Originally posted on janetthomas:

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What I should like to bring home to you is the incredible heroism

                of a man such as Picasso whose moral isolation at that period

was something frightful, for none of his painter friends had followed him.

                                                                                                                                  Daniel-Henry Kahnweiler (1884 – 1979)

In 1907 a work that revolutionised artistic conventions, Les Demoiselles d’Avignon, was conceived by the Spanish artist Pablo Picasso (1881-1973). It has only been since his estate was left to the state of France in 1987 that it has been possible to trace the progressive thoughts and ideas that evolved to become this monumental landmark painting. After examining the origins of Picasso, this essay will endeavour to reveal the major influences, features and reactions to a work of art that has become the cornerstone of modern art.

 Picasso was one of the first artists to challenge artistic convention and move into the realm…

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Originally posted on janetthomas:

 

“My whole life as an artist has been nothing other than a continual struggle against the forces of reaction and the death of art.” PICASSO

( Levy, L.1990:95)

Pablo Picasso was one of the pre-eminent artists of the twentieth century. He and his work was the subject of unending analysis, gossip, dislike, adoration and rumour. Due to the advent of global mass media, no other painter or sculptor had been as famous as this through their own lifetime (Hughes, R., www.time.com). His work expanded continually through experimentation and innovation right up to his death at the age of ninety-two. The public saw him as the ‘archetypal modernist’ (Hughes, R. www.time.com) but unlike Modernists such as Kandinsky or Mondrian, his work is full of sensation, desire and metaphor conveyed with a tremendous plastic force. Because of the prodigiousness of his output and his many explorations into different media…

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Originally posted on janetthomas:

‘Goya’s prints and paintings survive with terrifying force because they castigate not merely the superstitions of eighteenth century Spaniards but all the malevolent powers of bigotry…’ (Tomory, P.A., p.80). The imagery and imagination that pervades Goya’s work in the first phase of his career was deeply influenced by the cultural and social events of his contemporary world. The eighteenth century was a period of great social change in Europeand Goya was one of the primary artists to depict this time. In this essay I will focus on the cultural influences in his tapestry designs and paintings of the 1790s, and the social influences in his etching series Los Caprichos.

The eighteenth century ushered in a new period of thinking in the Western world which was to bring marked political, social and economic changes. This period was called the Enlightenment and encouraged critical thinking independent of religious or superstitious doctrines. Artists…

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Originally posted on janetthomas:

Look, Glaucus, the broad-backed combers

are running high, storm clouds black out

Gyrae’s peak, and around my heart

a fear that rises from the unforeseen.  

ARCHILOCHUS

ANAKRONOS

In his novel Freedom and Death, Nikos Kazantzakis describes the revolutionary war fought against the Ottoman Turks in late 19th century Crete. He wrote about a small iconographic image of an emaciated woman, covered in blood, with her children clinging to her legs. It was this imagery that initially inspired the central figure in this nine panel granite frieze. However, I did not want my hero to be pitied; I wanted her to be feared. So I went back to the description of Athena- the warrior goddess, and clothed her in all her ‘daedalic’ glory. Her breasts are confrontational; her gun, a replacement for the sword; a belt of shot placed around her hips. This woman is not emaciated, she is an…

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This is the generation saying OXI!

Greece-anit-austerity-rally-Getty

 

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5472

 

 

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Indigenous disadvantage[1] in Australia began with dispossession and displacement. Disadvantage through discrimination, intergenerational poverty and the loss of autonomy through government policies has entrenched it. Renting a home, gaining employment, getting service are all times when Indigenous people are often racially profiled and discriminated against. Such disadvantage increases the likelihood of further disadvantage. When a home environment is poor there is less chance to study or be encouraged, making learning difficult. This is exacerbated further through poor nutrition and hearing loss through ear infections. Poverty lowers self-esteem, increasing the chances of illness, death and the likelihood of arrest and incarceration. All these factors entrench Indigenous disadvantage rather than allowing the opportunity of further education, increased employability and higher income. It is only through listening to Indigenous people, acting upon their recommendations, increasing opportunity for them, and educating the general population to be proud of their nation’s Indigenous heritage will such systematic and intergenerational disadvantage be able to be overcome.

There have been many reports made and commissions appointed by the Crown to try and solve Indigenous disadvantage over recent years. Many of their recommendations advocate listening to solutions from Indigenous communities themselves. In 2007 the Northern Territory government produced a report titled “Little Children are Sacred”[2]. The Report was commissioned because of allegations of sexual abuse of Indigenous children raised within Indigenous communities in the Northern Territory. Disempowerment and poverty were creating conditions that were producing family violence and the sexual abuse of men, women and children. This was seen by the Report as a symptom of a breakdown of Indigenous society and culture. In the course of consulting with the affected communities, the Report’s authors found that there was a thread of common concepts that emerged. Some of these were dialogue, empowerment, ownership, reconciliation, family, culture, and law.

