Aboriginals.
- The Hon EHH Hall criticised Parliamentary members who had argued that it was “preferable not to take the [Aboriginal] children away”
without sufficient consideration of the fiscal implications of removing more children or the cruelty caused to their parents.[303]
He asserted that the funding restrictions imposed on Aboriginal expenditures had also been imposed on all other government departments.
As such, he denied that Aborigines had been singled out discriminatorily. Based on the preceding discussion, the accuracy of Mr
Hall’s remarks are to be doubted. However, even if he was correct, the deplorable conditions under which many Aborigines lived would,
it is suggested, have demanded relatively greater government expenditures on Aboriginal welfare relative to White welfare. As such,
systemic discrimination was apparent in the failure of the Western Australian government to meet the greater needs of the Aboriginal
population.
- In fact, the 1936 amendments to the Native Welfare Act, 1905–54, were severely criticised by numerous members of Parliament.[304]
For instance, Mr Seward stated:
The Chief Secretary, when introducing the [1936] bill, stated that the Ministry had to disregard certain recommendations of the Royal
Commissioner [Moseley] on account of finance. The well-being of the native races is too important for the question of finance to
stand in the way.[305]
- The opposition MP quoted government figures to show how little Western Australia was spending on its Aboriginal protection policies
relative to other States. He said that:
in Western Australia the number [of Aborigines] is 29,000 equal to all the other States [South Australia, Queensland and New South
Wales] put together, and the total cost [expended by Western Australia] is a little over £28,000, while the estimate for this
year [1936] is £20,000. It must be admitted that our cost is lamentably short of what it should be. We cannot possibly concede
that the other three States are largely extravagant in the matter [emphasis added].[306]
- The statistics indicated that South Australia, Queensland and New South Wales expended on average just under £4 per Aborigine
while Western Australia expended just under £1 per Aborigine, with an expected 28 percent decrease in funding for the following
year. This evidences considerable under expenditure on Aborigines in Western Australia relative to other States and stands in stark
contrast with the preferential treatment of White children within the State. The impact of this racial discrimination is accentuated
by the relatively greater needs of the Aboriginal group.
- It is suggested that the Western Australian government neglected to meet statutory and constitutional obligations to protect the Aboriginal
group. The evidence establishes that the government was aware of the need to provide further resources to protect the group and,
in light of the discriminatory fiscal policies it cannot be said that the government’s limited economic capacity to meet these obligations
could justify such omissions. Further, it is suggested that the government foresaw that its failure to act could lead to the destruction
of the group. Accordingly, it is argued that the failure to fulfil government obligations, in concert with other expressions, acts
or omissions, may indirectly evidence an intention to destroy the Aboriginal group in part.
Express intent and practices circumstantially indicative of intent
- The paper has attempted to dispel any misconceptions that the legislative provisions were altruistically intended to benefit the Aboriginals.
It has been argued that the government’s assertions of intention were for the most part expressions of mere motive. This was evidenced
by reference to various Parliamentary statements and legislative Acts.
- Admittedly, the legislative provisions and parliamentary debate indicate some intentions negativing a claim of genocide. However,
it is argued in this section that the government went further than mere omission. There is evidence to suggest that the government
made overt and implicit expressions of an intent to destroy the group. Further, it is suggested that that government practices tend
to support a conclusion of genocidal intent.
- The discussion is prefaced by a consideration of the use of language. When referring to the destruction of the group, the government
used language largely in the passive form, leaving out the active subject in the process of the destruction. This is evidenced by
the comments made by a 19th century Victorian colonist:
It is the design of providence that the inferior races should pass away before the superior races…since we have occupied the country,
the aborigines must cease to occupy.[307]
- Such statements are typical of the 19th century and the 20th century and a number of comments may be made regarding the statement.
First, it is euphemistic; cessation and passage are much nicer terms to use than destruction. Similarly, does the speaker intend
to imply that the group will cease to physically occupy the land but will pass on to another geographic location? Or does the speaker
contemplate the physical destruction of the group and will pass on to another metaphysical state?
- Secondly, the language is framed in the passive tense. Who or what is going to cause the group to cease? There is a hint that it
is God who wills the destruction of the group, and this serves to rationalise the result. But is it God who intends to carry out
the action of destruction? Or was it also part of the design of providence that God should choose to be assisted in achieving that
end?
- Whether the speaker consciously intended to manipulate his language so as to obfuscate is uncertain. And for that matter, it is of
little import. It may simply have been a matter of the language style in use at the time, though it is perhaps equally true of political
speech in modern society. The essential point however is that the absence of an actor when speaking of the destruction of the group
does not necessarily imply that there was no actor. The following angry demands by colonists more clearly evoke an intention to
destroy the group:
We make no pompous display of Philanthropy – we say unequivocally – SELF DEFENCE IS THE FIRST LAW OF NATURE. THE GOVERNMENT MUST
[geographically] REMOVE THE NATIVES – IF NOT, THEY WILL BE HUNTED DOWN LIKE WILD BEASTS AND DESTROYED [emphasis in original].[308]
- Again, the speakers make reference to esoteric forces, akin to divine providence, controlling our lives but, in this extract, they
make it clear that if their demands were not met an unknown actor would take an active interest in perpetrate the act of destruction.
- It is apparent that in this instance that the speakers consciously framed their statement in the passive tense so as to avoid criminal
liability. However, there are many reasons why a person may speak in veiled terms. It is critical to consider their words in light
of their actions so as to shed light on the meaning intended.
- The Aborigines Act Amendment Act,[309]
was designed in part to limit the increase in the number of “half-castes”. Segregation of White and Black was seen to further the
White Australia policy and to restrict the growth of the non-Anglo-Saxon population.[310]
The government said that “[h]alf-castes are breeding very quickly, and are being allowed to live as natives live. That in itself
is undesirable…the worst feature is the growth of these people. It is typical of crossbreeds that they are rather prolific…The breeding
of half-castes constitutes a colossal menace to the State [of Western Australia]” [emphasis added].[311]
- It is reiterated that this Act was purportedly intended to benefit Aborigines. However, when law makers frame statutory provisions
dealing with people viewed as a “colossal menace”, it is hard to imagine how the ensuing legislation should be considered as intended
to benefit those who pose the threat.
- There may be some perversely benevolent motive deeply hidden in these words but they cannot be interpreted as an intention to benefit
the group. Rather, it is suggested that the measures were intended to stem the growth of the population, itself an act of genocide
per Article II(d).[312]
- Further, the measures were directly intended to reduce the numbers of the group living as part of the group, namely cultural genocide.
As previously stated, an intention to commit cultural genocide may, in the context of extreme prejudice and discrimination, evince
an intention to physically destroy the group in part.
- As stated above, labelling a protected group as a threat is also probative of intention to physically destroy a group. There are
many references in the Parliamentary debate of the 1936 Act, in addition to the preceding quote, indicating that the Aborigines were
viewed as a menace to White society. These comments were reiterated by numerous Members of the Western Australian Parliament.[313]
Many others left such a feeling implicit in their analysis of the Aboriginal “problem”. For instance, the Chief Secretary sought
to impose heavy financial and incarceration penalties on Whites engaging in sexual relations with Aboriginal women. He made it clear
that the increase in the “half-caste” population was the “root of the aboriginal problem”.[314]
In the perverse logic of the racists, this may have been because the “full bloods” on their own would tend to die out but the “half
castes”, living with and like “full bloods” would tend towards the “Black” and would tend to promote the maintenance of the “full
bloods”.
