Justice for Indigenous People:
Reflections on the principles that shape our personal response

Father Frank Brennan SJ AO

Australasian Christian Legal Convention
Princeton Ballroom
Bond University
4 May 2002

I will not presume to tell practising lawyers of vast experience how to conduct themselves as solicitors, counsel or judges when a party to proceedings happens to be Aboriginal. But the outstanding claims of Aboriginal Australians to justice and recognition still require political as well as legal action. There are some principles which are applicable to those of us who are both Christian and lawyers seeking to make some contribution to the future of indigenous Australians in the legal, political and social domains.

Many of us are citizens who profess a personal faith and who find ourselves called to participate in public life. Our participation in civil society and in the political processes of the State is a constitutive part of our faithful response to God's call. Faithful to that call, we form, inform and follow our consciences. In the private domain, conscience determines our actions. In the public domain, we, in good conscience, need to take into account the difference between law, morality and social policy. There are some actions of others we tolerate without being able to give unqualified endorsement. We consider means as well as ends in the political process, taking account of public sentiment as well as public reason. In conscience, we act and set limits on our mode of public engagement, especially if we be perceived to be acting for others or speaking in the name of a group. We make not only moral judgments but also prudential decisions about when to intervene in the political processes and when not.

Many of us Christians who engage in the political processes of the State see ourselves called to emulate Jesus in His teachings and actions. We discern the action of the Spirit in our hearts and in the world, including the signs of the times. We are sustained in the belief that there is a Kingdom to come and that there are signs of this kingdom breaking in here and now whenever persons freely act for justice. Acting to create a more just world, we discern our invitation to participate in the mission of the believing community. We need to engage in the political process, rather than being simply prophetic observers of that process.

The last twenty years in Australian politics has been marked by the increasing impatience of political leaders with the interventions and concerns of church groups agitating for social justice. Political leaders on both sides of the Australian political fence have been very critical of church people and other private citizens acting as advocates for social justice. Many issues have become so party political and so simplistically reported by the media that it is difficult for concerned citizens to know how to make an intervention. Twice in the last fortnight I have encountered journalists surprised that I would agree with Prime Minister Howard on an issue, though they are usually safe in assuming that I disagree with him very strongly on Aboriginal and refugee issues.

I was a first year law student in 1971 when Sir Richard Blackburn gave his decision that Aborigines had no surviving rights to land recognised by the common law. One of my fellow students asked if he could write his annual "Land Law" essay on Aboriginal land rights. He was told he could not, because there was no such thing. In my second last year at school I had accompanied all my family to Fiji where my father was appearing before Lord Dening agitating the rights of the Fijian land holders against the Colonial Sugar Refinery. By 1973, the Aboriginal Legal Service was up and running in Brisbane. Mark Plunkett who later sued Sir Joh Bjelke-Petersen for conspiracy joined me in helping out at the service one day a week, usually acting as instructing clerks for barristers in hopeless criminal committals. At this time, my father was senior counsel for the Northern Land Council in the Woodward Royal Commission. Eight years later when my father was being sworn in as a Justice of the High Court, Attorney General peter Durack observed:

There are two events which occurred during your time at the Bar which I think deserve special mention. The first was the case in which you appeared for small landholders in Fiji and the result of the case was a victory for the Fijians, which was of great significance. The second concerned the work you did for the Northern Land Council and the Aboriginal Land Rights Royal Commission conducted by Mr. Justice Woodward. That report by Mr. Justice Woodward formed the basis of legislation adopted by successive Federal Governments for Aboriginal land rights. Many of Mr. Justice Woodward's recommendations followed submissions you made on behalf of the Northern Land Council and, of course, it was an investigation which had tremendous significance for Australia's Aboriginal people.

I have always been heartened that a barrister could make such a profound contribution to social justice, maintaining the professional constraints of the Bar and going on to such a distinguished career on the Bench.