The recommendations made by the Report were based upon a consultative view of Indigenous affairs. It was recommended that the Northern Territory legal system consult with Indigenous women and men to resolve how cultural and state law can be combined together to create better outcomes for Indigenous communities. Such consultation with Indigenous communities is considered a generally accepted principle in international law. This is reflected the United Nations Declaration on the Rights of Indigenous Peoples 2007[3], which Australia ratified in 2009. However, the Federal government of the time took little notice of the Report’s recommendations and, particularly, went against the advice that action should be local rather than centralized. Thus the Howard administration instigated the Northern Territory National Emergency Response 2007 which alienated many communities and left them feeling degraded and skeptical of the motives of government assistance.

The Northern Territory National Emergency Response was called “The Intervention” and it was carried out with great speed, as stipulated in the Little Children Are Sacred Report. Unfortunately, that was perhaps the only part of the Report’s recommendations that the Federal Government followed. There was no comprehensive policy development, and the consultation that was so carefully undertaken with affected communities by the Report’s authors was cast aside for political expedience. The Intervention lasted five years until 2012 and was a statutory approach to a complex problem which had no process of evaluation to analyze whether it was successful at dealing with the problems outlined by the Report in any way. Rather than being a solution, it became a divisive piece of legislation that lacked the required transparency and accountability[4]. It appeared to be more about techniques of governance designed to allay voters’ concerns or biases and normalize Indigenous Australians within a second class citizenship. At no time did it take into account the fears of Indigenous communities through a consultative approach but used a blunt statutory instrument as a reaction to allegations that appeared to outrage the general public.

In 2013 Tony Abbott was elected as Prime Minister on a platform that he intended to be the first “Prime Minister for Aboriginal Affairs”. Following the end of the Intervention in 2012, Mr Abbott stated: ‘I am reluctant to decree further upheaval in an area that’s been subject to one and a half generations of largely ineffectual ‘reform’. However, in the year after being elected Mr Abbott engaged the government on the exact opposite of that intention by making deep funding cuts and radically re-shaping existing programs and services, again without consultation. The centralization of Indigenous Affairs was purported to be an aid to streamlining programs and achieving practical outcomes. Therefore, rather than consulting Indigenous groups as required by international law, many local Indigenous services and programs were consolidated into the central office of the Prime Minister[5].

Immediately after Mr Abbott’s election he appointed the mining magnate, Andrew Forrest, to review Indigenous training and employment services. The Forrest Review made some key welfare recommendations which were punitive and paternalistic in their outlook. The Forrest Review focuses on what it terms ‘strength of will’ for Indigenous Australians to achieve parity with the rest of the Australian population. In his introduction Andrew Forrest declares that ‘there is no disparity in employment between [Indigenous] Australians with a decent education and other Australians’[6].  However, one of the sources that the Report refers to actually contradicts this assertion. It states thatthe ‘net difference’ effects are quite large (20.0% for males and 19.1% for females), indicating that Indigenous employment rates are typically poorer, even after we take education into account.[7]This appears to indicate that there is a fundamental problem in the attitudes other Australians have towards Indigenous Australians which excludes them from the benefits of employment. Therefore, rather than focusing various reviews and reports on what Indigenous people can do to help themselves out of a calamitous set of circumstances, it would seem more prudent to focus on what other Australians can do in their own lives to adjust their attitudes towards Indigenous Australians.

While the Forrest Review focuses on what Indigenous Australians can do to improve their lives, through education and parenting, it ignores the main problem of Indigenous people. Racism and negative stereotyping, as well as the incarceration of Indigenous Australians for minor offences at a far higher rate than other Australians, are inherent and underlying problems that can only be solved through education and engagement, not of Indigenous Australians but of other Australians. By ignoring this problem, one that effects indigenous populations across the globe, all the money and time spent on reviews, reports and commissions will always be to no avail, and negative statistics on Indigenous lives will continue to grow exponentially. When a young fifteen year old boy dies in prison while serving a twenty day mandatory sentence for stealing pencils and paper[8], it becomes quite evident that a society that demands mandatory sentences that affects Indigenous Australians the most cannot demand that Indigenous Australians change their attitudes to address the disparity between them and other Australians. It is the utmost example of victim blaming. The problem is societal, therefore attitudes in the greater society need to be changed through education and also through subliminal methods such as national symbolism.