- Many of the Parliamentarians making references to the threatening menace expressly called for remedial action. Few however were so
indiscreet as to call upon the government to destroy the group. The Hon GB Woods was an exception. His comments indicating an intention
to destroy the protected group arose during discussion of the 1936 variation of the “native” definition. The new definition would
ensure that all persons of Aboriginal descent would fall within the purview of the Native Welfare Act, 1905–54. In his address to
the Parliament, he acknowledges the malapropism of the word “native” which strictly interpreted would include persons of European
descent born in Australia. In an obtuse reference, he states that “I fail to see why the name [“full blood”, “half-caste”, “quadroon”
or “octoroon”] should be changed at all. Perhaps there is something in [sic] the Minister’s mind that induced him to propose the
change”.[315]
He makes no further reference as what was on the Minister’s mind but he does make it clear what was on his mind:
The girls, constituting the greatest problem of the lot, could be put into schools also. I would not be above taking them away from
their mothers at the earliest possible stage. We have to face this problem, but so fast are these people breeding that during the
last 12 months there has been an increase in the previous population of 4,000 half-castes. So members can work out for themselves
what the position is likely to be in a few more years. There will then be so many half-castes and coloured people in the State that
we shall to know what to do. But we owe it to the future generations of white people that something should be done to stop this
ever-increasing menace. There are many ways of doing it [emphasis added].[316]
- It should be pointed out that the menace posed to the State came from “half-caste” Aborigines who continued to lead their lives as
“natives”. They were a menace because of their net population growth. In contrast, “full bloods” were not a menace because their
numbers were decreasing. The menace of an increasing “half-caste” population justified the segregation of “full bloods”, restrictions
on marriage and inter-racial sexual relations. These provisions alone (preventing births) may constitute genocidal acts per Article
II(d), Genocide Convention. The menace also justified the removal of “half-caste” children which contravenes the prohibition under
Article II(e), Genocide Convention. These factors are further considered below.
- The same MP makes it explicitly clear what his intentions were for the “full-bloods”:
I know that the long distance view is to breed these people right out, but so long as the half-castes can mate with the full blacks,
the process is being reversed, and in five years’ time we shall have a great many more half-castes and quarter castes than we have
to-day [emphasis added].[317]
- It is asserted that this MP’s speech is an overt expression of physical genocide. It is further asserted that that statement, albeit
an isolated instance, reflects the intentions of the Western Australian government in framing the 1936 legislative amendments to
the Act which would rule over Aborigines for decades and certainly well into the period of the genocide prohibition.
- Similarly, the Hon L Craig expresses a eugenist intention to destroy the group in part:
We might help to overcome the difficulty by getting the half-castes and the quadroons away from the full bloods. The natives are
of the same blood as we are, and the colour can be bred out of them for the reason that they are not like Asiatics or the Negroes.
The danger to-day lies in the native camps in the South-West [of Western Australia] where the half-castes go back and live with
the full-blooded natives, and in that way get back once more to the darker blood. If we can separate the half-castes from the pure
blacks we shall go a long way from the half and quarter-castes so that the blending shall be towards the white. The colour must
not be allowed to drift back to the black. If we can only segregate the half-castes from the full-bloods we shall go a long way
towards breeding the dark blood out of these people…We should be prepared to spend considerable sums of money in taking away the
female children, giving them a good education, and training them to do useful work. If they do go out to service, and then get into
trouble, that trouble will be associated with white people which, in itself, will assist to breed out the colour. The main essential
is to breed out the dark colour [emphasis added].[318]
- A number of points are discernable from the passage. First, it evinces some positive motives. The government MP is clearly interested
in elevating the status of the removed Aborigines by educating and skilling them for useful work. This may also have served a further
purpose of providing a cheap source of domestic labour for White households. Nevertheless, it is clear from other statements made
by the Hon Craig that he was concerned that the removed “half-castes” should be helped.
- Secondly, the MP associates blood with culture. When he speaks of breeding out the Black, he intends, in part, to destroy the Black
culture which poses a threat to “half-castes” and to White society. It is suggested that that alone, namely cultural genocide, is
indicative of an intent to physically destroy the group. But it is suggested that the MP’s words go further. The third and crucial
point is that the MP means to physically breed out the dark colour. It is suggested that therein lies a further express intention
to physically destroy the “full-blood” part of the group.
- Other MPs implicitly indicated an intention to physically destroy the protected group in part. They expressed a desire to stem their
growth by means of sterilisation. The Hon EHH Hall said “I wish the Royal Commissioner had embodied a suggestion in his report that
action should be taken against such a woman [an Aboriginal woman who had given birth to five children, allegedly all by different
White fathers] that would prevent her from ever bringing children into the world again”.[319]
- The Hon L B Bolton asserted that “[i]t would not be too much to suggest that we [the Western Australian government] take steps to
sterilise these unfortunate young women”.[320]
He confirms that he is motivated in part by a desire to help the individuals concerned but his intentions lie elsewhere. He prefaces
his comments by noting that he is “staggered to learn of the alarming rate at which the number of half-castes is increasing”.[321]
- Sterilisation, it will be recalled, is as a means of preventing births within the group and constitutes one of the prohibited genocide
acts, Article II(d), Genocide Convention. As such, it is highly probative of an intention to physically destroy the protected group.
- It is noted that there are only a few instances in the Parliamentary debate where MPs asserted an express intention to physically
destroy the group. Nonetheless, it is suggested that such intention may have existed in their minds though speaking more cautiously.
Haebich writes, “[a] strong code of silence built on [Western Australia’s] isolation and parochial networks of family and business
interests kept the scandalous treatment of aborigines in the [S]tate out of the national public eye”.[322]
- There is evidence that the Government spoke guardedly about its true intentions. During the 1936 debate for instance, the Chief Minister
was particularly concerned not to harm the reputation of the State by making full disclosure in respect of the legislative amendments.[323]
He emphasised that he had received inquiries from “responsible people” in London about the Western Australian Parliament’s intentions.
In subsequent debate, the Hon JJ Holmes makes it clear that he heeded the Chief Secretary’s warning:
This House will make itself absurd over the Bill if members are not careful. The Minister has said that we will not do ourselves
any good or justice to the cause [not specified] if we talk about what is going on in this country in connection with the treatment
of aborigines.[324]
- This is evidenced by the debate over the wording of the clause regarding compulsory medical examination of Aborigines. Namely, there
was considerable concern over the use of the word “force” in the phrase: “use such force as may be necessary to” compel an examination.[325]
The Parliament’s concern over the use of the term “force” is revealed in Mr Latham address: “I do not mind reasonable force being
employed where necessary. After all, in arresting white men, the police sometimes have to use a measure of force. But I do not
think it is wise for us to advertise the fact in our Statute-book. It will be misunderstood by people” [emphasis added].[326]
The Managers Conference of both Houses determined that the term “means” should replace “force”.[327]
- In fearing advertisement of the term, Mr Latham does not make it clear how it would be misunderstood or what the preferred understanding
should be. Nonetheless, it is clear that the government was sensitive to external criticism. In the words of one MP, the Western
Australian Parliament hoped to avoid the gaze of “goody-goody people” who were critical of the State’s treatment of Aborigines.[328]
- It is suggested that the preceding statements indicate that the Parliament hoped to avoid fully disclosing the legislative objects
of the 1936 Act. Accordingly, greater emphasis must be placed on the few express statements of destructive intent and on the larger
number of Parliamentary statements and legislative provisions which indicate an implicit destructive intent.
- The 1936 legislation introduced measures intended to prevent an increase in the number of “half-castes”. The Native Welfare Act,
1905–54, as amended by the 1936 Act, proscribed sexual relations between racial groups and restricted a range of rights such as marriage
and geographical mobility. These legislative measures were intended to restrict the increase in “darker blood” and provide for the
removal of “half-caste” children. As such, they may possibly indicate that the government planned to create physical conditions of
life which would accelerate the inevitable destruction of the group, per Article II(c) and causing bodily and mental harm per Article
II(b). Again, this is directly evidential of an intention to physically destroy the group. This is notwithstanding any benevolent
motives to aid the persons removed. As previously stated, these legislative measures may also be seen to prevent births per Article
II(d).
- Article II(e), Genocide Convention, refers to the forcible transfer of children from the protected group to the other group. It is
suggested that while the genocide definition speaks of direct transfers of children its language (by reasonable interpretation) also
contemplates the converse. Namely, transfer may occur by direct transfer, removing members of a group and placing them directly
in the other group. Alternatively, the group may be split up, in this case “full blood” parents were removed from their “half-caste”
children, and the two parts segregated. The “half-castes”, particularly children, were then left to be absorbed by the other group
at a later date. In either case, the effect is to transfer children from one group to another.
- A raft of provisions contained in the Native Welfare Act, 1905-54 adopted the indirect approach. Haebich and Delroy state: “[t]hey
[the parents] were rounded up, supposedly for specialist medical treatment at the Corre and Bernier Lock Hospitals and the Derby
Leprosarium, imprisoned for cattle killing and for offences against the 1905 Act, or taken away by their employers”.[329]
This left the children requiring guardianship and of course they were subsequently transferred to the other group.[330]
- The most obvious of government practices indicative of an intent to destroy the group was the process of child removals. Much has
already been said to indicate that the removals were directly intended to stem the growth of the “half-caste” population. In itself,
this may indicate a specific intention to destroy the group, thus constituting physical genocide. But there is also considerable
evidence to indicate that the removals took place in a general atmosphere of destructive intent both cultural and physical.
