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The Traumas of Atonement and Opposition in the Law

Traumas of Law
Law & Literature Association of Australia – Conference 2004
Closing Plenary

Queensland University of Technology
11 July 2004

Fr Frank Brennan SJ AO [1]


The Traumas of William McNeill

When William McNeill wrote to me on April Fool's Day inviting me to deliver the closing plenary address at this conference, he said, "I don't think you'll have any trouble whatsoever in addressing the topic of the conference as you are the theologian-jurisprude of law's trauma (refugees,  race, etc...). But there are a list of subthemes too, if you're undecided, and they include: the imagination of disaster, the  body in pain, the plague of fantasies, etc." 

I then received the program that outlined that I was to speak at a closing plenary after a day of seminar discussions under the following headings, "True crime fiction, Possession/dispossession, Sexual trauma, Altered states, The shock of the old, Masquerades, The Monsters’ Ball, Hanging Offences , and The republic of fantasies".  I thought you might do better with a qualified Freudian psychologist to make the closing remarks. Maybe on a Sunday it was thought appropriate that a priest should have the last word.  As we are gathered under the auspices of the Law and Literature Association of Australia, let me commence with a scene from an Australian novel depicting one of our earliest lawyers.

In his novel Out of Ireland, Christopher Koch provides us with an epic centred on Robert  Devereux, an Irish lawyer, who becomes one of the leaders of the revolutionary Young Ireland in 1848.  He ends up being transported to Van Dieman’s Land where he meets up with some of this colleagues.  He is given support by the English government doctor Howard who had first met when he was imprisoned on a hulk in the Bahamas.  While staying with Howard on his arrival in Van Dieman’s Land, he meets Kathleen, the young Irish housemaid who had been transported for theft.  One night Dr Howard entertains an English family, the Montgomerys, to dinner.  Conversation turns to the deficiencies of Irish convict staff.  They presume Devereux would have nothing in common with the lower class Irish types.  Devereux finds himself called beyond his own self interest and beyond his own class interest to identify with the Other in solidarity in their shared struggle to transcend their history and their circumstances.  Mr Montgomery is quizzing Dr Howard about his staff who are Mrs Bates and Kathleen: (pp. 343-4):

- You seem not to be troubled by these difficulties, Doctor Howard. Your housekeeper appears an excellent woman. Is she free or Government?

Mrs Bates had recently re-entered the room, bringing further dishes to the sideboard. She moved about the table, offering fresh helpings of baked potatoes; but Montgomery made no sign of knowing that she was here. Nor did Mrs Bates look at him.

- Oh, Mrs Bates is free, Howard said; and he smiled in her direction. And yes - I could scarcely do without her. But I do have a housemaid who's a passholder. She's very willin'. An Irish girl.

- Really? said Mrs Montgomery. You're fortunate if you've had no trouble from her, Doctor.  Our drunken cook was Irish.  But what else can one expect of them?  They're little better than apes.

Then she looked quickly at me, her hand going to her mouth.  But still she smiled.

- O dear.  I meant no offence, Mr Devereux: I spoke without thinking.  I was referring of course only to your peasantry.  And you are not native Irish, are you? Yours is an Ascendancy family, I understand.

I was now very angry, and found I was mainly so because of Kathleen.  But I kept my voice low and even.

- We of the Ascendancy have been long enough in Ireland to be Irish, I said. We are Irish in our affections, our loyalty and our pride, I do assure you, Madame.  And our common people are no more apes than yours, I believe - and a good deal more attractive.

Mrs Montgomery had suspended her knife and fork above her plate, her smile fixed.  Her daughters too were staring at me, as though I were a curiosity on display.  But before his wife could reply, Mr Montgomery leaned towards her.

- Come, my dear. Mr Devereux is a patriot, as we know, and cannot agree with such a view of his people.

Doctor Howard spoke now, his tone soothing and urbane.

- You see, Mrs Montgomery, Mr Devereux is also somethin' of a romantic. He fights for a people who are divided, and so enfeebled by the Famine that they are almost broken. Little of their blood flows in his veins; he doesn't speak their language, but he sees himself as one of them in his heart - am I not right, Devereux?  I admire him for that - but I think he seeks to rid himself of an ancient guilt. Mr Devereux's Anglo-Norrnan ancestors were sent to tame Ireland, and carried out much slaughter there, in the service of Queen Elizabeth.  The case is similar with a number of his colleagues in rebellion.  I believe these youthful gentlemen wish to atone for the sins of their forbears.

-There are many ancient sins to atone for, I said. But much greater sins to oppose today.

Not every lawyer here will identify with Devereux. And none of us will identify with the peasantry or the Ascendancy.   But as each of us wrestles with the demands of the patriot and the romantic, we are forced to consider the traumas of our laws not just in the midst of the "many ancient sins to atone for" but also amongst "the much greater sins to oppose today."  Thus my chosen title: "The Traumas of Atonement and Opposition in the Law".

The Traumas of Modern Democracy

My thesis is simple: the traumas of our law reflect both the traumas of our society and the traumas of our law making processes.  The traumas that our law then visit upon people are visited upon public advocates,  the lawmakers and its administrators as well as those whose rights or dignity are immediately infringed.  Wherever there be abiding trauma in the law, it is usually where the law has been used as an instrument for the imposition of popular will of the moment, in the expectation of a utilitarian outcome, and in response to a fear in the community detected and exacerbated by government, often for its own purposes.  As with all traumas, our task is to avoid them if possible, otherwise contain their effects and manage them so that the body (politic) can be kept in good health despite the injuries of the moment.  How can this be done, especially when the government and the majority of citizens are oblivious to the signs of such trauma, or are content with their limited efforts to contain the trauma?  My plea is for truth, justice, adherence to contemporary Australian values and a commitment by lawmakers and advocates to justice according to law for all who are within the jurisdiction and not just for citizens or  special interest groups.

Governments claiming mandates, radio shock jocks claiming  popular ratings, and apathetic citizens claiming the right not to be disturbed until the next election pose threats to the legitimacy of expression as well as the to the persuasiveness of content of the arguments of unelected critics no matter how considered their opinions might be.  We have heard the questions often.  Who are judges to talk about contemporary Australian values?  What would they know?  Especially when they invoke such language to put right historic injustices which elected governments of all political persuasions have decided to leave untouched?  Is not the inaction of the legislature more expressive of contemporary values than the action of the judiciary?  What right do the NGOs have to speak about present community expectations when their expectations are so obviously out of kilter with the present priorities, concerns and fears of the largely silent majority?  If the NGO managers doubt that and think we, the government, or we, the major political party, are wrong, why don't they run for office themselves?  What does it matter what the cappuccino set, having the time, resources and desire to attend esoteric conferences on the traumas of the law, thinks about a law or policy which has support not only from government but also the opinion polls?

The increasingly simplistic utilitarianism of our public morality and the media's increasing intolerance of minority views risk further traumas in our law precisely because the unexamined implementation of government policies in response to general public fear or antipathy may eventually be proved to be contrary to contemporary values or contrary to the way we really want to see ourselves as persons and as nation, once all the evidence is in, and once there has been time to consider the many and varied outcomes of the policy or law. 

Let's accept that politics is about gaining power and influence to determine outcomes, often by compromise, to questions which have no alternative means of determination other than tyranny.   Let's also accept that the will of the majority matters and counts even if we do not think it should always be trumps.  Furthermore, what might appear to be the will of the majority now might turn out not to be such when more citizens are apprised of the detail of what is entailed in a particular decision or when the citizens have had the opportunity to consider all the consequences many of which may have been predicted by the unelected experts.

