The Commonwealth Government and the High Court came very close this week to accepting the Nuremberg defence over the stolen generation.
The Nuremberg defence was broadly that “”we were following orders and what we did was at the time lawful under the laws of Germany”.
Comparisons with Nazi Germany are usually hyperbole and nearly always odious. I am making a comparison in legal thinking, not in the enormity of the offence. In dry jurisprudential terms it is a debate between legal positivism and natural law.
In the High Court case ruled on this week, a group of Aborigines argued that the taking of Aboriginal children from their parents and putting them in state or foster care by Northern Territory officials in the 1950s was wrong and they should get damages.
The Commonwealth Government said that officials of the Northern Territory (then under Commonwealth administration) were working under the Aboriginals Ordinance which gave an official with the Orwellian name of Chief Protector the power to take children into custody “”if, in his opinion it is necessary or desirable in the interests of the Aboriginal or half-caste for him to do so.”
The Ordinance made the Chief Protector the legal guardian of all Aboriginal and half-caste children “”notwithstanding that the child has a parent or other relative living”.
The Aboriginal plaintiffs argued that this Ordinance was invalid because of several implied terms and explicit terms in the Constitution. They were: an implied immunity from removal and detention without due process of law exercised by judges (as distinct from Chief Protectors); an implied principle of freedom of movement; an implied principle of equality before the law; an immunity from any law authorising acts of genocide; and because the Constitution would not allow a law that prohibited free exercise of religion.
They argued that the breaches of these constitutional rights gave rise to an action for compensatory damages.
The High Court ruled (4-2) against the nine Aboriginal plaintiffs on all grounds. Eight were children taken from their parents and the ninth was a mother.
Chief Justice Brennan acknowledged that the exercise of the removal power had “”profoundly distressed the nation”.
But he and the other majority judges drew a distinction between the sometimes abusive exercise of a power and the validity of the granting of the power in the first place. Just because the power to remove children might be exercised badly did not mean that the legislation granting it was invalid.
An Aboriginal might complain that the power was used unreasonably but that was not enough to bring into question the validity of the grant of the power in the first place.
Further, even when testing whether the power was used unreasonably, reasonableness had to be determined “”only by reference to the community standards at the time”.
See what I mean by the Nuremberg defence. The Chief Protector was only doing his job at the time as he saw it and it was lawful at the time.
It is the classic division of law and morality. But it was not accepted a Nuremberg.
True, at Nuremberg individuals were on trial for individual acts; here a whole government is being judged retrospectively.
None the less, the question remains of whether and how actions which are now seen as immoral can be judged at law.
Legal positivists argue that law is a creature of humans. The only law is that which is prescribed by humans and enforced by humans. So if the written law does not deal with it, it cannot be punished. People in the natural-law school, however, argue that there is a universal law that comes from a universal morality beyond the rules of the state.
Natural lawyers argue that people should always be answerable to a natural law of humanity that transcends the written law of the state which happens to be in force at the time. Thus the Chief Protector should be answerable to a higher law for taking children away from their mothers even if the law at the time allowed it and much general thinking at the time agreed with it — just as Klaus Barbie should be answerable for taking French Jews away, albeit to forced labour rather than to a foster home where the foster parents were at least doing their best.
The natural lawyers argue that law is surely more than the written words plonked on the statute book by despots, or in the stolen generation case by misguided governments. They say general social experience tells us certain things are breaches of universal law, not because of religion but because most people in most eras have expressed that view — for example, gratuitous killing, assault and stealing.
Many would argue that the action of the Chief Protector and his officials in taking children from their parents would fit that category because most people in most eras would know that was wrong. They would say the actions in the stolen generation cases were offensive to natural law, irrespective of the written Northern Territory law at the time, and that the people who perpetrated them should be answerable. Presumably, if the individuals cannot be found then the Government should answer in damages.
The positivists argue that you can only go by the law as it is written. In the case of the Nazis, you still go by the law as it is written, you just write a new retrospective law for a new tribunal after the event to ensure the Nazis do not escape.
Other positivists argue you develop a code of international criminal law to which individuals are answerable despite contrary national law. This has happened in the case of Bosnian war crimes for example.
And now it is to international law that Aboriginal groups will turn to seek redress.
Once again the Nuremberg parallel can, in a limited way, be drawn.
The essential trouble with the comparison is that, unlike the Nazis, the Chief Protector and his officials were acting from the best of intentions in the belief that what they were doing was best for the Aboriginal children.
But even if a comparison cannot be made on an individual criminal level, there is still a comparison to be made at a national level. A comparison can be made between Australia’s law on the removal of Aboriginal children and some Nazi law and apartheid law in white South Africa that gave broad powers to officials to restrict movement of people and to split families.
When put this way, maybe the High Court got it around the wrong way. The majority said you might attack individual instances of the exercise of the power of removal, but not the power itself.
It seems to me that in these cases you might well excuse the officials and foster parents doing their bumbling, well-intentioned best in individual cases but attack full on the sweeping nature of the power granted and people at the top of the power structure that granted it.
Remember, this law gave legal guardianship in one sweep over each and every Aboriginal and half-caste child in the Northern Territory to the state, irrespective of whether they had living parents.
If you are going to invoke any natural-law standards, it should be against this broad, arrogant and racist subjugation of all Aboriginal children by force of law, rather than require individual Aborigines to contest every alleged abusive exercise of the power.
But the High Court did not invoke any natural-law standards and the majority refused to find any human-rights standards in the Constitution to give rise to an action for damages. The former is excusable. As Brennan pointed out in a 1994 case on sterilisation there is a danger in courts plucking out natural law principles from the air. Assumed powers would be uncontrollable and despotic.
Nor is there a remedy against the Commonwealth in international courts because they require the nation being sued to submit to the jurisdiction before they will rule. (It is a very positivist view requiring the law to have enforceability.)
This illustrates need for a bill of rights in our Constitution to prevent such injustices in the future.
It illustrates the need for the executive government to do something if the judiciary cannot or will not.
It illustrates the gap between morality and the law.
That gap was best expressed by the retiring president of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, who said the legal ruling did not make any difference to the moral force of the recommendation of his inquiry into the stolen generation that compensation should be paid.