Weisbrot, David --- "Comment" [2009] ALRCRefJl 1; (2009) 93 Australian Law Reform Commission Reform Journal 3

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Comment

By Professor David Weisbrot AM, President, ALRC.

Australia had a change of government in late November 2007, with the Coalition Government led by Prime Minister John Howard replaced after nearly 12 years in power by the Australian Labor Party (ALP), led by Kevin Rudd. The Australian Law Reform Commission (ALRC) is a scrupulously non-partisan agency, whose independence is expressly guaranteed by statute. However, in common with all other public and private institutions, the ALRC operates in an environment that is shaped by the policies and priorities of the government of the day.

To some extent, it is always ‘business as usual’ in the task of completing inquiries and making recommendations for reform of law and policy. For example, the ALRC’s major review of Australian privacy laws and practices was commissioned by the Howard Government with Terms of Reference issued in January 2006. The final report was presented to the new Rudd Government in May 2008 and formally launched by the responsible Ministers in August 2008—but not a single finding or recommendation was altered to reflect the intervening change in government. An article by my colleague Les McCrimmon, summarising the ALRC’s three-volume, 2,694 page, magnum opus on privacy, which contains 295 recommendations for reform, appears later in this edition.

However, other initiatives of the new Government have had a more direct influence on the ALRC’s work program—and on the selection of ‘Native Title’ as the focus for this edition of Reform.

First, the ALP went into the last election with a strong commitment for more openness, accountability and transparency in the operation of executive government. Among other things, the ALP pledged to implement the major recommendations in the ALRC’s report on Freedom of Information (FOI) law and practice, Open Government (ALRC 77, 1995), as well as those in the ALRC’s review of federal sedition laws, Fighting Words: A Review of Sedition Laws in Australia (ALRC 104, 2006).

In August 2008, the new Attorney-General, the Hon Robert McClelland MP, provided the ALRC with Terms of Reference for its latest inquiry, the Review of Secrecy Laws. In some respects, this is the final piece in the puzzle, since over the past decade or so the ALRC has provided reports and recommendations to government about improving FOI, privacy laws and practices, the protection of classified and security sensitive information, the preservation of archival resources, and client legal privilege in federal investigations. As is so often the case, the current exercise also involves a careful balancing of legitimate public interests: the need for clear and effective mechanisms to protect Commonwealth information, especially where this relates to sensitive matters of national interest, while developing laws and an underlying culture that places a premium on maintaining an open and accountable government by providing access to information wherever possible.

Another of the new Government’s priorities is to promote reconciliation with Australia’s Indigenous people and communities, and one of its first major, symbolic acts was to offer an apology to the Stolen Generations of Indigenous people that had been separated from their families pursuant to federal, state and territory laws and administrative actions. On 13 February 2008, Prime Minister Rudd, with bipartisan support, made a moving statement of apology to Australia’s Indigenous Peoples, including a commitment by the Australian Government to create ‘a future where we harness the determination of all Australians, Indigenous and non-Indigenous, to close the gap that lies between us in life expectancy, educational achievement and economic opportunity’ and an acknowledgment that ‘the laws and practices of successive parliaments and governments have inflicted profound grief, suffering and loss on these, our fellow Australians’.

One aspect of this renewed emphasis on reconciliation is the requirement that every Australian Government agency develop a Reconciliation Action Plan (RAP) that suits its particular role, mission, interests and capacity. I am pleased to report that the ALRC has actively thrown itself into this process, with a high level of energy and commitment displayed by all staff and Commissioners. At the time of writing the RAP had not been finalised, but the intention is to ensure that Indigenous people are effectively engaged in the work of the ALRC and in the processes of law reform, so that Australia’s laws have proper regard to Indigenous interests, protect and promote Indigenous culture, and improve social and economic outcomes for Indigenous people.

The ALRC recognises that, as a first principle, our RAP needs to achieve practical outcomes, including participation by Indigenous people in all aspects of the ALRC’s work; increased consultation with Indigenous people and communities; and recommendations for law reform that take into account Indigenous perspectives. Special and focused attention will be directed towards building relationships of trust with Indigenous peoples so that they feel encouraged to engage with and contribute to law reform processes and feel these contributions are valued and productive.