- This paper does not delve into the alternative clauses of Article II as establishing the physical element of the crime of genocide.
Nonetheless, the paper refers to government’s practices which may fall within the remaining Article II clauses as indicative of
a general intention to destroy the group.
- There is evidence[331]
to suggest that the government caused serious bodily and mental harm, at the very least by removing Aboriginal children and transferring
parents to reserves, as such breaching Article II(b).
- Evidence has been provided to suggest that the government legislated measures intended to create physical conditions of life which
would physically destroy the group. While those measures may not have deliberately been so intended, as required by Article II(c),
the measures may nonetheless indirectly evidence physically destructive intent.
- Government measures were also instituted to prevent births by segregation, and restricting marriage. Suggestions were also made to
sterilize Aboriginal women. These acts may have been genocidal per Article II(d) and tend to indicate an intention to physically
destroy the group.
- Furthermore, the protected group was labelled as a menace and evidence has been provided to suggest that the government intended to
destroy group’s culture.
- Critically these statutory provisions were enacted, and policy practices were taken in a general atmosphere of extreme racial prejudice
and discrimination. This atmosphere creates the nexus necessary between the purported circumstantial evidence and the alleged intention
to destroy the group.
- Accordingly, it is suggested that the act of transfer per Article II(e), Genocide Convention was accompanied by a general intention
to destroy the group in part. With sufficient evidence, the act of transferring the children in concert with that general intention
would suffice to establish a case of genocide. In the current context, it is suggested that this paper has collected sufficient
evidence to establish a prima facie case of genocide per Article II(e), Genocide Convention.
- Before concluding this paper, it is noted that there is some judicial support for the argument that Australia committed genocide.
In obiter in Nulyarimma v Thompson,[332]
Crispin J stated that “there is ample evidence to satisfy me that acts of genocide were committed during the colonisation period
of Australia”.[333]
His Honour specifically referred to the absorption/merger policies discussed above.[334]
As previously discussed, these policies carried on beyond the time that genocide became prohibited.
- In lieu of government action to provide reparations, Aborigines have sought domestic judicial remedies. In the latest of a series
of civil suits, Aboriginal litigants failed to obtain civil awards.
- After years of litigation, the Federal Court handed down its decision in Cubillo[335]
and rejected the plaintiffs’ claims of compensation for injury arising from their removal. Significantly, the judge asserted in
his opening words that his judgment was not to be taken as a denial of the Stolen Generations or the injuries they suffered. In
fact, his Honour determined a significant quantum of damages for the injuries caused by government agents. Nonetheless, due to technical
reasons, and the evidential gap described above, the Judge declined to award damages but it was clearly determined that injuries
were suffered. The Plaintiffs’ (Cubillo and Gunner) Full Court appeal,[336]
and High Court applications for special leave to appeal,[337]
have both failed.
- Similarly, in Williams,[338]
another Aboriginal plaintiff, though who was admittedly not a “Stolen Generations” child, also failed in her attempt to obtain a
civil award. Again, her appeal to the Full Court failed.[339]
- Such results are indicative of the legal impediments faced by Aborigines who have attempted to obtain compensation through the Australian
legal system so many decades after their removals. However, their failures to obtain recompense should not be interpreted that they
did not suffer injuries as a result of their removals. The injustices suffered by the whole of the group have been vividly portrayed
in a large number of journal articles, and judicial findings, of which a narrow sample has been described in this article.
- The paper has argued that Australia faced, and continues to face, an incontrovertible obligation to prevent and suppress acts of genocide
within its borders from 12 January 1951. However, it is also clear that genocide became prohibited prior to this time as a result
of developments in unwritten sources of international law. The timing of the prohibition era is uncertain but it is likely to have
taken effect from the late-1930s. Accordingly, government practices after this time come under the scrutiny of genocide law.
- The paper has argued that the government may have committed acts of genocide under Article II(e), Genocide Convention. The paper
has, it is suggested, established that the Aborigines constituted a protected group within the meaning of the Convention and that
child members of this group were forcibly transferred to another group. This satisfies the physical element of the crime. The paper
has declined to take a conclusive stand on whether the Commonwealth intended to destroy the Aboriginal group. Nonetheless, it is
suggested that there is sufficient evidence to indicate the existence of a prima facie case.
- The paper has arrived at this conclusion by providing a limited historical overview of the colonising nation’s treatment of Australia’s
Indigenous inhabitants. Australia’s Removalist Policies comprised three eras:
1.Segregation under a protectorate
2.Protection with a view to absorption or merger, and
3.Assimilation and integration.
- The first era set the stage for war, massacres, rebellion, rape and murder. It is recognised that these events preceded the international
law of genocide. Notably, some of these acts (possibly with government acquiescence) continued until the 1930s. Nonetheless, the
policies of that era may have influenced the subsequent absorption era.
- For temporal reasons concerning the genocide prohibition, the paper has focussed on the second policy era. Though the commencement
of the merger/absorption era preceded the genocide prohibition, it continued into the period during which genocide became a crime
under international law.
- It is suggested that the paper conclusively determines that the physical elements of the crime of genocide have been established.
Namely, successive Australian governments forcibly transferred without consent some members of the Aboriginal group to the majority
European population.
- The most contentious element of the argument concerned government intentions. Intent is an essential element of the crime of genocide.
The physical acts specified under Article II, Genocide Convention must be carried out with a general intention to destroy the group.
- The paper argues that there was such an intention, at least a general intention to destroy the group in part. First, this is evidenced
by the distinction drawn between motives and intentions. While the government may have displayed benevolent motives, its intentions
lay elsewhere. Secondly, the government omitted to take action to prevent the group’s destruction where it was foreseeable, and
foreseen, that such omissions would lead to the group’s destruction. In the circumstances of the extreme racial discrimination exhibited
in government policies and practices, including its fiscal measures, these omissions circumstantially evidence an intention to physically
destroy the group. Finally, the paper has provided evidence, direct and indirect, to suggest that the government expressly intended
to physically destroy the group.
- Evidence was also provided to indicate cultural destructive intent. Again, in the context of extreme governmental racial discrimination,
this circumstantially evidences physical destruction. It is noted that further research is required to allow a conclusive finding
on this point. Nonetheless, it is suggested that there is, at least, sufficient evidence available to make out a prima facie case.
- I urge the government to consider more seriously its obligations under international human rights law. This paper has considered
only a limited area of human rights law as regards the Aborigines and primarily in the context of the so-called Stolen Generations.
As stated, Australia’s international reputation has come under fire from various UN human rights bodies and it is hoped that the
Commonwealth government will review its position in regards to those Aborigines who regard themselves as Stolen.
- I trust that the government will consider the further embarrassment it will face should an international human rights body decide
to investigate the commission of the crime of genocide in this country. The government must be aware that, having exhausted all
domestic judicial remedies, it is the inevitable outcome that Aboriginal litigants will pursue the discourse on the international
plane. If not motivated by moral, ethical and legal reasons, herein lies a further political reason why the Commonwealth government
should stop ignoring pleas for reparations.
