Blokland, Jenny --- "A Feminist Amicus Brief in the Stolen Generation (NT) Litigation" [1997] AboriginalLawB 14; (1997) 3(89) Aboriginal Law Bulletin 10

A Feminist Amicus Brief in the Stolen Generations (NT) Litigation

By Jenny Blokland

"This article is a revised version of a paper delivered at the Symosium 'Feminist Interventions in International Law', Melbourne University, 30th September 1996. In accordance with the theme of the symposium, the writer inquires whether there are concealed gender issues of legal signifiance in the Stolen Generations (NT) case which could be made explicit by the use of an intervenor or amicus curiae charged with such a task. The paper was orginally the second section of a three part joint presentation made with Barbarra Cummings, Stolen Generations (NT) Group, and Rebecca LaForgia, Faculty of Law, Northern Terriiitory University. The author wishes to acknowledge their assistance and to thank them."

This article examines the nature of the material which might be canvassed in a brief which has the object of informing the High Court on the significance of select legal issues of importance to women in the Stolen Generations (Northern Territory) (`NT') litigation; Kruger & Ors v The Commonwealth (`Kruger').[1]

Amicus curiæ, the `friend of the court', is a term which describes a representative who is not a party to the proceedings but is granted a limited right to be heard on an issue. Hence, the feminist amicus brief is imagined as a vehicle to highlight these issues. In this article, particular regard has been paid to the emphasis Barbara Cummings has given to the gender bias inherent in the operation of the Aboriginals Ordinance 1918 (NT) and the continued loss suffered by members of the Stolen Generations (NT) Group who have been removed from their families as children under government policy.[2]

It is not my intention to revisit or criticise the comprehensive arguments agitated before the High Court. Rather, this article seeks to examine what feminist jurisprudence could practically and legitimately add to a multi-dimensional case such as the Stolen Generations (NT) Group litigation.[3] The harm suffered by the members of the Stolen Generations (NT), especially the way in which women and children have been distinctively harmed, is not of a kind for which redress is regularly claimed before the courts. It may well be invisible unless specifically addressed.[4] It is also suggested that the concerns of the Stolen Generations (NT) group may be best informed by international legal principles surrounding the question of assessment of loss.

An opportunity to be heard

In Australian law, there exists a sharp distinction between the intervenor who must demonstrate a proprietary, material or financial interest to be granted intervenor status, and the amicus curiæ who may be given permission to make submissions. The test to make submissions as amicus curiæ is strict, as can be seen in Kruger itself.[5] At the outset of Kruger, the International Commission of Jurists (`the ICJ') was refused leave to appear as amicus. The ICJ had sought to make submissions on fundamental Constitutional freedoms, protection of the family from undue state interference, and on the international obligation on states to ensure effective remedies when the state is in breach of international human rights instruments.[6] The Court refused the ICJ's application, as it found there was no indication that the parties were unable or unwilling to adequately protect their own interests, nor that the intervention would assist the Court to come to the correct determination.[7] Of the ICJ's written submission, it must be said that most of the subjects covered were comprehensively dealt with by the parties, save the ICJ's proposed brief submission on the obligation on states at international law to provide a remedy for breaches of human rights.[8]

The issue of effective remedy remains problematic for the Stolen Generations (NT). Any civil proceedings may be barred by statutes of limitation,[9] and because the type of harm suffered by the children and mothers is not easily accommodated by way of damages in common law remedies, a victory in the courts may not deliver appropriate redress. An Australian court, for example, would be dealing with distinctively new heads of damage or loss such as those related to problems in claiming land according to the `traditional' terms of the Aboriginal Land Rights (NT) Act 1976 (Cth).[10]

Jurisdictions which readily permit amicus briefs, or the granting of formal intervenor status, often involve cases concerning supposed quintessential `women's' legal issues such as abortion and sexual assault.[11] In the Australian context, for example, the High Court has recently granted amicus status to the Catholic Health Care Association and Abortion Providers of Australia in a medical negligence case for alleged failure todiagnose pregnancy.[12]

The Stolen Generations (NT) litigation, however, forces consideration of the interrelationship of both race and gender which cannot be treated as `mutually exclusive categories of experience and analysis'.[13] The first hurdle for the feminist amicus brief would be to convince the Court that, in a case primarily concerning serious race discrimination, the concealed issues of gender are of such significance that if not heard, the Court could reach the wrong result.