The Traumas of Contemporary Values Informing Law Making

I am always happy to start with the presumption that it is anti-democratic to legislate contrary to the popular will of the moment.  But it is also democratic to challenge and question that popular will of the majority.   We should be in a position to enhance the sense of democracy as well as the respect due to the majority by scrutinising the popular will and the government decision, first for internal consistency, and second, for compliance with contemporary values.  I am content to use the vague term "contemporary values" which appeared in the Mabo judgment and then attracted some critical attention.  In the lead judgment, Justice Brennan (with Chief Justice Mason and Justice McHugh concurring) said: [2]

The peace and order of Australian society is built on the legal system.  It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed.  It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system.  If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied.  Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.

Then later they said: [3]

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted.  The expectations of the international community accord in this respect with the contemporary values of the Australian people.

Does this reference to contemporary values imply that the judges thought the majority of Australians, if asked in an opinion poll, "Do you support native title?", would have answered unequivocally  "Yes".  I do not think it can mean that. I am prepared to accept that the majority of Australians if asked that question in 1992 would have answered "No".   The values that underpin the Mabo decision are respect for property, the desire for certainty in the conduct of relations relating to land, predictability in the application of the law by  courts for the resolution of conflict, and non-discrimination in the sense that governments should not treat persons differently unless there is a coherent rationale for such different treatment.  In particular, governments should not treat more adversely people's property rights simply  because they are members of a particular race.  I think we are on safe ground insisting that these are the contemporary values of most Australians, if not in the way they live their own lives, at least in setting down the extent to which they are prepared to surrender their own freedom and self-determination to government, adding only that the majority would also concede the need to treat equally with all citizens in setting the limits on government interference with the individual.  That is why it was possible for John Howard two months after his election as Prime Minister  to tell Parliament, "The substance of (the Mabo) decision, now with the passage of time, seems completely unexceptionable to me.  It appears to have been based on a good deal of logic and fairness and proper principle." [4]   That view is shared by both sides of the political chamber and by most lawyers at home and abroad.  I do concede that the decision still has its trenchant critics in the Samuel Griffith Society and with the occasional columnist such as Christopher Pearson who helps to oversee the values and perspectives to be implanted in our National Museum.   Respect for property and the principle of non-discrimination might even be thought to be “the vibe of the Constitution” to quote The Castle

Justice McHugh had cause to reflect on the judiciary's adherence to contemporary values at this week's Australian Bar Association Conference held in Paris.  In an address entitled, The Strengths of the Weakest Arm, he said:

[T]he strengths of the so-called weakest arm are most evident in situations where the decisions of appellate courts change society in ways that the legislature cannot or will not. In politically unprofitable areas - most characteristically involving groups which, or individuals who, lack political or economic strength - ultimate appellate courts cannot avoid their responsibility to decide cases that result in political, economic and social change.

Perhaps the most frequently cited example of this in Australia is the decision of the High Court in Mabo v Queensland (No 2).  In 1967, 90 per cent of the Australian people voted for a constitutional amendment to allow the Commonwealth Parliament to enact "special" laws for the Aboriginal race. Although the possibility of legislation providing for indigenous land rights became a live issue from that date, it was not until the Court's decision in Mabo that Australian law "recognize[d] a form of native title which, in the cases where it ha[d] not been extinguished, reflect[ed] the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands". [5] It is now generally recognised that the High Court's decision in Mabo "forced the federal government to take legislative action in a field that it had largely avoided" [6] . In other words, the Court "could not sidestep the issue" even where politicians had. [7]

McHugh J has echoed Senator Brian Harradine's lament in the closing stages of  the 1993 Senate debate on native title when Harradine  said,  "This Parliament comes second place because it was the High Court that showed us the way.  It was the Mabo decision that showed us the way.  That is really to the shame of the Parliament."  He said, "The Parliament had to be almost dragged screaming to face reality because of the High Court decision.  To me, that is shameful.  To have acted sooner would have been the appropriate thing to do."     

McHugh concluded his own speech in Paris with a reflection on one of the important strengths of the judiciary in a pluralistic democratic society, which is "the capacity to alter the common law to reflect contemporary values and assumptions".  In these cases, according to McHugh J, "The decisions of the judiciary either directly change or, where the legislature has power to act, frequently cause the legislature to change the social, economic and political fabric of the nation."

The denial of Aboriginal land rights for so long in Australia was an historic injustice which was a sustained trauma in our law.  It was corrected by the application of contemporary values first by our judges, then by our politicians.   The  High Court caused the Parliament to act when it had failed to legislate for the protection of native title for generations.   By forcing the application of contemporary values to the injustice suffered by a minority, the courts have been able to have the representatives of the majority legislate to change the social, economic and political fabric of the nation.   As Devereux said, "There are many ancient sins to atone for".  

Given the first opportunity for the High Court to act, some still argue that the court should have confined itself to the facts of the particular case.  Others, like myself, argue that it did.  But in developing and applying the law to the particular facts, the judges needed to articulate general principles of law founded not on divine revelation or personal desire but derived from a consideration of the common law as it had developed through the Courts of the Empire considering native title claims from Africa to the Carribean, and founded on what their Honours perceived to be the contemporary values of the society governed by this law.  They concluded simply, "The preferable rule is that a mere change in sovereignty does not extinguish native title to land. The preferable rule equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land and recognizes in the indigenous inhabitants of a settled colony the rights and interests recognized by the Privy Council as surviving to the benefit of the residents of a conquered colony." [8]   In so doing, they commenced the process of relieving one of the great traumas of the law in contemporary Australia, developing legal principles consistent with the common law planted in the garden of Australian contemporary values.

When Special Minister to Washington during the war, Sir Owen Dixon  went down into the heart of old Confederacy country and addressed the Executive Club in Memphis:

We regard our country as a southern stronghold of the white race - a thing for which it is well fitted; and our population is European.  The aboriginal native has retreated before the advance of civilisation, contact with which he apparently cannot survive.  The analogy in this country is the Red Indian, but the Australian Aboriginal is of a much lower state of development.  He belongs to the Stone Age and no success has attended efforts to incorporate him in civilised society.

No wonder the critics of the Mabo decision hanker after Dixon's strict and complete legalism.  But even they fail to appreciate that his strict and complete legalism was to be applied to the constitutional interpretation of the federal compact.  He was the past master at developing the common law and that would have been more relevant to the Mabo exercise. When he thought the House of Lords was erroneously developing the common law on murder and manslaughter, he took the unprecedented step of declaring:

Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but have carefully studied Smith's Case I think that we cannot adhere to that view or policy.  There are propositions laid down in the judgment which I believe to be misconceived and wrong.  They are fundamental and they are propositions which I could never bring myself to accept.

When the High Court considered Mabo, there had been no decision of the High Court which squarely raised the issue of native title with native title claimants being a party to the proceedings.  By 1992 a judge in the Dixon mould  could readily have been a member of the majority ruling that the common law recognised native title, in accordance with contemporary values which find unacceptable Dixon's Memphis declaration of a half century ago.  In earlier times, it might have been uninformed prejudice rather than purity of legal method that would have held back a Dixonian judge from recognising native title in the common law of Australia.

