by COLIN TATZ

Images of Genocide

In South Africa, I studied "native policy". On arrival here in 1961, I studied "Aboriginal policy". People who know of my dual interest still ask me, "Is it true to say that apartheid was a malevolent instrument of racial oppression, whereas racism in Australia was a form of ignorant innocence, or innocent ignorance, an inability to understand or respect indigenous culture and values, albeit with some nasty consequences?" Comparisons aside, how does one categorise Australia's race relations?

Much of that inter-racial history I call "genocide". In the current climate of heat in Aboriginal affairs, which I will describe, very few people use the word. Almost all historians of the Aboriginal experience - black and white - avoid it. They write about pacifying, killing, cleansing, excluding, exterminating, starving, poisoning, shooting, beheading, sterilising, exiling, removing - but avoid genocide. Are they ignorant of genocide theory and practice? Or simply reluctant to taint "the land of the fair go", the "lucky country", with so heinous and disgracing a label?

Australians understand only the stereotypical or traditional scenes of historical or present-day slaughter. For them, genocide connotes either the bulldozed corpses at Belsen or the serried rows of Cambodian skulls, the panga-wielding Hutu in pursuit of Tutsi victims or the ethnic cleansing in the former Yugoslavia. As Australians see it, patently we cannot be connected to, or with, the stereotypes of Swastika-wearing SS psychopaths, or crazed black tribal Africans. Apart from Australia's physical killing era, there are doubtless differences between what these perpetrators did and what we did in assimilating people and removing their children. But, as we will see, we are connected - by virtue of what Raimond Gaita calls "the inexpungable moral dimension" inherent in genocide, whatever its forms or actions [1].

There are two ways of approaching the issue. One is to use the yardstick of the only extant international legal definition of genocide, namely Article II (a) to (e) of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

Even so, the physical killing in (a) is seen by most Australians as wholesale killing within a short or definable time-frame and in a localised geography, such as death camps. Clearly there has been no Australian Auschwitz. Clearly, if there was no Auschwitz here, then no genocide occurred here. Since 1997, as we will see, (e) has become the sharp focus. There are flaws - perhaps grievous ones - in the Convention. Nowhere is there mention of the role of the state as a perpetrator, yet it is the signatory state that is required to report (itself?) to the United Nations. To obtain Soviet support for the Convention, political groups were omitted, thus ensuring no possible reference to the Soviet genocide of the land-owning peasants, the kulaks, or to Stalin's elimination of those whom he defined as "enemies of the people". Physical killing usually occurs in a compact time period - though not always so, as we will see with the Tasmanian and Queensland Aboriginal experiences. Sterilisation and removal of children imply a much more enduring time frame, over generations perhaps. We know what constitutes serious bodily harm, but how do we calculate mental harm? The Convention equalised in seriousness, and in time, the act of physical killing with the act of forcibly removing children, an idea not easy to grasp. There could well have been a scale, akin to the gradations of unlawful killing in the American criminal justice system, of genocide 1, genocide 2, genocide 3. Certainly there are gradations of genocide - differing motives, different orders and levels of intent, scale, method, outcome. Certainly the quantum leap from images of Auschwitz to sad and ragged children clustered in old sepia photographs is beyond most Australians. Critics can rail at the presence of II (e), but it is there, in a law treaty ratified by Australia in 1949, albeit with some remarkable protests [2]. Overlooked by almost everyone, including genocide scholars, are clauses (b), (c) and (d). Overlooked by everyone is Article III of the Convention: not only is genocide a crime but so too is "conspiracy to commit genocide", the "attempt to commit genocide" and "complicity in genocide".

In the vocabulary of genocide there are three parties: the perpetrators, the victims, and the bystanders - those without whom the perpetrators cannot effect their purposes. Within the latter category, there are those who are simply indifferent, those who are hostilely indifferent, those who are, in some degree, complicit, and those who are, for want of a clearer or better term, companions to events. One can be a companion to something even in the act of opposing it. Thus, in South Africa, I was complicit in much of apartheid while teaching and writing about the evil of the system. It seems never to occur to those who deny involvement, or legal or moral guilt, or who distance themselves from past events, that they were, and are, indeed companions, and therefore in some degree complicit.

The other measuring-rod is to be found in the much broader conceptualisation suggested by the Berlin Director of the Centre for the Treatment of Torture Victims, Christian Pross: that nineteenth-century race theory led to genocide by providing the ideological tools for a biological solution to a social (or political) problem [3]. His less forensic concept facilitates a better appreciation of justifications, ideologies, race theories, motives and moral defences. However much I prefer this approach, we should not stray from the international law wording and seek either proof or disproof in the definitions of historians and social scientists. Professor Robert Manne says he wrestles with Hannah Arendt's articulation following the trial of Adolf Eichmann in Jerusalem - that genocide is the desire (by Nazis) that certain distinct people (Jews) "disappear from the earth" [4]. Certainly Arendt was trying to find words for that which was (relatively) new in our moral (and physical) experience - a monstrous attack upon human status and human diversity. Perhaps if she had looked at that much overlooked half-brother to the Holocaust, the killing of 1.5 million Armenians by the Turks in 1915-16, she might have been less surprised and disconcerted by Nazi behaviour. Manne believes, with Raimond Gaita, that genocide can be committed by non-murderous means, such as the biological assimilation of Aborigines. He is less certain about socio-cultural assimilation.

There are many more, and better, definitions of genocide than Arendt's [5]. Social science definitions assist us in analysis of causes and in conceptualising events. But if we venture into this realm of improved definitions, we will have no universally accepted yardstick - certainly no justiciable basis for trials of genocidal practice or for civil suits of restitution by victims. Some theorists will seek to narrow the definition and others will expand the genocidal universe to the point of meaninglessness. Chalk and Jonassohn take the narrow view that "genocide is a form of one-sided mass killing" by the state or some other authority. Charny's much broader view sees genocide, in the generic sense, as the "mass killing of substantial numbers of human beings, when not in the course of military action ...under conditions of the essential defencelessness and helplessness of the victims. [6]" He emphasises the victimness of essentially "defenceless and helpless" people, but he insists on mass killing of substantial numbers - which applies well to Australia's nineteenth century private settlers' killing of Aborigines but not to the "sophisticated" state removal of children. However, many cannot share his vision that the accident at the Chernobyl nuclear reactor was "genocide resulting from ecological destruction and abuse". The broadest view comes from the reputable scholar Henry Huttenbach: he defines genocide as "any act that puts the very existence of a group in jeopardy". Courts would find it impossible to pinpoint "any act", the meaning of "existence" and what constitutes "jeopardy". Impunity in genocide is now an enormous issue, and the wider the concept the less likely any court will be able to arrive at conviction and punishment. It is quite significant that the 1998 Rome conference establishing the new International Criminal Court had no hesitation in incorporating into Article 6 of the Court's statute the verbatim definition given by the United Nations in 1948.