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[1]
Robert Menzies, Leader of the Opposition, Post and Telegraph, House of Representatives, Second Reading of Genocide Convention Bill
1949 (Cth), 30 June 1949, 1864
[2]
Human Rights Equal Opportunity Commission, Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait
Islander Children from Their Families, April 1997, (“Bringing them home”)
[3]
See for instance, Buti, T, Masson, T, & Markovich, D, Submission to the Senate Legal and Constitutional References Committee
concerning the Stolen Generations Inquiry, August 2000 (unpublished), and Senate Legal and Constitutional References Committee, The
Report of the Inquiry into the Federal Government's Implementation of the Recommendations Made by the Human Rights and Equal Opportunity
Commission in Bringing Them Home, Healing: A Legacy of Generations, http://www.aph.gov.au/senate/committee/legcon_ctte/stolen/report/contents.htm
[4]
Bain Attwood, "The Stolen Generations and genocide: Robert Manne's In Denial: the Stolen Generations and the Right" (2001) 25 Aboriginal
History 163
[5]
Bringing them home, Chapter 13
[6]
Oppenheim states that the language adopted by Article 1, specifying that the convention “confirms” the illegality of genocide, indicates
that the crime of genocide existed under customary international law. This will be discussed below. Jennings, R & Watts, A,
(ed) Oppenheim’s International Law 9th ed (Harlow, Essex: Longman, 1992), 994
[7]
Genocide Convention, Article III
[8]
Genocide Convention, Article IV The term “responsible” is used in Article IV
[9]
Genocide Convention, Article I
[10]
26 November 1968 (UN GA Res 2391(XXIII)); Australia has not ratified this convention. It is suggested that statutory limitations
may be excluded under customary international law. As at 1995, 41 countries have ratified the treaty. In addition, there exists
a European equivalent treaty, European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and
War Crimes, 25 Jan 1974, ETS 82
[11]
Genocide is classified as a crime against humanity, (UN GA Res 96, 1946)
[12]
Australian Treaty Series No 2, 1951, cited in Flynn, M, “Genocide: It’s a Crime Everywhere But Not in Australia” (2000) 29 Western
Australian Law Review 59, 62
[13]
Genocide Convention, Article XIII
[14]
Case concerning Sovereignty over Certain Frontier Lands ICJ Rep (1959) 229 cited in Jennings, R & Watts, A, (ed) Oppenheim’s
International Law 9th ed (Harlow, Essex: Longman, 1992), 1239
[15]
Bari Institute of the International Centre for advanced Mediterranean Agronomic Studies v Jasbez (1977) ILR 77, 602
[16]
Jennings, R & Watts, A, (ed) Oppenheim’s International Law 9th ed (Harlow, Essex: Longman, 1992) note 6, 994
[17]
Robertson, G, Crimes Against Humanity The Struggle for Global Justice (Ringwood, Victoria: Penguin, 1999) 190
[18]
United States of America et al v Goering et al, International Military Tribunal, 30 September – 1 October 1946, 41 American Journal
of International Law, (1947) 172, 225, cited in Schabas, WA, “National Courts Finally Begin to Prosecute Genocide, the ‘Crime of
Crimes’”, Journal of International Criminal Justice 1 (2003) 39, 41
[19]
Jennings, R & Watts, A, (ed) Oppenheim’s International Law 9th ed (Harlow, Essex: Longman, 1992) 996
[20]
26F 3d 1116, 1 July 1994, 65
[21]
1961-2 ILR 36, 5, 34-5
[22]
Shaw, MN, International Law, 4th ed (Melbourne: Cambridge University Press, 1997), 210. See also Vivian, A and Calzada, M, Submission
to Australian Senate Inquiry into the Anti-Genocide Bill 1999, unpublished,
[22]
February 2000
[23]
Ratner, SR, & Abrams, JS, Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy (Oxford:
Clarendon, 1997), 30-1
[24]
Storey, M, “Kruger v The Commonwealth: Does Genocide Require Malice?” [1998] UNSWLawJl 17; (1998) 21(1) UNSW Law Journal 224, 228-9
[25]
See discussion below
[26]
Ratner, SR, & Abrams, JS, Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy (Oxford:
Clarendon, 1997), note 25, 29. See also: Genocide: Draft Convention and Report of the Economic and Social Council, Report of
the Sixth Committee, 3 Dec 1948, UN Doc A/760, note 10, 7; Robinson, N, The Genocide Convention: A Commentary (New York: Institute
of Jewish Affairs, World Jewish Congress, 1960), note 13, 64-5; Lippman, M, “The Drafting of the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide” (1985) 3 BU Int’l LJ 4, note 2, 44-5 and 58-9
[27]
Ratner, SR, & Abrams, JS, Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy (Oxford:
Clarendon, 1997), note 25, 29 citing: Akhavan, Memorandum on Crimes Against Humanity and Genocide, June 14 1994, 78
[28]
Storey, M, “Kruger v The Commonwealth: Does Genocide Require Malice?” [1998] UNSWLawJl 17; (1998) 21(1) UNSW Law Journal 224, 229
[29]
Laws of Australia HUMAN RIGHTS “International Law” para [14]
[30]
Arens, R, “A Lawyer’s Summation” in Arens, R, (ed) Genocide in Paraguay (Philadelphia: Temple University Press, 1986), 132, 137;
Beardsley, MC, “Reflections on Genocide and Ethnocide” in Arens, R, (ed) Genocide in Paraguay (Philadelphia: Temple University
Press, 1986), 85
[31]
Attorney General of the Government of Israel v Eichmann (1961) 36 ILR 5, 238
[32]
The Prosecutor v Musema, Alfred, The International Criminal Tribunal of Rwanda, 96-12-A, http://www.ictr.org/ENGLISH/cases/Musema/judgement/3.htm,
paragraph 156
[33]
Robinson, N, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, World Jewish Congress, 1960), note
13, 63-4
[34]
The Prosecutor v Musema, Alfred, The International Criminal Tribunal of Rwanda, 96-12-A, http://www.ictr.org/ENGLISH/cases/Musema/judgement/3.htm,
paragraph 157
[35]
Robinson, N, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, World Jewish Congress, 1960), note
13, 64 and The Prosecutor v Musema, Alfred, The International Criminal Tribunal of Rwanda, 96-12-A, http://www.ictr.org/ENGLISH/cases/Musema/judgement/3.htm,
paragraph 158
[36]
The Prosecutor v Musema, Alfred, The International Criminal Tribunal of Rwanda, 96-12-A, http://www.ictr.org/ENGLISH/cases/Musema/judgement/3.htm,
paragraph 158
[37]
The Prosecutor v Musema, Alfred, The International Criminal Tribunal of Rwanda, 96-12-A, http://www.ictr.org/ENGLISH/cases/Musema/judgement/3.htm,
paragraph 159
[38]
Laws of Australia TORT “Defences” para [11]
[39]
Laws of Australia TORT “Defences” para [15]
[40]
Laws of Australia TORT “Defences” para [16] and [17]
[41]
Robinson, F, & York, B, The Black Resistance (Camberwell, Vic: Widescope, 1977), 79; see also, Marcus, A, “Legislating White
Australia, 1900 - 1970” in Kirby, D, (ed) Sex Power and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University
Press, 1995) 237, 243 and 261
[42]
On 23 July 1922, the police rounded up a group of Aborigines at Durack River in Western Australia and killed them. It was acknowledged
by Report of the Royal Commission of Inquiry into Alleged Killing and Burning of Bodies of Aborigines in East Kimberley and Into
Police Methods when Effecting Arrests, that in 1926, police killed and burned the bodies of twenty Aborigines. Robinson, F, &
York, B, The Black Resistance (Camberwell, Vic: Widescope, 1977), 90; see also, Marcus, A, “Legislating White Australia, 1900 -
1970” in Kirby, D, (ed) Sex Power and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995)
237, 243; in 1828-31, Tasmanian Governor Arthur commandeered the Black War which ostensibly was intended to capture Aborigines,
only two were brought back alive, and resulted in the virtual decimation of the entire Tasmanian Aboriginal group, Haebich, A, Broken
Circles: Fragmenting Indigenous Families 1800 – 2000 (Fremantle: Fremantle Press, 2000), 73
[43]
See for instance: Reynolds, H, “Segregation, assimilation, self-determination” in Wilson, J, et al (eds) The Australian Welfare
State Key Documents and Themes (South Melbourne: Macmillan Education, 1996), 132; Read, P, A Hundred Years War (Rushcutters Bay,
NSW: ANU Press (Pergamon), 1988), 24; Paisley, F, “Feminist challenges to White Australia, 1900 – 1930s” in Kirby, D, (ed) Sex
Power and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) 252, 261; Haebich, A,
Broken Circles: Fragmenting Indigenous Families 1800 – 2000 (Fremantle: Fremantle Press, 2000), 71-2, and 82-4
[44]
Robinson, F, & York, B, The Black Resistance (Camberwell, Vic: Widescope, 1977), 84-5
[45]
New South Wales Aboriginal Welfare Board, Annual Report, 30 June 1948, cited in: Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843, paragraph 141
[46]
Laws of Australia HUMAN RIGHTS “International Law” para [14]
[47]
“United States of America Reservations and Understandings to the Genocide Convention” (1989) 28 ILM 782; Joyner, CC, “The United States and the Genocide Convention” (1987) 27 Ind JIL 411, 442-4; LeBlanc, LJ, “The Intent to Destroy
Groups in the Genocide Convention: the Proposed US Understanding” (1984) 78 AJIL 369
[48]
Laws of Australia HUMAN RIGHTS “International Law” para [14]
[49]
Kuper, L, The Prevention of Genocide (New Haven: Yale University Press, 1985), 12-3; Anderson, E, “The Saskatchewan Indians and
Canada’s New Constitution” (1982) 36 J Intl Affairs 125, 128
[50]
UN Human Rights Commission 1985 Genocide Study UN Doc E/CN.4/Sub.2/1985/6, 2 July 1985 prepared by Whitaker, B, 19
[51]
Id
[52]
Storey, M, “Kruger v The Commonwealth: Does Genocide Require Malice?” [1998] UNSWLawJl 17; (1998) 21(1) UNSW Law Journal 224, 226-8
[53]
Bernard, JRL, (ed) The Pocket Macquarie Dictionary (North Ryde: Jacaranda Press, 1991), 680
[54]
Bernard, JRL, (ed) The Pocket Macquarie Dictionary (North Ryde: Jacaranda Press, 1991), 541
[55]
Report of the Ad Hoc Committee on Genocide, UN ESCOR, 7th Session, Supp No 6, UN Doc E/794/Corr 1 (1948), 5
[56]
Ratner, SR, & Abrams, JS, Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy (Oxford:
Clarendon, 1997), 36; Hannum, H, “International Law and Cambodian Genocide: The Sounds of Silence, (1989) 11 Hum Rts Q 82 108-12; LeBlanc, LJ, “The United Nations Genocide Convention and Political Groups: Should the United States Propose an Amendment?”
