The so-called 'stolen generations' - Indigenous Australians who were deliberately removed as children from their families and communities by the church, government and law - White Austrailia's policy to deal with the 'aboriginal problem'.

BRINGING THEM HOME: THE CALL FOR REPARATIONS

The Bringing Them Home Report concluded that the policy of removing Indigenous children from their families and communities was racially discriminatory and constituted an act of genocide or a crime against humanity.  It recommended that reparations be made according to the van Boven principles, which according to the Commission on Human Rights of the United Nations, should guide measures of reparation for victims of gross violations of human rights.   The reparations suggested include the following components: acknowledgment and apology, guarantees of non-repetition; restitution, rehabilitation and monetary compensation.   It was also recommended that a Reparations Tribunal be established and that the Convention the Prevention and Punishment of the Crime of Genocide be given domestic legal effect.  The recommendations for reparations, made by an independent, albeit government supported institution, have been consistently rejected by the Commonwealth Government which denies that the practices amounted to genocide or a violation of human rights, denies that the policies were racially discriminatory and assert that  the practice of child removal was an appropriate response given the “standards” of the times.  To date the approach of the Commonwealth Government has been to rely on litigation to determine entitlements to reparations for people affected by forcible removal,  spending  $10 million on court cases to avoid any legal decision that might indicate liability. 

INDIGENOUS CHILD REMOVAL POLICIES AND PRACTICES: BENIGN OR GENOCIDAL INTENT?

The Bringing Them Home Report found that the forcible removal of Indigenous children constituted genocide for the purposes of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, ratified by Australia in 1949.  The definition of 'genocide' includes 'forcibly transferring children of the group to another group' committed 'with intent to destroy, in whole or in part, a national ethnical, racial or religious group, as such'.   The Inquiry's examination of historical documents found that the clear intent of removal policies was to absorb, merge or assimilate Indigenous children so that Aboriginal people as a distinct racial group would disappear.  The laws and policies promoting the removal of Indigenous children continued long after Australia had voluntarily ratified the Convention.

There is extensive historical evidence in support of the argument that Government child removal policies in both the protection and assimilation eras were race-specific and aimed at eradicating Indigenous people from Australia.  The first policies of protection and segregation were based on the belief that aborigines were an inferior and dying race who needed to be segregated from White Australia to ensure that they would not interfere with the land claims or lives of the colonists. Essentially viewed as 'sub-human' and a nuisance, Indigenous people were subject to processes of mass relocation onto reserves and stations. Indigenous children were  removed from their families to provide domestic and farm labour for white people or they were taken to institutions with the view that the least the non-Indigenous population could do was to ease their passing, a process that has been referred to as "gentle genocide through a program of enforced eugenics".

In the 1930s 'assimilation' became the official government policy based on an explicit intention to eliminate Indigenous peoples.

The destiny of the natives of aboriginal origin, but not of the full blood, [lay] in their ultimate absorption by the people of the Commonwealth. 

The policy was introduced to respond to the 'half-caste problem' to submerge the growing number of Indigenous people of mixed-decent into non-indigenous society such that  'white Australia' could "eventually forget that there ever were any Aborigines in Australia".  This policy legitimised the removal of children under child welfare laws, based on the government's 'humanitarian' concern to remove any child from a home where they would be subject to neglect.   Arguably the recourse to child welfare laws provided an additional measure for removal that was not based on race alone in order to justify the removal of Indigenous children with lighter skin.  The Bringing Them Home Report found that the rate of forced removal of indigenous children of mixed-blood compared to non-indigenous children took place in a disproportionate manner despite fact they did not discriminate on the grounds of race. 

The Commonwealth Government and critics have shunned the allegation that the child removal policies amounted to genocide.  Their response has been to emphasise the so-called 'benign' intent of the removal laws, insisting that assimilation policies were prompted by a sense of responsibility for Indigenous children and their welfare.  It is argued that assimilation entailed provision of opportunity, without force or coercion for the integration of indigenous people into the nation.  Children were removed either with parental consent  to provide education and health care or because they were neglected.  It is argued that many children were mistreated in Indigenous communities because they were illegitimate or because they were of mixed race. The Government has capitalised on Court decisions as supporting its view that past removal practices were not genocidal and that the Commonwealth is therefore absolved of any responsibility to provide reparation.

The Commonwealth Government has relied on the decisions in the Kruger v Commonwealth that the relevant Northern Territory ordinance under which the Indigenous plaintiffs were removed as children did not authorise genocide as authority that the Commonwealth was not guilty of genocide.  More recently it has relied on the Federal Court ruling in Cubillo and Gunner  v Commonwealth against awarding compensation to two members of the so-called 'stolen generations'. In Cubillo O'Loughlin J found against the plaintiffs' claims that their removal was  pursuant to a 'blanket' policy of removing all 'half-castes' for the unlawful purposes of: destruction of family and cultural associations, assimilation into white society, provision of domestic and manual labour for Europeans and a desire to 'breed out "half-castes" and protect the primacy of the Anglo-Saxon community children'.  The decision directly contradicts the findings in the Bringing Them Home Report and supports the argument that the policy of removal pursuant to child welfare laws was benign in intent.