Misconstruing the nature of genocide, and failure to pay due attention to the partly precise, partly elusive language of Article II, can lead to some startling cases. There is an ongoing application before the ACT Supreme Court by four Aborigines for the arrest of the Prime Minister and Deputy Prime Minister on the grounds that by securing the Wik ten-point plan legislation in 1998 they committed specified and unspecified acts of genocide, and that all members of federal parliament have committed genocide by, inter alia, failing to enact an Australian offence of genocide [7]. The case could well be misguided and doomed, depending on the evidence adduced. We need a firm basis for both discussion and action and the only solid (and universal) definition, however flawed, is the one defined in international law. Even so, we have to look to the philosophy inherent in the legal wording of Article II, namely, that genocide is the systematic attempt to destroy, by various means, a defined group's essential foundations. In this tighter legal sense, Australia is guilty of at least three, possibly four, acts of genocide: first, the essentially private genocide, the physical killing committed by settlers and rogue police officers in the nineteenth century, while the state, in the form of the colonial authorities, stood silently by (for the most part); second, the twentieth-century official state policy and practice of forcibly transferring children from one group to another with the express intention that they cease being Aboriginal ; third, the twentieth century attempts to achieve the biological disappearance of those deemed "half-caste" Aborigines; fourth, a prima facie case that Australia's actions to protect Aborigines in fact caused them serious bodily or mental harm. (Future scholars may care to analyse the extent of Australia's actions in creating the conditions of life that were calculated to destroy a specific group, and in sterilising Aboriginal women without consent.)

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Aborigines - and First Contact

Aborigines probably landed on Cape York, in northern Australia, between - and this is hotly contested at present - 24,000 and 60,000 years ago, forming about 500 tribes with different languages and customs, and numbering between 250,000 and 750,000 at the time of the British arrival, or invasion, in 1788 [8] Hunters and food-gatherers in an inhospitable land of low rainfall, they had no animals that could be domesticated. Semi-nomadic, they roamed within set areas, in domains they called (and still call) their "country". Their way of life precluded a rich material culture, yet it wasn't "primitive" in the disparaging sense in which so many observers noted, and still note, their "lack of alphabet" and alleged "lack of arts, science and invention". Their stone-tool technology predates European and Asian usage by thousands of years. Aboriginal social organisation was highly complicated, their religion deep and complex, their art and myths rich and varied. Of note was their strong and foolproof system of incest prohibition, their system of kinship, reciprocity, and child-rearing. United by religious and totemic ties, Aborigines held their land in trust, collectively and in perpetuity. Within the various social units, kinship implied certain behaviour and reciprocal responsibilities. Patterns of social interaction were tightly prescribed, co-operation within each group was high, and group sanctions, by way of punishment for breach of rules, were harsh.

There was no formal political organisation, but there was a strong sense of adjudication of disputes. They had a reign of social law. It was their lack of outwardly visible political organisation - the absence of what western society sees as the prerequisites of governance, namely, a system resembling a state, or organs akin to a legislature, a judiciary, an executive - that placed Aborigines at a huge disadvantage in confrontation with white settlement. That handicap was nowhere greater than in the centuries-long doctrine that, in 1788, Australia was terra nullius, a land empty but for fauna and flora. That legal (and political) fallacy was finally put to rest in 1992 in the monumental decision of the High Court in Mabo v the State of Queensland (Number 2). John Locke's seventeenth-century doctrine that property in land originally came from tilling the soil - "mixing labour and land" - took a long time to die. As recently as 1993, members of the Samuel Griffiths Society in Melbourne argued that the Murray Island people (Eddie Mabo's country) should have land title, but not the Aborigines, because the former were Melanesians who are "millennia ahead of the Palaeolithics (Stone Age people) in terms of social organisation" and because, unlike the "palaeos", they farmed [9] Botany Bay was the site of Britain's new convict colony. On 28 January 1788, the First Fleet took possession of Australia in the name of King George III. From the outset, relations between black and white were well intentioned at the official level but rent with strife in practice. Whether "empty" or inhabited, whether there was an extant stateless or state-ful society, official instructions to Governor Arthur Phillip were "to endeavour by every means in his power to open an intercourse with the natives and to conciliate their goodwill, requiring all persons under his Government to live in amity and kindness with them". The Letters Patent establishing the colony of South Australia in 1836 similarly contained a proviso that "nothing should affect the rights of the natives in regard to their enjoyment or occupation of the land".

The Letters Patent and instructions to governors in the eighteenth and nineteenth centuries were really benign utterances of far-away governments. The hard clashes of interest on the spot were of a different order. Land was seized by the white settlers as their only means of support. Aborigines retaliated by taking stock and provisions - for which they developed a taste. Reprisals followed, with the advantage always heavily on the white side. As the settlers spread out from the centres of administration, government control lessened, newly introduced diseases spread among the Aborigines, the birth rate dropped, the Aboriginal population declined markedly, and law and order became impossible to maintain.

Decimation: Physical and Social

The Aboriginal experience includes both genocide in the Convention's sense of the crime and a litany of deprivation. Deprivation is not necessarily genocide as such, and we need to look at both phenomena.

Some 120 years ago, the English novelist Anthony Trollope visited Australia. "There has been some rough work", he wrote:

We have taken away their land, have destroyed their food, made them subject to our laws, which are antagonistic to their habits and traditions, have

endeavoured to make them subject to our tastes, which they hate, have massacred them when they defended themselves and their possessions after their own fashion, and have taught them by hard warfare to acknowledge us to be their master [10].

By 1911, 123 years after settlement, the "rough work" had reduced the Aboriginal population to 31,000. Much of this discussion paper examines and explains that catastrophic reduction. The 1996 census shows a tenfold increase, to 352,970 people, 1.97 per cent of the total population, identifying as Aboriginal or Islander, of whom 314,120 are Aborigines, 28,744 are Torres Strait Islanders and possibly 10,106 are "both", that is, Aboriginal and/or Torres Strait or South Sea Islanders. The Torres Strait people have a different history and a different culture from Aborigines. Administered by Queensland, they were not allowed on the mainland until 1947. Generally they have been treated as Aborigines, but as of 1990 they were given an official voice as a distinct people. Between 10,000 and 12,000 in number, the South Sea Islanders have long struggled for a separate identity, one that only began to be accorded them officially in 1994. They are descendants of men who were "blackbirded", that is, tricked or kidnapped to be brought into Australia to work as "indentured labourers" in the sugar-cane fields between 1863 and 1904. The imperial Pacific Islanders Protection Act 1872 ("The Kidnapping Act") made such behaviour a crime, but didn't stop the practice: the last kidnapping was reported in 1894. About 68 per cent of black Australians now live in major and smaller urban centres; 32 per cent remain in rural and remote areas.