(1988) 13 Yale J Int’l Law 268, 288-90; Starkman, P, “Genocide and International Law: Is There a Cause of Action?” (1984) 8 ASILS
Int’l LJ 1, note 14, 7
[57]
Lippman, M, “The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide” (1985) 3 Boston International
Law Journal 1, 22-4
[58]
Ratner, SR, & Abrams, JS, Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy (Oxford:
Clarendon, 1997), 36
[59]
In Thus Spake Zarathustra Nietzsche depicted the last folly of human kind in terms of its advancement as being the desire to help
the unfortunate. In incorporating elements of Nietzsche’s philosophy, the Nazi regime was acting with higher motives in believing
that the eradication of Jews, gypsies, Catholic priests, communists and homosexuals (all inferior beings) would advance the development
of human kind. To avoid any doubt, the author expressly rejects this view of the world. Nietzsche, FW, Thus Spoke Zarathustra (New
York: Penguin, 1969)
[60]
This is equally true in civil law and common law jurisdictions
[61]
Ratner, SR, & Abrams, JS, Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy (Oxford:
Clarendon, 1997), 34
[62]
Eichmann, 36 ILR, 228
[63]
The Prosecutor v Semanza, Laurent, The International Criminal Tribunal of Rwanda, 97-20-T, http://www.ictr.org/ENGLISH/cases/Semanza/judgement/5.htm,
paragraphs 313-4, see also The Prosecutor v Musema, Alfred, The International Criminal Tribunal of Rwanda, 96-12-A, http://www.ictr.org/ENGLISH/cases/Musema/judgement/3.htm,
paragraphs 166-7
[64]
Post and Telegraph, House of Representatives, Vol 4, 1901 4851
[65]
Post and Telegraph, House of Representatives, Vol 4, 1901 4805
[66]
In Marriage of B and R [1995] FamCA 104; 19 Fam LR 594, 603, their Honours cite with approval the words of Chisholm, R (now Justice Chisholm) Black Children: White Welfare? (1985), 72
[67]
Different authors describe these policy phases with varying nomenclatures though all are in agreement as to the intended effect
of the policies. See for instance: Armitage, A, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand
(Vancouver: UBC Press, 1995), 14; Bringing them home, 28-37
[68]
Brook, J and Kohen, JL, The Parramatta Native Institution and the Black Town: A History Modern History Series (Sydney: NSW University
Press, 1991), 15
[69]
Pattel-Gray, A, The Great White Flood Racism in Australia (Atlanta, Georgia: Scholars Press, 1998), 21-5
[70]
Bringing them home, 27 and 39
[71]
Bringing them home, 39
[72]
Reynolds, H, With the White People (Melbourne: Penguin Books, 1990), 103
[73]
Reynolds, H, Dispossession: Black Australia and White Invaders (Sydney: Allen & Unwin, 1989), 183
[74]
Stocking, GW, Victorian Anthropology (New York: Free, 1987), 241
[75]
Smith, JM, “Degeneration and Eugenics: Late-Victorian Discourses of the Ending of the Race” (1998) 4 Australasian Victorian Studies
Journal 55, 56
[76]
Armitage, A, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (Vancouver: UBC Press, 1995),
5
[77]
Pattel-Gray, A, The Great White Flood Racism in Australia (Atlanta, Georgia: Scholars Press, 1998), 26; Armitage, A, Comparing
the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (Vancouver: UBC Press, 1995), 18
[78]
Pattel-Gray, A, The Great White Flood Racism in Australia (Atlanta, Georgia: Scholars Press, 1998), 26
[79]
Robinson, F, & York, B, The Black Resistance (Camberwell, Vic: Widescope, 1977), 80
[80]
Schapper, HP, Aboriginal Advancement to Integration Conditions and Plans for Western Australia (Canberra: ANU Press, 1970), 21
[81]
Mulvaney, J, and Harcourt, R, Cricket Walkabout: The Australian Aboriginal Cricketers on Tour 1867-68 (revised ed) (London: Macmillan,
1988), 105
[82]
Bringing them home, 29
[83]
Massin, B, “From Virchow to Fischer: Physical Anthropology and ‘Modern Race Theories’ in Wilhelmine Germany.” Volksgeist as Method
and Ethic: Essays on Boasian Ethnography and the German Anthropological Tradition, in Stocking, GW, (ed) (Madison: U of Wisconsin
Press, 1996) 79, 96
[84]
Taplin, Rev. G, “The Narrinyeri: an Account of the Tribes of South Australian Aborigines inhabiting the country around the lakes
Alexandrina, Albert, and Coorong, and the lower part of the River Murray; their manners and customs. Also, an account of the mission
at Point Macleay.” 1873 Native Tribes xxxix-156, 121 cited in Smith, JM, “Degeneration and Eugenics: Late-Victorian Discourses of
the Ending of the Race” (1998) 4 Australasian Victorian Studies Journal 55, 58
[85]
Brock, P, “Aboriginal Families and the Law in the Era of Assimilation and Segregation, 1890s – 1950s” in Kirby, D, (ed) Sex Power
and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) 133, 133
[86]
Brock, P, “Aboriginal Families and the Law in the Era of Assimilation and Segregation, 1890s – 1950s” in Kirby, D, (ed) Sex Power
and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) 133, 133
[87]
Bringing them home, 30 and 108
[88]
Smith, JM, “Degeneration and Eugenics: Late-Victorian Discourses of the Ending of the Race” (1998) 4 Australasian Victorian Studies
Journal 55, 57
[89]
Bringing them home, 40
[90]
Bringing them home, 30
[91]
Bringing them home, 30
[92]
In Bringing them home, 28-9, this discussion is placed under the heading “Protection and segregation of Indigenous People in the
nineteenth century” though the legislation refers to the discussion on “‘Merging’ and ‘absorption’” which appears on page 29 and
following.