The Traumas of the Whitefella Law in Aboriginal Australia

Having joined the Jesuits in 1975, I was sent to the Redfern presbytery to work with the legendary Fr Ted Kennedy for a couple of months in 1976.  During that time, I accompanied Aboriginal activist Len Watson to Canberra to observe the passage of the Aboriginal Land Rights (Northern Territory) Act 1976 through the Senate.  In the old Parliament House, the Senate chamber was very intimate.   There were very few of us sitting in the public gallery.  Someone pointed out to me the very dignified white haired man who sat silently consulting his notes while the Senators expressed their knowledge of matters in which this gentleman was so learned.  This was the first time I was in the presence of W E H Stanner.   I had been greatly influenced by his 1968 Boyer Lectures, After the Dreaming.  In 1972 he had written a letter to one of his friends explaining his role as advocate for Aboriginal rights, recognition and dignity.  It is a letter which I still find very inspiring and relevant to our national search today:

Whatever happened to the Australian social conscience on the way to the twentieth century?  It has occurred to me that I might well inquire into the fundamental reasons why we have had to struggle so hard with ourselves to see our Aborigines in a way that is one and the same time humane, respectful and compassionate.  I am much puzzled by one thing: that is, the bland assumption that there MUST be some way of 'modernising' the Aborigines.  Why 'must'?  I believe I could make a fair case against this outlook.  As you will now be aware much of my thought has been influenced by religious writers, or rather, philosophical writers who have thought about religious subjects, and I can see in Australian society more than a little of some ancient struggles about life, death and all the vast forever as it is phrased in our transplanted British culture.  Maybe I will work on that…

We have won some huge victories (acceptance that some continuing Aboriginal societies living on 'reserves' will have full legal title to their land and the resources on and under it) and some small but equally vital ones (including the principle that they may be taught to be literate in their own languages as well as English)…There are many influential Australians who look on me as a very misguided romantic, if not worse, for having used whatever gifts I have to attain these targets.  All I can say is that they seemed to me the right things to strive for.  But I am not foolish or wise enough to be certain that Aboriginal tomorrows will really be the better for it."

In 1981, I was junior counsel in the Alwyn Peter case here in Queensland.  Alwyn was the 15th Aboriginal male in three years to have killed another Aboriginal person on an Aboriginal reserve.  In these cases, the victim was usually the accused’s woman partner.  Senior Counsel, Des Sturgess, told the court that the homicide rate was the highest recorded among any ghetto group in the western world.  In each case, the accused and the victim were shaped by life on a reserve; and each in their own way was destroyed by it.  To be a member of such a group, one did not have to be bad or mad; one had only to be Aboriginal.  We defence lawyers had a good win in the Peter case.  Having pleaded a defence of diminished responsibility, Alwyn walked free within weeks of the completion of the court proceedings.  A woman anthropologist left me with the chilling observation that our forensic win had removed the one inadequate protection for defenceless women in remote Aboriginal communities - the minimal deterrence of the whitefella legal system.   Meanwhile I was privileged to receive the last letter that Stanner ever wrote on 4 October 1981, he having been our key anthropological witness:

I am fascinated by the question: how do general ideas about human conduct change so quickly?  I can recall about fifty years ago appearing as a witness for the defence in an Aboriginal murder case in Darwin before Wells J.  He was notably unimpressed by my arguments but nevertheless reluctantly took them into account in mitigation, while looking round the court as if expecting trouble.  Or do I mean 'remarkably quickly'?

For the last twenty years, I have been preoccupied with the interrelatedness of Aboriginal dispossession, disadvantage and marginalisation and I have sought to articulate a publicly coherent policy of reconciliation, justice and recognition for indigenous Australians.  In all of this, there are many traumas unresolved.  Recently, Noel Pearson has opined that it was the "symptom theory" that underpinned our approach to the Alwyn Peter case.  Pearson says: [9]

All that was achieved by presenting a deeper historical understanding of the background to indigenous crimes and dysfunction was that the criminal justice system became sensitive to this background - and sentences became increasingly lenient. After a couple of decades we then reached a point where judges and observers - not the least Aboriginal people - started to wonder whether the loss of Aboriginal life was less serious than that of non-Aborigines. The criminal justice system may have tried to accommodate an understanding of the factors which Brennan and those who followed him had illuminated in the Alwyn Peter case, but it did nothing to abate offending and the resultant "over representation" of indigenous people in the criminal justice system. In fact I would say that it made this problem worse.

These are troubling conclusions for any lawyer committed to justice according to law for all persons, including indigenous Australians who are more likely than any other group to be appearing in court for a custodial sentence. 

The Traumas of the Wik Debate

After Mabo and the Keating government's Native Title Act 1993 came the 1996  High Court Wik decision which was much more traumatic than Mabo, in part because there was no coherent judicial agreement about how contemporary values enunciated in Mabo and the principles of  the law of native title were to be applied to a claim for native title co-existing on land in which others had been granted an interest.  The ensuing Wik debate was the most traumatic law making exercise in which I have ever had any involvement.

Six years on, I ask:  Are there some canons of political morality that need to be applied to the legitimate ends to be sought by any presently unpopular interlocutor? Are there some canons of political morality that need to be applied also to the appropriate means used in the political process?  Or to quote one of the more colourful ministers of the crown in recent decades,  are we entitled to do "Whatever it takes", especially if we are advocating the rights of a disadvantaged minority?  And more especially if we be a member of that disadvantaged minority?

Noel Pearson has long been critical of my involvement in debates about Aboriginal rights.  During the 1993 native title exercise, he had offered a very enlightening public critique of my modus operandi: [10]

I always have a go at Frank for being too cynical about politicians.  Sadly, white politicians seem to find it easier to talk about Aboriginal issues with someone like them.  It’s more comfortable for them to talk to someone like Frank than to come and talk to us.  He’s a very influential player, and if he suggests the middle ground as the position for politicians to take, then what actually happens is less than that.  I think he doesn’t realise how much weight white politicians put on his imprimatur.  He tells them what they can get away with.  It’s important that he doesn’t aim too low, because inevitably he will get less than he asks for, and it can drag the aspirations of the Aboriginal people down.  Still, I am always saying that if black people think Brennan is striking an unacceptably conservative position, then it’s up to them to articulate how a less conservative position might work.

Pearson and I went on to take very different approaches during the 1997-8 Wik debate.

In July 1998,  the Howard government succeeded on its third attempt in passing legislation through the Senate in response to the Wik decision.   Everyone  knew that the final balance of the Wik legislation would be resolved in the Senate. Senator Brian Harradine, the Independent Senator from Tasmania, had the balance of power.  As with the native title legislation following Mabo in 1993, Aborigines would get two bites of the cherry in the political process – dealing directly with government prior to the introduction of legislation in the House of Representatives and then dealing with those holding the balance of power in the Senate.  Harradine made it clear at the commencement of the first of three Senate debates that he would pass the substance of government legislation provided it measured up to fundamental moral principles.  He also made it clear that he did not want to risk a double dissolution of the parliament which could lead to a race based election with “One Nation” being able to run a scare campaign if the Senate were to reject John Howard's  "Ten Point Plan" outright. 

Those were the parameters set at the outset by Harradine.  Let's remember, Pauline Hansen was at the peak of her public appeal.  She was no supporter of Aboriginal land rights.   I happen to believe Harradine was right in setting those parameters and I said so at the time.  Howard would have won a double dissolution election in 1998 and “One Nation” would have had the balance of power in the Senate.  Howard's ten-point plan would have been passed unamended without the 16 top up points Harradine extracted prior to the third Senate debate.

During the first Senate debate at the end of 1997, the Labor Party proposed 350 amendments making it clear that it was opposed in principle to John Howard's 10 point plan.  Senator Harradine accepted many of the amendments offered by other parties and proposed some of his own.  The Senate's amended bill was then rejected by the government which identified four major sticking points: the threshold test for the lodgment of a land claim, the need for a sunset clause on claims being lodged, the need for the legislation to operate independently of the effect of the Racial Discrimination Act, and the insistence by government that Aboriginal native title holders on pastoral leases not have a right to negotiate with mining companies but only the same right as the pastoralists.  Prime Minister Howard told the House of Representatives on 6 December 1997 that the Senate's amendments on these four sticking points were “in the eyes of the government, completely unacceptable”.   He said the Government would vote against them because they had “substantially altered the thrust and the intent of the legislation”.