The upsurge in numbers is due to several factors: we no longer kill Aborigines with gun and poison; we have eliminated smallpox and similar plagues that decimated the tribes; we have radically reduced the forced removal of children and the practice of forced assimilation; health and medical services have alleviated some, but by no means all, the factors causing high infant mortality and short life expectation; we have very much better census questions (Aborigines were only counted in the census as of 1971, and only counted "properly" from 1986); and Aborigines and Islanders, in a greater climate of human rights, have been a little more willing to self-identity than hitherto [11]. My current research in New South Wales (on Aboriginal youth suicide) has shown that many people did not acknowledge their strongly felt Aboriginality in the 1996 census, citing fears of what would be done with the figures, or sheer antipathy to all "white systems", as reasons. My view is that the population is probably closer to 450,000, perhaps 2.5 per cent of the total population [12].

Yet Aborigines end the twentieth century at the very top, or bottom, of every social indicator available: top of the medical statistics for diseases they didn't exhibit even thirty years ago - coronary disease, cancer, diabetes [13], respiratory infections; bottom of the life expectancy table, at 50-55 years or less for males and around 55 years for females; with much greater rates of unemployment, much lower home ownership and considerably lower annual per capita income [14]; an arrest and imprisonment rate grossly out of proportion to their numbers; the highest rate of institutionalisation; with crimes now prevalent which were rare as recently as the 1960s, namely, homicide, rape, child molestation, burglary, physical assaults, drug-peddling and drug-taking; and, sadly, youth suicide, no longer a criminal act, at a rate among the highest on this planet.

There is now a high degree of personal violence within groups; widespread child neglect, including an insufficient supply of food and general care; a marked increase in deaths from non-natural causes; much destruction of property, both white-supplied and self-acquired; increasing attacks on white staff and visiting professionals who work with groups; and a vast quantity of alcohol and drug abuse, commonly offered as the sole "explanation" of the above [15].

A major underpinning, almost an article of faith, of Australian race relations history has been a Social Darwinist notion that the unfittest don't survive: thus Aborigines, or especially those known by the term "full-blood", were destined to disappear in the face of white civilisation. Succumbing to disease was all too evident. Perishing at the premeditated hands of settlers was less so, but part of a mindset that beheld extinction as inevitable. We need to open our eyes to just how much premeditation has been at work in the 210 years since the British arrived. We also need to set the present predicament of Aborigines and Islanders into context, and to recognise just how much of the past underlies, even suffuses, the present-day life and responses of Aborigines to today's circumstances.

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Disease as Genocide

The "disease-as-genocide" argument needs brief assessment, first, because it must be challenged and second, because of the strong tendency among many historians to inculpate smallpox, and exculpate settlers, as the major factor in mass Aboriginal deaths. To date, no one has refuted the hypothesis of the late Professor Noel Butlin, an eminent economic historian, of introduced disease as an intentional weapon of extermination. He concluded - albeit in a book he described as "explicitly speculative and hypothetical" - that the single most effective killer of Aborigines was smallpox [16]. More to the point, while the origins of "the main killer" are obscure, "it is possible and, in 1789, likely that infection of the Aborigines was a deliberate exterminating act". Butlin was much influenced by his reading about the fate of Native Americans; he, in turn, has influenced others on this issue.

Stannard, in an account of horrendous, wilful death in the Americas, has a section entitled "Pestilence and Genocide" [17]. The key is and, not pestilence as genocide. I believe there is a time-gap problem between western medical science's ignorance about contagion in those times of colonisation and the assertion that barely literate colonists understood (or even intuited) germ theory well enough to knowingly use pestilence as a weapon of mass destruction. We began to understand that these diseases were spread by communicable bacteria and viruses only a hundred years ago [18]. Why, then, the specific assertion about one disease as part of the genocidal armoury?

The first major smallpox epidemic among Aborigines was in April 1789, fifteen months after first settlement. The second was in 1829-31, its origin never determined, according to Frank Fenner in his monumental work on the disease [19]. The third major epidemic occurred between 1865 and 1869, generated almost certainly by the visits of Malayan trepang fishermen. Goldsmid has posited three possibilities about 1789: first, that it was deliberate decimation, as in America where, as an American scholar asserts, smallpox-infected blankets were introduced to "extirpate this execrable race"; second, Aborigines stole bottles of "variolous matter" brought by the surgeons of the First Fleet and subsequently became infected; third, accidental Aboriginal infection from a local "variolate" colonist [20]. There is no evidence whatsoever of premeditation, a view supported by Watkin Tench, a captain in the First Fleet, who suggested at the time that this was "a supposition so wild as to be unworthy of consideration".

Stephen Kunitz has looked carefully at the impact of European settlement on the health of Aborigines [21]. He cites the massacres by that hideous creature of colonial administration, the Native (or Black) Police [22], as the major cause of Aboriginal death, followed by the "hunting propensities" of the settlers and the poisoning of flour issued as rations. It wasn't, he contends, exotic disease that produced a 25 per cent decline in the Queensland population, but rather "the savagery of the settlers and their calculated slaughter of the indigenous population". "Not all natives dropped dead whenever they got downwind of a European", he concludes. Pueblo Indians, perhaps, but not Aborigines. I remain unconvinced of both Butlin's thesis and the assertion that any of the colonial decimation in North America and Africa was achieved by deliberately introduced disease.

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"(a) Killing members of the group"

Professor Kenneth Minogue contends that the present-day concern about apology is a "most dramatic expression" of "an emerging moral sentiment" that the treatment of Aborigines constitutes a case of genocide [23]. He views this kind of moralisation - especially by Professors Raimond Gaita and Robert Manne - as both extreme and offensive, as "exploiting ... a prefabricated emotional charge" [24]. He sees the Aboriginal experience as reprehensible, abhorrent perhaps. He concedes, albeit grudgingly, that "Aborigines were raped, killed, dispossessed and so on", but sees no genocidal impulses or qualities in any of that. He doesn't see any racism in any of that. He questions the use of the word racism as "the most lethal charge in the current rhetorical armoury". Rightly, he contends that racism has many forms and gradations. But, wrongly, he is guilty of either cynicism or superficiality when he defines the range of racism as being from "a sentiment rather than a belief, involving rejection of, or contempt for, or simply unease in the presence of, people recognised as different", through to racism being (merely?) "a theory, such as Hitler's, about the respective biological characteristics of distinct races". If only Hitler had been merely an intellectual theorist. And if only Aborigines had created "simply unease" among the whites who came into contact with them.

