Speech by Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australasian Law Reform Agencies Conference, 16 September 1997
From the moment Australia was colonised Indigenous peoples have suffered discrimination at the hands of a legal system imported into this land. Not only were our own laws cast aside, but the new laws discriminated against us - and did so because of our race. In 1997, while there has been movement away from former policies of assimilation, removal and protection, the dominant legal system still discriminates against us.
When contemplating the discrimination in our lives, the federal governments' response to the High Court Wik decision and the massive over-representation of Indigenous people in the criminal justice system, as just two examples worthy of consideration . It is also useful to consider present attempts by governments to dig up policies and practices we thought were dead and buried in the past. Now, more than ever, affirmative law reform is necessary to combat rising discrimination.
But the law as a tool for promoting and, at times, coercing the principle of non-discrimination must run parallel to a strategy that includes community education.
Before I talk about specific areas of law reform, I wish to first explore what discrimination means to us as Indigenous peoples, and what I think it means to Australia as a nation participating in the global economy waving the banner - 'a fair go for all'.
From the moment non-Indigenous people set foot on these our ancient lands discrimination has been part of our lives.
First we were dispossessed of our land and our cultural foundation- for no other reason than our race. Colonists considered Aboriginal and Torres Strait Islander peoples as 'backward', and we were dismissed as curious parts of the landscape that ought be eradicated. This, of course, conveniently satisfied the concept of terra nullius to justify the 'colonisation' of a new land. This notion contained a special clause which said that even if land was not vacant, it could still be colonised if the existing inhabitants were deemed backward- an assumption since over-turned by the High Court in its' decision on native title in the Mabo case.
The benefit of this assumption was that Britain could transplant its own laws into Australia without delay. Under British law of the day, whether a colony was subject to English law, depended largely upon the circumstances in which colonisation had occurred.
If a colony was acquired by conquest, the laws and customs of the conquered remained until replaced by the conqueror. But where the colony was 'settled', colonists carried with them the laws of England which they could then enforce. Within these rules Australia was regarded from the earliest times as settled, not conquered. Given the penal nature of the Australian colony this distinction was crucial.
The racist, discriminatory assumption of 'backwardness' underlying terra nullius was later embodied in the Australian Constitution, empowering the Commonwealth Government to make special laws for us. Similarly, Indigenous peoples in America were considered 'a subordinate and inferior class of being' when those who framed the American Constitution did their work.
Until 1967 we were not classified as citizens under the constitution and, while we paid taxes like everyone else, we were not allowed to vote. The 1967 referendum is generally regarded as having conferred citizenship upon us. This analysis is contestable. But the referendum does demonstrate the importance of law reform in combating discrimination. It also reflects the parallel importance of community attitude and support without which the referendum would not have been possible.
For many years prior to the 1967 referendum, and for some time thereafter, state and territory governments administered overtly assimilationist, discriminatory, and genocidal policies and legislation underpinning the removal of Indigenous children from their families. The damage of this practice continues to resonate throughout Indigenous communities today.
Why should any person be discriminated against for simply being themselves- for being who they are because of their birth? The principle of non-discrimination is generally considered to be one of the fundamental doctrines of the international order. Article 55 of the UN Charter says that one of the objectives of the UN is to promote:
universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion
The principle of non-discrimination is contained in all major human rights treaties and declarations and there is a specific treaty dealing with racial discrimination, the International Convention on the Elimination of all forms of Racial Discrimination (CERD).
This principle is of such significance that states cannot ignore it even in times of war or national emergency. The majority of the International Court of Justice described the prohibition against racial discrimination as an obligation that arises independently from specific treaty obligations and is owed toward the 'international community as a whole.
In 1975 Australia sought to entrench the principle of non-discrimination Australia into domestic legislation with the enactment of the Race Discrimination Act (1975). The RDA makes racial discrimination illegal in all Australian jurisdictions and aims to ensure that everyone is treated equally, regardless of their race, colour, descent, or national or ethnic origin.
Since the Act was passed over 10 500 complaints have been received and over 3 500 of these were from Aboriginal and Torres Strait Islander peoples. The principle of non-discrimination embodied in the Race Discrimination Act cannot be set aside merely because it is inconvenient and does not accord with the policy of the day. But we live under a government not wanting to think too much about the past unless that past is relevant to a prescribed version of Australia.
Nor does this government feel 'relaxed and comfortable' with words like 'discrimination' or 'racism'. Instead it uses jargon like 'under-privileged' and 'tolerance', and frighteningy suggesting that no legislation is 'sacrosanct', including the Racial Discrimination Act 1975. Not sacrosanct! This is denial of an international prohibition. This is a matter of utmost gravity. This is a sad abrogation of responsibility. Nero-like, we are expected to permit 'fiddling'!
And we are expected to naively accept that discrimination is not alive and kicking in this country!!
Native title example
Consider the governments' response to the High Court decision in the Wik case, the proposed legislative response is not only unfair and unwarranted, it is also racially discriminatory. It will prevent Indigenous Australians from fully exercising and enjoying our property rights.
The High Court declared that pastoral leases do not necessarily extinguish native title. The Court quite correctly opted for co-existence. The federal government - bulldozer-like - has effectively ruled out co-existence, as though it were a privilege the High Court bestowed upon us.
