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Aboriginal Law Bulletin |
by Michael Mansell
The Labor Lawyers group held their National Conference in Hobart, Tasmania, during October. At the conference Tasmanian Aboriginal Lawyer, Michael Mansell, presented a paper entitles can White Law Accommodate Black Demands? which is reproduced here.
Can White Law Accommodate Black Demands?
The short answer to the question posed is that theoretically it is possible, but radical changes in white Australia would need to take place first.
In one sense the demands of the Aboriginal people is not constant but, as history shows. ever changing. Yet in another sense, the cry of Aborigines has not changed at all. The prolonged, wholesale slaughter of Aboriginal men, women and children by the early whites must have raised the demand for an answer to the question 'why?'. The demand for some protection from murderers dressed in 'colonial uniform', of rapists and killers disguised by the term 'settlers' was heard for many years. Although almost 200 years has passed since these early days the cries today are still 'why?' and the call for protection still as strong as ever. The answer to these calls is not, however, being expected to come from the white legal system. The white legal system is part and parcel of the white force which has perpetrated against Aboriginal people every conceivable crime known to humanity.
The function and effectiveness of the white legal system concerning Aboriginals cannot be overstated. The murders which took place on the shores of Aboriginal land upon first white contact was, presumably, justified by the British legal system as self-defence. The subsequent murders, necessary to obtain land for the children and other descendants of Australia's first whites, could not be so defended, but explained only as' necessary'. Absolute dispossession of a land from its people took place by virtue of one of the most violent and brutal campaigns in the history of mankind and the white law responding majestically by calling that process 'peaceful settlement'.
In modern times little has changed. The recent publicity surrounding Aboriginal deaths in custody, gross over-imprisonment of Aborigines, use of the white legal system to assimilate Aborigines into white Australia and the total ignoring of Aboriginal human and political rights show this to be true. Then and now the status given to Aboriginal people by the white legal system assumes Aborigines are no more than a mere minority group within a young nation - albeit a nation of thieves!
On the basis of all this one thing is painfully clear: to date there has been no real attempt to accommodate Aboriginal demands by the white legal system. Rather, any concessions for Aborigines has necessarily been made to prop-up a system which can only survive if its glaring weaknesses do not become too obvious, too many and too gross. International pressure, which is becoming increasingly influential in the fight against oppression of whole peoples, was not something that the Australian authorities wished to attract. The compromise of dispossessing Aborigines of land by ensuring that they remained politically powerless on the one hand and allowing a few Aborigines, to 'achieve' notoriety in formerly forbidden areas (including the legal profession itself) and supplying token opportunities (the Aboriginal Legal Services) for Aborigines to see that the law does care on the other, have been cleverly achieved. But nowhere is there a suggestion from any, not having a vested interest that white law can go beyond the compromise and properly recognise and concede to, Aboriginal wishes.
The diversity of the Aboriginal communities prohibits specific discussion of particular aspects of white law applying to Aborigines. Suffice to say that the greatest hypocrisy of these laws shows up where Aborigines, often charged under the criminal law for petty theft crimes, are branded as thieves. It has always been assumed that substantive criminal law would apply to Aborigines. Even so, one would have imagined some genuine attempts within that legal framework to respond to Aboriginal needs. Statistics on Aboriginal imprisonment rates throughout the country are ample proof that the contrary view has been adopted. Even attempts of fairness taking into account the extra disadvantaged Aborigines are in[1] have not been followed, and are often abandoned.
Despite the overall detrimental effect of white laws on Aborigines, especially relating to break down of the Aboriginal community and assimilation, courts exercising jurisdiction over children have turned their backs on making a stand in favour of reversing these trends. Children of a race of people obviously are crucial to maintaining that race of people. The Family Court to the Marriage of Goudge[2], in restating that the law in Australia with respect to custody disputes between Aborigines and white parents is that there is no presumption in favour of the Aboriginal child remaining with the Aboriginal community, in effect, legitimised the more callous past and present actions of taking Aboriginal children away from their people[3]. The fact that judges of the Family Court have struggled with this question is shown in comments such as' ... white overseas studies indicate reasonable prospects that under the circumstances studied transracial adoptions are likely to be successful, such conclusion can only be applied with caution to adoption of Aborigines in Australia by white parents and that further verification is needed'[4]. Yet no Court, be it Federal or State has taken the positive step and laid down a principal which ensures that 'the disintegration of the Aboriginal community is discouraged.