Brian Harradine and his legal team (that did not include me) were happy to focus on these four sticking points.   They were hopeful that the legislation could be passed without substantially altering the thrust and intent of the Senate's amended Bill.  The Prime Minister would have to back down on these sticking points.   The National Indigenous Working Group (NIWG) was not so optimistic but they gave Harradine the "green light" to attempt a compromise with the government consistent with the terms of the Senate's amended bill.  On 13 March 1998, Peter Yu from the NIWG informed me, "Surely you are aware that the Prime Minister never seriously entertained negotiating with us about the native title amendments and has nailed his Government’s credibility to his Ten Points.  There is today no indication that this Government is prepared to accept the amendments that the Senate made to their Bill or that it is willing to hold any constructive discussions with Indigenous leaders." [11]   The NIWG and I issued a joint statement saying, "The four objectionable sets of amendments should now be considered by the Senate on their merits….. Whatever the differences about strategy or outcomes, Fr Brennan and the NIWG are agreed that they could not accept the Howard bill unamended as an honourable, decent and worthy compromise.  They will participate in the public debate encouraging the Senate to strike a fair balance."  Then the late Gatjil Djerrkura gave a press conference saying there could be a way forward.  

Once the Bill had been introduced a second time in the House of Representatives, I wrote to Opposition Leader Kim Beazley on 20 March 1998:

I am heartened that the ALP in the second reading speeches has taken the challenge up to the government on the Harradine compromise.  I think the focus should be on the merits of each of the four sticking points identified by government.  On three of the points, the government falls short on its own test of fairness and balance.  From discussions this week, I am confident that there will be some movement on the threshold test and sunset clause favourable to Aboriginal interests. That leaves the right to negotiate and the RDA (Racial Discrimination Act). 

Indeed there was movement on the threshold test.  By the time of the third Senate debate, it was improved to ensure that Aborigines excluded from their lands by pastoralists who had locked the gates for generations would not be ineligible for lodging a land claim.  And ultimately the government agreed to remove the sunset clause.  Due to the great advocacy and legal acumen particularly of Ron Castan QC  (counsel for the NIWG and the Labor Party), the government ultimately conceded the point on the very complex discussions about the operation of the RDA.  The crunch point was always going to be the right to negotiate.  In my letter to Beazley, I had said:

The focus should be firmly back on the right to negotiate.  The government still holds one trump card which it is yet to play.  The government can rightly claim that its bill does not take away the right to negotiate; it simply permits state parliaments to do so.  Question: What will Peter Beattie do if elected Premier of Queensland?  Will Bob Carr give a public assurance that the right to negotiate will be retained in New South Wales for all native title holders?

During the second Senate debate, there was once again a failure to reach agreement.  The NIWG and the Labor Party had indicated to Senator Harradine that they could live with a compromise that delivered a positive outcome for them on the four sticking points, consistent with the balance struck in the Senate's first amended Bill.  There were detailed discussions between Senator Harradine's legal team  and the legal team for the NIWG and the Labor Party, especially over an acceptable compromise on the right to negotiate.   Senator Harradine and the Prime Minister met for discussions four or five times.  The Prime Minister was not prepared to come to agreement based on the bottom line outlined by Harradine in the Senate.  Presumably the Queensland and Western Australian premiers Borbidge and Court had some role in frustrating the hope of an agreement.   Howard could not give ground on the four sticking points.

Usually a second Senate debate on such a complex piece of legislation would mean the end of the matter until after another election.  But Harradine rightly  predicted, "They'll be back."  There were some government members including Tony Abbott who were putting out feelers about what might be achievable.   I wrote to Tony Abbott on 11 June 1998:

If there be a commitment to honourable compromise on both sides, I see little problem with three of the four sticking points.  The one crunch issue is the regime to govern mining on pastoral leases where native title may still exist.

I said:

Where we part company, on principle, is with the claim that your national standard ensures equal treatment for the native title holders by ensuring only that the State provides the same procedural rights when the State minister for mines decides to approve mining.  There are two critical issues:

  • Common law native title rights co-existing on a pastoral lease must be accommodated by the State regime as far as possible when mining is to be permitted
  • Native title holders must have the same protection as pastoralists from interference by miners in their residential, business, recreational and worshipping activities.  That is what true equality of treatment is about.

Many of a pastoralist’s non-pastoral activities take place in buildings or structures.  The mining legislation sets up a buffer around all such structures prohibiting mining except with the consent of the pastoralist.  This pastoralist’s veto is not primarily for the protection of the buildings.  It is for the protection of the pastoralist’s non-pastoral activity on the land, including residence, business, recreation and worship.  The same protection should be accorded native title holders who, exercising their co-existing native title rights, are engaged in residence, business, recreation and worship.  There is a need for a transparent process in the State regime which can make a determination about which areas are so used, thereby permitting the native title holders the same veto power enjoyed by the pastoralist for the protection of their enjoyment of the land.

Once native title co-exists on a pastoral lease, it is too simplistic to argue that the law would protect only legitimate non-pastoral activities occurring in buildings.  Most native title holders have not been permitted to construct buildings on pastoral leases.  Many of these same activities traditionally do not occur in buildings.  They take place on unimproved land.  Your equal treatment argument has it that if the native title holders had conducted their non-pastoral activities in buildings (as most pastoralists do), they would enjoy legal protection of their common law rights but as they conduct their activities on the land, they are to have no legal protection.

The equal treatment argument that has been run by the government to date is equivalent to arguing that a public building with stairs grants equal access to all;  it is just unfortunate that wheel chair users cannot use the stairs.  As I understand it, this has been the philosophical basis of Senator Harradine’s objection to your proposed national standard.  He even used the stairs and wheelchair analogy in the last Senate debate.

Before you arrive at according equal procedural rights, you have first to set up a transparent device for determining where the residential, business, recreational and worshipping activities of native title holders occur, granting the same protection from mining on those places as is provided for the buildings in which pastoralists conduct those activities.  You do not need an independent decision maker to determine where buildings are.  They are self-evident.  You do need an independent decision maker who can determine reasonable buffer zones for the regular activities of native title holders and the areas outside those buffer zones which would be subject to the same procedural regime for the native title holders as for the pastoralist.

The proposal to allow States to reserve to the minister for mines the decision about mining without any transparent, judicially reviewable process for the initial determination of areas where native title rights would be adversely affected (in the same way as a pastoralist’s rights to residence, business, recreation and worship would be affected) would be discriminatory and a reversion to the terra nullius mindset.   That would be an unacceptably low national standard, which I presume would remain unacceptable to the Senate.

It is time for all parties committed to honourable compromise to start the hard thinking about an appropriate model for equal protection of non-pastoral activity on pastoral leases within the constraint that your government is insistent that native title holders not have economic bargaining power additional to that enjoyed by the pastoralists.  Neither should they enjoy less protection of their common law rights of residence, business, recreation and worship.

It was of course no part of my role to determine what was acceptable to indigenous people seeking a just outcome to the Wik debate.  But once they and their lawyers had indicated the points on which they were prepared to compromise, it was appropriate for others like myself to try and carve out some ground with government for the achievement of that compromise. 