[93]
Bringing them home, 31
[94]
Hasluck, PMC, Shades of Darkness: Aboriginal Affairs 1925-65 (Melbourne: Melbourne University Press, 1988), 66
[95]
Hasluck, PMC, Shades of Darkness: Aboriginal Affairs 1925-65 (Melbourne: Melbourne University Press, 1988), 66
[96]
Hasluck, PMC, Shades of Darkness: Aboriginal Affairs 1925-65 (Melbourne: Melbourne University Press, 1988), 69
[97]
New South Wales Aboriginal Welfare Board, Annual Report, 30 June 1948, cited in: Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843, paragraph 141
[98]
Engel, FG, “Australia: Its Aborigines and Its Mission Boards” (July, 1970) 59,235 International Review of Mission 296, 297
[99]
Speech made by Mr A.O. Neville, Chief Protector of Aborigines in Western Australia at Parliament House, Canberra, April 1937. State
Archives of Western Australia Department of Native Affairs, ACC. 933 File 427/36. Conference of Commonwealth and State Protectors
of Aborigines)
[100]
McGregor, R, “Intelligent Parasitism: A.P. and the Rhetoric of Assimilation” (1996) 50-51 Journal of Australian Studies 118, 123
[101]
Elkin, AP, “Cultural and Racial Clash in Australia” (1932) September (21) Morpeth Review 38
[102]
McGregor, R, “Intelligent Parasitism: A.P. and the Rhetoric of Assimilation” (1996) 50-51 Journal of Australian Studies 118, 120
[103]
Elkin, AP, “Reaction and Interaction: A Food Gathering People and European Settlement in Australia” (1951) 53(2) American Anthropologist
164, 175
[104]
McGregor, R, “Intelligent Parasitism: A.P. and the Rhetoric of Assimilation” (1996) 50-51 Journal of Australian Studies 118, 124
[105]
Bringing them home, 35
[106]
Bringing them home, 35
[107]
Armitage, A, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (Vancouver: UBC Press, 1995),
30-1
[108]
Brock, P, “Aboriginal Families and the Law in the Era of Assimilation and Segregation, 1890s – 1950s” in Kirby, D, (ed) Sex Power
and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) 133, 144
[109]
UN working papers which provide a drafting history to conventions
[110]
Ratner, SR, & Abrams, JS, Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy (Oxford:
Clarendon, 1997), 31
[111]
Wilson, J, et al (eds) The Australian Welfare State Key Documents and Themes (South Melbourne: Macmillan Education, 1996), 156
[112]
Parry, S, “Identifying the Process: The Removal of ‘Half-Caste’ Children from Aboriginal Mothers” (1995) 19(2) Aboriginal History
141, 146
[113]
Up to that time, section 8 of the Native Welfare Act 1954 (WA) which made the government, in various guises, the guardian of “Aboriginal
children” of varying descriptions. That Act remained in force until repealed by the Native Welfare Act 1963 (WA)
[114]
Natives (Citizenship Rights) Act 1944 (WA)
[115]
Natives (Citizenship Rights) Act 1944 (WA), section 6, para 1
[116]
Natives (Citizenship Rights) Act 1944 (WA), section 6, para 2
[117]
Natives (Citizenship Rights) Act Amendment Act 1950 (WA), section 2(b)
[118]
Natives (Citizenship Rights) Act 1944 (WA), section 4(1)
[119]
Natives (Citizenship Rights) Act 1944 (WA), section 4(2)
[120]
Natives (Citizenship Rights) Act 1944 (WA), section 5(1)(a)
[121]
Natives (Citizenship Rights) Act 1944 (WA), section 6
[122]
Natives (Citizenship Rights) Act 1944 (WA), section 7(1)(a)
[123]
Natives (Citizenship Rights) Act Amendment Act 1951 (WA), section 8
[124]
Natives (Citizenship Rights) Act Amendment Act 1958 (WA), sections 3, 4 and 6
[125]
Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843, paragraph 88, 138, and 141
[126]
Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843, paragraph 629
[127]
Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843, paragraph 633
[128]
Parry, S, “Identifying the Process: The Removal of ‘Half-Caste’ Children from Aboriginal Mothers” (1995) 19(2) Aboriginal History
141, 146-7
[129]
Welfare Ordinance 1953 (Cth), clause 14, cited in Parry, S, “Identifying the Process: The Removal of ‘Half-Caste’ Children from
Aboriginal Mothers” (1995) 19(2) Aboriginal History 141, 146-7
[130]
Parry, S, “Identifying the Process: The Removal of ‘Half-Caste’ Children from Aboriginal Mothers” (1995) 19(2) Aboriginal History
141, 147 and 151
[131]
Northern Territory Administration, Welfare Branch, Annual Report, 1970-71, cited in Armitage, A, Comparing the Policy of Aboriginal
Assimilation: Australia, Canada, and New Zealand (Vancouver: UBC Press, 1995), 62
[132]
[1995] FamCA 104; 19 Fam LR 594, 602
[133]
Sommerlad, Dr. E, “Homes for Blacks: Aboriginal Community and Adoption” Report of the Workshop on Aboriginal Community and Adoption,
in Proceedings of the First Australian Conference on Adoption, 15-20 Feb 1976, Sydney, 160
[134]
Sommerlad, Dr. E, “Homes for Blacks: Aboriginal Community and Adoption” Report of the Workshop on Aboriginal Community and Adoption,
in Proceedings of the First Australian Conference on Adoption, 15-20 Feb 1976, Sydney, 161
[135]
Gale, F, “Foster Homes for Aboriginal Children” (1968) March Australian Journal of Social Work 8, 9
[136]
Armitage, A, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (Vancouver: UBC Press, 1995),
48, statistics compiled by Milne and Mongta, see footnote b to Table 3.2
[137]
Dodson, Commissioner PL, Regional Report of Inquiry into Underlying Issues in Western Australia of the Royal Commission into Aboriginal
Deaths in Custody, Vol 1, (Canberra: AGPS, 1991), 40
[138]
Armitage, A, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (Vancouver: UBC Press, 1995),
61
[139]
Parry, S, “Identifying the Process: The Removal of ‘Half-Caste’ Children from Aboriginal Mothers” (1995) 19(2) Aboriginal History
141, 147
[140]
Brock, P, “Aboriginal Families and the Law in the Era of Assimilation and Segregation, 1890s – 1950s” in Kirby, D, (ed) Sex Power
and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) 133, 135
[141]
Bernard, JRL, (ed) The Pocket Macquarie Dictionary (North Ryde: Jacaranda Press, 1991), 399
[142]
relying on Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597, Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 1160
[143]
MacKinnon, C, “Toward Feminist Jurisprudence” in Towards a Feminist Jurisprudence of the State (Cambridge: Harvard University Press,
1989)
[144]
Derrida discusses the force of law as a tool of establishing and maintaining the state, Derrida, J, “Force of Law: The “Mythical
Foundation of Authority” in Cornell, D, Rosenfeld, M & Gray Carlson, D, (eds) Deconstruction and the Possibility of Justice (New
York: Routledge, 1992), 3
[145]
See for instance: Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 15; Armitage, A, Comparing the
Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (Vancouver: UBC Press, 1995), 35
[146]
Pattel-Gray, A, The Great White Flood Racism in Australia (Atlanta, Georgia: Scholars Press, 1998), 19
[147]
Pattel-Gray, A, The Great White Flood Racism in Australia (Atlanta, Georgia: Scholars Press, 1998), 20
[148]
Aborigines Act 1905 (WA), section 8
[149]
Aborigines Act Amendment Act 1936 (WA), section 7
[150]
Aborigines Act Amendment Act 1911, section 3
[151]
Schapper, HP, 15-7
[152]
See for instance: Aborigines Act 1905 (WA), sections 12, para 2; 25; 37, para 2; 38, para 2; 39; 40; 41
[153]
Aborigines Act 1905 (WA), section 52
[154]
Aborigines Act 1905 (WA), section 53
[155]
Aborigines Act 1905 (WA), section 55
[156]
Western Australia Parliament 1935, “Report of the Royal Commission appointed to Investigate, Report, and Advise upon matters in
relation to the Condition and treatment of Aborigines”, (Moseley Report), Votes and Proceedings, Vol I, 5
[157]
Marcus, A, “Legislating White Australia, 1900 - 1970” in Kirby, D, (ed) Sex Power and Justice Historical Perspectives on Law in
Australia (Melbourne: Oxford University Press, 1995) 237, 244
[158]
Bringing them home, 109
[159]
Bringing them home, 109
[160]
Native Welfare Act 1954 (WA)
[161]
Repealed by Native Welfare Act 1963 (WA), section 3
[162]
Aborigines Act Amendment Act 1936 (WA), section 2(e)
[163]
Aborigines Act Amendment Act 1936 (WA), section 7
[164]
Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 207
[165]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98,1935-36, 2376
[166]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98,1935-36, 2377
[167]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 978
[168]
Ibid
[169]
Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 205-13
[170]
Brock, P, “Aboriginal Families and the Law in the Era of Assimilation and Segregation, 1890s – 1950s” in Kirby, D, (ed) Sex Power
and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) 133, 141-2
[171]
“To the President and Members of the Royal Commission at Broome”, NLA MSS 2004/12/234, cited in Paisley, F, “Feminist challenges
to White Australia, 1900 – 1930s” in Kirby, D, (ed) Sex Power and Justice Historical Perspectives on Law in Australia (Melbourne:
Oxford University Press, 1995) 252, 267
[172]
Haebich, A & Delroy, A, The Stolen Generations: separation of Aboriginal children from their families in Western Australia
(Perth: Western Australian Museum, 1999), 21
[173]
Brock, P, “Aboriginal Families and the Law in the Era of Assimilation and Segregation, 1890s – 1950s” in Kirby, D, (ed) Sex Power
and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) 133, 142. For other reports