The ALRC has worked in areas of particular importance to Indigenous peoples throughout its history, perhaps most squarely in its inquiry into Aboriginal Customary Law—a major project that commenced in 1977, extended across nine years, involved massive research and consultation exercises, and culminated in the publication of the landmark report Recognition of Aboriginal Customary Laws (ALRC 31, 1986). Although universally regarded as a triumph of scholarship and public policymaking—and still the ‘standard reference’ for any consideration of reform in this area¹—the bulk of the recommendations have never formally been implemented, with governments of both varieties consigning the Report to the ‘too hard basket’.

Nevertheless, it is possible to argue that both the inquiry processes and the final report have been highly influential in shaping further developments, by providing information and ideas, stimulating public debate, and contributing to the changing social atmospherics or Zeitgeist. The ALRC’s Foundation Chair, Justice Michael Kirby, has commented that the ALRC’s work was part of the ‘softening up process’ that eventually led to the High Court’s famous Mabo judgment in 1992, which established that native title (based on Indigenous customary land tenure) remains in existence in Australia as a matter of common law. As Justice Kirby has written:

the ALRC report on Recognition of Aboriginal Customary Laws has not, as such, been followed up with comprehensive implementing legislation. However, it has been suggested that the report, and the widespread national discussion of the operation of Australian law upon the indigenous people of the nation, stimulated a climate of opinion that resulted in attitudinal changes in the legal profession and judiciary that found reflection in the important decision of the High Court of Australia in Mabo v Queensland [No 2].²

Mabo and the subsequent Wik case established the basic common law principles, but the detailed laws and procedures for resolving Native Title claims are provided in highly complex legislation, particularly the Native Title Act 1993 (Cth) (NTA), which incorporates a mix of tribunal processes and Federal Court adjudication. While it is theoretically possible for native title disputes to be settled quickly and cooperatively, the combination of procedural and evidential complexity, high stakes, multiple parties, uncertainty of outcome, and a winner-take-all approach means that most cases are heavily litigated, go on for years, cost a fortune in legal and other costs—and often result in crushing disappointment, since claimants bear the onus of proof in difficult circumstances.

In this edition, Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner at the Australian Human Rights Commission, provides a superb overview of what he describes as the ‘failing framework’ of native title in Australia— and, unfortunately, few would seriously argue with that characterisation. We are also very privileged to include an article by the recently appointed Chief Justice of the High Court of Australia, the Hon Robert French—formerly a Federal Court judge and part-time Commissioner of the ALRC—which offers some ideas for ‘lifting the burden’ of native title.

The new Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP, has been outspoken about the need to radically overhaul and simplify the NTA. In July 2008, the Minister and Attorney-General McClelland established a broad-based Working Group to advise on how to promote better use of native title payments to improve economic development outcomes and address the economic and social disadvantage facing Indigenous peoples. In December 2008, the Government released a Discussion Paper, which examines the recommendations made by the Working Group and includes legislative and non-legislative proposals for reform of native title. Minister Macklin has kindly provided Reform with an article on her vision for better utilising native title agreements and royalty payments to help close the gap between Indigenous and non-Indigenous Australians. Megan Davis, the Director of the Indigenous Law Centre (ILC) at the University of New South Wales (UNSW)—to whom the ALRC also owes a debt of gratitude for her advice, assistance and support with our RAP—contributes an important article on the implications of the United Nations Declaration on the Rights of Indigenous Peoples for the development of Australian law, including by way of the recognition of international customary law in the courts. The non-binding— but aspirational and inspirational—Declaration was over 22 years in the making, and was agreed to by the UN General Assembly in September 2007 with only four countries voting against: Australia, New Zealand, Canada and the United States. On 10 December 2008, on the occasion of the 60th anniversary of the UN Declaration of Human Rights, Attorney-General McClelland stated that the current Australian Government supports ‘the principles underlying the Declaration on the Rights of Indigenous Peoples. We are consulting with Indigenous organisations and other key stakeholders on an appropriate public statement to reflect this’.³