Secondly, the feminist amicus brief should take heed that, at the heart of feminist jurisprudence, including its engagement with international law, lies the actual experiences of women.[14] In the rarefied setting of cases of Constitutional challenge, the complexity and subtlety of the specific experiences of mothers and their children in a group may not be placed before a court by virtue of the balance of convenience favouring the preliminary resolution of questions of law. This was apparent in an exchange between counsel in the Stolen Generations litigation concerning the right to freedom of association. McHugh J stated: `This is where I feel the lack of evidence in this particular case because there is just no evidence as to what these children were deprived of in general terms or what they may have gained. How do we fill that gap?'[15] Counsel answered: `We cannot fill it with evidence, your Honour.' A feminist amicus brief would seek to keep the questions as widely drawn as possible and persuade the Court to hear evidence of the experiences of the plaintiffs, even against the balance of convenience.

Genocide

Genocide was dealt with extensively in the plaintiffs' written submission[16] and responded to by the Commonwealth, which argued that the issue would be the subject of evidence, and was thus incapable of being raised in the context of the Constitutional challenge.[17] Thecontroversy over the issue of `intent' within the Genocide Convention is well recognised.[18] A dominant view is that it must be shown that, if acts are to be characterised as genocide, then they must be committed `with intent to destroy, in whole or in part' the group. [19]

It is suggested here, that, despite arguments which have been raised in the Stolen Generations litigation concerning the issue of `intent' within the Genocide Convention, the loss suffered by members of the Stolen Generations is best understood and reflected in an appropriate remedy if the wrongs perpetrated against them are seen as genocide (or, at the very least, as a de facto genocide situation). The Special Rapporteur to the United Nations (`the UN') Human Rights Commission has assimilated slavery and `like' practices in the work on reparations.[20] A similar argument should apply to genocide-`like' practices.

The reliance on Article II(d) and (e) of the Genocide Convention (1949) (imposing measures intended to prevent births and forcible transfer of children of a group to another group) in the plaintiffs' written submission raised an issue which indicated harm specifically towards women.[21] As Barbara Cummings has shown, the children concerned were primarily in the care of their mothers, and more female children were removed than males, who were often required as stock workers.[22]

The Stolen Generations (NT) have described the nature of their loss as follows:[23]

For a mother whose child was stolen, this meant--

• Loss of association, including cultural association, with her child;
• Loss of cultural experience and fulfilment in respect of her child;
• Loss of maternal experience and fulfilment, and other rights and entitlements associated with motherhood and the rearing of a child;
• Pain, suffering and mental anguish.
• For the children taken away, this meant--
• Loss of association with parents, family culture and community;
• Loss of cultural experience, fulfilment and spiritual affiliations;
• Loss of amenities and opportunities for education; formation of personal relationships with family and community; personal freedom and other opportunities of life because of institutionalisation in a different cultural and racial environment to that into which they were born;
• Pain, suffering and mental anguish;
• Loss, diminution of, or impediment to hereditary entitlements including
entitlements to participate in land claims and right to land provided for or existing under Northern Territory or Commonwealth legislation or at common law.

Given the extent of this loss, it is curious that the characterisation of the Aboriginals Ordinance 1918 and the consequent acts perpetrated as genocide, which have so long been part of the public debate raised by the Stolen Generations (NT), was not part of oral argument before the Court.

If it is found that the Aboriginal Ordinance 1918 is valid and that what has occurred are acts of genocide, devoid of intent, it may be that what remains are, as Strickland has said of the situation in the United States, acts of `lawful' genocide:

`I am talking not about these cold blooded atrocities but about law and the ways in which genocidal objectives have been carried out under colour of law--in de Tocqueville's phrase "legally, philanthropically, without shedding blood, and without violating a single great principle of morality in the eyes of the world" ... The legal genocide, cultural as well as physical, practised against the American Indian could only have been the product of a society such as ours, a society with a strong sense of the "rule of law" `. [24]

Australia has an obligation to prevent and punish acts of genocide.[25] In taking steps to comply with this part of the Genocide Convention, Australia has asserted that laws in force in relation to the offences of `murder, manslaughter, assault, conspiracy and incitement and other matters are sufficient to enable Australia to comply with its obligations under the Convention.'[26] Ironically, it would appear that Australia had not conceived that to comply with the Genocide Convention, it may need to prohibit conduct outside of the usual scope of those traditional criminal law offences.

