: Traumas of Law
The Traumas of Atonement and Opposition in the Law
Traumas of Law
Law & Literature Association of Australia – Conference
Queensland University of Technology
11 July 2004
Fr Frank Brennan SJ AO 
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
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 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 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
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:
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: 
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."  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
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".  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"  . In other words, the Court "could
not sidestep the issue" even where politicians had. 
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
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
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:
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
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
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."  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
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.
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
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
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.
 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.
 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: 
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
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: 
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 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.
 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
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
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
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,
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
Publication: Sydney Morning Herald
Section: News And Features
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
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
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.
 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.
 Mabo (No 2) v Queensland (1992)
175 CLR 1, at p. 30
 Ibid, 42
 (1996) CPD 346 (HofR), 6 May 1996
 (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.
 Solomon, The Political High Court: How the High Court Shapes
Politics (1999) at 36.
 Solomon, The Political High Court: How the
High Court Shapes Politics (1999) at 37
 Judgment of Brennan J, Mabo (No 2) v
Queensland (1992) 175 CLR 1, at p. 57
 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
 The Weekend Australian, 11 September
 Letter to Author, 13 March 1998
 Section 7 of the amended Native Title Act
(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." (HCA
28 at para 99)
 My Op Ed piece is set out as an appendix
to this lecture
 ABC Radio, 29 June 2004
 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
 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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