Racism has to be defined in this specific context: that beliefs (rather than "sentiments"), however ill-founded, about "biologically determined" physical and social characteristics, real or imagined, justify the taking of action about, or against, a defined group because they are that group. We need to spend less time on white Australian "sentiments", "unease" or "contempt", and much more on the beliefs that justified legal, extra-legal, administrative and institutional action about Aborigines because they were Aborigines. We need to see how much of that action was positive, how much negative. In short, just how much or how little is Australian racism but innocent ignorance, accidental, mere "rejection", discomfort with difference, "contempt", "a prefabricated emotional charge", something "unthinkable" on the part of "a moral people"?

It is true that diseases introduced by convicts and settlers - smallpox, typhoid, tuberculosis, diphtheria, whooping cough, influenza, pneumonia, measles and venereal disease - seriously depleted Aboriginal numbers. But it is to the genocidal impulses and actions of the settlers that we must turn for evidence of Australia's treatment of the Aboriginal peoples. Some contend that any death and destruction which might have occurred was simply another instance of an unfortunate by-product of colonialism, of indigenes dying (regrettably) for "economic reasons" as a result of "progress" towards a cattle, timber, gold or silver industry. In other words, so runs this specious argument, if Australia is guilty of anything, it is of the lesser offence (but not crime) of "ethnocide" or "cultural genocide", that is, the deprivations of opportunity to use a language, practise a religion, create art in customary ways, maintain basic social institutions, preserve memories and traditions, and co-operate in achieving social goals [25].

We know something about Article II (a), "killing members of the group", because they, the Aborigines, were members of a definable group. We know something about the physical killings, particularly in the latter half of the last and the early part of this century. The first white settlers came to Tasmania in 1803, and by 1806 the serious killing began [26]. In retaliation for the spearing of livestock, Aboriginal children were abducted for use in forced labour, women were raped and tortured and given poisoned flour, and the men were shot. They were systematically disposed of in ones, twos and threes, or in dozens, rather than in one systematic massacre.

They were at risk from predatory sealers and settlers. In 1824, settlers were authorised to shoot Aborigines. In 1828, the Governor declared martial law. Soldiers and settlers arrested, or shot, any blacks found in settled districts. Vigilante groups avenged Aboriginal retaliation by wholesale slaughter of men, women and children. Between 1829 and 1834, an appointed conciliator, George Robinson, collected the surviving remnants: 123 people, who were then settled on Flinders Island. By 1835, between 3000 and 4000 Aborigines were dead. This wasn't simply a murderous outbreak of racial hatred. They were killed, with intent, not solely because of their spearing of cattle or their "nuisance" value, but rather because they were Aborigines. The Genocide Convention is very specific on this point: the victim group must be at risk because they are that group.

White settlers killed some 10,000 blacks in Queensland between 1824 and 1908 [27]. Considered "wild animals", "vermin", "scarcely human", "hideous to humanity", "loathsome", and a "nuisance", they were fair game for white "sportsmen". In 1883, the British High Commissioner, Arthur Hamilton Gordon, wrote privately to his friend William Gladstone Prime Minister of England:

The habit of regarding the natives as vermin, to be cleared off the face of the earth, has given the average Queenslander a tone of brutality and cruelty in dealing with "blacks" which it is very difficult to anyone who does not know it, as I do, to realise. I have heard men of culture and refinement, of the greatest humanity and kindness to their fellow whites, and who when you meet them here at home you would pronounce to be incapable of such deeds, talk, not only of the wholesale butchery (for the iniquity of that may sometimes be disguised from themselves) but of the individual murder of natives, exactly as they would talk of a day's sport, or having to kill some troublesome animal.

In 1896, Archibald Meston was appointed as Royal Commissioner to investigate the slaughter. In the same year, he produced his Report on the Aborigines of North Queensland [28]. The treatment of the Cape York people, he wrote, was "a shame to our common humanity"; their "manifest joy at assurances of safety and protection is pathetic beyond expression. God knows they were in need of it". Aboriginal people met him "like hunted wild beasts, having lived for years in a state of absolute terror". He was convinced their only salvation lay in strict and absolute isolation from all whites, from predators who, in no particular order, wanted to kill them, take their women, sell them grog or opium. The Aboriginals Protection and Restriction of the Sale of Opium Act 1897 followed. Apart from some changes to its wording, this remained in force until 1985. In 1939, the statute was amended slightly and renamed as the Aboriginals Preservation and Protection Act. In our age of environmentalism we are used to the notion of "protected species" in the context of, for example, exotic eagles or rare marsupials. "Protected Aborigines" meant just that: a genus which had to be saved from the murderous impulses and practices of settler Australians.

The history of Aborigines in Western Australia was little different [29]. There were hundreds of massacres between settlement and the 1920s, with the last of them, the Forrest River killings, as late as 1926. This was the only episode to result in a Royal Commission - yet another such judicial inquiry resulting in the acquittal, and then promotion, of the two police officers involved in the shooting, and then burning, of perhaps 100 people. One massacre or mass murder is not genocide, but given the pattern and propensity of such actions, one must conclude that Raphael Lemkin was correct when, in 1944, he coined the word genocide to mean co-ordinated or systematic actions aimed at destroying a racial, ethnic or religious group's essential foundations. He didn't say the killing had to be wholesale, or in a compacted time frame, or in specified killing fields. Nor did the Genocide Convention which followed his work.

The history of Aborigines in South Australia was rather different. The early whalers and sealers at the start of the nineteenth century were brutal: they killed and kidnapped. But from 1836, when permanent settlement began, the colonists forged a more independent line, on all matters, than their colonial brothers and sisters elsewhere. Although dispossessed of land, and their culture and customs abrogated in various ways, there was less shooting and poisoning than in other colonies. (Aborigines argue that this was because there were fewer to shoot, following the smallpox epidemic that came with settlement.)

There was a massive population loss in central Australia - particularly in the region of what is now Alice Springs - between 1860 and 1895. Kimber speculates that 20 per cent may have died from influenza, typhoid and other introduced diseases. But some 1750, or 40 per cent, of the Aboriginal population, were (mostly) shot in what was euphemistically called "dispersal" [30]. A Native Police lieutenant, giving evidence in 1861, was asked what was meant by "dispersing". "Firing at them", was his reply, but "I gave strict orders not to shoot any gins [Aboriginal women]". Another euphemism was that troopers were out shooting "kangaroos". An early observer, E. M. Curr, writing in The Australian Race in 1886, concluded: "The White race seems destined, not to absorb, but to exterminate the Blacks of Australia".