Having joined the Jesuits in 1975, I was sent to the Redfern presbytery to work with 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. Like many of you I was 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. But I have remained a foreigner to so much of Aboriginal law, culture and religion. Aboriginal law though now recognised for the first time as part of the law of the land even in the eyes of the colonisers, has had to survive under challenge from its own practitioners who sense both new horizons and shifting foundations in their lives. If it is to maintain its appeal to contemporary practitioners, the Aboriginal religious worldview has to embrace, or at least encounter and accommodate the worldviews of others. Aboriginal cultures are changing, being lost and retrieved at a rate never before experienced. Aboriginal people themselves know best that their system of law is under threat.

The breakdown of the law, the abandonment of myth and ritual, and violence in Aboriginal communities are exacerbated by readily available alcohol, widespread unemployment and concentrations of population which draw together groups from various clans and language groups for administrative convenience and economies of scale. Communities of such size, variety and outside contact never existed previously except for periodic ceremonial, trading and meeting purposes. As permanent societies, they are new creations in the post-contact era resulting from the push and pull of outside service delivery. Such "communities" as they are felicitously, and often erroneously, described, do not and never have had a simple or uniformly acknowledged law, religion, or culture which could provide the basis for a customary dispute resolution structure or process.

Aborigines are living under two laws. But one law is losing its sanction, its appeal, its practitioners and its teachers, despite such recent recognition by the High Court. It is becoming optional. Some desire its continuation and transmission. Others, especially when drunk, can opt out when it suits them or lose it when living in a social situation where that law no longer makes whole sense of the individual's new world filled by Toyotas, videos, satellites, faxes, firearms, computers, internet, cash, grog, school and fast food - all of which have their advantages and disadvantages.

Outstations are set up as sanctuaries for the preservation of the traditional way. But there is a limit to which outstations can be used as reform schools in the old law for youths playing up in their communities or in town. Young men facing initiation, banishment or some corporal punishment or young women facing a traditional betrothal to a much older man increasingly want to opt out of the traditional law and opt in to the system of individual choices and liberties they see on television or in the streets of Murgon or Brisbane. The whitefella legal system in these instances prizes individual rights and individual freedom of choice over collective rights of the group and the requirements for handing on a tough, holistic law which is hard work. Aboriginal law no longer controls every aspect of their lives. Free to choose, the young may abandon culture even if only for short term gain or liberty. Affected by alcohol and confronted by change, the elders may lose their confidence and abandon their duties to the law.

Once elders are denied the power to impose their law on the young without their consent, having already been denied the power to impose their law's ultimate sanction even with the consent of all parties, Aboriginal law inevitably becomes an optional way of living for the new generations who may want to move freely between two worlds.

Customary law is of little use in disciplining the young for grog related property and motor vehicle offences. Today, law and culture remain strong only while they hold appeal or can be imposed without human rights violations on the young who see and want to roam far beyond the boundaries of their traditional country. Culture is breaking down because, as the old say, the young are running away from ceremony. The old law which was all-embracing is shattered by outside contact. Some of the law may be salvageable and amendable if reshaped by those who have a memory and a vision of the law, having the skill and authority to impart it to the young who have geographic and cultural choices previously unimagined. Aboriginal communities might then keep afloat and mobile in the sea of all cultures, remaining true to themselves and their ancestors. Imposed solutions will generate further alienation and despair. Government with and at the request of local communities might keep in check needless violence and even remedy the causes embedded in a shattering colonial history. Process and partnership are all important if indigenous communities are to own the outcomes. I note that the Beattie government here in Queensland, acting on recommendations of Justice Tony Fitzgerald, is proposing tough new laws and policies to deal with alcoholism and violence on Aboriginal communities, conceding that such measures may even offend the Racial Discrimination Act 1975. No law or policy will succeed unless it has the support of the local community whose leadership is involved in the planning and implementation from the beginning. Solutions from Brisbane or Canberra will not work. But this does not mean that local Aboriginal leaders can just go their own way. I make no pretence to speaking for Aborigines. Neither have I always acted and spoken to the satisfaction of the Aboriginal leadership. For example, during the Wik debate, ATSIC Commissioner Geoff Clarke told the press, "We just wish he would shut his mouth. He confuses his Christian principles with our political aspirations." I have always insisted that political action and legal change for indigenous rights require answers to four discrete questions. What do Aborigines want? Only they can answer that question. A united stand and unanimous viewpoint are unlikely. Which Aboriginal aspirations are morally justified? An answer can come only from dialogue across racial boundaries. Which morally justified aspirations are politically achievable? Dispossessed, disadvantaged, marginalised individuals may not be those best situated to answer this question. To which of these aspirations will I dedicate my energies? That is a matter for personal resolution.