Given that there was absolutely no electoral advantage for government in conceding ground, and given that there was no desire by government members to concede additional ground, it was not only appropriate, but necessary, to develop arguments highlighting the internal inconsistency in the government's proposals and demanding that the proposed legislation achieve the moral and political objectives which government claimed to be fulfilling.   The NIWG and Labor Party lawyers led by Ron Castan QC drafted the provision which would guarantee some protection of Aboriginal sites on pastoral lease lands considered for mining.

The political circuit breaker was the 1998 Queensland election.  Peter Beattie got over the line and One Nation did very well.  This was the double pincer move needed to bring Howard to the table on the compromise.  Borbidge was off the scene and Pauline Hansen would have taken a swag of Senate seats if Howard opted for a double dissolution.  Howard needed a non-electoral resolution of Wik and Harradine had provided him with a solution within reach.   I urged Harradine to strike while the iron was hot.  While I was overseas, Tony Abbott phoned urging me home to assist with the discussions.  Fortunately I had heard a report that Ambassador Andrew Peacock in Washington had complained that Wik was a mess because I had failed  "to deliver Harradine".  So I decided not to change my plans.  I was in no hurry to return.  I was in  Jakarta when I received a media phone call at 4.15am to ask what I thought of the deal.  I pleaded ignorance.  Some hours later the Sydney Morning Herald faxed me the exchange of letters between Howard and Harradine.  I then wrote to Harradine congratulating him on delivering the compromise (and some more) to Aboriginal Australia.   He had forced John Howard to concede on the four sticking points despite Howard's earlier protestation  that the Senate's amendments in the first round had "substantially altered the thrust and the intent of the legislation"  making them "in the eyes of the government, completely unacceptable".

To this day, no one disputes that what Harradine delivered in July 1998 was an improvement on what the NIWG (and the Labor Party) unofficially supported three months earlier.  The sunset clause was scrapped.  The threshold test was loosened to allow members of the Stolen Generations and those locked out of pastoral properties to claim.  The discretions to be exercised under the Native Title Act were to be exercised consistent with the Racial Discriminaiton Act, pursuant to a clause fine-tuned by the government lawyers and the other legal teams led by Ron Castan QC. [12]   And an alternative to the right to negotiate labeled "the non-exclusive area impact procedure" was approved consistent with the draft proposed by the legal team led by Ron Castan QC.   While I flew through the night back to Australia, Noel Pearson went public with his own congratulations of Harradine who had won the "penalty shoot out".  Pearson told Kerry O'Brien on the ABC's 7.30 Report:

It looks, on the face of it, in this penalty shoot-out situation, Brian Harradine’s won four-nil.  Full credit to Senator Harradine for having promised us that he was going to hold the line.  He’s surely held the line.  He’s held out on a stubborn position.  It appears that Senator Harradine has substantially saved the position which will give Aboriginal people procedural rights on pastoral leases, which from one point of view at least looks like a right to negotiate under a different guise.

When I arrived home next morning,  my assessment of the compromise was published as an Op Ed in the Sydney Morning Herald. [13]   My view was basically consistent with Noel Pearson's remarks on television the night before (though obviously I had not heard them).  Paul Keating rang me at my presbytery and abused me.  He then wrote in the Sydney Morning Herald, "Talk about meddling priests!  When Aborigines see Brennan, Harradine and other professional Catholics coming they should tell them to clear out."  He claimed that Harradine and I had "saved Howard from paying the price of his folly, and made the Aborigines pay instead."

Before the legislation was introduced again in the Senate,  Noel Pearson changed his public assessment of Harradine, condemning the Howard-Harradine compromise.  The compromise originally sought by the Aboriginal leadership and drafted by their lawyers was labeled a sell-out which was the responsibility of Harradine and anyone who had ever spoken to him!  On that weekend's Channel 9 Sunday program, Lawrie Oakes pursued Brian Harradine  about the central plank of the compromise ("the non-exclusive area impact procedure") and  he obtained this public admission:

OAKES:   Just to pin you down though. You're a truthful man. Is it true that Ron Castan first   suggested this proposal and that you were led to believe the Labor Party would support it before Easter if you put it up?
HARRADINE:   Well, if somebody has ... if that's public knowledge, that is true.

Harradine apologised to the Aborigines for their exclusion from the last round of negotiations, saying, "I was concerned that if others were involved there might be leaks and the horses might be frightened and they’d bolt."  On the day of the apology, Gatjil Djerrkura, Chairman of ATSIC, issued a statement on the Howard-Harradine agreement which he described as "an advance on the Government’s original bill".  Though concerned about the weakening of the right to negotiate, he acknowledged that progress had been made.  Still unconvinced about the overall bill, Djerrkura nonetheless praised Harradine for his initiative: "We suspect Senator Harradine has taken the Prime Minister as far as he could to avoid a race based election.  I think he has demonstrated courage and integrity throughout this debate."

Harradine had avoided the risk of a race based election which would have followed if Wik were left unresolved in 1998.  He delivered on the four sticking points.  Two of the sticking points could not have been resolved but for the legal acumen and dogged persistence of Ron Castan QC.  Castan's legal compromises would have got nowhere but for Harradine's political nouse and unflagging commitment to an improved legislative outcome for Aboriginal Australians consistent with what key Aboriginal leaders had earlier thought the best achievable result with the Howard government's unsatisfactory original bill.   

Prior to the third Senate debate some Aboriginal leaders tried to explore an alternative solution with pastoralists and miners.  The pastoralists were prepared to come to the party if the native title holders conceded all economic rights on pastoral leases.  But the mining companies were not interested in pursuing any alternative but the ten point plan.  If Wik had been left unresolved, Howard would have had no option but to return to the matter after an election in which the ten point plan would have been an electoral issue, at least in the bush.  Howard would have won the election, and One Nation would have obtained a handful of seats in the Senate.  And one way or another, the ten point plan would have been legislated - either with support from One Nation in the Senate, or by a joint sitting of the Houses if there were a double dissolution.   No one seriously suggests that Beazley could have won  an election  in 1998 with Wik unresolved. 

Senator Harradine was quite justified in his declaration last month when announcing his forthcoming retirement from the Senate when he said his role in the native title Wik debate was one of his greatest achievements: [14]

The Government didn't want to have the stolen generation and victims of locked gates able to re-register; I knocked that in the head.  The Government wanted a sunset clause for six years for legislation; I knocked that in the head.  The Government needed an exemption from the native title registration on the operation of the Racial Discrimination Act and I knocked that in the head.

And he got the government to accept the Castan alternative to the right to negotiate for native title holders whose lands are subject to pastoral lease. No matter what the rhetoric of federal Labor, all  State Labor governments have been  keen to wind back the right to negotiate because they see it as too great a disincentive to investment by mining companies.  Under the Howard-Harradine compromise, with Labor governments in power in all states and territories, there is still no Howard backed impediment to a nationwide restoration of Paul Keating's right to negotiate for all native titleholders.  But no one seems much interested.

Just last month, almost six years after the Wik debate, Noel Pearson used the opportunity of the Castan Lecture (in memory of Ron Castan QC who had been the mastermind of the drafting of the central plank of the Senate compromise on the Wik legislation ) to tell us: [15]

It was late in the long campaign against the 10 Point Plan and many indigenous leaders who had been involved in the politics of the Native Title Act in 1993 were absent from Canberra in the crucial weeks and days before the passage of the Howard Government's legislation in response to the Wik decision. I arrived in Canberra with ominous indications that Brian Harradine would make a deal with the government to pass the legislation. Earlier we thought we had won the day when the delegation of Wik People led by Richard Ahmat, the Chair of the Cape York Land Council, together with other indigenous leaders working the corridors of Federal Parliament, had persuaded the Senator to oppose the government's Bill. When I heard the news back in Cape York Peninsula and saw the images of the Senator dancing with the Wik People on the lawns of Parliament House, I was ecstatic. I had no problem with the failure of the Bill leading to the much-feared double dissolution `race election'. But then Harradine recommenced negotiations with the government.

