Unhelpful and Inappropriate?: The Question of Genocide and The Stolen Generations

Abstract

The first anniversary of the historic Australian Federal Government apology to the Stolen Generations on 13 February 2008 provides a pertinent impetus to reflect again on this important event. One aspect that seemingly did not receive much attention was the interview with Prime Minister Kevin Rudd the next day on the ABC's Lateline program regarding the terms of the apology. When asked why he had deliberately not used the term 'genocide', even though that term had been used in the Australian Human Rights and Equal Opportunity Commission ('HREOC') report, Bringing Them Home, the Prime Minister's reply was that genocide 'has a specific definition in international law and I don't believe [it] is either appropriate or helpful in describing the event[s] as they occurred or … in taking the country forward.' 1 This article considers whether it is in fact appropriate to use the word 'genocide' when examining the historical treatment of Aboriginal people in Australia, 2 and, in particular, the assimilationist policies that saw Aboriginal children forcibly removed from their families and detained in government and church institutions. This article begins with an introduction to the prohibition against genocide under international law. It then turns to a brief overview of the factual background of the removal policies that underpins the consequent analysis. The article then places the question in its domestic legal context by examining the Australian and international jurisprudence thus far. It will be seen that the specific issue of whether the assimilationist policies relating to the Stolen Generations amounted to genocide has had scant attention in the domestic courts and has not been considered in an international forum. While such cases have been considered elsewhere, the analysis is often generic, considering the various legal issues in the cases 3 and typically examining each case in isolation. 4 It is intended that the article will provide a useful resource on the application of the concept of genocide through its synthesis of the combined Australian litigation in the context of the international law jurisprudence.