If the obligation to prevent genocide cannot be reflected in the High Court's ruling on the validity of the Aboriginals Ordinance 1918, then the acts amounting to or having the effect of genocide (even if intent in the full sense of mens rea is not proved) should, it is argued, inform the question of remedies if the Aboriginals Ordinance 1918 is found to be invalid for other reasons.

Until the Stolen Generations (NT) campaign and subsequent litigation, it would appear that little attention has been given in Australia to the legality of arbitrary forced removal of children by the state. Rather than passing laws to prevent it, Australia passed laws to promote it. In this event, the feminist amicus brief might argue that the forced removal of children has been wrongly regarded as a `softer' form of feminised `cultural genocide'.

Intertemporal issues

The Commonwealth has also argued that the evolving nature of human rights meant that the Aboriginals Ordinance 1918 should be judged according to the social, cultural and political context of the time. In his opening, Counsel for the Commonwealth stated:

`The Commonwealth admits the real issues of social and political concern; it is an area where there is intense attention being given to the serious social issues arising from the operation of these ordinances repealed so long ago, but acceptance of this situation does not, we submit, enable this Court to involve itself in what is, in essence, an invitation for the retrospective re-writing of the course of our Constitutional evolution. We say to entertain this case would be, in effect, to apply back for 80 years or so the operation of newly articulated Constitutional rights, entitlements, or freedoms.'[27]

The plaintiffs argued as follows:

`The proposition that racist or discriminatory views can dictate the meaning or effect of the Constitution directly contradicts the very nature of the compact and the inherent equality of the parties to it. Taken to its logical extreme, the defendant's pleading would have justified the attempts by the Third Reich to subject Jews to unprecedented discrimination under the law--eventually leading to genocide--on the basis that such a plan accorded with the "contemporary values and perceptions" of the German people'.[28]

The feminist amicus brief would seek to persuade a court to ignore the Commonwealth's intertemporal argument, insisting that successor governments are bound by the responsibility incurred by predecessor governments for gross violations of human rights. This is reinforced bythe work of the UN Commission on Human Rights.[29] As a matter of state responsibility, a new government must make reparations. Indeed, at international law, gross violations of human rights occurring in the past have attracted reparations. Recently, for example, the claim has been made that reparations are available for the continuing damaging consequences of the slave system, although slavery was once accepted as the norm and was legal in European states.[30]

Further, the work of the UN Commission on Human Rights states that `Reparations may be claimed by the direct victims and, where appropriate, the immediate family, dependants or other persons having a special relationship to the direct victims.'[31] Contrary to the Commonwealth's contention that this is a case of ancient history, the Stolen Generations (NT) litigants are the persons directly affected--as mothers and children.

Australia's ratification of the Genocide Convention on 8th July 1949 also goes some way to indicating that, at the time of the operation of the Aboriginals Ordinance 1918, Australia had made a decision to be bound by an international obligation to refrain from acts of genocide. It also signals that the community values of the time rejected genocidal practices. Even prior to Australia signing the Genocide Convention, it was well accepted that genocide was contrary to international law.[32] The arguments before the High Court in Kruger continually raise the need to examine the legislation according to the values at the time. How that is to be assessed is a problem in the Commonwealth's case.

The acceptance of a submission that intertemporal views defeat claims for redress of serious violations of human rights is a subject for inclusion in the feminist amicus brief given that many rights protecting women are relatively recent.[33] Throughout the argument on `freedom of religion' canvassed in Kruger, there are a number of exchanges between Counsel and the Bench which indicate that various atrocities perpetrated on women readily spring to mind in the context of the legitimate bounds of state control of religion. Female circumcision and suttee are both mentioned during the course of argument.[34] Less dramatic but no less fundamental, rights historically denied to women in Australia are also discussed--the right to participate on juries[35] and the right to vote.[36]

In one sense, it is heartening to read that these issues are considered in the context of argument on Constitutional issues. However, it is also a reminder of some of the grossest violations against women. Consequently, there is a need for the feminist amicus to persuade the Court to proceed cautiously before striking out the ability to remedy past wrongs.

