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Morgan, Wayne --- "Book Review - Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families" [1997] IndigLawB 95; (1997) 4(6) Indigenous Law Bulletin 25


Book Review -



Bringing them Home:

Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families

by the Human Rights and Equal Opportunity Commission

AGPS, Canberra, 1997

ISBN 0 642 26954 8

Reviewed by Wayne Morgan

At the end of May 1997, the Federal Government finally released the Human Rights and Equal Opportunity Commission report into the stolen generations. In the context of the debate over Wik and native title, in the midst of an increasingly ugly climate of racism, provoked in part by Pauline Hanson, and at the time of the Reconciliation Convention in Melbourne, the release of Bringing them Home ('the Report') was bound to spark new controversy. It would be a key test of the commitment of governments around Australia to the process of reconciliation. Unfortunately, it has so far proved to be a test which those governments have roundly failed.

When I read the Report, like so many others, I was appalled by the stories which are recounted: the experiences of loss and grief and pain; the ongoing effects of abduction and abuse. I was also angered by the depth of this injustice. I don't see how anyone can read the Report without understanding the crucial need for an adequate and just response. Again, unfortunately, such a response has not been forthcoming. The Report's recommendations have not been accepted, indeed, some have been rejected outright, despite the fact that the Government has still not officially responded. The Prime Minister has refused to apologise on behalf of the nation and the obligation to pay reparations has been denied.

But perhaps the most controversial aspect of Bringing them home has been the Inquiry's finding that the practices of 'removal' amounted to genocide. Much hostility has been directed towards this finding. Politicians, newspaper editorials and many non-Aboriginal Australians have rejected any such notion. Even many of those who admit the injustice and see a need for reparations are still unable to name the practices of removal as 'genocide'. My purpose here is to comment on this aspect of the Report. I summarise the Report's findings about genocide and assess them according to international human rights law. My conclusion remains that, whatever the reluctance of some Australians to see the situation for what it is, the Report's conclusions with respect to genocide are unassailable.

The stolen generations and genocide

After tracing the history and consequences of removal, the Report turns to analyse the legal bases upon which reparations should be made. It is in this context that the Report examines genocide. After describing the many breaches of common law principles (deprivation of liberty, abolition of parental rights, abuse of power in the removal process and breach of guardianship obligations), the Report turns to international human rights to examine racial discrimination and genocide.

The Report notes that by 1940, the previous practice of removing children for 'absorption' had become the official policy of 'assimilation', which continued into the 1970s and still influences some official practices (p 266). The Report also notes that Australia was a member of the United Nations when the General Assembly declared genocide to be a crime against humanity in 1946, and that Australia is also a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide ('the Genocide Convention'). The report boldly asserts that the 'Australian practice of Indigenous child removal involved ... genocide as defined by international law' (p 266).

The Report carefully analyses the Genocide Convention, drawing on the travaux preparatoires to the treaty, as well as the writings of the Polish jurist Lemkin who first coined the term 'genocide' and defined it to include the deliberate separation of families for depopulation purposes. Indeed, the Report notes that the forcible transfer of children is explicitly defined by the Convention to be 'genocide' (Article II). The Report accurately delineates the elements of the crime of genocide, and carefully assesses whether those elements have been satisfied. It focuses on the most controversial aspect of the crime: the issue of intent. Under the Convention, an act amounts to genocide only if it is 'committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such' (Article I1).

It is fortunate that the Report does focus on the issue of 'intent' as that has indeed become the central point of controversy. Much of the backlash against this finding has been based on a notion that, whatever we may now think, removal of Indigenous children was done in their best interests and there was no intent to destroy any group, even if this may have been the unfortunate effect. This commonly held view was reflected in the final report of the Royal Commission Into Aboriginal Deaths in Custody. It has also, unfortunately, recently been reinforced by the High Court's decision in Kruger, Bray v Commonwealth (see casenote from page 26 of this issue). In that case, the constitutional validity of the Northern Territory Ordinance under which indigenous children were removed was attacked on a number of grounds. One of those grounds was the existence of an implied constitutional immunity from any law authorising acts of genocide. The Court decided that, even if there was such an implied immunity, the Ordinance did not contravene it. The members of the Court were of the view that there was nothing in the Ordinance, even if the acts authorised by it otherwise fell within the definition of genocide, which authorised acts committed with intent to destroy in whole or in part any Aboriginal group. On the contrary, the powers conferred by the Ordinance were required to be exercised in the best interests of the Aborigines concerned or of the Aboriginal population generally. Removal did not, therefore, amount to genocide.

Yet these views ascribing a 'best interests' intent behind the removal of Indigenous children are far too simplistic. They do not accord with the reality of our history, nor do they accord with the interpretation which is given to the question of 'intent' under the international law of genocide. It is unfortunate that the High Court in Kruger did not follow the HREOC's lead in conducting the necessary research and engaging in. the rigorous analysis which is so evident when reading Bringing them home.

As the Report amply demonstrates, ascribing a 'best interests' intent does not accord with our history. There is plenty of evidence to show that 'a key objective of the forcible removal of Indigenous children was to remove them from the influence of their parents and communities, to acculturate them and to socialise them into Anglo-Australian values and aspirations' (p 273). The Report cites contemporary statements to show that the policy of removal was linked to the destruction of Aboriginal culture and indigenous people as a group. This is not to say that 'welfare' was not also a motive, as the Report recognises (pp 273-4). In fact, the destruction of the culture was seen by some as being in the best interests of the children (p 273).

This evidence of 'mixed motives' behind the policy of removal brings us to the question of how 'intent' is interpreted under the Genocide Convention. Although the question is not free from doubt, a review of the major published works on genocide confirm the conclusion of the Report, that a policy motivated out of a desire to destroy a culture, even coupled with a misguided belief that this was in the best interests of the people concerned, would satisfy the requirement of intent to commit genocide. For example, Lippmann concludes (based upon a review of the debates at the time of drafting the Genocide Convention) that an act or policy is still genocide even if the policy is motivated by a number of objectives (see 'The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-Five Years Later' by M Lippmann in Vol. 8, Temple International and Comparative Law Quarterly, 1994, page 1). The intent to commit genocide can be established even if the motivation is not simply animosity or hate. Thus, the presence of 'mixed motives' does not prevent an act from being genocide.

Conclusion

It is perhaps not surprising that so many non-Indigenous Australians have trouble seeing the practices of removal as 'genocide'. The idea of genocide, at least in the popular imagination, remains fixed on gas chambers and mass executions. But the drafters of the Genocide Convention understood that the destruction of a culture and a people need not be so crude. There are more insidious forms of genocide, like forced removals. Practice and interpretation of the Genocide Convention since its drafting confirm this. Whether Anglo-Australians like it or not, Bringing them Home correctly names the practice of forced removal for what it is: a practice of genocide.

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