of such forced removal and Aboriginal attempts to hide the colour of the children’s skin, see: Bringing them home, 108
[174]
Haebich, A & Delroy, A, The Stolen Generations: separation of Aboriginal children from their families in Western Australia
(Perth: Western Australian Museum, 1999), 37
[175]
Speech made by Mr A.O. Neville, Chief Protector of Aborigines in Western Australia at Parliament House, Canberra, April 1937. State
Archives of Western Australia Department of Native Affairs, ACC. 933 File 427/36. Conference of Commonwealth and State Protectors
of Aborigines), cited in Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 211
[176]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98,1935-36, 2382, Mr Coverley
[177]
Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 10
[178]
Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 149
[179]
Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 150
[180]
Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 133
[181]
Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 143-4
[182]
Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 132
[183]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2399, Hon Keenan
[184]
Speech made by Mr A.O. Neville, Chief Protector of Aborigines in Western Australia at Parliament House, Canberra, April 1937. State
Archives of Western Australia Department of Native Affairs, ACC. 933 File 427/36. Conference of Commonwealth and State Protectors
of Aborigines), cited in Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 210
[185]
Haebich and Delroy provide a sample of a coded telegram issuing removal orders dated 1935. Haebich, A & Delroy, A, The Stolen
Generations: separation of Aboriginal children from their families in Western Australia (Perth: Western Australian Museum, 1999),
22
[186]
Haebich, A & Delroy, A, The Stolen Generations: separation of Aboriginal children from their families in Western Australia
(Perth: Western Australian Museum, 1999), 21
[187]
Kruger v Commonwealth [1997] HCA 27; (1997) 146 ALR 126
[188]
In a letter dated 4 November 1950 to the Administrator of the Northern Territory (Australian Archives document No AA ACT:CRS F1
47/201) cited in Plaintiff’s Submissions to Kruger v Commonwealth [1997] HCA 27; (1997) 146 ALR 126, High Court of Australia Melbourne Office of the Registry, No M21 of 1995, para 12
[189]
Evans, T, “The Mechanics of Change” (1982) 12 Nelen Yubu 3, 11 cited in Armitage, A, Comparing the Policy of Aboriginal Assimilation:
Australia, Canada, and New Zealand (Vancouver: UBC Press, 1995), 59
[190]
Report of Patrol Officer Evans, dated 23 December 1949 (referred to in Australian Archives document No AA ACT:CRS F1 47/201) cited
in Plaintiff’s Submissions to Kruger v Commonwealth [1997] HCA 27; (1997) 146 ALR 126, High Court of Australia Melbourne Office of the Registry, No M21 of 1995, para 12
[191]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1
[192]
Cubillo v Commonwealth [2001] 89 FCA 1213
[193]
Cubillo v Commonwealth [2001] 89 FCA 1213, paragraph 100
[194]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 1162
[195]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 1086
[196]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 445
[197]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 452
[198]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 443
[199]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 424
[200]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 423; see also Full Court appeal
[201]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 423
[202]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 442
[203]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 503
[204]
Cubillo v Commonwealth [2001] 89 FCA 1213, paragraph 164
[205]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 1145
[206]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 1145
[207]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 1148
[208]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 1190
[209]
Schapper, HP, Aboriginal Advancement to Integration Conditions and Plans for Western Australia (Canberra: ANU Press, 1970), 25
[210]
Schapper, HP, Aboriginal Advancement to Integration Conditions and Plans for Western Australia (Canberra: ANU Press, 1970), 27
[211]
Bringing them home, 112
[212]
Haebich, A, Broken Circles: Fragmenting Indigenous Families 1800 – 2000 (Fremantle: Fremantle Press, 2000), 511
[213]
Native Welfare Act 1954 (WA)
[214]
Native Welfare Act 1963 (WA)
[215]
The law of evidence required persons without religious belief in afterlife punishment were considered incompetent to give evidence
on oath, R v Lewis (1877) Knox 8. An Act to allow the Aboriginal Natives of Western Australia to give information and evidence in Criminal cases, and to enable Magistrates
to award summary punishment, for certain offences 2nd July, 1840 4 Vic, No 8, Royal assent refused. Subsequently, an Act was carried
to allow Aborigines to give evidence without the sanction of an Oath, An Act to allow the Aboriginal Natives of Western Australia
to give information and evidence without sanction of an Oath 26th November 1841, 4 & 5 Vic No 22
[216]
An Act to prevent the enticing away the Girls of the Aboriginal Race from School, or from any Service in which they are employed
1st Aug 1844, 8 Vic No 6
[217]
The Aborigines Protection Act 1886 (WA) 50 Vic No 25, preamble
[218]
The Aborigines Protection Act 1886 (WA) 50 Vic No 25, section 6(1)
[219]
The Aborigines Protection Act 1886 (WA) 50 Vic No 25, section 6(2). Per section 40, such distributed items were only to be on loan
[220]
The Aborigines Protection Act 1886 (WA) 50 Vic No 25, section 6(3)
[221]
The Aborigines Protection Act 1886 (WA) 50 Vic No 25, section 6(4)
[222]
The Aborigines Protection Act 1886 (WA) 50 Vic No 25, section 6(6)
[223]
An Act to confer a Constitution on Western Australia, and to grant a Civil List to Her Majesty 21st October 1890, 52 Vic No 23, section 70
[224]
An Act to confer a Constitution on Western Australia, and to grant a Civil List to Her Majesty 21st October 1890, 52 Vic No 23, section 70
[225]
Aborigines Act 1905 (WA)
[226]
Schapper, HP, Aboriginal Advancement to Integration Conditions and Plans for Western Australia (Canberra: ANU Press, 1970), 21-3
[227]
Aborigines Act 1905 (WA)
[228]
Aborigines Act 1905 (WA), section 4
[229]
Aborigines Act 1905 (WA), section 8
[230]
Aborigines Act 1905 (WA), section 9
[231]
Aborigines Act 1905 (WA), section 6, cf: The Aborigines Protection Act 1886 (WA) 50 Vic No 25, section 6
[232]
Aborigines Act 1905 (WA), section 10
[233]
Aborigines Act 1905 (WA), sections 14 & 15
[234]
Aborigines Act 1905 (WA), section 36
[235]
Aborigines Act 1905 (WA), sections 17 – 32, 35
[236]
Aborigines Act 1905 (WA), section 33
[237]
Aborigines Act 1905 (WA), section 40
[238]
Aborigines Act 1905 (WA), part of the full title of Act
[239]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 28. 1905, 433, Mr Piesse
[240]
Aborigines Act 1905 (WA)
[241]
Aborigines Act Amendment Act 1936 (WA)
[242]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97,1935-36, 1206-7
[243]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97,1935-36, 1207
[244]
Aborigines Act Amendment Act 1936 (WA), section 2(e)
[245]
Aborigines Act Amendment Act 1936 (WA), section 7
[246]
Aborigines Act Amendment Act 1936 (WA), section 12
[247]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2392
[248]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2374-5
[249]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1207
[250]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2367
[251]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 714
[252]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 880. similar criticism was made by Hon J Nicholson,
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 886
[253]
Speech made by Mr A.O. Neville, Chief Protector of Aborigines in Western Australia at Parliament House, Canberra, April 1937. State
Archives of Western Australia Department of Native Affairs, ACC. 933 File 427/36. Conference of Commonwealth and State Protectors
of Aborigines), cited in Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 209
[254]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 981
[255]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 981
[256]
Native Welfare Act 1954 (WA)
[257]
Native Welfare Act 1954 (WA), section 3
[258]
Native Welfare Act 1954 (WA), section 8(b)
[259]
Native Welfare Act 1963 (WA), section 5
[260]
Schapper, HP, Aboriginal Advancement to Integration Conditions and Plans for Western Australia (Canberra: ANU Press, 1970), 27
- 8
[261]
Cf: Reilly, A, “Control in the Leviathan: Limitations on the Power of Parliament to Pass Genocidal Laws in Australia” (1999) 3(2) Flinders Journal of Law Reform 247, 253-4. it is argued in this paper that a finding of genocide may be made out where the physical element of the crime is accompanied
by a general intention to destroy the group
[262]
Gehardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 484 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ)
[263]
[1985] HCA 11; (1985) 159 CLR 70
[264]