Damages

The plaintiffs in Kruger claimed damages for breach of Constitutional rights and guarantees independent of any common law cause of action. Arguments surrounded whether breach of the Constitution can give rise to an action sounding in damages. If this is the case, how might damages be calculated? Would any State or Territory limitation statutes apply? Are any declaratory relief or other equitable remedies applicable? On each issue, the parties and members of the Court indicated there was significant uncertainty on the law--statutory reform of limitations statutes was raised.

If the plaintiffs' case is successful to the point of calculation of damages and other relief, the feminist amicus brief would attempt to persuade the court that the principles to be applied should be informed by Special Rapporteur Theo van Boven's recommendations on reparations, including reparation by restitution.[37]

Reparation in this case might include the provision of lands, or, where not practicable, financial compensation. Reparations also embrace compensation for mental harm, legal costs, pain and suffering and emotional distress. They might include reparations by way of rehabilitation--support, counselling and access to victim services. They might also involve reparation by way of satisfaction--public disclosure, declaratory judgment, apology, acceptance of responsibility, commemorations for victims, and inclusion of an accurate record of the human rights violation in educational materials.[38]

Conclusion

It is unlikely that a mix of the above measures by way of reparations could be adequately reflected in orders from the High Court in consequence of a successful Constitutional challenge. In the context of further civil litigation or submission on appropriate measures for recommendation by the Human Rights and Equal Opportunity Commission, the feminist amicus brief would ideally argue that on the point of remedy, the reparations as set out by van Boven should be used to develop and inform the common law.

Whether this can occur will depend on convincing the forum concerned that serious harm has resulted from the acts of removal. If the nature of the harm cannot be comprehended, its magnitude should be understood by reference to gross violations--such as genocide--in order that it can be treated with the seriousness it deserves. At the heart of the feminist amicus brief lies the need to persuade each forum to adopt the principle that women be treated seriously, that the way we might be distinctively harmed be appropriately acknowledged, and that wrongs perpetrated against women in the past not be swept aside in favour of adopting the dominant culture of a previous time. The benefits of this approach should flow to both men and women who have been harmed in serious but not immediately obvious ways.

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[1] Kruger, Muir, Cole, Hansen, Hill, McClary v The Commonwealth of Australia, High Court of Australia (No MO 21 of 1995) and Bray & Ors v The Commonwealth of Australia (No. D005/95), argued 12-14 February 1996. (Referred to in this paper as `Kruger'.) The same issues may be relevant in subsequent civil proceedings. See `Stolen Generations: the Kruger action' by L Kennedy and D Nance, Vol 3, 78 Aboriginal Law Bulletin 11.

[2] Barbara Cummings, 'Writs and Rights in the Stolen Generations (NT) Case', Vol 3, 86 Aboriginal Law Bulletin 8, November 1996.

[3] This litigation primarily concerns Kruger and Others v The Commonwealth (above). Relevant also is the `National Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children from their Families' conducted by the Human Rights and Equal Opportunity Commission. The potential for further civil litigation was alluded to in the Kruger argument and since hearing Kruger, 500 writs have been filed on behalf of individuals affected by the Aboriginals Ordinance 1918 (NT).

[4] R Graycar and J Morgan, The Hidden Gender of Law, Federation Press, 1990, p 272. Chapter II begins with the heading `Social Injury-The Ways in Which Women are Distinctly Harmed'.

[5] Transcript, Kruger 12th February 1996, p 12. See also Bropho v Tickner [1993] FCA 25; (1993) 40 FCR 165 at 172 per Wilcox J; Australian Railways Union v Victorian Railways Commission [1930] HCA 52; (1930) 44 CLR 319 at 331 per Dixon J; Australian Law Reform Commission, `Standing in Public Interest Litigation', Report No. 27.

[6] `Amended submissions of the International Commission of Jurists (Australian Section) On the Questions Reserved', 1, 12.

[7] Transcript, Kruger, 12th February 1996, p 12.

[8] ICJ amended submission at 12. It is argued in this article that common law remedies in the Stolen Generations (NT) case could be informed by international law.

[9] There is disagreement on whether the limitation statute of the State or Territory in which the proceedings were issued applies, or whether the statute of the place of commission of the tort applies.

[10] See NLC v Olney (1992) 105 ALR at 551. See also Rosemary Baird, `Respect the Survivors', Paper presented to the International Conference on Land Rights, Canberra, 17th August 1996.