The Mabo case changed much of the public understanding about Aboriginal rights in Australia. It was also the first and only time that Aborigines came to the negotiating table with a handful of trump cards. Government had to deal with the Aboriginal leaders seriously. One of the nation's leading law firms invited me to address their senior partners' annual retreat about land rights after the High Court decision. The person introducing me made the gratuitous observation that he did not think Mabo changed anything but that it would be good to hear about it anyway. I observed that it would have been unthinkable that I, a Jesuit priest committed to Aboriginal rights, would have been invited to such a retreat prior to Mabo, and that prior to Mabo my work was usually described as politics but now it was viewed as law. After the 1993 native title exercise, Noel Pearson offered a very enlightening public critique of my public modus operandi:

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.

In the thick of the Wik controversy, Aden Ridgeway wrote to The Sydney Morning Herald putting it this way:

There is no doubt that Fr Brennan has immense respect and affection amongst Aboriginal people throughout the country. More significantly, he is widely listened to by Australians generally because he is believed to speak for Aboriginal people. This has created a desperately difficult dilemma for indigenous leaders. Fr Brennan's support and advocacy are much needed; but where he takes a stand which differs from that of Aboriginal people themselves, especially over difficult issues of political judgment, the very fact that he is believed by the general community to speak for Aborigines suggests that he should be silent on such topics.

Given 20 years of involvement in the politics of Aboriginal rights, I find Aboriginal critiques of my own actions as a church person in the public forum a useful starting point for reflection. It is for others to judge whether I have transgressed the limits, having earned Paul Keating's description as the "meddling priest". In politics as it is played in Australia, there has been a presumption that it is only the stakeholders such as Aborigines, miners and pastoralists who should be heard in the fray of political debate. There is a place for the person who is not a stakeholder, who represents no constituency, who pushes no partisan barrow, who is professionally disinterested in which party is in power, and who is committed to finding a just resolution of conflicting claims holding in right balance the conflicting claims of the stakeholders and finessing the balance between individual rights and the common good or public interest. I am especially grateful to the pastoralist who urged me during the Wik debate to return to my church and say prayers. He clarified my thinking. An issue as complex as Wik could not be left only to the stakeholders. It could not be resolved by prayer alone. There is a place for honest brokers. Being neither a native titleholder, miner nor pastoralist, I was very privileged to participate in that debate.

If we political actors are to act in the name of a church or to act in such a way that we are likely to be perceived as acting in the name of a church, we need to transcend party politics and the self-interest of the politicians. We need to take seriously our role in the political processes of a free, pluralistic democratic society. We need to put ourselves forward not just as Australians but also as citizens of the world who have a practical, informed concern for our neighbour.

There is often insufficient consideration by those of us speaking and acting in the name of churches about matters of political morality. By the time Wik got to the Senate the third time, the question was not primarily, "What ought the law be?" The question was "To what extent was one independent Tasmanian Senator entitled and able to amend the government's proposals honouring the limits on the Senate and the significance of the proposed legislation?" Some church personnel who were strong supporters of Aboriginal rights were adamant that the Senate should reject the government's Bill out of hand, even though they were of the Keating school of thought that the Senate is unrepresentative swill. In the 1997 euthanasia debate, many church people thought the crucial Senate vote should have focussed on the morality of euthanasia. But the Northern Territory legislature had already passed a law permitting euthanasia. The more pressing question was "In what circumstances was the federal Parliament justified in overriding a law of the Northern Territory legislature?"