The afternoon I arrived in Parliament House I was walking down the corridors with Ahmat and Terry O'Shane from the North Queensland Land Council, when we bumped into the Senator. He was to inform us, no doubt thinking that it was the very news we wanted to hear, that he had made a deal or was very close to concluding a deal with the government for the passage of the Bill. We were non-plussed. The game was over and the 10 Point Plan was heading for the statute books with some ameliorations extracted by Harradine. The concessions secured by Harradine did not make an unjust Bill just, and the Senator was responsible for allowing a fundamental tilt of the pendulum away from the native title rights of indigenous people, which continues to this day.

Faced with the inevitability of the passage of the Bill that evening in the Senate, I decided on a last desperate strategy. Invited to appear on the 7.30 Report I decided to endorse the passage of the Bill and to give the impression that Harradine had won huge gains for indigenous people. My hope was to incite the lunatics from the far right of the Coalition - Senators O'Chee, Lightfoot et al - so that they would reject the Bill, in much the same way as they had done to our advantage, in 1993. The metaphor that was in my mind was like trying to push some livestock into a pen. I thought a sudden scare just as the stock were at the mouth of the pen would have two possible consequences: there was a chance they would take fright and run off down the paddock, or they would run straight through the gate and into the pen. I was prepared to take the risk in the hope that we could snatch victory from the jaws of the defeat which Harradine had sprung for our own good: to supposedly save us from a race election. Barry Cassidy knew what I was trying to do, Kerry O'Brien did not, and when I did the interview with Kerry he was bewildered by my support for the passage of the Bill later that night.

Alas my gamble did not work. The coalition senators knew they had secured victory for the Australians they felt they represented - and they dutifully voted in unison. All I had achieved was that I had defused the whole debate following the passage of the 10 Point Plan. Federal politics moved on to the next issue on the very next day.

Noel Pearson may have provided fresh evidence and new insights into what was informing the 1998 Wik compromise. His claims need to be evaluated against the evidence and insights then available. [16]   This is the stuff of legal trauma of  a very high order.

My concern is not with the imprudence of Pearson's last minute decision to try and defeat the compromise which had been approved by the NIWG after the first Senate debate and with which Harradine could have been justifiably pleased after  seven months hard work, "no doubt thinking that it was the very news we wanted to hear".   My concern is with the political morality of his 1998 statement together with his 2004 disclosure, one of which is untrue.  Here was an Aboriginal leader honouring a lawyer of the highest commitment to indigenous rights declaring that the very legislative compromise the lawyer  had crafted had worked an abiding injustice.  But what was the alternative?  Surely the compromise alleviated some of the injustice that would otherwise have befallen native title holders under an unamended ten point plan.  

At the critical moment of national decision back in July 1998, this Aboriginal leader now tells us that he thought it appropriate to mislead the legislators by lying on national television about his attitude to legislation.   His strategy was that legislators opposed to his people's interests would panic and change their vote.  After three Senate debates, there was absolutely no prospect of that.   Six years later there is no apology to the misled public, many of whom trusted his word, or legislators, many of whom considered him a spokesman for his people.  This is a very stark case of "Whatever it takes". 

Castan (the lawyer for the ALP and the NIWG) AND Harradine (the Independent Tasmanian Senator)  were completely honourable in their attempts to devise a compromise on native title consistent with the moral fundamentals and with  what was sought by the NIWG members at the end of the first Senate debate, charged as they were with the difficult task of making compromised decisions on behalf of their people, trying to improve upon the unacceptable Howard ten point plan.  The trauma caused to actors like me in the Wik debate is minimal when compared with the trauma endured by Aboriginal advocates like Noel Pearson who are seen to represent their people during the debate and do not have the luxury of closing the file and moving on to another "issue" after the debate.  They have to live with the consequences of flawed legislation and policy every day.  The traumas of the Wik debate continue to play themselves out as we seek to learn how best to legislate for the well-being of all landholders consistent with contemporary Australian values.  The traumas of law-making continue unabated when truth is viewed as an obstacle to seeking justice according to law.

The Traumas of Legislation Placing Children Behind the Razor Wire

There is no doubt that governments of both political persuasions have enjoyed public sympathy for a policy of mandatory detention of unvisaed arrivals, including children.  I remember my first meeting with Phillip Ruddock in January 2002 after I had my introduction to life in the Woomera Immigration Reception and Processing Centre.  He said he knew what I was up to.  I was opposed to mandatory detention.  I was.  But so what?  There was no point in my seeking regular access to him to agitate the issue of mandatory detention.  It was a policy that enjoyed a strong political mandate after the Tampa election.  It enjoyed bipartisan support in the Parliament, having been introduced by the Labor Party.  It was a policy that Ruddock and Howard strongly believed in.  So what was the point of regular meetings?  Surely, everyone including Ruddock and Howard would be concerned about serious human rights violations occurring in detention centres that were out of sight and out of mind.  Presumably the presence of persons able to communicate faithfully what they heard and saw would assist rather than hinder the process of proper processing of claims and detention without further infringement of basic human rights. 

So then how to deal with the trauma of a law imposing mandatory detention in a discriminatory way on one group of asylum seekers, most of whom would be proved to be refugees, while all other asylum seekers would be free to live in the community while their claims were processed.  The latter who arrived on tourist and business visas, then claiming asylum had much less chance of establishing a refugee claim.

Conceding the popularity of the mandatory detention policy, concerned citizens were still entitled to ask two questions:

  • Why would you want to put children behind razor wire?
  • Why would you want to break up families, separating children from their parents?

Most Australians would agree:  You should only detain children or separate them from their parents if there is a very good reason.  That's another of our contemporary values.  We know it would be wrong to separate Aboriginal children as we did in the past.  So there is a precedent for exercising caution when it comes to abuse of children by government for high policy purposes.  Post September 11, there may be good reason for detaining even a child who arrives on our shores without documentation but only for the briefest of times while we determine who they are and while we determine that they are not a health risk or a security risk.

But once we have decided those things, why would we keep asylum seekers in detention?  Why would we keep children behind razor wire?  Why would we separate children from their parents?  In a democracy like Australia, we  deserve a better answer than "It's the law."  In a society like Australia, many of us continue to demand an answer of government even though the majority simply trust the government to have good reason to do this to others, with the assurance that it could never happen to their own children because they are citizens.  Alas there is no answer other than bureaucratic convenience and government's desire for popularity.

Mr Ruddock used to tell us this detention was not punishment or deterrence.  Sensitive to criticism from his own church, he told the Australian Anglican Synod on 27 July 2001:

Detention is not punitive nor meant as a deterrent.  … Detention ensures that they are available for processing any claims to remain in Australia and that importantly they are available for quick removal should they have no right to remain.

The situation for people who overstay their visa is fundamentally different.  We know who they are and have already assessed that they do not constitute a danger to  the Australian community.

Nobody is forced to remain in detention.  Detainees can choose to leave detention by leaving Australia.  They can go wherever they wish to any country where they have, or can obtain, the right to enter, and we will do our best to facilitate that.

He offered a similar comment in the Medical Journal of Australia on 21 January 2002:  "Detention is not arbitrary.  It is humane and is not designed to be punitive."  These ministerial comments about deterrence and the non-punitive intent of the detention are related to the constitutional doubts about the validity of legislation authorising administrative detention of persons without access to the courts when their detention is neither relevant nor incidental to the processing of their claims and when the detention is neither relevant nor incidental to their removal or deportation in the foreseeable future.