CRITICAL ASSESSMENT:

The Bringing Them Home Report's finding of genocide is problematic because of its failure to adequately distinguish between the variety of circumstances under which Indigenous children were removed implying that all Indigenous children were removed with the genocidal intent to destroy Indigenous races and culture.   The methodology of the report has been criticised for failing to make a factual representation of the removal policies in order to make the worst possible case against Australia.   The report is notably one-sided, however, this in no way validates the Commonwealth Government assertion that there is no support for the claim that the policies and practices were genocidal.  Even if many removals that took place as part of the Commonwealth Government's assimilation policy were based on a misguided benevolence by officials who thought they were acting for right reasons, the racist assumptions that underlay the policy remain.  The principle aim of removing Indigenous children was to eliminate Indigenous cultures whether or not it was believed that doing so was for their own good.  This was proven on the evidence presented in the Bringing Them Home Report.

The decisions in Kruger and Cubillo do not absolve the Government from the obligation to provide reparation to the so-called 'stolen generations'.   In Kruger, the High Court did not decide whether the practice of forcible removal amounted to genocide, only that the particular Northern Territory ordinance did not authorise genocide.   The general issue of genocide was not resolved in that case.  The finding in Cubillo that there was no 'blanket' policy of removal of all 'part-Aboriginal' children and that there was no evidence of attempts to 'breed out colour' is based on flawed reasoning.  Firstly, the Bringing Them Home Report was not tabled as evidence of the overarching Commonwealth policy to submerge or get rid of Indigenous culture, despite the fact that Cubillo was a test case in response to the report's findings.   Secondly, O'Loughlin J failed to look at the bigger picture of systematic racial discrimination against Indigenous people in all areas of their life and focused primarily on the Northern Territory Ordinance under which the plaintiffs were removed.  During the time period in question there were numerous oppressive policies and laws to control the lives of Indigenous people. Many laws were aimed at preventing interracial interaction - mixed marriages and interracial sexual activity were banned in various jurisdictions. Other laws deprived Indigenous people from fair pay, prevented them from entering certain areas without a permit, prevented them from travel, denied them access to certain schools and banned them from alcohol.  The full extent of measures to control Indigenous lives persisted until well after assimilation became national policy, undermining the finding that there was a 'perceptible change in attitude after the war'.  Arguably, prior to World War II and the holocaust, it was acceptable for Australia to  parade its belief in the superiority of the white race, which it clearly did in the protection era.  Even O'Loughlin J found that in the pre-war period Commonwealth policy was influenced by eugenicist thinking.  However, in the post-war era it was necessary to cloak the racially discriminatory policies in the semblance of  humanitarian concern to avoid international criticism.

O'Loughlin J found in Cubillo that 'those in authority would stand condemned on today's standards' for failing to recognise the 'racist assumptions' underlying the Commonwealth policy of assimilation and conceptions of child welfare.  This appears to contradict his finding that there was no 'blanket' and eugenicist Commonwealth removal policy in the post-war era.  Rather, it only supports the argument that those officials directly responsible for child removal thought they were doing so for benevolent purposes.  Implicit in O'Loughlin J's reasoning is that the mainstream thinking of those people and their actions in another era can not be judged in contemporary terms.  However, it is likely that in cases where there is clear evidence that children were forcibly removed for reasons that clearly were not in their best interest, compensation will be awarded.

CONCLUSION: THE FUTURE OF REPARATIONS FOR THE SO-CALLED 'STOLEN GENERATIONS'

Australia's Indigenous population has been persecuted and discriminated against  since the very first days of the European occupation of Australia in 1788. From the first physical killings committed by settlers and rogue police officers in the nineteenth century to the twentieth century practice of the forcible transferring of children from one group to another with the intention first that they be protected until they died out and later that the 'half-caste' population would biologically disappear, acts of genocide have been perpetrated against Indigenous Australians.  Reparations are essential for the so-called 'Stolen Generations' as the victims of genocide.

The Cubillo decision is currently on appeal in the High Court and it is open for the judges to re-conceptualise Indigenous child removal in terms of 'genocide' in line with the findings in the Bringing Them Home Report.  However, even if the High Court finds that O'Loughlin J erred in finding that the Commonwealth's assimilation policy was not 'blanket' and eugenicist and finds that the requisite genocidal intent is proven, the fact remains that the policy of assimilation is not justiciable unless it can be shown that Indigenous child removals were pursued beyond the power assigned to the relevant administrators. Furthermore, given that the Genocide Convention has not been implemented into domestic law, it is unlikely that the High Court will award reparations for its breach.  

Nevertheless, a finding by the High Court that the Commonwealth's assimilation policy was racially discriminatory and amounted to genocide would have significant implications for the reparations debate.  The Commonwealth Governments' arguments against reparations would be undermined placing pressure and even a mandate on it to provide reparations in line with the Bringing Them Home Report recommendations.  It would be potential political suicide for the Government to argue against the creation of a compensation tribunal to compensate the victims of child removal, to argue against a formal Commonwealth apology and to argue against the implementation of the Genocide Convention as a guarantee of non-repetition.   The so-called 'stolen generations' are entitled to reparations as a matter of fact and as part of the moral obligation on the Government.

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