Of course there will always be Christians who seek elected office as members of political parties; other Christians will act as public advocates for a particular just cause. But those of us publicly identified as Church people active in the political process of the State have to be principled pragmatists who are always prepared to articulate the moral principles on which our preferred outcome is premised, professionally disinterested in which party is in power, consistent in our articulation of the parameters on power to be exercised by the various cogs in the machinery of State, calculating in our assessment of what is achievable, and unstinting and impartial in our efforts to achieve the outcome. If social conscience is an expression of the believer's right to participate fully in society, the believer must be prepared to have dialogue with anyone and to welcome any intervention made in good faith.

I have a strong belief in political morality which is binding on all persons who want to engage in the political process for the betterment of themselves, their group and others in society. Fundamental principles of that political morality were breached during the Wik debate. From the beginning, we all knew that Wik would be resolved in the Senate. Brian Harradine had the balance of power. As with 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 debate 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" running a scare campaign if the Senate were to reject the ten point plan outright. Those were the parameters set at the outset by Harradine. I happen to believe he 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. The ten-point plan would have been passed unamended without the 16 top up points Harradine extracted.

From the beginning of the Wik debate, I expressed the view that Aboriginal groups should follow the same rules as they did during the Mabo debate. They should engage with the government as closely as possible in Phase I and then deal with the minor parties in Phase II. The National Indigenous Working Group was not much interested in that approach as revealed by two facts: they hired an ex-Labor member (who was waiting to return as a Labor member) as their special political consultant. Imagine hiring an ex-Liberal politician as your consultant to deal with Paul Keating! Then they did a deal so that their two QCs would also be available as legal advisers to the Labor Party. Imagine telling Keating in 1993 that your lawyer was also the lawyer for the Liberal Party! So from the beginning, I knew we were in for a difficult time with a key stakeholder throwing the first rules of political wisdom to the wind.

Early in the debate, I put it to Noel Pearson that Aboriginal leaders had a difficult political choice given their insistence that the right to negotiate with mining companies was the main sticking point on which they had decided to take their stand. I suggested that it would be necessary to choose between a once only right to negotiate exercisable by all native title holders including those on pastoral leases or a two fold right to negotiate being exercisable only by native title holders on vacant crown land, with native titleholders on pastoral leases having the same rights as pastoralists. Noel was not much interested in the choice. Thereafter, there was very little substantive discussion between me and the Aboriginal leaders.

During the first Senate debate, the Labor Party conducted itself as if it were the government proposing more amendments than they had to any other piece of legislation. This was a high-risk strategy because the Howard technique for winding back the right to negotiate was to leave the matter with the States. No matter what the rhetoric of federal Labor, State Labor (especially where it had some prospect of coming into government as in Queensland) was not much interested in the rhetoric of the Left. With Labor governments now in power in all states, there would be no impediment to a nationwide restoration of the two-fold right to negotiate for all native titleholders. But no one seems much interested.

Before the second Senate debate in 1998, the word in Canberra was that some compromise was possible on the right to negotiate. Gatjil Djerrkura gave a press conference saying there could be a way forward. Nick Minchin's office asked me to draft it. I would not touch it "seeing it as no part of my role. Then before we knew it, the compromise was drafted by the two ALP/National Indigenous Working Group QCs. Their draft was given to Harradine on a wink and a nod by the Labor Party. If Harradine could convince Howard, there might be a chance of finding a resolution. Harradine had about five meetings with Howard seeking the compromise. Howard could not agree" Borbidge and Court would not let him. Margot Kingston wrote an article in the SMH telling how the compromise was drafted by the ALP/National Indigenous Working Group QCs. So the second Senate debate ended with no legislation being passed. Normally that would be the end of the matter until after another election. Harradine rightly predicted, "They'll be back."

