In 1950 Hersch Lauterpacht commented on the Charter’s human rights provisions.
Membersof the UnitedNations are under a legal obligation to act in accordance with these Purposes. It istheir legalduty torespect andobservefundamental humanrights andfreedoms. Theseprovisions are no mere embellishment of a historicdocument; they were not the result of an afterthought or an accidentof drafting. They were adopted, withdeliberation and after prolonged discussionsbeforeand during theSanFranciscoConference, as part of the philosophy of thenew international system and as a most compelling lessonof the experienceof the inadequacies and dangers of the old(pages 147-148).
The binding nature of the Charter’s human rights provisions has been repeatedly confirmed by the most eminent jurists. Even before 1950 they were recognised as binding by the most senior North American judges. Two joint judgments in the 1948 US Supreme Court case of Oyama v California relied on these provisions.
Moreover, thisnation has recently pledged itselfthrough the UnitedNations Charter to promote respectfor, andobservance of,human rights andfundamental freedoms for all without distinction asto race, sex, language or religion (JusticesMurphy and Rutledge).
… we haverecently pledgedourselves to co-operatewith theUnited Nations to ‘promote … universalrespect for, andobservanceof,human rights and fundamental freedoms for all without distinction as torace, sex, languageor religion’. How can thisnation be faithful to this internationalpledge if state laws whichbar land ownershipand occupancy by aliens on account of race arepermitted to be enforced?(Justices Black and Douglas).
In 1945 the High Court of Ontario relied upon the human rights provisions of the Charter as part of the public policy of Canada in refusing to enforce covenants based on racial origin (In re Drummond Wren page 781).
The prohibition of racial discrimination soon found further expression in the 1948 Universal Declaration of Human Rights, providing ‘an authoritative guide … to the interpretation of the provisions in the Charter’ (Brownlie 1990 page 571).
… the indirectlegal effect of theDeclarationis not to beunderestimated, and it is frequently regarded aspart of the ‘lawof theUnited Nations’ (Brownlie 1990page571).
Article 1 of the Universal Declaration provides in part that ‘All human beings are born free and equal in dignity and rights’. Indigenous Australians did not enjoy this right until at least the late 1960s and even later in Western Australia and Queensland (Markus 1988 page56).
Article 2 states that,
Everyone is entitled to all therights and freedomssetforth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or socialorigin, property, birth or otherstatus.
The Universal Declaration enumerateda catalogue of human rights to which everyone is entitled without any distinction based on race.Indigenous Australian families and children in most States and the Northern Territory were denied equal enjoyment of virtually all the rights recognised by the Universal Declaration, in particular, • the right to liberty and security of person (Article 3), • the equal protection of the law (Article 7), • the right to a fair and public hearing by an independent and impartial tribunal in the determination of their rightsand obligations (Article 10), • freedom from arbitrary interferencewith their privacy, family, home and correspondence (Article 12), and • the right to a free elementary education and the right of parents to choose the kind of education to be given to their children (Article 26).
From 1950 then the prohibition of systematic racial discrimination on the scale experienced by Indigenous Australians was recognised as a rule binding all members of the United Nations. The subsequent International Convention on the Elimination of All Forms of Racial Discrimination, finalised in 1965 and ratified by Australian in 1975, simply gave greater precision to what was already acknowledged as an injunction of international law.
The[Convention] is, to a large extent, declaratoryof the lawof the Charter,or, in otherwords, the basic principlesof the convention lay down the law whichbinds also states which arenot parties to the convention,but, as members oftheUnited Nations, are parties to the Charter (Schwelb 1972page 351).
In Australia the prohibitionof racial discrimination was disregarded for many more years. Legislation continued to provide a different and inferior regime for Indigenous children until 1954 in Western Australia, 1957 in Victoria, 1962 in South Australia, 1964 in the Northern Territory and 1965 in Queensland. Direct discrimination continued following the repeal of specific Indigenous legislation as welfare departments continued to implement the same policies.
This level of systematic racial discrimination amounts to a ‘gross violation of human rights’. While there is no international consensus on the full list of ‘gross violations’, most lists include systematic racial discrimination together with extermination and torture (Dimitrijevic 1992 page 217, International Law Commission 1991, Third Restatement of
the Foreign Relations Law of the United States section 702, van Boven 1993 para 13). The term ‘gross’ refers to the severity, scope or size of the violations as well as the type of human right being violated (van Boven 1993para8).
Indirect racial discrimination continues into the present both in child welfare and juvenile justice systems, as documented in Part 6.Indigenous children and their families continue to be judged from an Anglo-Australian perspective which demonstrates little respect for Indigenous values, culture and child-rearing practices. It provides little or no encouragement of or support for Indigenous parenting.Indigenous children continue to be transferred, permanently or temporarily,from their families and communities to the custody and control of non-Indigenous Australians.
