Cultural Genocide In Australia

CULtURAL GENOCIDE RECONSIDERED

Robert van Krieken*

I

Introduction

One aspect of the Bringing them Home Report1 that has caused considerable controversy was its appeal to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide2 (‘UNGC’) to characterise the removal of Aboriginal children as state-sponsored genocide.3 This utilisation of the UNGC having been debated in the wake of the Bringing Them Home Report, there is now general agreement that it was deeply problematic. Before the Bringing Them Home Inquiry had been undertaken, Hal Wootten, as Commissioner for the Royal Commission into Aboriginal Deaths in Custody, was one of the first to identify the perception among Aboriginal people of the removal
Lorna Cubillo and Peter Gunner v the Commonwealth’ (2001) 23 Sydney Law Review 239. This paper draws on a longer version published as ‘Cultural Genocide in Australia’ in Dan Stone (ed), The Historiography of Genocide (2008) 128. 1 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (‘Bringing Them Home Inquiry’), Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Human Rights and Equal Opportunity Commission (1997) (‘Bringing Them Home Report’). 2 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 1021 UNTS 78 (entered into force 12 January 1951). 3 4 Bringing Them Home Inquiry, above n 1, 270–5. Commonwealth of Australia, Royal Commission on Aboriginal Deaths in Custody, Report of the Inquiry into the Death of Malcolm Charles Smith (1989) 5. 5 6 7 Hal Wootten, ‘Ron Brunton and Bringing Them Home’ (1998) 4 (12) Indigenous Law Bulletin 4, 6. The Bulletin (Sydney), 12 June 2001, 27. Chris Tennant, ‘Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993’ (1994)
In every State the relevant body charged with responsibility for the Aboriginal population (Protector, Aborigines Protection Board, Director of Native Affairs, etc) was in any case empowered through child welfare legislation to remove, without parental consent, children found to be ‘neglected’ by a magistrate, and ‘neglect’ was often very broadly interpreted. More specifically in relation to Aboriginal children, in New South Wales, the Aborigines Protection Act 1909 (NSW) was amended in 1915 to give the Aborigines Protection Board the power to make this decision without having to go before a magistrate: Peter Read, The Stolen Generations: The Removal of Aboriginal Children in NSW, 1883 to 1969 (1983). In the Northern Territory, the Aboriginals Act 1918 (NT) gave the Chief Protector the power to assume the ‘care, custody, or control’ of any Aboriginal or ‘halfcaste’ person if he considered it in their interests. The Western Australian Aborigines Act 1905 (WA) granted similar powers to the Chief Protector, and simply transferred guardianship of all mixed-descent children to the Protectors. In Queensland, the Director of Native Affairs became the guardian of all Indigenous children under 21 in 1939: Bringing Them Home Inquiry, above n 1, 72. (1997) 190 CLR 1. Ibid 105 (Gaudron J). Ibid 70 (Dawson J), 88 (Toohey J), 159 (Gummow J). UN GAOR, 6th Comm, 3rd sess, 83rd mtg, 201 UN Doc