So why do we do it?  Amanda Vanstone tells us that she does not want these people living in the community, able to father children to Australian citizens.  That is no reason keep a child in detention.  Given enough rope by Andrew Denton, Amanda Vanstone has told us:

Quite clearly people ring home and say to their local village, "Look, don't go to whoever" - the people smuggler - "because it hasn't turned out for us. We didn't get a 'yes' as a refugee, for starters, and we're going to be detained until we accept that and come home. So what he tells you about coming to Australia and getting all the benefits of Australia isn't right. Don't pay him the money."

But isn't that deterrence?  Hasn't the High Court said you cannot do that?  Hasn't Mr Ruddock told us that is not the reason?  The government says the detention helps with the processing of refugee claims.  But it doesn't.  It hinders good decision making.  The government's own statistics show this.  If you are in detention you are six times more likely to win your appeal to the Refugee Review Tribunal.  The Commonwealth has now submitted to the High Court "that the legitimate non-punitive purpose has two aspects; it is the facilitation of removal or deportation and prevention of absorption into the community. Both those purposes are capable of applying to children of all ages". 

If the government cannot give us a good reason for detaining the children, 92% of whom have been proved to be refugees, why don't we release them and all other asylum seekers  into the community while their claims are processed?  If someone is a flight risk, then why shouldn't government be required to take them before a court before detaining them further?

It is not good enough for government simply to allow the release of the Bakhtyari children while leaving other children behind the razor wire because they are out of sight and out of mind.  On my last visit to Baxter Detention Centre, I embraced one weeping father who cried, "We are so tired, just so tired.  Why do my children have to spend years here in detention while the Bakhtyari children walk free?"  It is not good enough for the government simply to allow Mr Bakhtyari to leave Baxter on visits to see his wife and children in Adelaide while other fathers and husbands are left stranded in Baxter.  Of course the Bakhtyari family should walk free and be reunited here in the Australian community.  If they are eventually proved not to be refugees they should be forced back home (wherever that may be) only if it is safe and decent to return them.  It should be the same for all asylum seeking families.

Detention centres are no place for kids to spend years of their lives.  Brief detention on arrival or prior to departure may be justified.  But in the meantime, the children should be permitted to live in the community  while their asylum claims are processed decently and quickly.

Concerned citizens have made progress by highlighting the traumas suffered by many of these children and by patiently and consistently asking government and the Labor Party to provide a coherent rationale, other than a lofty  expression of regret, as to why children are held in detention.   The Labor  Party has now abandoned the policy of mandatory detention and Minister Vanstone is obviously keen to empty the detention centres as soon as possible.

Meanwhile the barbarity of this policy has occasioned trauma not only to detained children and their families but also to  the staff of detention centres.  There are many Australians who themselves are traumatised to be told that their border security can only be assured by the mandatory detention of a wave of boat people most of whom have been proven to be refugees.  We remember Devereux's words, "There are many ancient sins to atone for, I said.   But much greater sins to oppose today."

The Traumas of Law in Contemporary Australia

We now have a system of ministerial responsibility in which ministers would prefer a senior public servant to keep the truth from them if that would help the government politically.  Senior public servants are now well schooled in keeping the politically explosive truth under wraps.  And community leaders like Noel Pearson can do and say "whatever it takes" in seeking a political outcome.  The traumas to the body politic require attention.  Is it any longer good enough or prudent to tell just the truth when engaged in the compromises that contribute to legislation? Noel Pearson pointed out the problem back in 1993 when he said of me, "If he suggests the middle ground as the position for politicians to take, then what actually happens is less than that…..  It’s important that he doesn’t aim too low, because inevitably he will get less than he asks for." 

On Good Friday 2002, I was conducting a church service in the Woomera detention centre when a major break-in and break-out occurred with co-ordinated action by protesters and detainees.  On the following Tuesday, I met a young Iranian woman and her seven year old son who had bruises to his legs consistent with the mother's claim that he had been hit with a baton.  He had also been hit with tear gas. 

I wrote to the Minister and to the Department on 4 April 2002 about this assault.  My complaint was then published in the Canberra Times on 18 April 2002.  Within six working hours, DIMIA had publicly refuted the claim on its website  saying, "This department has no record of injuries to a 7-year-old sustained during the disturbance at Woomera detention facility on Good Friday…. If Father Brennan has information or evidence of mistreatment of detainees he should report it to the appropriate authorities for investigation."  I had seen the bruises with my own eyes.  I had heard reports of tear gas hitting children even from the ACM manager at Woomera.  The mother had reported the injury to the ACM doctor who had made a note of the injury to the boy's legs.

I lodged a complaint about the department's spin doctoring.  It took the Secretary of the department more than three months to conduct the inquiry.  They can do you in in six hours but it takes them over three months to admit their mistakes.  The Acting Secretary of the Department explained that their public misinformation occurred because "a number of communication problems in the Department allowed the matter to escalate to the stage where Mr Foster…posted inaccurate information".  According to the departmental inquiry, this escalation took place over four days.  And yet the public rebuttal was issued within six hours of the publication of my remarks - hardly any time at all for communication problems or escalation to impede the single-minded objective of denying injury to children.

That mother and child now have their visas. They are living in the Australian community.  They also have in writing the apology from the Australian government for the assault which was proven before the Human Rights and Equal Opportunity Commission.  In the official apology, the government "acknowledges that at the end of an exhaustive investigation, where the (HREOC) delegate duly and fairly considered submissions from all concerned parties, (the delegate)  has found, on the balance of probabilities, that your son was struck with a baton by an unknown Australasian Correctional Management (ACM) officer and that this constituted a breach of his human rights."  Having apologised, the government noted "that this apology is made on a without prejudice basis and with no admission as to liability".

The mother decided not to seek compensation for the assault.  She responded to the government, appreciating receipt of the apology, and noting:

While in detention, I was not able to have any police force adequately investigate the circumstances that resulted in my seven year old son being hit with a baton and tear gas.  As you know, I reported my son’s injury to the ACM doctor at the earliest opportunity.  While in detention, I was interviewed by police on two occasions and was told by … the South Australian police, ‘You can’t do anything because you are captive in here and when you get out and get your visa, you can continue your protest and maybe you can get your rights.’  When I lodged my complaint with HREOC, I said, ‘I trusted the government to protect my son.  I hope my complaint can help other mothers and children.’

It has been a very difficult experience for me having to represent my son and myself before HREOC while you and ACM had many lawyers to appear for you.  Yet again, now that my complaint has been upheld, I express my hope that this process can help other mothers and children who are held in detention under the care and control of your contractor which even now cannot admit its mistakes.

She concluded her letter:  "Thank you for your apology.  My son and I accept it in the spirit in which it is offered." 

I have in my office a wonderful photo of this young mother speaking with Minister Vanstone on a footpath in Adelaide after a church service.  The minister is there with her hands resolutely on her hips and the young mother is there with her hands outstretched as if to say, "Just look at me.  How can you say these things about people who  are just like me?  How can you not appreciate the trauma you have made us endure?  And for what?  Why do you keep doing this to innocent people?"  And you all know what the minister is saying.  When government is so cocksure that they do not need to be attentive to the reflections on experience by those made to suffer at the hands of the law and policy, we confront the chasm that houses the traumas of the law in a nation that mistakes the opinion poll for the distillation of the contemporary values of the nation. 

