Time to reform the judiciary. The last week has highlighted the need for more judges who haven't gone the standard Melbourne Grammar/Melbourne Uni route to the bench (or similar). South Africa and many other parts of the world have independent commissions which appoint judges. In Ontario, 40% of judges appointed (by these commissions) since 1989 are women. In Australia it is 9%. This sort of apologising for the mistakes of the past has got to stop. The full decision is available at: http://www.austlii.edu.au/au/cases/cth/federal_ct/1999/1192.html CRIMINAL LAW - International crime of genocide - Meaning of genocide - Intentional element - Prohibition of genocide as a norm of international customary law - No legislation providing for prosecution of genocide claims in Australian courts - Whether genocide is cognisable in Australian courts in the absence of legislation. ABORIGINES - Claims that sponsorship of Native Title Act amendments and failure to seek World Heritage Listing of Lake Eyre region were acts of genocide - Impropriety of courts inquiring into actions of Parliament - Obligations arising under World Heritage Convention. Some lowlights............ "5 Anybody who considers Australian history since 1788 will readily perceive why some people think it appropriate to use the term "genocide" to describe the conduct of non-indigenes towards the indigenous population. Many indigenous Peoples have been wiped out; chiefly by exotic diseases and the loss of their traditional lands, but also by the direct killing or removal of individuals, especially children. Over several decades, children of mixed ancestry were systematically removed from their families and brought up in a European way of life. Those Peoples who have been deprived of their land, but who nevertheless have managed to survive, have lost their traditional way of life and much of their social structure, language and culture. 6 Not surprisingly, this social devastation has led to widespread (although not universal) community demoralisation and loss of individual self-esteem, leading in turn to a high rate of alcohol and drug abuse, violence and petty criminality followed by imprisonment and, often, suicide. Many (not all) communities suffer substandard housing, hygiene and nutrition, leading to prevalent diseases that are rarely experienced by non-indigenous communities. The result of all this, as numerous studies have demonstrated, is that indigenous Australians face health problems of a different order of magnitude to those of other Australians, leading to an expectancy of life only about two-thirds that of non-indigenous people. 7 Leaving aside for the moment the matter of intent, it is possible to make a case that there has been conduct by non-indigenous people towards Australian indigenes that falls within at least four of the categories of behaviour mentioned in the Convention definition of "genocide": killing members of the group; causing serious bodily harm or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and forcibly transferring children of the group to another group. 8 Many of us non-indigenous Australians have much to regret, in relation to the manner in which our forebears treated indigenous people; possibly far more than we can ever know. Many of us have cause to regret our own actions. As the recent report of the Human Rights and Equal Opportunity Commission, "Bringing them home", reminded (or taught) us, the practice of removing children of mixed ancestry from Aboriginal communities was not something confined to the distant past; it continued well into the 1960s in some parts of Australia. There must be many people, still in their 30s and 40s, who were taken from their mothers as infants. 9 One of those people, although somewhat older, is Wadjularbinna Nulyarimma, the first appellant. She recounted her story to the Court in moving and eloquent terms. She told about the rape of her mother by white men, as a result of which she was conceived, the only mixed ancestry child in a black family. She told how her mother rubbed goanna fat and charcoal into her skin to make her black; nonetheless she was taken from her family and put into a mission home where she was forbidden to speak her own language. She told us how she came to marry: "I was just called in one day by the superintendent, 'we're marrying you off into a white family'. And I was absolutely shocked. `No, I don't want to go', I said, `I don't want to go'. `This is the best thing for you. You are not a black person; you have white blood in you'. I came from a black woman's womb. They are my family, my people and I have some white person, superintendent, telling me that he knows what is best for me and his best for me to marry into a white family was added stress, added pain, added trauma. I had no idea. A little black girl coming from humble beginnings now going to be put into the world of snobbery. Not just an urban black; I am going to be there where people measure their worth by their wealth, their position and power, poor sick people, but I was soon to learn that." 10 Wadjularbinna Nulyarimma had several children, but eventually left them. She told us how this came about. Her mother came to the cattle station where she lived with her husband: "... my husband then said she could not stay there. `This is not a black's camp'. She had to go. And I had to face the facts, who am I? Am I this black girl playing a game of let us pretend I am white? Well, I had better start dealing with it and just be true to myself. And up to that date in 1970, I came to terms with who I was. And it was the first time I made a choice. And I said to my mother, `I'm going home'. She said, `You leave your husband, now?' And I said, `Mamma, I've made up my mind'. And I made it up. I had to decide and my children - I destroyed my children. In Aboriginal law you stay with the man until you part through death. And my mother looked at me with tears streaming down her face and she said, `You break Aboriginal law, now?' I was damned if I did and I was damned if I did not. And my children's lives, I had to decide. That is what white Australia did to me. And I looked into my little children's eyes and I had to tell them. They cried and said, `We want to stay with our daddy'. But I said, `I'm, somebody else, with a different law, different values, different system'. And I told them, in theory, all about it, that they were brought up as white children. Now my children are trying to find