National symbolism is one immediate way that we can educate all other Australians that this land was the home of Indigenous people for over forty thousand years before it was colonized by Britain. The Australian Constitution was written at a time when the concept of terra nullius still prevailed. In the mindset of most Australians, Australia was an empty land that was settled and civilized by the British. Indigenous people were dismissed as a dying race not worthy of citizenship and were not mentioned in the Constitution. As it stands it is a document that excludes Australia’s first people, and allows the enactment of laws that are racially discriminatory[9]. Any protections under the Racial Discrimination Act 1975 (Cth) have been removed three times in history and all those involved Indigenous Australians. The Northern Territory Emergency Response is an example of one time when the RDA was suspended. Again, the Forrest Review with its advocacy of a “Healthy Welfare Card” and punitive measures for dealing with Indigenous parents and children is another example of Indigenous Australians separate second class status under the Constitution. To build a relationship of mutual respect and trust within a multicultural society the Constitution should be changed to ensure it does not discriminate against anyone through giving Indigenous Australians less rights than others. For other Australians, constitutional change will engender the idea that Australia has a shared identity, one that is over forty thousand years old, and the other of a new nation being built together.

Another important symbol of national identity is the Australian flag. Over the past few decades there has been debate about changing the flag to represent the modern nation of Australia. Having the Union Jack on the flag perpetuates the fallacy of terra nullius. It shows the Southern Cross as representing the new nation but stamps British colonization in the left hand corner as its primary source. This flag is a reminder to all Indigenous Australians of their dispossession and displacement. Through changing the flag to include the recognition of first Australians, all Australians, no matter where they have come from, will understand the place of Indigenous Australians in this land, being the custodians of this land for tens of thousands of years. Changing the flag and recognizing Indigenous Australians in the Constitution would be the beginning of educating other Australians against racism and negative stereotyping. It would be a mark of respect for the elders of the land, and allow non-Indigenous Australians to include themselves as part of this enormous ongoing history. We would not be a new nation, but an ancient one with a continuing collective identity.

Indigenous Australians experience endemic racism which perpetuates the disadvantages that are clearly outlined in ongoing statistical studies. Solutions which disallow autonomy or entrench systemic discrimination are not of assistance. Solutions that advocate empowerment and equity need to be acted upon in accordance with the UN Conventions that Australia has ratified and is obligated to uphold. Equitable educational opportunities should be at the forefront of any Indigenous policy. Management of discriminatory and racist attitudes in Australian society through changing the Constitution and the flag to educate and illustrate the reality of Australian settlement and society should be the foundation of Indigenous policy. Therefore consulting with Indigenous communities on a local level and acting upon their recommendations, keeping government obligations to create equity between Indigenous and non-Indigenous Australians through education and opportunity, and imbuing the general population of Australia with knowledge of their exceptional Indigenous heritage, will go a long way towards assisting the law to create positive solutions towards ending endemic and systemic discrimination.

[1] http://www.austlii.edu.au/au/orgs/car/overcoming_disadvantage/pg3.htm

[2] http://www.inquirysaac.nt.gov.au/pdf/bipacsa_final_report.pdf

[3] http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

[4] https://www.humanrights.gov.au/publications/social-justice-report-2007-chapter-3-northern-territory-emergency-response-intervention#part2

[5] https://www.humanrights.gov.au/sites/default/files/document/publication/SJNTR%20FINAL.pdf

[6] https://indigenousjobsandtrainingreview.dpmc.gov.au/forrest-review

[7] http://www.aihw.gov.au/uploadedFiles/ClosingTheGap/Content/Our_publications/2014/ctgc-ip9.pdf

[8] http://www.lawcouncil.asn.au/lawcouncil/index.php/law-council-media/news/352-mandatory-sentencing-debate

[9] https://www.humanrights.gov.au/publications/constitutional-reform-faqs-benefits-reforming-constitution#benefit2

Originally posted on janetthomas:

Global protest has been prominent since the late 1990s. It is a reaction to dominant forces of multinational corporations undermining democratically elected governments, and the people’s own identity through citizenship, across the globe. For a few years these protests were quelled because of the threat of terrorism. However, since the new global financial crisis that began in 2008 which evidenced the complete and utter disregard that these corporations, citing their status as natural persons, have had for the real occupants of the world, new protest movements are burgeoning everywhere. It is imperative that we contemplate the vastness and autonomy of these corporations and perceive how global governance must be consolidated to be able to harness such forces for the peace and security of all. Therefore, a global social contract must be established.

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Monoprints by Janet Elizabeth Thomas (2010)

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16

Click on link to find our more about this exceptional place-

http://www.creativecowboyfilms.com/blog_posts/art-centre

‘Around the world there are knowledge hotspots and these places illuminate human existence. These hotspots include the great universities, Harvard and Cambridge among others, and the great institutions, the storehouses of knowledge and creativity, the Natural History Museum in South Kensington, New York’s Metropolitan Museum of Art, the Egyptian Museum in Cairo, the Musée du Louvre in Paris and Milan’s La Scala and so it goes. These places draw us in because we need to know, to see, to listen and to share.