Then came the 1998 Queensland election. 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. I urged Harradine to strike while the iron was hot. While I was overseas, Tony Abbott phoned urging me home because no deal would be done without my presence. 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" and I was unreliable and untrustworthy. So I decided not to change my plans. I was in no hurry to return. I then went on to Jakarta where I received a media phone call at 4am 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. I also wrote an op-ed piece for the Sydney Morning Herald. While I flew through the night back to Australia, Noel Pearson went public with his congratulations of Harradine who had won the penalty shoot out.

When I arrived home that morning, Paul Keating rang me and abused me. I then spoke at a church dinner that night being forewarned that Keating and Laurie Brereton (still a Labor frontbencher at the time) were working on a piece criticising me. Then Noel Pearson changed his tune after discussions with other Aboriginal leaders. The compromise originally sought by the Aboriginal leadership and drafted by their lawyers was labelled a sell-out which was the responsibility of Harradine and anyone who had ever spoken to him!

Through the Wik debate, as through the Mabo debate, I followed two rules: I would talk to anyone; and I would only go where I was invited. On each occasion I dealt with and respected each government as the government of the day. I spoke with all politicians and all stakeholders who were seeking a resolution and my assistance. Having been involved in these political issues for 20 years, I had no interest in backing the Left of the Labor Party simply because it was the Left of the Labor Party. I pride myself on the claim that I have never done anything in public life to favour one political party over another. My concern is the justice of the issue and the propriety of the process, not the name of the party. I have always proclaimed the justice of the Aboriginal cause, tried to deal honourably with the government of the day, and left it to Aboriginal leaders to decide the key terms of compromise. As with the debate over the Racial Discrimination Act and Wik, I simply insisted that Aborigines should apply the same standard to the Howard government as they did to the Keating government.

I rehearse much of my own involvement in the political and legal controversy of Aboriginal rights in recent years only to provide the basis for the principles which I have sought to apply. It will be for others to judge my success or faithfulness to those principles. Though mostly involved with other issues now, I am delighted that in the last week I have received phone calls from three Aboriginal communities in remote Australia - community leaders seeking a listening ear and a voice of experience, a whitefella prepared to listen respectfully, to tell it straight as he understands it, and to stand in solidarity but only to the extent that he thinks the claims to be right and true. In an increasingly pluralistic Australia, the endless search for coherence will require some enhanced agreement about the rules of engagement in the public square. Individual players will always seek greater coherence between their own personal morality and the public morality of process and outcomes in the square where all citizens ought be equally at home and equally alienated regardless of their world view, whether their view be that there can not be any comprehensive world view or that there can be a religiously informed world view sustained by their religious tradition. It is irrelevant whether ones thin or thick notion of the common good and public interest wins majority support. Liberalism must at least concede the entitlement to participate unapologetically to all actors in the square including the person who is convinced of a thick notion of the good, who is seeking a community of reasoned interlocutors and who is convinced that the good and the right are such because they are true and because they are the gift of a loving creator God whose activity is not restricted to the realm of private conscience, home and the church and not because they are simply the preference of the constitutional majority in a polity which ranks community interest below individual choice. I have been very privileged to work as a lawyer and priest for Aboriginal rights all these years and I am delighted to have this opportunity to give an account of myself, hoping that even reflection on my mistakes will be an aid to other Christian lawyers committed to justice for indigenous Australians as we prepare to celebrate the tenth anniversary of the High Court decision which even the public now perceive to be the vibe of the Constitution. Let's thank God that even our present Prime Minister with his gift of hindsight has said: "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." We have come a long way since 1971. Like Stanner we can share the fascination in how general ideas about human conduct change so quickly. Like Stanner, we are not foolish or wise enough to be certain that Aboriginal tomorrows will really be the better for it. But together we so hope.