their identity and trying to fit in." 11 The other appellants also told stories that indicated the trauma still suffered by indigenous Australians as a result of their treatment by whites. It is important to us as a nation that we do not treat indigenous devastation as only a thing of the past. The trauma lives on, and many of the causes as well. 12 However, deplorable as our history is, in considering the appropriateness of the term "genocide", it is not possible too long to leave aside the matter of intent. As already mentioned, it is of the essence of the international crime of genocide that the relevant acts be intended to destroy, in whole or in part, a national, ethnical, racial or religious group. Some of the Australian destruction clearly fell into this category. A notable example is the rounding up of the remaining Tasmanian Aboriginals in the 1830s, and their removal to Flinders Island. There are more localised examples as well. Before that date in Tasmania, and both before and after that date on the Australian mainland, there were shooting parties and poisoning campaigns to "clear" local holdings of their indigenous populations. Nonetheless, it remains true that the biggest killers were diseases unintentionally introduced into Australia by whites and the consequences of denying Aboriginals access to their traditional lands. With the benefit of hindsight, we can easily see the link between denial of access and those consequences; but it is another matter to say they were, or should have been, foreseen by the first Europeans who settled on the land (with or without official approval), whose main objective was to make settlement pay. 13 Of course, there was an element of intent about all the killings. A squatter who shot at Aborigines in reprisal for them spearing his cattle must be taken to have intended to kill the individuals at whom he shot; it cannot necessarily be presumed he intended to destroy the group as such, even in part. 14 In his judgment under appeal, Crispin J set out an extensive history of the dispossession of Aboriginal people from their lands following British settlement of Australia: see paras [11] to [41]. His Honour's account is not unsympathetic to the appellants' viewpoint; indeed, quite the contrary. In para [11] his Honour observed: "It is undeniable that the British colonisation had gravely adverse consequences for the Aboriginal peoples of Australia. They had shared unchallenged dominion over the Australian continent for thousands of years. Then within the space of a few generations the bulk of their land was wrested from them by invaders from over the seas." In para [32] Crispin J said: "the wholesale destruction of Aboriginal peoples was related to an equally wholesale usurpation of their lands". He went on to point out this usurpation was contrary even to English law. Yet it is apparent from his Honour's account that this course of conduct was not the product of any sustained or official intention to destroy the Aboriginal people, but rather of circumstances and the attitudes and actions of many individuals, often in defiance of official instructions. In the case of a dispossession of land and destruction of Peoples that occurred gradually over several generations and stemmed from many causes, it is impossible to fix any particular person or institution with an intention to destroy the Aboriginal people as a whole. 15 I mention the matter of intent to destroy an ethnical or racial group because it is something that may have been overlooked by those who instituted the proceedings now before the Court. Without offering any personal comment on the matter, I can understand the view that the proposals listed in the "Ten Point Plan", and substantially enacted in the 1998 amendments to the Native Title Act, further disadvantaged indigenous people in relation to their traditional lands. Given the intimate connection between their traditional lands and Aboriginal and Torres Strait Islander people, and the importance of their lands to their way of life and culture, it is understandable some would see the "Ten Point Plan" and 1998 amendments as only the latest step in a process that has been going on for more than 200 years. However, if one is to use a legal term like "genocide" to describe that process, it is important to remember this entails a requirement to prove an intent to destroy a people. 16 Similarly, I note the material put before the Court by Mr Buzzacott in connection with the importance to the Arabunna people of conserving the natural qualities of the Lake Eyre region. Mr Buzzacott points out the need to retain the waterholes that have so long sustained life in this arid region. He says mining operations have already affected the waterholes, leading to a loss of reliable water and of flora and fauna. He claims this has adversely affected the utility of the waterholes for his People and their ability to maintain their traditional way of life. If these allegations are correct - I bear in mind they have yet to be tested - the proper conservation of this area is critically important to his People. It is understandable that, in the belief this would give the area a greater measure of protection, he favours its inclusion on the World Heritage List. It is also understandable he should see the apparent decision of Senator Hill and Mr Downer not to proceed with an application for inclusion as inimical to the survival of his People. However, even assuming their decision may have that effect, it is another matter to say the Ministers were actuated by an intent to destroy the Arabunna People, in whole or in part. 17 The existence of a particular intent is a matter of fact, and the facts of the present cases have yet to be investigated. However, even if it is possible for them, in their respective cases, to demonstrate genocidal intent, neither the appellants nor Mr Buzzacott would, in my opinion, be entitled to succeed. Although I agree with both my colleagues that genocide is a crime under international customary law, like Whitlam J but unlike Merkel J, I do not think that, in the absence of appropriate legislation, it is cognisable in an Australian court." -- Leftlink - Australia's Broad Left Mailing List mailto:[EMAIL PROTECTED] http://www.alexia.net.au/~www/mhutton/index.html Sponsored by Melbourne's New International Bookshop Subscribe: mailto:[EMAIL PROTECTED]?Body=subscribe%20leftlink Unsubscribe: mailto:[EMAIL PROTECTED]?Body=unsubscribe%20leftlink