Because laws singled out Indigenous children for removal by administrative means and on the ground of their race or colour, they were racially discriminatory. Whether they may have been partially motivated by a benign purpose is immaterial. In determining whether discrimination has occurred, the purpose or intention of the alleged discriminator is not decisive. In international legal usage the term ‘discrimination’ refers to distinctions which have the purpose or effect of impairing the enjoyment or exercise, on an equal footing, of human rights.
Senior government officials clearly knew they were in breach of Australia’s international legal obligations. For example, writing on 6 July 1949 to the Commonwealth Department of the Interior, A R Driver, Administrator of the Northern Territory, stated,
There are certain restrictionswhich must remain imposed on Aborigines even though they are at variancewith the complete ideals of theUniversal Declaration of Human Rights (Australian ArchivesNo AA ACT:CRS F1 1943/24).
The Canadian Royal Commission on Aboriginal Peoples reported in 1994 on Canada’s relocation of the Inuit peoples of the High Arctic in 1953-55. The relocation involved coercion, separation of the people into different groups by force, holding people in the High Arctic against their will and denial of family allowance and other universal benefits. The Royal Commission found that ‘the relocation was an ill-conceived solution that was inhumane and damaging in its design and effects. The conception, planning and supervision of the relocation did not accord with Canada’s then prevailing international commitments’ because the rights declared in the Universal Declaration ‘were recognized by the Government of Canada at the time of relocation’ (page 157). As a result the ‘relocatees’ had an entitlement to redress including compensation (page 164). The same analysis and conclusion apply to the forcible removal of Australian Indigenous children.
Genocide Genocide was first defined in a detailed way in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Australia ratified the Convention in 1949 and it came into force in 1951.
The Convention confirmed that genocide is a crime against humanity. This expressed a shared international outrage about genocide and empowered any country to prosecute an offender. A state cannot excuse itself by claiming that the practice was lawful under its own laws or that its people did not (or do not) share the outrage of the international community.
Genocide is defined as,
… anyof the following acts committed with intentto destroy,in whole orin part,a national, ethnical,racial or religious group, as such:
a.killing members of the group;
b.causing serious bodily or mental harm to members of thegroup;
c.deliberately inflicting on thegroup conditionsof life calculated to bring about its physical destructionin whole orin part;
d.imposing measures intended toprevent births within the group;
e.forcibly transferring childrenof thegroup to anothergroup(article II).
In determining whether the Australian practice of forcible transfer of Indigenous children to non-Indigenous institutions and families was ‘genocide’ four issues must be considered.
Forcible transfer of children can be genocide Genocide does not necessarily mean the immediate physical destruction of a group or nation. The Polish jurist Raphael Lemkin was the author of the term and the major proponent of the United Nations Convention. He defined ‘genocide’ as ‘a coordinated plan of different actions aimedat the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves’ (Lemkin 1944 page 147). The objectives of such a coordinated plan would be ‘the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups’
(Lemkin 1944 page79).
Lemkin defined genocide to include ‘deliberate separation of families for depopulation purposes subordinated to the criminal intent to destroy or to cripple permanently a human group’. Genocide, he said, typically comprises two phases: the destruction of the cultural and social life of the ‘oppressed group’ and the imposition of the national pattern of the ‘oppressor’ (1944 page 147).
Lemkin’s approach was adopted in the United Nations Convention of 1948. Genocide can be committed by means other than actual physical extermination. It is committed by the forcible transfer of children, provided the other elements of the crime are established. As the United Nations Secretary-General explained, the separation of
children from their parents results in ‘forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time’
(UN Document E/4471947).
The Venezuelan delegate to the GeneralAssembly summarised the views of the countries which supported the inclusion of the forcible transfer of children in the definition of genocide.
Theforced transferof children to a group where theywouldbegiven an educationdifferent from that of theirowngroup, and wouldhave newcustoms, a new religion andprobably a new language,wasin practice tantamount to thedestruction of theirgroup,whosefuture dependedon that generation of children.Such transfer mightbe made from a groupwith a low standardof civilization … to a highly civilized group … yet if the intent of the transfer were thedestruction of thegroup, a crime of genocide wouldundoubtedlyhavebeen committed(UNDocument A/AC6/SR83(1948) at 195).
It is clear that ‘mixed race’ or ‘half-caste’ children were recognised as ‘children of the group’. that is as Indigenous children and not in any sense as children of no group or as children shared by different groups.