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"(b) Causing serious bodily or mental harm to members of the group"

Courts hold trials, that is, efforts to examine and determine causes or issues. In this section I do not bring the charge that Australia, in the name of protecting people against physical killing, instituted policies and practices that led to intentional "serious bodily or mental harm" to Aborigines (Article II(b)). But there is certainly room for exploration of an argument that protection, however well intentioned, resulted in disaster of a most harmful kind.

Protection legislation began in an elementary way in the 1840s: by 1843, five of the colonies had appointed Protectors. Protection, in earnest and in great legislative detail, began in Victoria in 1869 and 1886, in Western Australia in 1886, in New South Wales in 1909, in South Australia in 1911, in the Northern Territory in 1910 and 1911, in Tasmania in 1912 [31]. Most of these laws were predicated on the philosophy of "soothing the dying pillow" of a race near extinction. Given that there was a widespread assumption that Aborigines were dying out, settlers fulfilled the prophecy by acting to ensure that such was indeed the outcome.

There were to be two protective fences against genocide in most of Australia: the legal one, which was soon found to be insufficient, followed by the geographic one of gross isolation, the additional barrier against white predators. Law would keep whites out and Aborigines in protective custodianship. Geographic location would see to it that no one could get in, or out. Government-run settlements and Christian-run missions were established in inaccessible places to protect the people from their predators; to encourage, sometime to coerce, Aborigines away from the "centres of evil"; to allow for the Christianising and civilising process in private and away from temptations; to enable better ministration - in the quiet of a hospice, so to speak - to a doomed, remnant people. Catherine deMayo has explained why "mission" Aborigines came to be where many still are [32]. A Lutheran pastor visiting Bloomfield River in Cape York in 1898, said, "All the mission can really achieve for them is a kind of Christian burial service". Another concluded that "the Christian Church and the Government can but play the part of physicians and nurses in a hospital for incurables". These "children of darkness" needed places like Yarrabah, near Cairns, described as "splendidly secluded". Some Christian views of Aborigines were no better than those of the squatters and "sportsmen". In the 1870s, a clergyman in Queensland wrote:

If our instincts are true we must loathe the aborigines as they are now, less estimable than the mongrels that prowl like them in the offal of a station. By the ashes of their fire ... they are crouched with their knees up to their chin and with a half idiotic and wholly cunning leer on their faces, their hair matted in filth ...

The missionaries did not simply supply a nursing service for "incurables", or a burial service: they became active agents of various governmental policies, such as protection-segregation, assimilation, so-called integration and some of the latter-day notions like self-determination and self-management. More than agents, they were delegated an astonishing array of unchallengeable powers. Uniquely - in terms of modern missionary activity in colonised societies - mission boards became the sole civil authority in their domains. They ran schools, infirmaries, farms and gardens, provided water, sewerage and similar public utility services, established dormitories, built jails, prosecuted "wrongdoers", jailed them, counselled them, controlled their incomes, forbade their customs and acted as sole legal guardians of every adult and every child. Almost incidentally, they also tried to Christianise the inmates according to their varying dogmas and doctrines, with little success. The eighteenth-century English radical philosopher, Jeremy Bentham, has bequeathed us a succinct phrasing for such "penitentiary-homes" - ones in which the objectives are "safe custody, confinement, solitude, forced labour and instructions" [33].

Mission societies and government departments of Native or Aboriginal Affairs set about the business of protecting the people. But in what spirit? As a student of "native administration" in South Africa, Australia, Canada and New Zealand, I find one facet of Australian practice noteworthy for its absence. Baron Lugard of Abinger, the doyen of British colonial policy-makers from 1888 to 1945, always held that successful administration was contingent on officials having a sense of love for the administered people - and if not that, then at least a liking, and if not that, at least a respect for them. By and large, Australian officials, lay and clerical, protected in a spirit of dislike, in what Minogue would rightly call (in this particular context) a configuration of contempt.

Reminiscent of the manner in which Jews have been held in contempt by church, state and science, we have clerical disdain not only in the 1880s but also a century later. In the early 1980s, the Roman Catholic Bishop of the North-West (of Western Australia) was pressed to remove Fr Seraphim Sanz as superintendent of Kalumburu Mission. He also dispensed with the philosophies of the general Catholic mission policy-maker, Fr Eugene Perez, the man who (in a chapter of his book entitled "East Kimberley Primitives") described Aborigines as corresponding to the Palaeolithic Age, "primitives dwarfed to the bare essentials of human existence", people with "inborn cunning", "lacking interest and ambition", with "undeniable immaturity", forever seeking "the unattainable EL DORADO, coming to them on a silver tray", people "with no sense of balance or proportion", people who "want 'today' what cannot be given till tomorrow", people to whom physical goods are "like the toy given to a child, which will soon be reduced to bits, and thrown into the rubbish dump. [34]" And so on.

Contempt also came in "scientific" guise. In 1913, we had the views of Professor W. Baldwin Spencer, the man who was to become a significant and powerful figure in Aboriginal affairs, as author, theorist and administrator:

The aboriginal is, indeed, a very curious mixture: mentally, about the level of a child who has little control over his feelings and is liable to give way to violent fits of temper ... He has no sense of responsibility and, except in rare cases, no initiative [35].

The revered Professor of Biology was dismayed: Aborigines didn't even realise that they could make clothes out of kangaroo skins, and they didn't cultivate crops or domesticate animals. "Their customs are revolting to us" and they were "far lower than the Papuan, the New Zealander or the usual African native". While Chief Protector of Aborigines in 1911-12, he declared that "no half-caste children should be allowed in any native camp", after which he established the Kahlin Compound in Darwin. Assuredly, neither Perez nor Spencer was an Alfred Rosenberg or a Richard-Walther DarrČ - two of several key race theorists in the Nazi firmament - but in their own way, in our especial Australian way, they were accomplished enough in "scientific" race theory and, more importantly, in its practice.

The special laws show that the "protections" which parliaments had in mind were as much from outside intruders as from the Aborigines themselves. In Queensland, protection in theory quickly became discrimination in practice. Stopping the predators from coming in resulted in Aborigines being incarcerated for life, even for generations, on the remotest of places, like Yarrabah, Palm Island, Mornington Island, Doomadgee, Bamaga, Edward River, Weipa, Bloomfield River and Woorabinda. Protection of Aboriginal morality came to mean control of their movements, labour, marriages, private lives, reading matter, leisure and sports activities, even cultural and religious rituals. Protection of their income came to mean police constables - as official Protectors of Aborigines - controlling their wages, their withdrawals from compulsory savings bank accounts, rights to enter contracts of labour and of purchase and sale.

