Walton, Merrilyn --- "Book Review - Aborigines and the Law" [1985] AboriginalLawB 13; (1985) 1(12) Aboriginal Law Bulletin 19

• Book Review-Aborigines And The Law

---

Book Review -

Aborigines and the Law

Ed. Peter Hanks & Bryan Keon-Cohen

George Allen & Unwin Pty Ltd

366 pp. (rrp. hardback $24.95, paperback $12.95)

Reviewed by Merrilyn Walton

John Stone recently made some astounding remarks about Australian Aboriginal land claims. He said:

"I utterly reject that I or my family or my friends or their families or indeed anyone living in Australia today is in some sense 'guilty' of shamefully mistreating Aborigines is the past and must now make 'restitution'. What utter nonsense ... let me be blunt ... I do not acknowledge any special rights whatsoever on the part of Aboriginal Australians today."

It is hard to believe that this vitriolic view is shared by others, but unfortunately Stone is not alone. For this reason, Aborigines And The Law comes at a crucial time when debate within the Government and in the community must rely on more than prejudice and self interest, and must be founded on substantial facts and information. This book contains a detailed analysis of important case law as well as an account of the political and socio-legal issues confronting Aborigines and Islanders in contemporary Australian society.

Aborigines And The Law, edited by Peter Hanks and Bryan Keon-Cohen, is a collection of essays in memory of Elizabeth Eggleston, who will be remembered for her book Fear Favour or Affection. Eggleston's work focused attention on the relationship between Aborigines, Islanders and the Anglo-Australian legal system. It demonstrated the systematic and serious discrimination experienced by Aborigines in the criminal process and helped lay the foundation for the struggles that have been waged in this area.

Each of the essays in this volume can stand alone, and whilst the editors say they did not set out to provide a definitive coverage of the legal issues relating to Aborigines, these essays canvass most issues currently being debated. It is, however, regrettable that the editors did not include any material by Aborigines and Islanders themselves. By omitting such perspectives, the editors have somewhat limited the readership of the book, confining it to a rather narrow audience of researchers, lawyers and academics.

Lawyers will no doubt find Hockey's essay on "Settlement and Sovereignty" stimulating. He presents a legislative history of present black/white relations with respect to land ownership and compensation. He also outlines some of the present issues in the "settled v. conquered" debate. Hookey maintains that the laws which have developed have been disastrous for Aborigines.

Contrary to the thrust of Hookey's paper in its examination of legal resolutions. Nettheim in "The Relevance of International Law" sees pressure from the international forum as the path way for change. He examines the Commonwealth's role in the international forum and sees the dilemma for the Commonwealth in the need to balance co-operation with the States with the active affirmation of Aboriginal rights. He outlines how the Koowarta and Franklin Dam decisions have affirmed a broad interpretation of the legislative powers of the Commonwealth in regard to "external affairs". Nettheim provides evidence, byway of an examination of the Declaration of Human Rights, ratification of the Racial Discrimination Convention and the Racial Discrimination Act 1975 to show that there is a potential for international law to extend the legislative power of the Commonwealth Parliament under the Commonwealth Constitution. As well as examining case law, Nettheim identifies those international agencies which have displayed a keen interest in Aboriginal affairs. The World Council of Churches visit to Australia in mid-1981 and subsequent report highlighted the disadvantaged position of Aborigines.

Nettheim believes that developments such as the formalisation of the World Council of Indigenous People (WCIP) may well establish enough legal clout to support Commonwealth legislation through the external affairs powers on such issues as land rights, cultural identity and self-management.

However, it appears that Nettheim ultimately sees the advancement of Aboriginal rights coming from political activism on an international front rather than from legislative change on a national basis using state co-operation. His outline of current activities and the continued resistance of the Commonwealth to take on the State Governments shows that this may well be the case.

Peter Hanks' essay "Aborigines and Government" gives added weight to the thesis that it is the Aborigines themselves who may provide the crucial pressure for change. He provides a detailed analysis of the role of government and of power. He gives examples of the tensions arising out of the creation, by the Government, of bodies and mechanisms of consultation, i n particular the National Aboriginal Conference. The NAC's history and struggle to be independent is well documented. Perhaps contrary to Hanks' predictions, it seems that the NAC may yet take on the fight with the Commonwealth, despite its lack of autonomy. The Sydney Morning Herald (12.10.84) recently reported the attack on the Federal Government by the Chairman of the NAC, Robert Riley, for its lack of support for mining veto rights in planned traditional land rights legislation. This attack was launched at a National Press Club luncheon despite a private request from the Minister's Office that Aboriginal groups not rock the boat on the land rights issue in the lead up to the 1984 election.

Keon-Cohen and Morse in their essay "Indigenous Land Rights in Australia and Canada" assert that land claims as a process are just as important as the end result.

"At their narrowest, they involve claims to control specific areas of land. At their widest, they represent a significant social and political involvement, an effort by an impoverished and powerless minority to break the welfare and poverty cycle and exercise some power over their own destines in the future",

The authors justify grouping Canadian and Australian movements on the basis that British based legal systems have played a role in the disintegration of indigenous communities in both Canada and Australia. Like Australian Aborigines, Indian and Metis people are grossly over represented in gaols and in the child welfare system as a resultof a complete lack of suitable and appropriate alternatives. But in Australia, unlike Canada, there have been no treaties. The authors refer to the proposed "Makarrata" treaty, but like other contributors, they do not seem to place much hope in its resolving past, present or future dilemmas. I understand that the "Makarrata" movement has gone out of business and its funds have been given to the Aboriginal Law Research Unit at the University of New South Wales.