[11] For example, cases conducted in Canada by Women's Legal Education and Action Fund (LEAF). Consent in the context of sexual activity in the medical setting: Norberg v Wynrib (1992) 92 DLR (4th) 449; maintenance: Moge v Moge (1992) 99 DLR (4th) 456; challenge to maternity leave: Schacter v The Queen and Canada Employment and Immigration Commission (1988) 52 DLR (4th) 524.

[12] `Abortion: the mum who holds the key; Abortion rights and wrongs', The Weekend Australian, 21-22 September 1996. This case has settled prior to argument on the merits.

[13] Kimberle Crenshaw, `Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Policies', The University of Chicago Legal Forum, 1989, 139-67; Marie Brooks, `The Incarceration of Aboriginal Women', in Majah (eds, Bird, Martin, Nielsen), Federation Press, 1996, p 266 refers to the `The Double Jeopardy: Gender and Race'.

[14] Charlesworth, Chinkin and Wright, `Feminist Approaches to International Law' (1991) 85 Am J Int L 613.

[15] Kruger, Transcript, 12th February 1996, p 62.

[16] `Genocide and the Constitution', plaintiffs' submissions, p 63, 4th November 1995.

[17] `Fundamental Rights and Genocide', respondent's submissions, p 62, 29th November 1995.

[18] Starkman, `Genocide and International Law: Is There a Course of Action?' (1984) ASILS Int's LJ; Le Blanc, `The Intent to Destroy Groups in the Genocide Convention: The Proposed US Understanding' (1984) 78 JTL 369; Clark, `Does the Genocide Convention Go Far Enough? Some Thoughts on the Nature of Criminal Genocide in the Context of Indonesia's Invasion of East Timor', (1981) Ohio Northern ULR 321.

[19] Respondent's submissions at p 64.

[20] It is noted that Special Rapporteur Theo Van Boven in `Study concerning the right to restitution, compensation and rehabilitation for victims of gross violation of human rights and fundamental freedoms' E/CN 4/sub 2/1993/8 refers to genocide, slavery and slavery-`like' practices (General Principles 1). UN Human Rights Commission, Submission on Prevention of Discrimination and Protection of Minorities, July 1993.

[21] Plaintiffs' submission, p 63.

[22] Barbara Cummings, op cit.

[23] Jaqui Katona, `We've been waiting all our lives for this', National Press Club, 13th February 1996.

[24] Strickland, `Genocide at law: An Historic and Contemporary View of the Native American Experience' (1986) U Kan LR 713.

[25] Genocide Convention Art I: `The Contracting Parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent or punish'.

[26] Minister for Foreign Affairs, Senator Willesee; Hansard, 15th August 1974, p 965, cited in Ryan (ed), International Law in Australia, Law Book Company, 1984, p 163. The inclusion of manslaughter is curious--not being a crime of intent, it is difficult to see how `non-intentional' killings could ever conceivably lead to proof of `intent' to destroy the group.

[27] Transcript, Kruger, 13th February 1996, p 162.

[28] Plaintiffs' submission, p 100.

[29] Special Rapporteur Theo van Boven, `Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms' (1993), as reproduced in Stolen Generations Litigation Unit, `Submission to Human Rights and Equal Opportunity Commission', 29th July 1996.

[30] Lord Anthony Gifford QC, `The Legal Basis of the Claim for Reparations', paper presented to the First Pan-African Congress on Reparations, Abuja, Federal Republic of Nigeria, April 27-29, 1993.

[31] Ibid. Another factor militating in favour of this approach is the principle that statutes of limitations should not apply.

[32] Genocide Convention (Preamble); Lemkin, `Genocide as a Crime Under International Law' (1947) 41 AJIL 145 at 147.

[33] For example Sex Discrimination Act 1984 (Cth); Affirmative Action (Equal Opportunity for Women) Act 1988 (Cth); Human Rights and Equal Opportunity Commission Act 1986 (Cth); Industrial Relations Act 1988 (Cth).

[34] Kruger pp 111, 112.

[35] Commonwealth submission, p 93.

[36] Kruger, p 131.

[37] Special Rapporteur Theo van Boven, `Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms' (1993), as reproduced in Stolen Generations Litigation Unit, `Submission to Human Rights and Equal Opportunity Commission', 29th July 1996.

[38] Note above, Recommendations 11, 19.