IN 1997, the Human Rights and Equal Opportunity Commission made the most notorious accusation ever directed by a government body against Australia. It accused this country of committing genocide against the Aborigines by stealing their children. According to the commission’s report, Bringing Them Home, state officials ripped from the arms of loving parents several generations of Aboriginal children in order to raise them in institutions or with white families. From about 1910 until at least 1970, the intention of governments and Aboriginal welfare officials was to assimilate them into white society and, by controlling who they associated with and married, to eventually ‘breed out the colour’ and thus rid Australia of its Aboriginal people. It was allegedly a racist policy derived from the theory of eugenics that flourished in Nazi Germany. The report’s two principal authors, Ronald Wilson and Mick Dodson, the commission’s chairman and social justice commissioner, declared:
Nationally we can conclude with confidence that between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970. In certain regions and in certain periods the figure was undoubtedly much greater than one in ten. In that time not one Indigenous family has escaped the effects of forcible removal.
As could be expected, the report was a media sensation. Its higher estimate that one in three Aboriginal children had been forcibly removed gained most public exposure. Dodson himself assured the news media that this amounted to 100,000 stolen children. If the same ratio of removal — one in three — had been applied to the white Australia population, Dodson argued, the argued, the total number of children taken would have been six million — a patent allusion to the number of jews killed the Nazis.
On the critical question of why Aboriginal children were removed in such numbers, the authors of Bringing Them Home endorsed the explanation given by the historian Peter Read in his 1981 pamphlet The Stolen Generations that the principal reason children were removed was to separate them permanently from the rest of their race. They quoted Read verbatim:
No court hearings were necessary; the manager of an Aboriginal station, or a policeman on a reserve or in a town, might simply order them removed. The racial intention was obvious enough for all prepared to see, and some managers cut a long story short when they came to that part of the committal notice ‘Reason for Board taking control of the child’. They simply wrote ‘for being Aboriginal’.
Bringing Them Home claimed some aspects of this policy continued even into the 1970s and 1980s, that is, it was operative under the Whitlam, Fraser and Hawke governments, all of which appointed ministers apparently sympathetic to the Aboriginal cause but which nonetheless administered a policy that amounted to genocide. The report’s authors were at pains to point out that genocide had been a crime under international law at least since 1948 when the UN General Assembly declared it so, and that the various ministers responsible should have realized this.
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 … 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.
Let us be clear about the principal charge being made here: children were forcibly removed from indigenous Australians to other groups for the immediate purpose of raising them separately from and ignorant of their culture and people, and for the ultimate purposes of suppressing any distinct Aboriginal culture and ending the existence of the Aborigines as a distinct people. Or as Peter Read later encapsulated the accusation: ‘welfare officers, removing children solely because they were Aboriginal, intended and arranged that they should lose their Aboriginality, and that they never return home.’
Immediately it was published, Bringing Them Home was greeted with acclaim by the majority of the news media and by Australia’s political and intellectual classes. Apart from the Howard government and a handful of conservative newspaper columnists and radio talkback commentators, who were conspicuous by their dissent, most took the report to heart. In Canberra, the Leader of the Opposition, Labor’s Kim Beazley, told the federal parliament that he read the report and wept. One of Australia’s most feted academic philosophers, Raimond Gaita, strongly endorsed the report’s findings. There can be little doubt, Gaita said, that genocide was the motive of at least many of the government officials who devised and administered the programs. ‘That is because they believed pure-blood Aborigines were destined for extinction and, at least until the 1950s, they took half-caste children to ensure that the race disappeared.’ These officials, Gaita claimed, knew full well what they were doing.
Sometimes they justified their programs by biological theories, sometimes by other theories, but a genocidal intention — which included other intentions — remained constant. In fact the verdict of genocide is over-determined. The report lists five acts that count as genocidal when they are ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’, and it appears that the state officials guilty of genocide often committed three of them. Only if the authors of Bringing Them Home or their informants were lying on a grand scale could one doubt the report’s conclusion.’
Genocide is clearly the most terrible crime it is possible to commit. Strangely, though, Bringing Them Home did not call for the arrest of any of the then still-living former Commonwealth ministers for Aboriginal affairs — Peter Howson, Billy Wentworth, Les Johnson, Ian Viner, Fred Chaney, Peter Baume, Clyde Holding or Gerry Hand — who were directly responsible over the final two decades when the policy remained ‘arguably genocidal’. Nor did the report call for the criminal indictment of any of the comparable ministers from the various state and territory governments who were equally responsible. At no time since has the Human Rights Commission urged that any of these people be put on trial in Australia or extradited to the International Criminal Court in The Hague to stand alongside other political leaders accused of the same thing, such as former Serbian president Slobodan Milosevic.
Although it quoted from the 1948 United Nations Convention on the Prevention and Punishment of Genocide, Bringing Them Home completely ignored Articles 3 and 4 of that convention:
Article 3. The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d ) Attempt to commit genocide; (e) Complicity in genocide.