The Indigenous world also has its knowledge hotspots and in Australia’s Arnhem Land the Buku-Larrnggay Mulka Centre is one of these places. Aboriginal culture in Australia is deeply knowledge based, a creative and spiritual force where art making, music and dance are at the core of culture, of law and sacred meaning.’

close-the-gap

Although Aboriginal and Torres Strait Islander people comprise only about 3 per cent of the Australian population, they make up 28 per cent of the total prison population. This is an imprisonment rate 14 times higher than the non-Indigenous rate. Aboriginal people continue to die in custody – 270 people since the Royal Commission into Aboriginal Deaths in Custody Report (1991). Growing prison populations mean increased costs for taxpayers without breaking the cycle of offending. The system is not working to prevent crime and is not sustainable[1].The Australian Law Reform Commission Aboriginal Customary Law Report (1986) investigated Aboriginal customary laws and any basis for their recognition in the common law. The ALRC recommended that Aboriginal customary law should be recognized, in appropriate ways, by the Australian legal system, and that the recognition of such laws must occur within the framework of the general law[2]. While both the Aboriginal Deaths in Custody Report and the Aboriginal Customary Law Report advocated in favour of upholding the rights, both traditional and modern, of Indigenous Australians, neither reports’ recommendations have been properly administered or implemented so as to fully address the issue of Indigenous disadvantage. Therefore, almost thirty years after these expensively produced reports were completed, successive Australian governments have continued to fail the Indigenous population on whose country this nation was founded.

This travesty of justice continues to beleaguer courts across Australia, with judges having to make complex decisions using the only legislative tool available the Racial Discrimination Act 1975 (Cth). This leads to arbitrary decision making that in turn leads to expensive appeals processes in order to ascertain the correct form of justice available. An example of this is Walker v NSW (1994) 182 CLR 45, where the High Court considered whether customary law has an application in criminal law where there is no legislative basis. Mason CJ referenced the Racial Discrimination Act 1975 to declare:

It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10)…And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose[3].

It is this reference to the Racial Discrimination Act which is telling in Mason CJ’s ruling, as Part 1, Article 1.4 of the Schedule to that Act, being the international source of the Act itself, “The International Convention on the elimination of all forms of racial discrimination” plainly states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved[4].

The Convention’s intent is to not just seek equality for all humans but also to enact equity for those who have suffered discrimination, and it is this UN Article that alludes to this intent. Special measures are needed in order to apply justice with an even hand. However, should this mean that customary law should be applied over criminal law in Australian courts? I will argue that, while the recognition of customary law may make the implementation of the law seem arbitrary, the recognition of socially reinforced disadvantage, particularly Indigenous disadvantage, is important to prevent the law being applied arbitrarily.

In the early 1990s the High Court upheld the native title rights of Indigenous Australians and the Native Title Act 1993 (Cth) was born. At about the same time Mason CJ declared that customary law had no place in Australian law and the Royal Commission into Aboriginal Deaths in Custody (RCIADC) released its recommendations. The cause of the Royal Commission was the intolerable amount of Indigenous people who had died in police custody in the preceding years. It is with interest that one can regard the recommendations of the RCIADC to ascertain almost three decades later whether processes have changed and what has worked.  With regard to the legal system, the Commission made many conclusions which have been completely ignored, especially by state governments. Some nineteen of these recommendations were:

That Police Services take all possible steps to eliminate:Violent or rough treatment or verbal abuse of Aboriginal persons, including women and young people, by police officers; and the use of racist or offensive language, or the use of racist or derogatory comments in log books and other documents, by police officers. When such conduct is found to have occurred, it should be treated as a serious breach of discipline. (2:223)

That all Police Services review their use of para-military forces such as the New South Wales SWOS and TRG units to ensure that there is no avoidable use of such units in circumstances affecting Aboriginal communities. (2:223)

That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. (2:252)

That police services should monitor the effect of legislation which decriminalises drunkenness with a view to ensuring that people detained by police officers are not being detained in police cells when they should more appropriately have been taken to alternative places of care. The effect of such legislation should be monitored to ensure that persons who would otherwise have been apprehended for drunkenness are not, instead, being arrested and charged with other minor offences. Such monitoring should also assess differences in police practices between urban and rural areas. The results of such monitoring of the implementation of the decriminalisation of drunkenness should be made public. (3:29)

The use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge. Police services should examine and monitor the use of offensive language charges. (3:29)

That all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders. Police administrators should train and instruct police officers accordingly and should closely check that this principle is carried out in practice. Administrators of police services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons and in particular should take account of the following matters. That all possible steps should be taken to ensure that allowances paid to police officers do not operate as an incentive to increase the number of arrests. That a statistical data base should be established for monitoring the use of summons and arrest procedures on a Statewide basis noting the utilisation of such procedures, in particular divisions and stations. Also, the role of supervisors should be examined and, where necessary, strengthened to provide for the overseeing of the appropriateness of arrest practices by police officers. That efficiency and promotion criteria should be reviewed to ensure that advantage does not accrue to individuals or to police stations as a result of the frequency of making charges or arrests. That procedures should be reviewed to ensure that work processes (particularly relating to paper work) are not encouraging arrest rather than the adoption of other options such as proceeding by summons or caution. That governments, in conjunction with police services, should consider the question of whether procedures for formal caution should be established in respect of certain types of offences rather than proceeding by way of prosecution. (3:42).