Underlying the 10 point plan is a view that measures which recognise the rights of minorities are painted as 'gifts', gifts which place minority groups in a better position than others. It is therefore suggested that the removal or watering down of these measures will not discriminate against the people whose unique needs they are designed to accommodate.
Certain characteristics of our native title must be accommodated in order for our property rights to be protected to the same extent as the property rights of the majority. Failure to recognise these different needs will itself be discriminatory.
The key issue arising from the proposed amendments to the Native Title Act is whether they satisfy the government's claim that they are consistent with the Racial Discrimination Act.
The government describes both the Native Title Act and the right to negotiate as being 'special measures' forming an exception to a general requirement of formal equality between races. This is clearly flawed because 'substantive' equality is now required.
The greater the degree of discrimination, the more vulnerable the proposed legislation will be to challenge. What's more, I very much doubt if the proposed legislation will stand up to international scrutiny. Already there has been concern expressed about this government's discriminatory approach to our property rights.
The problem for us is many of the institutions in this country are steeped in a history of discrimination. A structural discrimination. A form of discrimination which has its source in colonialism. As the Supreme Court of New South Wales has noted in the Yorta Yorta claim is a system 'wrought with discriminatory and colonial biases'.
Criminal justice example
Another example of widespread discrimination working against us is the massive over-representation of Indigenous people within the criminal justice system. This is not evidence of inherent criminality amongst my people. It is evidence of a legal system that discriminates against indigenous people at every level of the system. Law reform cannot be delayed without knowingly perpetuating damage to us- I've given up counting the number of reports highlighting the extent of the problem and demanding reform.
One such report produced by the Australian Law Reform Commission entitled Children and the Legal Process found that:
Indigenous children are vastly over-represented at all stages of the juvenile justice system. This over-representation begins with disproportionate police intervention. Studies suggest that in relation to Indigenous children police exercise their discretion at every point in the system in a manner that disadvantages them relative to non-Indigenous children, and increases the likelihood of their further involvement with the juvenile justice system.
More recently the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children found that state and territory police were often affected by racial discrimination and Indigenous youths did not receive equal treatment before the law.
In July this year Justice Marcus Einfeld launched the 1997 UNICEF Progress of Nations Report and personally condemned Australia's treatment of Indigenous young people. The report revealed Aboriginal children are 18 times more likely to be jailed than their non-Indigenous counterparts.
For us, it has all been said before. The only difference with each report is that the proportion of over-representation grows a little wider. In 1995 report I projected that if nothing is done about it, by the year 2001 we will see another 15% increase in the level of over-representation and by 2011 another 30%. but there is no commitment to change. How many more reports will be stacked on our shelves. How many more lives will be lost. What is it going to take?
In July this year I attended the Ministerial Summit on Indigenous Deaths in Custody which brought together Attorneys-General and all Ministers relevant to criminal justice - but I left that meeting with a sense of utter futility. There was no real commitment to do anything. In fact Western Australia proposed a ten year time frame for change.
Law reform within the criminal justice system is not an option. It's not about granting us some big favour- it is required. And its required because the blatant discrimination Australia shelves year after year is breaching international legal standards we are a party to.
The failure to ensure equality within the criminal justice system, particularly amongst young people, is in breach of the International Covenant on Civil and Political Rights, the International Convention on the Elimination of all forms of Racial Discrimination and the Racial Discrimination Act (1975). And in relation to Indigenous young people Australia's conduct is also in breach of the United Nations Convention on the Rights of the Child.
Combating discrimination is not insurmountable it's about making a commitment, and Australia has already made this commitment when we negotiated and ratified the Convention on the Elimination of all forms of Racial Discrimination. But as I said earlier, the law as a tool, is not wholly effective in isolation. The attitudes of people under the law, and as a constituency of those developing the law, is extremely important.
An historical example of this process where the law has intruded to help change societal attitudes may be seen in relation to slavery. In 1769 Lord Chief Justice Mansfield said:
every person coming into England is entitled to the protection of our laws, whatever oppression he may heretofore have suffered and whatever the colour of his skin...
Similarly, with the rule of law grounded upon the principle of non-discrimination, every person in Australia is entitled to the protection of the law.
The need of the general community to feel safe and the ill-informed view that tougher law and order measures will minimise crime is nonsense. In fact the opposite in true. Meanwhile young Indigenous people suffer the full impact of the law and the full impact of the discrimination it perpetuates.
Law reform can have an immediate effect and yet goodwill was very poorly represented at the Ministerial Summit on Indigenous Deaths in Custody.
The solution of the Prime Minister, apart from turning a blind eye to discrimination, is to shunt the onus back on to the community. He says:
government and leaders alone cannot make reconciliation happen through legislation, decrees or declarations.
In fact the Australian government appears to be doing everything it can to blockade reconciliation. Without equal respect for our distinctive property rights there can be no reconciliation. The basis of the proposed 10 point plan is to annihilate our rights to property.
The proposed law is not about a government committed to combating discrimination, it is about a government prepared to actively propagate discrimination. The trite election slogan 'for all of us' was never meant to put us, the first Australians, in the picture.
Last updated 1 December 2001