Article 4. Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Nor did it make any mention of a further paragraph:
Article 6. Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
Indeed, the indignation of the report’s accusation was not matched by a demand for the perpetrators to be prosecuted or punished in any way at all.
This surely should have indicated to everyone that Wilson and Dodson did not genuinely ‘conclude with confidence’ that their findings were sound. By 2001, Wilson himself expressed some misgivings about his use of the term genocide, not because he disagreed with it but because it aroused too much opposition. Even though he devoted six pages of his report to the legal implications of the 1948 UN Convention, Wilson now tried to downplay its legal status. He told journalist Patrick Carlyon that his inquiry had never been intended to serve as a royal commission. It heard ‘stories’ rather than testimony and listened to ‘storytellers’ rather than witnesses. But most public commentators have remained oblivious to his reluctance to punish the perpetrators. One of the few to express surprise that the culprits were not put on trial was Raimond Gaita:
Indeed, the most puzzling aspect of the report’s reception is that (as far as I know) no-one who has broadly accepted the facts it records and its conclusion that genocide was committed, has proposed that there be criminal trials to determine who is guilty and to punish them … How can you think genocide always to be a serious crime, yet find it unthinkable to call for criminal proceedings?
Despite these misgivings, Gaita himself justified the lack of action on grounds of political pragmatism. Such trials, he claimed, would only generate a ‘vicious backlash against the Aborigines’. That in itself, he said, was sufficient reason not to conduct them. This was a peculiar position for a moral philosopher to adopt: don’t bring offenders to trial if it will generate animosity against their victims. It was justified, Gaita said, because few Australians were fully aware of the nature of the crimes committed against the Aborigines. He hoped public opinion might eventually change. ‘If it becomes fully appreciated, as I hope it will, then it is hard to see how people will be able to resist the natural thought that the criminals who enacted the programs when the genocidal intention was firm should be brought to justice.’ In other words, only bring criminals to justice once public opinion is on your side.
Instead of calling for the perpetrators to be arrested, Bringing Them Home wanted the government to apologize to the Aborigines and give them money. It recommended the creation of a national compensation fund to make a minimum lump sum payment to all those removed from their families by ‘compulsion, duress or undue influence’. It wanted the board that handed out these lump sums to be composed of a majority of Aborigines, to be chaired by an Aborigine, to decide eligibility on the balance of probabilities, and not to be bound by the rules of evidence.
The claimants for compensation were not to be limited to those who were removed as children. Rather, reparations were to be also made ‘to all who suffered because of forcible removal policies’ including the family members of those removed, the communities of those removed who suffered ‘cultural and community disintegration’, plus all the descendants of those removed who were thereby ‘deprived of community ties, culture and language, and links with and entitlements to their traditional land’. Given the report’s claim that ‘not one Indigenous family has escaped the effects of forcible removal’, it was recommending that virtually every person in Australia who claimed to be an Aborigine was entitled to a substantial cash handout for compensation and reparation.
The Human Rights Commission made no pretence that its investigation was objective or impartial. It appointed Aboriginal people who had vested interests in the outcome as both Inquiry Commissioners and members of its Indigenous Advisory Council. One Inquiry Commissioner was Annette Peardon of Tasmania who was eventually awarded $58,000 by the Tasmanian government for allegedly being a stolen child (even though in the period investigated, Tasmania never had any legislation or organization that targeted Aboriginal children for removal). A member of the inquiry’s Indigenous Advisory Council was Barbara Cummings, one of the organizers of a 1994 conference in Darwin that launched the two principal legal actions against the Commonwealth Government for compensation for stolen children, Kruger v. Commonwealth; Bray v. Commonwealth, and Cubillo and Gunner v. Commonwealth. Although it was not a royal commission, an inquiry of this kind by a Commonwealth instrumentality should have protected its credibility by maintaining at least a semblance of independence.
In August 2007, the South Australian Supreme Court established a benchmark of how much the payout to stolen children should be. It awarded Bruce Trevorrow $525,000 for unlawful treatment when removed from his mother’s care in 1957. Yet when new Labor Prime Minister Kevin Rudd made his apology to the Stolen Generations in the House of Representatives in February 2008, he ignored both Bringing Them Home and the Trevorrow case and made no offer of monetary compensation at all. He reduced the apology to a symbolic gesture and did not acknowledge the charge of genocide. Had he taken the advice of the Human Rights Commission and compensated every indigenous family for their pain, then, using the Trevorrow verdict as benchmark, the payout to Australia’s approximately 100,000 Aboriginal families would have been around $50 billion. Even though he failed to offer the stolen children any money, Rudd’s apology was a personal triumph. The saturation media coverage of the parliamentary ceremony rewarded him with record approval ratings. For literally no cost, he bought into a story that had long been a favourite of most of the Australian news media.