That in jurisdictions where motor vehicle offences are a significant cause of Aboriginal imprisonment the factors relevant to such incidence be identified, and, in conjunction with Aboriginal community organisations, programs be designed to reduce that incidence of offending. (3:71)

 That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a Court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to that person. (3:79)

That, in the first instance, proceedings for a breach of a non- custodial order should ordinarily be commenced by summons or attendance notice and not by arrest of the offender. (3:80)

That it be recognised by Aboriginal Legal Services, funding authorities and courts that lawyers cannot adequately represent clients unless they have adequate time to take instructions and prepare cases, and that this is a special problem in communities without access to lawyers other than at the time of court hearings. (3:91)

 That State and Territory Governments examine the range of non-custodial sentencing options available in each jurisdiction with a view to ensuring that an appropriate range of such options is available. (3:96)

 That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population. (3:96)

 That Corrective Services authorities ensure that Aboriginal offenders are not being denied opportunities for probation and parole by virtue of the lack of adequate numbers of trained support staff or of infrastructure to ensure monitoring of such orders. (3:117)

That governments consider introducing an ongoing amnesty on the execution of long outstanding warrants of commitment for unpaid fines. (3:126)

Where legislation does not already so provide governments should ensure that sentences of imprisonment are not automatically imposed in default of payment of a fine. Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendant’s capacity to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise. (3:126)

That the Department of Education, Employment and Training be responsible for the development of a comprehensive national strategy designed to improve the opportunities for the education and training of those in custody. This should be done in co- operation with state Corrective Services authorities, adult education providers (including in particular independent Aboriginal-controlled providers) and State departments of employment and education. The aim of the strategy should be to extend the aims of the Aboriginal Education Policy and the Aboriginal Employment Development Policy to Aboriginal prisoners, and to develop suitable mechanisms for the delivery of education and training programs to prisoners (3:353).

 That prisoners, including Aboriginal prisoners, should receive remuneration for work performed. In order to encourage Aboriginal prisoners to overcome the educational disadvantage, which most Aboriginal people presently suffer, Aboriginal prisoners who pursue education or training courses during the hours when other prisoners are involved in remunerated work should receive the same level of remuneration. (This recommendation is not intended to apply to study undertaken outside the normal hours of work of prisoners.) (3:357)

That police administrators give police officers greater encouragement to proceed by way of caution rather than by arrest, summons or attendance notice. That wherever possible the police caution be given in the presence of a parent, adult relative or person having care and responsibility for the juvenile. Also, that if a police caution is given other than in the presence of any such person having care and responsibility for the juvenile such person be notified in writing of the fact and details of the caution administered. (4:184)

 That where an Aboriginal juvenile is taken to a police station for interrogation or as a result of arrest, the officer in charge of the police station at which the juvenile is detained should be required to immediately advise the relevant Aboriginal Legal Service and the parent or person responsible for the care and supervision of the juvenile of the fact of the child being detained at the police station (without prejudice to any obligation to advise any other person). (4:203)

That no Aboriginal juvenile should be interrogated by a police officer except in the presence of a parent, other person responsible for the care and supervision of the child or, in the absence of a parent or such other person, an officer of an agency or organisation charged with responsibility for the care and welfare of Aboriginal juveniles. (4:203)

 That legislation, regulations and/or police standing orders, as may be appropriate, be amended so as to require compliance with the above recommendations. (4:205)

According to the Human Rights Commission both state and federal governments have done little to implement the Royal Commission’s recommendations and, due to this, the percentage of Indigenous people incarcerated in Australian prisons has increased exponentially in proportion to the rest of the population[5]. It would seem that the recommendations would have done much to assist the intention to prevent this increase and yet many governments, such as the Northern Territory’s administration, have actually brought in more pernicious laws such as mandatory detention which have exacerbated the problem. Mandatory detention takes the responsibility of a judge to determine justice and puts it in the hands of politicians trying to gain popularity with a majority. This, in itself, is fundamentally against the intentions and objectives of the “International Convention on the elimination of all forms of racial discrimination”, has had an overwhelming negative effect on Indigenous people, and is a serious indictment on Australia’s performance as an international actor.