Aboriginal leaders who advocate Aboriginal sovereignty and exclusion completely of white jurisdiction over Aborigines are not to be dismissed as dreamers. The immediate withdrawal of legal jurisdiction over Aboriginals might well lead to greater chaos then is experienced at this moment, and that is not being called for.
What is argued is that white law should not be imposed on Aboriginal people willy-nilly. Even in the short term many white laws which are incapable of accommodating Aboriginal interests should be withdrawn and in the long term, many more should follow.
The real answer to the question posed cannot be found in the realms of the law per se. The proponents of the British Legal system boast of its ability to reflect community opinion. Whilst it clearly cannot claim to represent Aboriginal opinion in any shape or form, it certainly does represent and reflect the attitude of white Australia - the land hungry; the nation insecure; the 'building of a new nation notwithstanding the blood spilt on its path; the attitude of those for whom, if Aborigines represented too great a threat, recourse to violence would be a convenient alternative. Throughout the invasion of this country, contemporary whites are quick to disassociate themselves from the actions of their forebears whilst at the same time they jealously guard the fruits flowing from that conduct. White law acts similarly.
It is theoretically possible for justice to apply to Aborigines despite the white legal system, but that possibility is to theoretical as to be too remote given the historical facts arising out of the white invasion of this country. White law need not deny Aborigines their sovereign rights nor by application of its harsh criminal system incarcerate Aborigines at all, let alone so many. In theory white law need only have limited application to Aboriginal people and even then, may be flexible enough to produce a 'fair result'.
In the interim white law must acknowledge the rights of Aboriginal people to land in doing so the size of that land should not be limited by pragmatic, political considerations, and the right in the Crown over any such lands returned to the indigenous people should be extinguished. Additionally, a whole review of the desirability of white criminal (and other) laws applying to Aborigines should be undertaken. The current Law Reform Commission Report may provide a second basis from which such a review may be conducted. Thirdly, immediate steps to alleviate Aboriginal imprisonment rates in this country must be adopted (in the form of legislation): one possibility in the sentencing process is to ensure that the net result of Aboriginal representation in prisons is proportionate to that of whites by taking into account: (i) the seriousness of the crime. (ii) the effect of the Aboriginal community of that imprisonment. (iii) the numbers of Aborigines in prison at that time and, (iv) alternatives as proposed by Aboriginal communities.
Ultimately, the demands of Aboriginal people will be far reaching and justifiable. Demands for the rejection of white jurisdiction, both legal and political, have already been voiced. On the horizon are calls for changes in family dispute laws affecting Aborigines ranging from emphasis upon the need for Aboriginal children to remain within their communities to again, a complete rejection of white authority over disputes concerning Aborigines. Whilst the hypocrisy of the criminal justice system is maintained, Aborigines will be punished for theft by the receivers of stolen land; punished as being a danger to society by beneficiaries of rape and murder; punished as a people having no respect for peace and good order by those who have created mass destruction and continual disintegration of Aboriginal society; whilst this occurs there will always be an Aboriginal movement seeking to rid Aboriginal people of that hypocritical system.
However, the changes being sought by Aboriginal people, both short and long term, are seen by whites as conflicting with their own and the (very white) legal system must, and predictably will, stand, by its own.
[1] R v Anunga (1976) 11 ALR 412.
[2] 9 FLR 500 (1984).
[3] And see to some effect Sanders v Sanders (1976) Fam LR 11, 433; N and N (1981) FLC 91-111.
[4] R v Langshaw (1983( 8 Fam LR 833, at p.846 per Waddell J.