In the Northern Territory, from 1911 to 1957 and again from 1957 to 1964, when all "full-blood" Aborigines were declared "wards", protection included the need for permits to leave reserves and the Territory, prohibition on alcohol, prohibition on inter-racial sex, prohibition on inter-racial marriage unless with official permission, inability to vote or to receive social service benefits, employment at specified, statutory Aboriginal rates of pay (well below the famous basic wage, which Australia invented in 1907), exclusion from industrial awards, and so on [36].

In Queensland, protection included banishment from one part of the state to another, for periods ranging from twelve months to life ("During the Director's Pleasure" was the official phrase) for offences such as "disorderly conduct", "uncontrollable", "menace to young girls", and "on discharge from [urban] prison". It also involved imprisonment on the settlement or mission, for a maximum of three weeks per offence, for offences only Aborigines could commit: "being cheeky", "refusing to work", "calling the hygiene officer a 'big-eyed bastard'", "leaving a horse and dray in the yard whereby a person might have been injured", "committing adultery", "playing cards", "arranging to receive a male person during the night", "being untidy at the recreation hall", "refusing to provide a sample of faeces required by the hygiene officer and further, wilfully destroying the bottle provided for the purpose, the property of the department" [37]. Often charges were not laid concurrently: an "offender" would get three weeks for one offence, then on discharge be "charged" with a separate offence, albeit one arising from the same initial circumstance. The legal maximum of three weeks became a continuum of six, nine, twelve weeks. In Western Australia there was "protective" punishment for anyone who didn't "conduct themselves in a respectable manner at all times", used "obscene language", drank alcohol, didn't keep dwellings "clean and tidy", "cut down trees", wasted water, didn't keep their dogs under control and who didn't "empty and clean" troughs and coppers in the laundry.

The era of protection-segregation didn't end with the formal adoption of assimilation policies by the national conferences of officials in 1937, and again in 1951 and 1961. Despite proclamations of equality in those two latter decades, the old policies and practices persisted. This was because the lay and clerical bureaucrats who remained as guardians couldn't or wouldn't accept the "elevation" of "their" wards to the status (of power, goodness, correctness, civility) they enjoyed. The settlements and missions continued as before, with draconian powers vested in officials - or "inspectors" as Bentham would have called the [38]m - who maintained a regimen of work, instruction, discipline, good order and hygiene. These bogey men, especially in Western Australia and Queensland, were real enough. "The welfare", to use the Aboriginal idiom, remains indelible in the contemporary Aboriginal psyche.

It was only after the Labor Party won federal office at the end of 1972 that these institutions began to be dismantled: the "inmates" stayed and became citizens (in legal theory), but the "inspectors" of the draconian rules "for the good order and discipline of the settlements" - the guards and the gatekeepers - disappeared, at least in the flesh. Their spectres remained for long. What has also endured is the myth, and the euphemism, that all of this treatment - over nearly three-quarters of a century, at least - was simply and mundanely nothing more than "the era of handouts".

In an ironic sense it was the removal of the draconian structures that created, in my view, the present climate of violence and disorder in population centres. All commentators, analysts and scholars attribute the present breakdowns, including the propensity for suicide, to colonialism, racism, oppression, landlessness, population relocations, and destruction of cultures and environments. The Royal Commission into Aboriginal Deaths in Custody has an excellent summary of all of this, which explains the underlying causes of the disproportionate numbers of Aborigines in custody [39]. All true, in the broad sense and sweep. But there is a pinpointable set of actions which has been largely responsible for the present. These "asylums" or "total institutions" [40], the settlements and missions, became "communities", regardless of whether or not there was a communitas. In the protection-segregation and wardship eras, settlements and missions were designed as institutions, with the residents termed inmates. There were locks and keys of a legal, administrative and physical kind. With the changes that came shortly before and after 1972, these nineteenth- and early twentieth-century institutions were euphemistically re-named "communities", and superintendents and managers were transformed by administrative pen into "community development officers". No one ever tried to understand or define the characteristics of community, no one trained the officers in "development", and no one ever consulted the black populations about their notions of a civil order, an organised society, a polity. Born out of sheer political expedience, and a laziness about doing any homework about these groupings and their common or uncommon character, bureaucrats eventually gave these prison-like total institutions "freedom", a budget and autonomy of a limited kind. Nobody gave thought as to how one de-institutionalised institutions of such penitentiary flavour; no one gave lessons in autonomy; and, importantly, nobody remembered, or wanted to remember, that the inmates-turned-citizens were often people moved or exiled to these places, people who had to be disciplined or punished, or people rounded up by desert patrols and simply placed there for the great "social engineering" experiment of assimilation in the deserts and monsoon lands. Most places were not peopled by a communitas, by groups in a voluntary association, with a common tribal or linguistic membership and fellowship, a common historical, or political, or cultural heritage, communalistic in their membership, integrated, and socially coherent.

Infrastructure in the institutions was artificial. It was the omnipresence of the "inspector" (usually the Director), the authoritarian laws and regulations under special legislation, and the associated powers, together with mission evangelism, which gave these institutions "viability" - of a kind. The struts and pillars propping up the institutions began to be removed only in the 1970s and, in Queensland, even later. Thus there is, in effect, a vacuum in many of these places, an absence of an overarching or binding philosophy (however bad, or misguided), a lack of system, without any goals beyond mere survival. The rallying call for land rights, especially since 1969, and the protracted legal hearings, have filled only a very small part of that vacuum. Lacking structure, many "communities" lack order, and have become disordered societies. The much respected Aboriginal values of affection, reverence for family and kin, reciprocity, care of the young and aged, veneration for law, lore and religion, are floundering or have been displaced for now. In the section "Decimation: Physical and Social" above, I listed the now commonplace examples of "disorder". What began as protection against genocide has ended, for the present, in a legacy of acute distress. However, I must stress that there is no suggestion whatever in these observations that we return to the nightmare that was the wardship and welfare era.

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Forced Assimilation

Forced assimilation also meant the forcible removal of children from parents and family and "relocation" to white foster parents, white adoptive parents, or to special "half-caste" or "assimilation" homes. In 1905, W. E. Roth, the Chief Protector of Aborigines in Queensland, ruled that the "social status of half-caste children" had to be raised: "in the future, all such infants taken from the camps should be brought up as white children". In his view, "if left to themselves", the "half-caste girls became prostitutes and the boys cattle thieves" [41]. In 1909, C. F. Gale, the Chief Protector in Western Australia, wrote:

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 [42].

O. A. Neville, Chief Protector in the West from 1915 to 1940, was of identical mind. He could do nothing for Aborigines, who were dying out, but he could absorb the "half-castes":

The native must be helped in spite 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 be gentle persuasion ... the end in view will justify the means employed [43].