Just after the RCIADC, the Supreme Court of NSW had sought to implement the objectives of the UN Convention in R v Fernando (1992) 76 a crim r 58 and try and to address these problems judicially. The Fernando principles underpinned a direction in sentencing that framed jurisprudence on the relevance of Aboriginality, alcoholism and disadvantage. The principles provided for lighter sentences that reflected the Indigenous offender’s reduced moral culpability and promote non-custodial sentences in light of over-representation in the prison system. However, it could be argued that only having a judicial approach to social justice reinforces stereotypes and that it is only through structural reform within the larger society, as set out in the Royal Commission’s findings, that a more genuine sense of justice can be achieved.

Advances in neuroscience have led criminologists to assert that offender autonomy is an assumption based upon a fallacy of free will[6]. As the political philosopher John Rawls claimed, we are not in control of the situation to which we are born and therefore being born into strong social disadvantage is something that is difficult to overcome[7]. It relies upon the availability of opportunity and societal good will. This is reflected in the Convention and has led courts to be more lenient of disadvantaged offenders to redistribute their burdens. When courts fail to consider such inequalities the disadvantaged are given sentences disproportionate to their culpability. Widening social inequalities also limit offenders’ choices and so justice would also demand that society acknowledge responsibility for such economic hardship and assist the offender in sentencing. This last assertion should also require that society be active in alleviating hardship and suffering within the community and address political policy and legislation towards this purpose. Further programs of rehabilitation and reintegration in lieu of imprisonment could reform and improve the position of the offender.

While the principles in Fernando continue to be advocated on behalf of Indigenous defendants, Australian courts since the late 1990s have confined who can be classed as Indigenous for the purposes of applying those principles. Increasingly in court decisions, it regards the identity and community ties of Indigenous offenders as being washed away by time and urbanization.  This results in further discrimination as to deciphering what is being ‘Aboriginal enough’, and considering  all remote Indigenous communities as being dysfunctional and in need of activating the Fernando principles. Therefore, while harsher penalties are meted out to those that are considered to have been re-advantaged through time, the arbitrariness in the way the Fernando principles are enacted and the judicial view of the Indigenous community is managed impels a rethink of how social justice can be better achieved through transformative techniques. To continue to rely upon judicial or political magnanimity and mercy is relying upon the whims of the Anglo-Australian legal order, thereby reinforcing discrimination and continuing the overrepresentation of Indigenous people in prisons.

The Australian Law Reform Commission in its report on Aboriginal Customary Laws[8] found that judicial recognition did not project Aboriginal community concerns, and that a greater degree of local control over community-identified crime problems would be more effective. It is a pluralist strategy that responds to the circumstances of the individual Indigenous community. Where Indigenous laws bind communities the processes directed to punishment can be a legitimate method for mediation and resolution between victims, perpetrators and the rest of the community. An example of this is the acceptance of the Warlpiri Elders who conveyed their acceptance of Anglo-Australian court processes, so long as ‘traditional’ punishment can be carried out to reconcile their community[9].

 

When social justice is considered by the wider community to be applied simply through more lenient sentencing for Indigenous offenders this only reinforces the white racial illusion which presents itself as tolerant and understanding but is merely a means of controlling an Indigenous population. This type of affirmative action is prone to disintegrate in the face of other norms such as courts falling back on the position that Indigenous offenders are to be treated equally to other offenders through refusal to recognize Indigeneity. There is also the further injustice and institutional subordination of determining Indigenous communities as dysfunctional in order to aggravate sentences and condemn the community. Recently, the High Court addressed the issue of the whether courts should take into account unique circumstances of Aboriginal offenders and the high rate of incarceration of Aboriginal Australians when sentencing Aboriginal offenders in Bugmy v The Queen [2013] HCA 37.

In Bugmy, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. expressed that a deprived background may mitigate a sentence for an Indigenous offender in the same way that it does for a non-Indigenous offender. They quoted Simpson J who in Fernando explained the significance of the statements in Fernando:

“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”

 In concluding, the High Court held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, the judgment also went on to declare that those effects do not necessarily serve to mitigate an offender’s sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.

Even taking into account the High Court decision in Bugmy to renew the principles in Fernando, this approach to convicting and sentencing Indigenous people still leaves the situation where the incarceration rates will keep increasing, and does not address the issues and recommendations of the RCIADC. Alcohol is not just an issue in Indigenous communities anymore, methamphetamine and petrol sniffing is also causing a scourge of destruction and damage. The increase in youth suicides in some communities is substantial which leaves the necessity to implement policies that reflect those recommendations as an imperative.