Also in this edition is an article written by Monica Morgan, a Yorta Yorta woman, which articulates in very personal terms the impact that an adverse native title determination can have on Indigenous claimants. The perceived failure of a system that gives priority to written evidence over the oral evidence of Indigenous witnesses is forcefully explained. This issue is also discussed in the article by Vance Hughston SC, who notes the positive trend in recent Federal Court cases to give proper weight to the oral evidence of Indigenous witnesses. He cites as an example the decision of then Federal Court Justice French in Sampi v Western Australia [2005] FCA 777 at. In that case, Justice French stated that evidence of Indigenous witnesses about their traditional laws and customs and their rights and responsibilities with respect to land and waters, ‘is of the highest importance. All else is second order evidence’. (Emphasis supplied.)

It is worth noting that the joint Report of the ALRC, the NSWLRC and the VLRC, Uniform Evidence Law (ALRC 102, 2006), recommended the removal of the remaining evidentiary barriers to the receipt in court proceedings of oral and opinion evidence relevant to Aboriginal or Torres Strait Islander traditional laws and customs. These amendments to the hearsay and opinion rules, and the majority of the other recommendations in the Report, were recently enacted by the federal Parliament through amendments to the Evidence Act 1995 (Cth).

Sean Brennan, the Director of the Indigenous Rights, Land and Governance Project at UNSW considers the vulnerability of native title in Australia, because the law continues to deny it the full array of legal protections associated with other property rights. Tony McAvoy, one of eight Indigenous barristers currently practising in Australia, with particular expertise in native title and human rights, provides us with his blueprint for reform of the native title system aimed at protecting the ‘rights and interests of Indigenous people in Australia, while streamlining the convoluted processes’. McAvoy suggests that there are four key areas in which ‘reform may be easily and readily achieved and which would dramatically improve the rate of resolution of native title litigation’.

At the heart of all of this complexity and disappointment lies the fundamental structural problem of translating Indigenous concepts and cultural practices into rights and interests recognised by the courts under Western law. Associate Professor Alex Reilly of Adelaide University, who has published extensively and interestingly on matters of Indigenous rights, land and governance, writes here about native title as a cultural phenomenon.

Another significant contributor to the ALRC’s RAP process, Steven Ross, contributes a fascinating piece written with Neil Ward, highlighting the unfortunate retrospective preoccupation of native title considerations, with the focus on the extent to which an ancient customary land tenure system has been disturbed in the 200 years since colonial occupation and the overlay of an entirely different system of property ownership. Instead, Ross and Ward make a strong argument for entrenching a new paradigm of Indigenous involvement in land and water management, based on respect for Indigenous people’s contemporary relationships with their country.

Graeme Neate, who has been President of the National Native Title Tribunal for nearly a decade, observes firsthand the endlessly recurring pattern of litigation and legislation. Alison Vivian, of the Jumbunna Indigenous House of Learning (at the University of Technology, Sydney), notes that one of the tragic outcomes of the current court-based, native title system is the high degree of disputation it provokes within and between Indigenous communities, and she provides an interesting proposal for the establishment of an Indigenous tribunal that is better placed to resolve these kinds of disputes.

Finally, as the UN Declaration on the Rights of Indigenous Peoples makes plain, these issues are not unique to Australia and much can be learned from the experience in other countries. Emeritus Professor Garth Nettheim AO—an absolute legend in this field, co-founder of the ILC and co-author of the leading textbook on Indigenous Law—provides a useful survey of the way in which native title has been handled in other jurisdictions. Two of the ALRC’s recent outstanding student interns, Peter Fox and Tracey Nau, have contributed valuable articles on (respectively) the Canadian model for Indigenous Land Use Agreements and international models for determining just compensation for native title

Endnotes

1 Langton, ‘The end of “big men” politics’ (2008) Griffith Review 22.

2 Kirby, ‘Are We There Yet?’, in Opeskin and Weisbrot (eds), The Promise of Law Reform (Federation Press, 2005) 433, 439-440. The Mabo case is reported at (1992) 175 CLR 1.

3 For the full text of the Attorney-General’s address, see <http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/ Speeches_2008_10December2008-UnitedNationsAssociationofAustraliaConference> (accessed 16 December 2008).