Author:	David Markovich BCom(Econ), LLB (Hons)
Subjects:	Aborigines - The Stolen Generation (Other articles) Genocide (Other articles) International humanitarian law (Other articles)
Issue:	Volume 10, Number 3 (September 2003)
Category:	Refereed Articles

Contents:

• Introduction
• Genocide Under International Law
• Genocide Defined
• Commencement of the Genocide Prohibition
• Terms Defined
• Physical not Cultural Destruction
• Prohibited Acts
• Forcible Transfer
• General Intention to Destroy
• Intentions not Motives
• Circumstantial Evidence of Destructive Intent
• The Removalist Policies
• Isolation and Separation
• Segregation
• Absorption and Merger
• Assimilation and Integration
• Genocide in Australia
• Elements of the Crime of Genocide
• Protected Group
• Forcible Transfer of Aboriginal Children to the Non-Indigenous Group
• Intention to Destroy a Part of the Aboriginal Group
• Conclusion
• Bibliography
• Notes

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]

Introduction

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]

2. 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]

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

   Genocide Under International Law

8. 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 Defined

9. 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.

10. 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]

11. 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]

    Commencement of the Genocide Prohibition

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).

13. 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.

14. 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.

15. 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]

16. 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]

17. 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.

18. 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.

19. 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]

20. Accordingly it is concluded that, by the late 1930s, it was contrary to international law to commit acts of genocide in Australia.

    Terms Defined

21. The following section will address a number of issues concerning application of the law of genocide.

    Physical not Cultural Destruction

22. 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]

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.

24. 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]

25. 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.

26. 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.

    Prohibited Acts

27. 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.

28. 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]

29. 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]

30. 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]

31. 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]

    Forcible Transfer

32. 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.

33. 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]

34. 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.

35. 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]

36. 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.

37. In justifying its assimilation policies in 1948, it is clear that the New South Wales Aboriginal Welfare Board was cognizant of such factors:

38. 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]

    General Intention to Destroy

39. 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]

40. 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.

41. 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.

42. 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.

43. 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]

    Intentions not Motives

44. 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]

45. 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]

46. 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]

47. 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.

48. 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.

    Circumstantial Evidence of Destructive Intent

49. 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]

50. 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.

51. 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]

52. 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.

    The Removalist Policies

53. 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.

54. 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:

55. 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]

56. 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]

57. 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]

    Isolation and Separation

58. 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.

59. 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.

    Segregation

60. 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.

61. 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]

62. 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.

63. 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]

64. 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]

65. 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)

66. 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]

67. 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.

    Absorption and Merger

68. 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.

69. 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]

70. 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]

71. 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.

72. 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]

73. 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.

74. 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.

75. 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]

76. 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.

    Assimilation and Integration

77. 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]

78. 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.

79. 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]

80. 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]

81. 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]

82. 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.

83. 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]

84. 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]

85. 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.

86. 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]

87. 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.

88. 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.

    Genocide in Australia

89. 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.

90. 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.

    Elements of the Crime of Genocide

91. 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.

    Protected Group

92. 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.

93. 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.

94. 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]

95. 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]

96. 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]

97. 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.

98. 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.

99. 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]

100. 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]

101. 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]

102. 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.

103. 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.

     Forcible Transfer of Aboriginal Children to the Non-Indigenous Group

104. 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

105. 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.

106. A brief survey of the statistics confirms that these transfers continued after the commencement of the genocide prohibition.

107. 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]

108. 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]

109. 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

110. 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]

111. 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]

112. 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?

113. 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.

114. 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]

115. 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.

116. 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]

117. 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]

118. 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.

119. 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.

120. 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]

121. 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]

122. 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]

123. 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]

124. 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]

125. 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.

126. 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]

127. 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.

128. 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.

129. 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]

130. 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.

131. 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]

132. 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]

133. 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]

134. 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]

135. 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]

136. 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]

137. 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]

138. 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]

139. 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.

140. 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]

141. 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.

142. 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.

143. 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.

144. 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.

     Intention to Destroy a Part of the Aboriginal Group

145. 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.

146. 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.

147. 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.

148. 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]

149. This paper will consider in great detail the policies underlying the 1905 Western Australian statutes as amended in 1936.

150. 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

151. 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.

152. 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.

153. 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.

154. 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.

155. 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.

156. 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

157. 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.

158. 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.

159. 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.

160. 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.

161. 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”.

162. 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.

163. 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

164. 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.

165. 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.

166. 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]

167. 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]

168. 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]

169. 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]

170. 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]

171. 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 he