Currently, state and federal governments must address transparently their goals of reducing the health gap between Indigenous and non-Indigenous Australians in a bipartisan program called Close the Gap[10]. Yet it seems another program to be at the mercy of competing political ideologies, as were the other costly reports and recommendations that failed to be translated into legislation and dependent upon the budget allocations of successive changing government administrations. A consultative approach to Indigenous affairs is one of the main bridges to achieving these goals, as was pointed out in the Royal Commission’s findings. Therefore, while it is good that the High Court has again implemented the principles of sentencing by Wood J in Fernando, such an approach is ad hoc and needs the Australian community to commit to instigating social programs that are not politically ideological but those that have been recommended by Indigenous groups, are known to work and are protected by legislation that adheres to the objectives of the “The International Convention on the elimination of all forms of racial discrimination”.

 

[1] http://antar.org.au/campaigns/justice-campaign

[2]http://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/37-summary-recommendations

[3] Walker v NSW (1994) 182 CLR 45

 

[4] http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/

[5] https://www.humanrights.gov.au/publications/indigenous-deaths-custody-report-summary

[6] Green and Cohen, (2004), For the law, neuroscience changes nothing and everything, Princeton University, Princeton

[7] Rawls, J. 1972, ‘An Egalitarian Theory of Justice’, extracts from A Theory of Justice, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001)

[8] http://www.alrc.gov.au/publications/report-31

[9] Anthony, Thalia. Is there social justice in sentencing indigenous offenders [online]. University of New South Wales Law Journal, The, Vol. 35, No. 2, 2012 563-59

[10] http://www.naccho.org.au/aboriginal-health/close-the-gap-campaign

Above image: https://nacchocommunique.files.wordpress.com/2013/02/close-the-gap.jpg

17197On settlement, Australia adopted English laws and the views of the Indigenous population were not sought. Their pre-existing body of customary laws was ignored and the land was deemed terra nullius, being claimed by the Crown with all subsequent land grants being derived from an original grant from the monarch. The Australian Constitution on its instigation in 1901 failed to recognize Indigenous Australia and discriminated against them until a 1967 amendment which allowed Indigenous people the right to vote. However, in a representative government system where the Indigenous population is a fraction of the mainstream it still provided little protection and no real recognition. It resulted in the dispossession, discrimination and social disadvantage for Indigenous Australians. These results, in turn, caused extremely high incarceration rates of Indigenous people and an Australian justice system that has struggled to find a response that has not worsened the situation.

Further attempts have been made to address the devastating effects of colonization on Indigenous Australians. In 1976 a major step was taken to recognize and preserve the strong Aboriginal connection with the land in the passing of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This legislation allowed blocks of land in the Northern Territory to be granted to land trusts if Aboriginal land ownership could be proven. It was a response to the 1971 ruling on Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 that, although there were traditional customs and laws regulating the relations of Indigenous people with the land, such laws were not recognized by Australian common law. However, the most major development in recent times in the common law approach to land rights was made in the High Court decision of Mabo v Queensland [No 2] (1992)175 CLR 1.

Begun in 1982, Mabo, as it has now become known, was a claim by Mr Eddie Mabo of the Torres Strait island of Mer and was joined by other islanders.  The claim travelled through the lower Queensland state courts to the High Court who observed in 1992 that in reality Australia was not terra nullius – or an empty land- when it was settled. Mason C.J. and McHugh J. declared:

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. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights (68) See Communication 78/1980 in Selected Decisions of the Human Rights Committee under the Optional Protocol, vol.2, p 23 brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.

The key finding in Mabo that was to translate into the passing of the legislation of The Native Titles Act 1993 was that a group of Aborigines or Torres Strait Islanders able to show that they had exercised traditional rights over land since before British colonization would be recognized under the law as having native title under common law. However, if the Crown had exercised its rights to the land, either by using it itself or by selling or granting the land to someone else then the native title might be extinguished.

So what was the criteria that Mabo established for a claim for native title to be successful in common law? The defence of the Crown was that it acquired ‘sovereignty over the land, and that the new sovereign would extinguish the indigenous people’s interest in the land and create proprietary rights. However Mason C.J. and McHugh J. asserted :

…it would be curious if, in place of interests that were classified as non-proprietary, proprietary rights could be created. Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown’s radical title when the Crown acquires sovereignty over that territory.

However to have this access to common law proprietary title the High Court found that the claimant had to show that:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

So the first hurdle of a claimant was to prove that the land had been occupied since the time before settlement by the claimant/s and that the laws and customs of the claimant had still continued to have been enacted since that time. Therefore the High Court stated:

…once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was “desert uninhabited” in fact, it is necessary to ascertain by evidence the nature and incidents of native title. Though these are matters of fact, some general propositions about native title can be stated without reference to evidence.

To set out the entitlement to a native claim the High Court ruled that:

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise.

Then to define what the extinguishment of native meant the High Court also ruled that:

…when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.

