UNSW 2004 Law Valedictory

UNIVERSITY OF NEW SOUTH WALES FACULTY OF LAW
2004 VALEDICTORY DINNER

Thank you very much for inviting me to speak this evening. I feel very honoured to do so. Professor Trakman said I could speak on any subject. I have chosen to speak about a subject which should be of great concern to all Australians, a subject I care a about a lot.

I want to start with the familiar. That familiar is Australia, a country which has provided all of us here with a world class education. It is the “Lucky Country”, a land of opportunity where we enjoy standards of health care, housing and employment among the best in the world. It is a nation which espouses the value of a fair go and a society where we expect as of right, that we will be treated fairly and justly according to law. All of these conditions inform our sense of well being. They give us a sense that our lives are worth living in a community which confers upon us very real value, with high expectations of the contributions we can make to the nation. Overwhelmingly, we can be confident that we can live the kind of lives for which we are trained and destined, the kind of lives which our cultural heritage, context and experience tell us we are entitled to live. Now we might have to work hard and we may have to make effort to yield the fruits of these offerings, but none the less these offerings remain well within our reach.

There is one group of Australians for whom these truths do not resonate, for whom these truths generally are not truths at all. This group makes up 2% of the Australian population, some 400,000 people. These are the indigenous people of this country – the descendants of a people who successfully inhabited this land for somewhere between 40,000 to 60,000 years, who lived deep and complex cultural and spiritual lives, descendants of the world’s oldest living culture and whom we should properly and proudly call Australia’s First Peoples.

Much of what I am going to say tonight is now unfashionable. It would be seen by some as yet another example of the black armband view of history. Regardless of that, I strongly believe that by and large the awful history of black and white Australians needs to be told again and again until it becomes immersed in the fabric of Australian consciousness. Just as we are constantly reminded of the heroism of ANZAC and how that heroism has informed what is to be an Australian today, so must the history of black and white relations be told if we are to achieve any sort of reconciliation and if we are to understand the present and work constructively together to create the better future.

I am also conscious that I might be accused of categorising indigenous people as victims, shackled by history and unable to take responsibility for their lives as fully contributing citizens. While I agree with Noel Pearson that casting indigenous people as victims is disempowering, I also think it is crucial to look squarely at the facts.

I will spare you the well known statistics and remind you that our indigenous brothers and sisters are the most disadvantaged people in this country, in just about every way we might measure advantage. As a distinct group of Australians, they have the lowest incomes, the greatest welfare dependency, the lowest standards of education, the worst health, the highest levels of unemployment and underemployment. Alcoholism, drug addiction, violence and incarceration are in various ways their daily experience. All of these features of Aboriginal life in this country are unacceptable and shocking by any standards. Indigenous people tell me that there would not be an indigenous person in this country who would not have a family or community member who has not been incarcerated at some time in his or her life – mainly his. I should also remind you that the life expectancy of Aboriginal men is around 50-56 years, some twenty years lower than their white counterparts. I have an Aboriginal friend in his early 50s. I recently asked him if he is still in contact with the Aboriginal friends of his childhood. He said they were all dead.

What does all of this mean for you here this evening? What I want to say to you is that it must have meaning for you on two counts – as lawyers and as citizens.

As lawyers, you should be concerned that we have not treated and do not treat the indigenous people of this country justly. While the nature and specifics of the demands of justice for indigenous people will always be contestable, let me highlight a few big picture injustices:

  • Our failure as a nation to honestly, generously and sustainably own up to and acknowledge the violence and destruction, genocidal in tendency, which white Australia visited upon indigenous Australian’s for the first 150 years of European settlement. The scars of these experiences are carried in the hearts and psyche of all indigenous people and all indigenous communities today. But I am wrong to call them scars, because scars cover healing – these wounds have not healed and they inform every aspect of poverty and dysfunction in the lives of indigenous people and their communities. What we need to face up to was memorably put by Paul Keating in his speech at Redfern Park on 10 December 1992:
“We took the traditional lands and smashed the traditional way of life. We brought the diseases, the alcohol. We committed the murders. We took the children from their mothers. We practiced discrimination and exclusion. It was our ignorance and our prejudice and our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask ‘How would I feel if this were done to me?’ As a consequence, we failed to see that what we were doing degraded all of us”.