Since colonisationof this continent it is quite reasonable to assume that a childbornourof mixed parentage have never been categorised, if one couldsay that, as ‘part-white’ or ‘part-European’. Thusonce it isknown that a childhas anAboriginalparent, he or she is seenby thewider community as an Aborigine and will be subjected to racistand other negative attitudes experienced byAborigines (ACCA report submitted by the separate representative andquoted by theFamily Court in B andR 1995 page597).
Especially during the nineteenth and early twentieth centuries relationships between European men and Aboriginal women were often abusive and exploitative. Many children were the products of rape. The European biological fathers denied their responsibility and the authorities regarded the children with embarrassment and shame. As the ‘mixed race’ population grew many more children did not have a European parent at all, but merely one or more European ancestors. Aboriginal society regards any child of Aboriginal descent as Aboriginal.
Aboriginal children were not removed because their ‘white blood’ made them ‘white children’ and part of the ‘white community’. They were removed because their Aboriginality was ‘a problem’ (Chisholm 1985 page 80). They were removed because, if they stayed with ‘their group’, they would acquire their ‘habits’, their culture and traditions.
Plans and attempts can be genocide The second issue concerns partial destruction as compared with total destruction of the group. Not all Indigenous children were removed. Yet it would be erroneous to interpret the Convention as prohibiting only the total and actual destruction of the group. The essence of the crime of genocide is the intention to destroy the group as such and not
the extent to which that intention has been achieved. Genocide is committed even when the destruction has not been carried out. A conspiracy to commit genocide and an attempt at genocide are both crimes which are committed whether or not any actual destruction occurred.
However, the extent of destruction can be relevant to the offender’s ‘intention’. The intention to destroy the group as such in whole or part must be proven. It is widely (see Lippmann 1994 pages 24-25, Robinson 1950 page 498) but not universally (see Dinstein 1975 page 55, Bryant 1975 page 691) agreed that an intention to destroy the group ‘in part’ can be genocidal if the aim is to destroy it ‘substantially’.
The Inquiry’s process of consultation and research has revealed that the predominant aim of Indigenous child removals was the absorption or assimilation of the children into the wider, non-Indigenous, community so that their unique cultural values and ethnic identities would disappear, giving way to models of Western culture. In other words, the objective was ‘the disintegration of the political and social institutions of culture, language, national feelings, religion, and the economical existence of’ Indigenous peoples (Lemkin 1944 page 79). Removal of children with this objective in mind is genocidal because it aims to destroy the ‘cultural unit’ which the Convention is concerned to preserve.
On this point the Inquiry’s finding is contrary to that of Commissioner Elliott Johnston in the final report of the Royal Commission into Aboriginal Deaths in Custody. Commissioner Johnston considered that the child removal policies were adopted ‘not for the purpose of exterminating a people, but for their preservation’ (National Report Volume 5 para 36.3.7).
As this issue is central to this Inquiry’s terms of reference, it has been the subject of much wider research than CommissionerJohnston undertook. This Inquiry concludes with certainty on the evidence that while child removal policies were often concerned to protect and ‘preserve’ individual children, a principal aim was to eliminate Indigenous cultures as distinct entities.
… we tried to removeAboriginal childrenbecause they were Aboriginal children and I think that’s a very important thing. It wasn’t justaquestionof looking at children and saying, ‘There’s a child inneedof care, there’s a deserted child,we must look after those individual cases’. The Australianexperience has been, ‘We dealtwiththem en masse because they were Aborigines (Professor Colin Tatz, Centrefor Comparative Genocide Studies, evidence260).
Mixed motives are no excuse This finding raises a third issue, namely, the question of mixed motives. Does the Genocide Convention apply where the destruction of a particular culture was believed to be in the best interests of the children belonging to that group or where the child removal policies were intended to serve multiple aims, for example, giving the children an education or job training as well as removing them from their culture? Where good intentions are acknowledged, do they negate the bad or transform the intention to destroy the group as such (ie for its own good) into a benign intention? Does the Convention
apply in cases where the destruction of a particular culture and its family institutions was believed to be in the best interests of the children or where the child removal policies were intended to serve multiple aims?
Through much of the period beginning around the middle of the nineteenth century and persisting until the repeal of overtly discriminatory legislation in the 1960s, 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. Other objectives included education of the children to make them ‘useful’ and ‘worthy’ citizens, their training for labour and domestic service, their protection from malnutrition, neglect or abuse, the reduction of government support for idle dependants and the protection of the community from ‘dangerous elements’.
A O Neville, Western Australia’s Chief Protector (1915-40), believed he could ‘do nothing’ for ‘full-bloods’, who were thought to be dying out. However, he could absorb the ‘half-castes’.
Thenative must behelped inspite of himself!Even if a measure of discipline is necessary it must be applied,but it can be applied in such a way as to appear to begentlepersuasion … the end in viewwill justify the means employed (quotedby Haebich1988on page156).