Neville had a "three-point" plan: first, the "full-bloods" would die out; second, take "half-castes" away from their mothers; third, control marriages among "half-castes" and so encourage intermarriage with the white community. The "young half-blood maiden is a pleasant, placid, complacent person as a rule, while the quadroon [one-quarter Aboriginal] is often strikingly attractive, with her oftimes auburn hair, rosy freckled colouring, and good figure ..." These were the sort of people who should be elevated "to our own plane". In this way, it would be possible to "eventually forget that there were ever any Aborigines in Australia" [44]. Here, in unmistakable language and intent, was ideology justifying why biology should solve this "social problem". And so Neville established Sister Kate's Orphanage in 1933, on the guiding principle that the good Sister took in those whose "lightness of colour" could lead them to assimilation and intermarriage.

Neville's legacy - his mishmash of nineteenth-century race theory, twentieth-century eugenics, his own brand of assimilationism, and illogic - is to be found in the quite astonishing Natives (Citizenship Rights) Act 1944 (WA). A "native" could apply to a magistrate for "citizenship" - something never really lost to Aborigines, since they were always regarded as "subjects" of the monarch, especially in their susceptibility to the criminal law. To become "white", in effect, the applicant had to show a magistrate that he or she had "dissolved tribal and native associations", had served in the Commonwealth armed forces and had received an honourable discharge, or was "otherwise a fit and proper person to obtain a Certificate of Citizenship". But much more than that, the magistrate was required to be satisfied of many things before an applicant was no longer "deemed to be a native or Aborigine": first, that for two years before the application, the applicant had "adopted the manner and habits of civilised life"; second, that full citizenship rights were conducive to his or her welfare; third, the applicant could "speak and understand the English language"; fourth, the applicant was "not suffering from active leprosy, syphilis, granuloma, or yaws" [45]; fifth, the applicant was of "industrious habits" and "of good behaviour and reputation"; and finally, the applicant was "reasonably capable of managing his own affairs". There was, of course a catch - one unequalled, I believe, in "native administration" anywhere in the world: that if the Native Affairs Commissioner, "or any other person", made complaint, a magistrate could revoke the certificate and the person became a native or Aborigine once more. The grounds of complaint? The citizen wasn't "adopting the manner and habits of civilised life"; or he or she had two convictions under the Native Administration Act 1905-41 (WA) for the normally non-criminal offences discussed above, like cutting down trees, being untidy, or leaving the laundry in a mess, or was an habitual drunkard; or had, in the non-Aboriginal phase of their (Aboriginal) lives, "contracted leprosy, syphilis, granuloma or yaws"! This statute was not repealed until 1971.

In 1928, J. W. Bleakley, then Queensland Protector of Aborigines, was asked by the federal government to report on Aboriginal policy - including the future of "half-castes" - in the Northern Territory [46]. Those of 50 per cent or more Aboriginal "blood", "no matter how carefully brought up and educated", will "drift back" to the black, he declared. But those with less than 50 per cent "Aboriginal blood" should be segregated so that they could "avoid the dangers of the blood call". Thus there should be "complete separation of half-castes from the Aboriginals with a view to their absorption by the white race"; further, there should be complete segregation of blacks and whites "in colonies of their own" and "to marry amongst themselves". Thereafter "half-castes" were sent to specified institutions around the country, to be "salvaged" because their "white blood" was their springboard to civilisation and Christendom. It is indeed strange that many of these assimilation homes were located in places of great isolation, for example Croker Island, Garden Point (now Pularumpi) on Melville Island, the Bungalow in Alice Springs, Cootamundra Girls' Home and Kinchela Boys' Home in rural New South Wales. The St Francis Home in Adelaide, Sister Kate's Orphanage in Perth and Kahlin Compound and the Retta Dixon Home in Darwin were among the few institutions located in white urban domains.

In the biological footsteps of Professor Baldwin Spencer, Dr Cecil Cook, Chief Protector of Aborigines in the Northern Territory, believed that "the preponderance of coloured races, the preponderance of coloured alien blood and the scarcity of white females to mate with the white male population" would create "a position of incalculable future menace to the purity of race in tropical Australia". What was worse was that a large population of blacks "may drive out the whites" [47]. I met Dr Cook in the early 1960s: having just migrated from South Africa, there was a terrible presentiment, when talking with this man, that I hadn't left behind that not so beloved country.

The Neville-Bleakley-Cook philosophies became official policy in the Territory in the early 1930s. The Administrator's Report of 1933 had this to say:

In the Territory the mating of an Aboriginal with any person other than an Aboriginal is prohibited. The mating of coloured aliens with any female of part Aboriginal blood is also forbidden. Every endeavour is being made to breed out the colour by elevating female half-castes to the white standard with a view to their absorption by mating into the white population [48].

State and Commonwealth administrations met in Canberra in 1937 to discuss possible federal control over Aborigines and to adopt, if possible, some national and overarching policies. Neville's ideas were very persuasive. In the end, each regional authority held on to its domain, but the unanimous conclusion was that "the destiny of the natives of Aboriginal origin, but not of full blood, lies in their ultimate absorption by the people of the Commonwealth, and it therefore recommends that all efforts be directed to this end". Efforts were very much directed to such biological solutions. This wasn't killing but it was assuredly practice directed at child removal, "breeding them white", and "dismantling" everyone who was regarded as less than "full-blood". All of this was very much more than a "sentiment" of "unease", "contempt", or "rejection" about a people who were different. Did all or any of this cause "serious bodily and mental harm to members of the group" - as in Article II (b) of the Genocide Convention? Did any of this constitute an attempt to physically destroy Aborigines, in whole or in part - as in Article II (c)? Is there any substantial difference between the Convention's term "destroy" and Neville et alii's "disappear"? Much has been written in defence of these men who formulated policies in the "social and scientific contexts of their time". No matter what spin is put on the mindset of these men, the intent was as repugnant then as it would be now: to await the "natural" death of the "full-blood" peoples and to socially engineer the disappearance, forever, of all those "natives of Aboriginal origin". They were, indeed, progenitors of group disappearance. They were, beyond doubt, complicit. They did conspire and they did attempt to commit genocide, that is, ensure the elimination, in whole or in part, of a racial group (of "half-castes"). None of them were Eichmanns, but all of them were imbued, in Minogue's phrasing, with "a theory, such as Hitler's, about the respective biological characteristics of distinct races". Here, indeed, was intentional elimination of a race - not merely, or hardly, "a sentiment" involving "contempt".