As a nation, we may have come close to this acknowledgement with these words from our then Prime Minister. Regrettably, this was the last we were to hear of such sentiments.

  • We have denied our indigenous brothers and sisters reparations for past wrongs and I refer here to the stolen generations. Rather than own up to these wrongs and stand tall to the challenge, we have engaged in acrimonious and unedifying debate about historical inaccuracies. Having unearthed the truth and scale of this wrong, we have said to the victims, “Well if this happened as you say it did, then here is our system of justice. Take your claims to the courts.” The few claims that have been made have been mightily resisted by Governments. The forensic obstacles which people face have proven to be utterly insurmountable. Calls from organisations such as the Public Interest Advocacy Centre for some form of reparation tribunal have fallen on cold and deaf ears.
  • Although native title is now part of the common law and land rights have legislative recognition, the dispossessed have been burdened by the dispossessor with an onus of proof which in most instances can never be met. Hal Wootten, the former Supreme Court Justice, and first Dean of this Law School described this unhappy state of affairs when he recently wrote:

“Even to access the minimal possibilities that native title holds for most indigenous people, those seeking native title have to prove that the State has not extinguished their rights by giving their land to someone else, as it was long able to do at the stroke of a pen, and that notwithstanding 200 years of dispossession, the disruption of protection and the regimentation of assimilation, they have maintained a recognisable group entity and a continuity of the tradition associated with land. Even if they succeed, their rights are subordinate to every other right created in a system that did not even acknowledge the possibility that their rights might exist.

He goes on to say:

“It did not have to be like this. Australia is not bound to mean spiritedly hold its indigenous people to the limited legal rights that ingenious lawyers can find surviving after 200 years of trampling on them. We seem to have forgotten that it is open to us to be generous and creative. There are plenty of precedents for creating special laws and special tribunals for issues that are unsuitable for the Courts.”[1]

  • We have denied the First Australians pride of citizenship. We have made every effort to deprive them of their self-respect, and we have humiliated them. The Israeli philosopher Avishai Margalit has said that a decent society is one whose institutions do not humiliate. In “The Decent Society” Margalit says:

“It is clear that the spirit of a just society cannot tolerate systematic humiliation by its basic institutions.

If humiliation means damaging people’s self respect, then it is clear that a necessary condition for the just society is that it should be a society that does not humiliate its members”.[2]

  • You might ask how we have humiliated our fellow Australians. Well at the level of the big picture we have done our best to strip them of their sense of self-worth and human value. For 200 years, the message we have given them is that their lives in the context of their own unique cultural and spiritual identity are not worth living, that they represent ways of being which at best are irrelevant to us and which at worst degrade us. We have made it clear to them that they have no place in the dominant society unless it is to play by our rules.
  • I dare say that some would challenge me as to whether or not we continue to humiliate. Let me give you one recent example and that is the winding up of ATSIC. While there is no doubt that ATSIC was a very troubled and unsuccessful institution, its removal from the indigenous landscape was swift and indigenous people were by and large not consulted. True, there were Aboriginal voices highly critical of ATSIC and some called for its abolition. However, it was an institution which held the promise of indigenous representation in the capital of this nation. A major change like this in any other sector of society would only occur with patient discussion among stakeholders. We all know that when there are changes, for instance, to corporate law in Australia, these are long-heralded and only implemented after protracted discussion and debate with the business community. That did not happen with ATSIC. From where I stand there appeared to be little real engagement with indigenous Australia as to its abolition, and little, if any discussion about what should replace it. Instead indigenous Australia was told after the event, that the Government would itself select indigenous leaders with whom to discuss what kind of structures, if any, might replace ATSIC. Indeed the names of these people were announced today. I know and admire many of these people and they are well suited to the task. As a point of principle, however, Patrick Dodson has referred to this approach as the modern version of “breast plating”, taking us back to the 19th Century when white Australia selected the so-called chiefs and kings of indigenous nations bestowing them with breast plates to indicate their favoured status. These breast plates were conferred in arrogant ignorance of what leadership might have meant for these 19th Century indigenous communities. Patrick Dodson’s point is that breast-plating is alive and well in the 21st Century.