Neville’s successor eventually came to have reservations about this policy and practice.
… with caste Aborigines, the emphasis on their ‘whiteness’ insteadof acknowledgement of their Aboriginalheritage postulates in my opinionthat we havehelped todestroy in them a prideof originwhich should havebeenour Christian duty toprotect andpreserve(WA Commissioner for Native WelfareMiddleton,1952 Annual Report page5).
The debates at the time of the drafting of the Genocide Convention establish clearly that an act or policy is still genocide when it is motivated by a number of objectives. To constitute an act of genocide the planned extermination of a group need not be solely motivated by animosity or hatred (Lippmann 1994 pages22-23).
The continuation into the 1970s and 1980s of the practice of preferring non-Indigenous foster and adoptive families for Indigenous children was also arguably genocidal. The genocidal impact of these practices was reasonably foreseeable. Dr Sarah Pritchard persuasively argues that a general intent can be established from proof of reasonable foreseeability and that such a general intent, as contrasted with the specific intent when the objective was to absorb Indigenous people, is sufficient to establish the Convention’s intent element (1993; see also Kuper 1985 pages 12-13).
Genocide continued in Australia after prohibition How early can Australian policies and practices of removing Indigenous children be considered as breaching international law? The Convention, adopted in 1948 and ratified
by Australia in July 1949, came into force in 1951. Certainly any removals after that time with the intention of destroying Indigenous groups culturally would be in breach of international law. It is clear, however, that even earlier removals were in breach of international law.
On 11 December 1946 the United Nations General Assembly adopted a resolution declaring genocide already a crime under international law. This resolution is mentioned in the Preamble to the Genocide Convention, making it clear that when the Convention was adopted in 1948 the crime of genocide was well-established in international law. As Lippmann states (1994 pages 10-11) the resolution ‘clearly recognises that the prohibition on genocide is a component of customary international law which is binding on all states’.
The existence of genocide as a crime pre-dated the 1946 resolution. Although Lemkin’s 1933 call for genocide to be declared a crime was rejected by the international community, it is generally conceded that it had emerged as such before or during the Second World War (Hugo Princz v Federal Republic of Germany 1944, Lemkin 1944 page150).
The policy of forcible removal of children from Indigenous Australians to other groups for the purpose of raising them separately from and ignorant of their culture and people could properly be labelled ‘genocidal’ in breach of binding international law from at least 11 December 1946 (confirmed by Justice Brennan in Polyukovich 1991 page 587). The practice continued for almost another quarter of a century.
Conclusion Official policy and legislation for Indigenous families and children was contrary to accepted legal principle imported into Australia as British common law and, from late 1946, constituted a crime against humanity. It offended accepted standards of the time and was the subject of dissent and resistance. The implementation of the legislation was marked by breaches of fundamental obligations on the part of officials and others to the detriment of vulnerable and dependent children whose parents were powerless to know their whereabouts and protect them from exploitation and abuse.
In thehard copy versionof thisreport there is a reproductionof the followingitem:
Grouponan outing from Sister Kate ’s Children ’s Home, Perth,1949
Courtesy Mary Terszak.
I would not hesitate for one moment to separate any half-caste from its aboriginal mother, no matter how frantic her momentary grief might be at the time. They soon forget their offspring.
James Isdell, WA travelling protector, 1909.
The issues are growing up not knowing any familyhistory, growing up at school and being asked to bring photos of your family, and you can’t do it and the teacher says, ‘Why can’t you do it?’, and you’re forced to stand up and say that you don’t have any family and people turn around and look at you in disbelief, that you couldn’t have a family.
Confidential evidence 218, Victoria
The Government has to explain why it happened. What was the intention? I have to know why I wastaken. I haveto know why I wasgiven the life I wasgivenand why I’m scarred today. Why was myMum meant to suffer? Why was I made to suffer with no Aboriginalityand no identity,no culture? Whydid they think thatthe life they gave me was better than the one myMum wouldgive me?
And an apology is important because I’ve never been apologised to. My mother’s never beenapologised to, not once, and I would like to be apologised to.
Thirdly,I’ve been a victim and I’vesuffered and I’ll suffer until the day I die for what I’ve never had and what I cannever have.Ijusthavetoget on with my life but compensationwould help.It doesn’t take the pain away.It doesn’t take the suffering away. It doesn’t takethe memoriesaway. It doesn’t bring mymother back. But it has to be recognised.
And I shouldn’t forget counselling. I’ve hadto counselmyself all my life from avery youngage.And in the homes I never showed my tears … I’vebeentoldthat I need to talk about my childhood.Ineedto be counselled for me togetbackon with my life.