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"(e) Forcibly transferring children of the group to another group"

Read's estimate of the number of children removed in New South Wales between 1883 and 1969 is 5,625, allowing (as he notes) that there is a distinct "lack of records". My assessment is a much higher figure. I have not examined such Board or child welfare records as remain, but base my higher figure on an extrapolation of the numbers of forced removals and institutionalisation among the 1,200 Aboriginal sports people recorded in my recent book on the history of the Aboriginal experience as seen through the metaphor of sport [50]. (One example: of the 129 men and women in the Aboriginal and Islander Sports Hall of Fame, twelve were removed, another six, possibly seven were adopted by white families, while another 22 grew up in institutions.) Read's figure of perhaps 100,000 across Australia over a century rings a clearer bell. The National Inquiry into the "separation" of Aboriginal and Torres Strait Islander children from their families, published in 1997, summarises the situation: "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" [51].

In July 1995, journalist Stuart Rintoul met Colin Macleod, a former patrol officer with the Department of Territories, the agency responsible for Aboriginal welfare in the Northern Territory from 1945 until the mid-1960s. Macleod, now a Melbourne magistrate, believes that the policy was indeed dictated by the notion that "half-castes" were "salvageable", whereas "full-bloods" were not. While he disagrees (now) with the removal of children for purely assimilationist or "experimentalist" reasons, he maintains that some removals were "for their own good" and "not done heartlessly". Girls, he says, were at risk from sexual chatteldom, either from the pastoralists who employed them or from the old men to whom they were promised by tribal custom. In his book, Macleod talks about young girls "becoming mothers way before they were old enough to be good mothers, in conditions of unspeakable squalor and cruelty, often inflicted by the child's father ... [52]" Agreeing that he was one of the "benevolent dictators", he is strongly supported today by a Catholic Brother who insists that "our belief was that we were doing something wonderful for these children by providing them with a home".

In sharp contrast are the memories of the "salvaged" ones: there was little that was wonderful in the experience; there was much to remember about physical brutality and sexual abuse; and for the majority the homes were scarcely homes, especially in the light of the then healthy Aboriginal practices of kinship, family reciprocity and child-rearing in extended families. There is considerably more recorded and substantiated evidence of abuse in the "safe homes" than Macleod claims was occurring in Aboriginal environments. In 37 years of involvement in Aboriginal affairs, I have met perhaps half a dozen men who liked Sister Kate's or Kinchela Boys' Home. I have yet to meet an Aboriginal woman who liked Cootamundra Girls' Home or Colebrook. No one failed to mention the incessant sexual abuse, or the destruction of family life. The late Professor Bill Stanner believed, following a one-day visit, that places like Sister Kate's gave children "a prospect of a better life". In the end, the views of the inmates remain a better testimony.

In 1993-94, the Australian Archives presented an exhibition in Sydney, Adelaide, Canberra and the Northern Territory entitled Between Two Worlds, a study of the federal government's removal of Aboriginal "half-caste" children in the Territory from 1918 to the 1960s [53]. It was a brilliant depiction of one facet of genocide, without using the word. Throughout this entire history, there were exceptionally few men and women who heard whispers in their hearts that anything was awry or amiss [54]. But among many exhibits were letters from the late E.C. (Ted) Evans, then Chief Welfare Officer (and Macleod's boss), to the Administrator, urging that removals cease: because, he wrote, they were intrinsically evil and because the world would never understand either the motives or the practices. This exhibition was to be yet another impetus to the movement initiated by Aborigines - the Link-Up project - to discover and recover this peculiar form of Argentine's "disappeared ones", Australia's desaparecidos.

By 1994, Aborigines at the Going Home conference in Darwin felt sufficiently confident to begin planning civil lawsuits against governments and missions for the forced removal of children, the break-up of family life and the physical placement of people outside the ambit of areas now available (or claimable) under land rights legislation. Only one civil case has been prosecuted by an Aboriginal woman in Sydney: she was ill-prepared and lost her claim against New South Wales. So too did six Aboriginal plaintiffs from the Northern Territory in what is known as the Kruger case [55]. They argued that the Aboriginals Ordinance was, in effect, an unconstitutional law, one which gave powers to commit genocide, specifically by removing children so that their religious practices could not be sustained. In what I believe was a poorly constructed case - in part because the legal team tended to ignore Article II (b) and (e) of the Genocide Convention, concentrated on the constitutionality of the offending ordinance (rather than the powers exercised under that ordinance), and depicted genocide as deprivation of religious rights - the High Court (in 1997) found the ordinance valid because it was enacted "in the interests of Aborigines generally".

Is it possible to have a law, asks genocide scholar Barbara Harff, "that can, through a perverted collective morality, become a murderous weapon" [56]? Yes, indeed. That sentence is a reasonable verdict on nearly all pre-1970 special legislation for Aborigines, statutes which began, or purported to begin, as protection, but which became their value opposites in practice. Most scholars and lawyers look to parliamentary debates and the legal language of statutes as evidence of "policy". What has been so signally missing in Australia is analyses of the administrations which sought to realise policies. My research has always tried to examine, and to explain, the gaps, often the gulfs, between policy aspirations and their translations into practice. The results are of interest: the administrative machinery has stopped most policies of equality from coming to fruition but has ensured that most policies of inequality emerge as true inequality, often beyond the letter of the law.

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Stolen or Separated?

The damage and trauma these policies caused are felt every day by Aboriginal people. They internalise their grief, guilt and confusion, inflicting further pain on themselves and others around them... We want an enquiry to determine how many of our children were taken away and how this occurred... We also want to consider whether these policies fall within the definition of genocide in Article II(e) of the United Nations Convention ...

In May 1995, the federal Labor government responded to Aboriginal and media pressure by establishing the "National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families". The terms of reference were reasonable and admirable. The Inquiry had to trace past laws, policies and practices and their consequences, investigate ways of assisting in location of family, and "examine the principles relevant to determining the justification for compensation for persons or communities affected by such separations".

There were, however, some troubling aspects. First, the constant use of "separation" in the terms of reference - a nicer word, implying some degree of mutuality in the severing of these parent - child relationships, as well as keeping open a door to a reuniting. Neither mutuality nor uniting was ever intended, or involved, in practices which began in Victoria in the 1880s and ended in New South Wales in the 1980s (not the early 1970s, as the National Inquiry states). The "removal" bureaucrats envisaged absolute finality. Second, there was always the possibility that "principles to determine justification for compensation" could, if they eventuated, become prescriptive and therefore the only legal mechanisms for compensation. Third, the reality of the "stolen generations" really didn't need further proof, since the history and the consequences were well enough known, especially to the victims. Nevertheless, the final report has proved to be a monumental document and a pivotal point in contemporary race relations.