As lawyers we have the responsibility to do what we can to make Australia just and decent. This means that we have the responsibility to at least be sensitive to the plight of indigenous Australians, responding when and where we can to make this country a more just society so far as they are concerned.

I remind you of what Oliver Wendell Holmes had to say to lawyers about the nurturing of broader sensitivies:

“… happiness, I am sure from having known many successful men, cannot be won simply be being counsel for great corporations and having an income of $50,000. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of the unfathomable success, a hint of the universal law.”[3]

I want to move on and in this context say something about what it means to be an Australian today and how that can, and should inform nation-building.

While it might be said that the plight of indigenous Australians has slipped from the Australian political agenda somewhat in recent times, Australia’s indigenous people and their relationship with the dominant society continue to confront the nation. Somewhere deep within the spiritual dimensions of what it is to be an Australian, there is the presence of the indigenous people of this country. For the most part those dimensions constitute an uncomfortable and unresolved moral dilemma. The Catholic priest, Father Ted Kennedy put it well when he said:

“For us whites, reconciliation starts not with guilt, but with the acknowledgment of the truth.

We do share the shame whether our ancestors came on the First Fleet or we are new migrants who came on the last plane, we all share the shame. We must all remember that not one of these goods things which we non-Aboriginal Australians enjoy today – benefits which are the envy of the world, which seem to sparkle the more in the Australian sunlight, not one of these goods things have been attained without the wrenching distress and the grieving, starvation and dying of Aboriginal people in the past”.[4]

Evidence of this moral dilemma is all around us. It is why, when Noel Pearson suggests boarding school education for indigenous students, he attracts front page coverage and prime time television. It is why hundreds and thousands of people walked the bridges and streets of our cities in the name of reconciliation. It is why the Redfern riots of last summer so horrified the nation. It is why we were all so emotionally overwhelmed by Cathy Freeman’s gold medal in the 2000 Olympics. This moral dilemma exists because, as a people, we know that we have treated Aboriginal people unjustly, and we know deep down in our souls that it strikes at the heart of our nation and at the heart of what it is to be an Australian today.

I want to say to you that we can turn all this around, and that we can work with indigenous Australians to create the necessary conditions for indigenous people to prosper and rejoice within their own unique context as indigenous Australians. In his excellent article “Justice or appropriation? Indigenous claims and liberal theory”, Ross Poole had this say:

“Justice to indigenous people is a project, but not a programme. It makes demands on non-indigenous people: to come to terms with their past; to come to some understanding of indigenous culture and ways of life; to provide political, legal, social and cultural space for indigenous people to reproduce their culture; to transfer the massive resources to indigenous people which will be necessary to make self-determination possible. It makes much greater demands on indigenous people: they have the task of remaking their cultures and their lives in the new environment that has been imposed upon them. This challenge is inescapable and is one which only indigenous people can undertake. The responsibility of non indigenous people is to make it possible”.[5]

I want to take it further than that and say that nationhood requires that we aim to do much more than justice to indigenous people. Nationhood requires that we move indigenous people from the fringes of our consciousness and to a place at the spiritual and cultural centre of what it means to be an Australian today. This will demand of us that we acknowledge the past, that we interpose ourselves only when invited to do so, and, guarding against cultural appropriation, that we celebrate with them their unique culture and ways of being as part of who we are, part of our culture and part of our way of being.

Thank you.

References:

  1. Hal Wootten “Conflicting Imperatives: pursuing truth in the courts” – Proof & Truth, The Humanist As Expert, pages 36 & 37.
  2. Harvard University Press, 1996The Path of the Law, Harvard Law Review, 1897
  3. Aboriginal Reconciliation, St Patrick’s Church, Church Hill, Sydney, Trinity Sunday, 29 May 1994
  4. Radical Philosophy 101, June 2000

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