Whether we be "free or Government", patriot or romantic, Ascendancy or peasantry, Irish or not, like Devereux, all we Australian lawyers have cause to consider,  "There are many ancient sins to atone for.  But much greater sins to oppose today."  I remain enough a romantic to believe that truth and justice can win out in the political conflicts contributing to the development of law.  I remain sufficient a patriot to believe that contemporary Australian values and our political institutions can deliver justice according to law if the lawmakers govern for all.  We need to heed and respectfully hold accountable the Brennans and Pearsons.  We need to honour the Harradines, the Castans, and the determined Iranian mothers with their children behind the razor wire if we are to correct the traumas of the law.


Harradine's blink puts Wik behind us


Publication: Sydney Morning Herald

Section: News And Features

Page: 15


Wik is over - but in the name of party politics and not the national interest.

It's a relief for the whole country. At least it ought to be. Third time around, Wik has been resolved. It has been done in a self-interested party political way with Aborigines left in the dark. But that is the only way the country's leadership can operate at the moment. It should have been resolved by Christmas last year with all stakeholders at the table. It was ripe for resolution at Easter this year. It took the twin pincer move of Peter Beattie's win and Pauline Hanson's good showing in Queensland to focus the minds of the Prime Minister and his advisers. Senator Brian Harradine was always the key, holding the balance of power in the Senate.

During the first Senate debate before Christmas last year, the Labor Party wrote itself out of the script with 350 amendments, conducting itself as if it were the government. From the sidelines, Labor warned of constitutional challenges and further High Court interventions on native title. These dire warnings lost their political clout with the High Court's decision on Hindmarsh Island and retired Chief Justice Mason's observation that he had a problem with Labor's claim "that any winding back of rights previously granted by statute to a particular group and to no others necessarily discriminates against that group".

Unless there were a change of government, Harradine was the only show in town for those advocating an enhancement of Aboriginal rights over and above what the Howard Government had on offer with its 10-point plan. In his first speech during the first Senate debate, Harradine could not have been clearer: "I certainly do not want to see a divisive election, and the prospect of a double dissolution election about this particular matter is something that is concerning me." In his last speech during the second Senate debate, he said: "Any election on this bill would mean the Government allowed political ideology to triumph over the national good and national reconciliation. It is a fearful prospect."

As an independent Tasmanian senator, Harradine has always taken the view that the Government is entitled to govern. It is for government to decide issues of workability and certainty. But the Senate is entitled to consider the moral bottom line on key issues. After the first Senate debate, the Prime Minister named four sticking points. They were the public focus of Harradine's attention. Over the last two weeks he has won concessions on 16 points set out in the Prime Minister's letter sent to him on Wednesday.

The six-year sunset clause was always a hollow piece of political symbolism. The South Australian Liberal Government had admitted as much last September. There was a need for a stricter threshold test to weed out conflicting claims, ambit claims and spurious claims. Harradine did not want the bar set so high that those claimants whose families had been locked out of pastoral leases would be locked out of the claims process. Harradine, like all decent Australians, accepted that as far as possible any native title legislation should be non-discriminatory. He and his lawyers worked hard to obtain Government agreement on a formula of words about the Racial Discrimination Act which was certain and workable.

The major sticking point was the right to negotiate with mining companies on pastoral leases. By leaving the decision to the State ministers for mines, John Howard claimed to be giving native title holders the same procedural rights as pastoralists. But he was not. Pastoralists usually enjoy a complete veto over any mining in the vicinity of homesteads or structures used for business, recreation or worship. Harradine ultimately conceded the Government's prerogative to take away the added economic bargaining power which a right to negotiate gave to Aborigines, in the name of equal treatment. Insisting on equal treatment between pastoralists and Aborigines, he then turned the argument back on the Government. How could you give equal protection to native title holders when the State ministers for mines could approve mining even on sites used for residence, business, recreation and worship? There was a need for an impartial transparent process to determine how mining would impact on coexisting native title rights. If the decision of the court or tribunal were to be overridden by government, the ministerial decision should be judicially reviewable.

Given the political constraints, Brian Harradine delivered for Aboriginal Australia. Sadly, government left Aborigines outside the door. And once Queenslanders elected a Labor Government, they were left outside the door as well. A Labor Government may have delivered more to Aboriginal Australia. If committed, they can do so next time when in government. Meanwhile, the Howard legislation does not take away the right to negotiate on pastoral leases. It simply allows State governments to do so. Peter Beattie and Bob Carr can legislate immediately to allow the continuation of that right. While waiting for that, all credit should go to Brian Harradine, who blinked just long enough to bring home the bacon. If John Howard had listened sooner in the national interest, rather than now in his party's interest, we could all be more readily convinced that we have put Wik behind us, decently.

Fr Frank Brennan SJ AO is the director of Uniya,the Jesuit Social Justice Centre.



[1] Fr Brennan who chairs the Visiting Committee, Faculty of Law, Griffith University is Associate Director, Uniya - the Jesuit Social Justice Centre, Adjunct Fellow, Research School of Pacific and Asian Studies, Australian National University,  Adjunct Professor in Law, Australian Catholic University and Visiting Professor of Law, University of Notre Dame Law School.  His books on Aboriginal issues include The Wik Debate, One Land One Nation, Sharing The Country, and Land Rights Queensland Style.  His books on civil liberties are Too Much Order With Too Little Law  and Legislating Liberty. His latest book Tampering With Asylum compares Australia's asylum policies with other First World countries.

[2] Mabo (No 2) v Queensland (1992) 175 CLR 1, at p. 30

[3] Ibid, 42

[4] (1996) CPD 346 (HofR), 6 May 1996

[5] (1992) 175 CLR 1 at 15 per Mason CJ and McHugh J. See Solomon, The Political High Court: How the High Court Shapes Politics (1999) at 28-31.

[6] Solomon, The Political High Court: How the High Court Shapes Politics (1999) at 36.

[7] Solomon, The Political High Court: How the High Court Shapes Politics (1999) at 37

[8] Judgment  of  Brennan J, Mabo (No 2) v Queensland (1992) 175 CLR 1, at p. 57

[9] N. Pearson, "A Fair Place In Our Own Country: Indigenous Australians, Land Rights And The Australian Economy", Castan Public Lecture, Castan Centre For Human Rights Law, Monash University, June 2004

[10] The Weekend Australian, 11 September 1993

[11] Letter to Author, 13 March 1998

[12] Section 7 of the amended Native Title Act (NTA) provides:

(1)        This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.

(2)            Subsection (1) means only that:

(a)        The provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and

(b)        To construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.

(3)            Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.

In WA v Ward, Gleeson, Gaudron, Gummow And Hayne JJ observed: "One effect of this section is that, contrary to what otherwise might follow from the fact that the NTA is a later Act of the federal parliament, the NTA is not to be taken as repealing the RDA to any extent. The significance of s 7(3) is to make it clear that, notwithstanding the continued paramountcy of the RDA stated in the earlier sub-sections, the effect of the validation achieved by the NTA is to displace the invalidity which otherwise flowed from the operation of the RDA." ([2002]HCA 28 at para 99)

[13] My Op Ed piece is set out as an appendix to this lecture

[14] ABC Radio, 29 June 2004

[15] N. Pearson, "A Fair Place In Our Own Country: Indigenous Australians, Land Rights And The Australian Economy", Castan Public Lecture, Castan Centre For Human Rights Law, Monash University, June 2004

[16] The letters between Harradine and Howard setting out the terms of the compromise were released publicly by 1 July 1998. Presumably Pearson "bumped into" Harradine before the release of the letters.   Pearson's appearance on the 7.30 Report as well as his subsequent retraction were made some days before the Senate commenced its debate on 6 July 1998.  The Senate did not pass the bill until a week after Pearson's appearance on the 7.30 Report.


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