Blackshield, T & Williams, G, Australian Constitutional Law and Theory Commentary and Materials (2nd ed) (Leichardt: Federation
Press, 1998), 174-6. Reilly notes that in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 152 ALR 540, the High Court left open the question of whether the Commonwealth Parliament’s law-making power was sufficient to enact legislation
having genocidal effect, Reilly, A, “Control in the Leviathan: Limitations on the Power of Parliament to Pass Genocidal Laws in
Australia” (1999) 3(2) Flinders Journal of Law Reform 247, 251
[265]
[1997] HCA 27; 146 ALR 126
[266]
Buti, T, “Bringing Them Home – Well Not Just Yet” (1999) 6 James Cook University Law Review 61, 76
[267]
Buti, T, “Removal of Indigenous Children from their Families: The National Inquiry and What Came Before – The Push for Reparation”
[1998] AUIndigLawRpr 7; (1998) 3(1) Australian Indigenous Law Reporter 1, 13
[268]
Id
[269]
See for instance, Buti, T, “Removal of Indigenous Children from their Families: The National Inquiry and What Came Before – The
Push for Reparation” [1998] AUIndigLawRpr 7; (1998) 3(1) Australian Indigenous Law Reporter 1, 12
[270]
The Capital Punishment Amendment Act 1871 34 Vic No 15
[271]
The Capital Punishment Amendment Act 1871, section 2, 34 Vic No 15
[272]
The Capital Punishment Amendment Act 1871 Amendment Act, 1875, sections 2 and 3, 39 Vic No 1
[273]
Criminal Code Amendment Act, 1952 (WA), section 2
[274]
Western Australia Parliament Parliamentary Debates (Hansard) Legislative Council, 1875-76, 30, Hon Hocking
[275]
In the author’s opinion, state execution is always cruel and unusual
[276]
Neville, AO, Australia’s Coloured Minority: Its Place in the Community (Sydney: Currawong Publishing, 1947), 80 cited in Haebich,
A & Delroy, A, The Stolen Generations: separation of Aboriginal children from their families in Western Australia (Perth: Western
Australian Museum, 1999), 39
[277]
Aborigines Act Amendment Act 1936 (WA), section 26
[278]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 826
[279]
Aborigines Act Amendment Act 1936 (WA), section 12, (section title)
[280]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2600
[281]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1074, Chief Secretary
[282]
Haebich, A & Delroy, A, The Stolen Generations: separation of Aboriginal children from their families in Western Australia
(Perth: Western Australian Museum, 1999), 22
[283]
Speech made by Mr A.O. Neville, Chief Protector of Aborigines in Western Australia at Parliament House, Canberra, April 1937. State
Archives of Western Australia Department of Native Affairs, ACC. 933 File 427/36. Conference of Commonwealth and State Protectors
of Aborigines), cited in Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 209
[284]
Haebich, A, Broken Circles: Fragmenting Indigenous Families 1800 – 2000 (Fremantle: Fremantle Press, 2000), 160
[285]
Speech made by Mr A.O. Neville, Chief Protector of Aborigines in Western Australia at Parliament House, Canberra, April 1937. State
Archives of Western Australia Department of Native Affairs, ACC. 933 File 427/36. Conference of Commonwealth and State Protectors
of Aborigines), cited in Aboriginal Legal Services of Western Australia, Telling Our Story July 1975, 210
[286]
Constitution Act, section 70, was repealed in 1905, Aborigines Act 1905 (WA), s66, First Schedule. Section 70 was replaced by section 5, Aborigines
Act 1905 (WA), requiring at least £10,000 to be provided to the Aborigines Department
[287]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2367, Hon C Latham
[288]
Aborigines Act Amendment Act 1936 (WA)
[289]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 713, Chief Secretary Kitson
[290]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2391, Seward
[291]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 712, Chief Secretary Kitson
[292]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2371, C Latham
[293]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2374, C Latham; 2392 and 2392, Seward
[294]
Haebich, A & Delroy, A, The Stolen Generations: separation of Aboriginal children from their families in Western Australia
(Perth: Western Australian Museum, 1999), 32
[295]
Id
[296]
Id
[297]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 880
[298]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1071
[299]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 832
[300]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 832
[301]
Paisley, F, “Feminist challenges to White Australia, 1900 – 1930s” in Kirby, D, (ed) Sex Power and Justice Historical Perspectives
on Law in Australia (Melbourne: Oxford University Press, 1995) 252, 266
[302]
Moseley Report, Transcripts of Evidence, Vol 51, 539-40, cited in Paisley, F, “Feminist challenges to White Australia, 1900 – 1930s”
in Kirby, D, (ed) Sex Power and Justice Historical Perspectives on Law in Australia (Melbourne: Oxford University Press, 1995) 252,
266
[303]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 973, see preceding page for context
[304]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 978 Hon EHH Hall; Western Australia Parliament Parliamentary
Debates (Hansard) Vol 97, 1935-36, 932, Hon A Thomson; Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36,
880 - 1, Hon JJ Holmes; Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 829, Hon EH Angelo
[305]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2392, Seward
[306]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2392, Mr Seward
[307]
Haebich, A, Broken Circles: Fragmenting Indigenous Families 1800 – 2000 (Fremantle: Fremantle Press, 2000), 68
[308]
Haebich, A, Broken Circles: Fragmenting Indigenous Families 1800 – 2000 (Fremantle: Fremantle Press, 2000), 72, demands reported
in the Colonial Times, date of publication unknown
[309]
Aborigines Act Amendment Act 1936 (WA)
[310]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 879, Hon WJ Mann
[311]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 822, Hon L. Craig
[312]
Haebich & Delroy suggest that this was intended to “limit any increase in [the] internal mixed race population”. Haebich, A
& Delroy, A, The Stolen Generations: separation of Aboriginal children from their families in Western Australia (Perth: Western
Australian Museum, 1999), 21
[313]
Hon J Nicholson said that the Parliament must put a “check or stamp out the tremendous menace confronting the State”, Western Australia
Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1068; Hon WJ Mann describes the increase in the “half-caste” population
as a menace, Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 878 and 879; Hon GB Wood referred to
the ever-increasing and great menace, Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 831, for further
detail on his comments see below
[314]
The Chief Secretary discusses penalties to be imposed on whites for engaging in sexual relations with Aborigines, Western Australia
Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1064 and 1065
[315]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 830
[316]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 830-1, Hon GB Wood
[317]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 831, Hon GB Wood
[318]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 823, Hon L Craig
[319]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1067
[320]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1068
[321]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1067
[322]
Haebich, A, Broken Circles: Fragmenting Indigenous Families 1800 – 2000 (Fremantle: Fremantle Press, 2000), 186-7
[323]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1106
[324]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 1108
[325]
Aborigines Act Amendment Act 1936 (WA), section 12 inserts new section in principal Act (subsequently referred to as the Native
Welfare Act 1905 – 1954 (WA), section 15A
[326]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2554
[327]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 98, 1935-36, 2608
[328]
Western Australia Parliament Parliamentary Debates (Hansard) Vol 97, 1935-36, 824, Hon J Baxter
[329]
Haebich, A & Delroy, A, The Stolen Generations: separation of Aboriginal children from their families in Western Australia
(Perth: Western Australian Museum, 1999), 21-2
[330]
id
[331]
See for instance: Aboriginal Legal Services of Western Australia, Telling Our Story July 1975; and Bringing them home
[332]
[1999] FCA 1192
[333]
Cited in Reilly, A, “Control in the Leviathan: Limitations on the Power of Parliament to Pass Genocidal Laws in Australia” (1999) 3(2) Flinders Journal of Law Reform 247, 253
[334]
Nulyarimma v Thompson [1999] FCA 1192, [78], cited in Reilly, A, “Control in the Leviathan: Limitations on the Power of Parliament to Pass Genocidal Laws in Australia”
(1999) 3(2) Flinders Journal of Law Reform 247, 253
[335]
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1
[336]
Cubillo v Commonwealth [2001] 89 FCA 1213
[337]
Cubillo v Commonwealth, unreported, D10/01 and D11/01, 3 May 2002
[338]
Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843
[339]
Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [2000]NSWCA 255
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