Colin Tatz has recently advocated criminal sanctions for persons engaging in behaviour of a racist nature. His belief in the worth of legal remedies is further promoted in his essay on "Aborigines and Civil Law". He asserts, perhaps more strongly than other contributors, that the law and legal processes are a more effective means of asserting and recovering rights than conventional politics. He later qualifies this stance when he says:

"It is not that politics achieves nothing and thatblaw is the only way left. Rather it is that the legal route and the political one, followed equally and simultaneously should achieve more than either followed exclusively".

Of course, such a statement presumes that there is choice in these matters. Tatz talks about 'negative' and 'positive' laws. The former he sees as laws which are actively manipulated to exclude Aborigines from exercising their rights. Positive laws he describes as those which basically redress the balance. He gives examples of land righs, equity suits and injunctions to support his thesis. However, while Tatz claims that it is only now that Aborigines have discovered legal procedure, he fails to discuss the difficulties involved. Access to these remedies remain a problem. The Aboriginal Legal Service, bogged down in maintaining ai criminal practice, has not addressed this area to date. Consequently, the day to day civil claims of Aborigines and islanders are usually referred to private legal practitioners, thus diffusing any real collective gain from the few minor civil actions which manage to get off the ground. So while Tatz has faith in the legal process per se, much work needs to be done and priorities developed before there can be any justification in his assertion that our system of civil jurisprudence is more beneficial than prejudicial.

Grey Lyons, in "Aboriginal Legal Services", gives an excellent description of the development of the ALS in Australia as well as an analysis of the problems faced by them. Lyons, like Tatz, sees one of the main challenges to the Service as being the development of a civil case load. He does not rate this need as highly as I would, arguing that the first priority is to extend services to the remote Aboriginal communities. Staff burn-out is also seen as a significant problem. While Lyons sees 2 years as an average time for legal aid staff to work at the ALS, my experience from Queensland is that staff usually stay longer. Lyons does not say whether burn-out only affects white staff or whether he is referring to all ALS staff.

While the established legal community would generally see the Aboriginal Legal Services as radical, Lyons rightly states that they have been essentially reformist rather than radical. This is not to say that some legal services have not resorted to radical tactics such as demonstrations and sit-ins on a more collective level. Lyons concludes his essay on a sombre note:

"Whilst the ALS are increasing the ability of Aboriginal people to meet the dominant society on its own terms, it remains a moot point whether the services will finally expand the range of choices Aboriginal groups have about the extent to which they join the mainstream of white Australian life ... ALS may be left to pick up the pieces and try to fit them into that life"

I can not help thinking that in time, doubts may be voiced about the role played by white ALS professional staff, and Aborigines may conclude that they are no different from the missionaires of the last century who were probably considered by their contemporaries as reformists and sympathetic to the Aboriginal cause.

Matthew Foley in his essay "Aborigines and the Police" analyses the present relations between police and Aborigines in both historical and cultural terms. He outlines in some detail the cultural and social barriers that exist in present police-Aboriginal relations. The gross over representation of Aborigines and Islanders in the criminal justice system supports his thesis that Aborigines are, at vital stages of the law enforcement process, discriminated against because of communication difficulties.

The rules for police interrogation of Aboriginal suspects are outlined for each state with the exception of Tasmania and New South Wales where no special instructions exist. Foley demonstrates by reference to available research data that there is widespread distrust of police officers by Aborigines. He seems pessimistic about the improvement of relations, and shows that apart from the establishment of Aboriginal liaison committees and minor modifications to police training, there are no signs that the issue is of great concern to the police.

Ligertwood's essay on "Aborigines in Criminal Courts" is interesting because he is not tentative about offering his own interpreations of events. Ligertwood was formerly a practicing lawyer with the South Australian Aboriginal Legal Rights Movement. Ligertwood sees two options for his former clients: controlling law and order themselves, or turning to an effective European system. He sees an effective system as necessarily taking account of Aboriginal attitudes as well as providing for greater involvement of Aborigines in the system. I gather than Ligertwood sees both directions as necessary, thus ultimately giving Aborigines a realistic choice between tribal and European systems of criminal justice.

Maddock's essay on "Aboriginal Customary Law" gives an interesting account of the concepts of public and private law within traditional Aboriginal society. This essay is fascinating since Maddock, while being rigorous about traditional law, has some hesitancy in allocating a place for tribal law in contemporary Australian society. He focuses more specifically on land rights as the vehicle for the maintenance of traditional law.

The Aborigines And The Law collection contains an annotated bibliography of all relevant reported and unreported cases, and relevant legislation prepared by John McCorquodale. He intends to publish a "Comprehensive Annotated Bibliography" which he says will include 450 reported and unreported decisions, every piece of legislation from the time of white habitation to 1982, and all articles, books and other material specifically dealing with the law. Such a collection will undoubtedly be well received by students, academics and researchers.

These essays collectively highlight the very real and complex issues involved in an analysis of black/white relations today; -problems which span constitutional law, state rights, self determination, compensation and legal entitlement. The issues are not as Eggleston identified in 1976 ones simply relating to "treatment" or "disposition" within the criminal justice system. The isolation and promotion of these issues have begun to seriously challenge the very foundations of which the Anglo-Australian legal system has to date denied recognition of Aboriginal claims to their land and to their cultural heritage.