Therefore, Mabo established that native title could be claimed, granted and recognized as full proprietary title under common law if the individual or group making the claim could provide evidential proof that they had continually lived on the land under claim before and since settlement, and also that they had carried on their association with that land through following the laws and customs handed down with it. However, any native title claim was extinguished if those that had lived on the land before settlement had died or moved elsewhere or if the land was no longer subject to traditional law and observance of traditional customs. Also, once the Crown had been able to alienate the land through appropriation for the Crown’s purposes or through grants of lesser interests, such as through freehold or lease, that too extinguished native title over the land.

The ruling in Mabo was enshrined by a progressive Australian government in the legislation The Native Titles Act 1993 (The Act) which defined those two crucial aspects of native title and its extinguishment became law. The Act’s main objective is ‘to provide for the recognition and protection of native title’. In section 7 the Act states that it is subject to the provisions of the Racial Discrimination Act 1975. Section 223 defines how native title is to be recognized:

Common law rights and interests

(1)  The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)  the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)  the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

 (c)  the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2)  Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

While section 11, Division 1, Part 2 states that extinguishment of native title is only subject to the Act :

  • Native title is not able to be extinguished contrary to this Act

Effect of subsection (1)

(2) An act that consists of the making, amendment or repeal of

legislation on or after 1 July 1993 by the Commonwealth, a State

or a Territory is only able to extinguish native title:

(a) in accordance with Division 2B (which deals with

confirmation of past extinguishment of native title) or

Division 3 (which deals with future acts etc. and native title)

of Part 2; or 

(b) by validating past acts, or intermediate period acts, in relation to the native title.

Section 23A gives an overview of an act of extinguishment:

(1)  In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.

(2)  If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.

(3)  If the acts were previous non-exclusive possession acts (involving grants of non-exclusive agricultural leases or non-exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.

(4)  This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts.

The High Court decision in Mabo recognized that beneficial native title could coexist with Crown title. However, native title still relies on difficult questions of fact. Firstly, has the title been extinguished through using the land inconsistently with native title? Secondly, can the native title claimants prove that they have maintained their connection with the land?

Section 225 of the Act requires the Federal Court, when making a native title determination, to specify a number of matters:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(c) the nature and extent of any other interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

 Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

 Further developments to the issue of native title took place in Wik Peoples v Queensland (1996) 187 CLR 1 where a majority of the High Court held that native title could coexist over land covered by pastoral leases. This ruling generated uncertainty and unease in some segments of the Australian community, realizing some of the reservations that were held over the Mabo ruling. In response the conservative Australian government of the time passed the Native Title Amendment Act 1998 (Cth) which changed entitlement to native title through restriction and modification. This strengthened the position of pastoralists and mining companies who wished to exploit land over which native title was held.

This appeared to show the complexity of native title claims and the danger of such large claims causing community division either through native, mining, or pastoral rights.The most recent example of this is the long-running litigation in Bennell v Western Australia (2006) 153 FCR 120; 230 ALR, where Wilcox J. upheld the Noongar Community’s claim of native title over a large portion of Western Australia including its capital city of Perth.  Wilcox J. emphasized the claim’s exclusion from areas where native title was extinguished such as freehold and leasehold land, stating that native title ‘cannot take away people’s backyards’. However, Wilcox J. also emphasized that native title would not be a ‘pot of gold’ for the claimants. ‘A native title determination recognizes the traditional association of the claimant community with particular land…[It] does not give to the claimant community a right that enables them to sell or lease the land or to use it for any non-traditional purpose’. This last statement appears to hold with the precedents of other rulings on native title but especially those cited by Deane and Gaudron JJ in Mabo.  They state at 22:

…the title, whether of individual, family, band or community, is “only a personal right”… it does not constitute a legal or beneficial estate or interest in the actual land.

This appears to benefit the native title claimants in that they can be assured of holding title over land that they are attached to through custom and law, but they cannot use the land other than for its customary purposes. It could be said that it is Pyrhrric victory, in that such a title to land is not relevant to the common law understanding of land that can be used to create wealth. However, it could be argued that native title claimants would benefit unfairly if they obtained title to land and all the necessary benefits that come with such title but use the Crown’s utilities, such as towns, roads, electricity and water, that would not have been in existence but for the settlement of Australia.

As the Bennell decision illustrates, native title is one of the most complex issues that the judicial system can deal with and such litigation costs much money- mostly taxpayers’ funds. In September 2013 the Western Australian Government made ‘a final offer to resolve native title claims across South West Western Australia’ to the Noongar community’s representatives, the South West Aboriginal Land and Sea Council. This comprehensive offer involves legislative recognition of the Noongar people as custodians; the transfer of parcels of Crown land to the Noongar people; scheduled financial payments; housing, employment and cultural programs; and the establishment of various institutions to manage the settlement. It is yet to be seen whether all parties will be happy with settlement.

The ability of successful native title settlements to achieve an equitable solution where parties can be realistic about outcomes does not inspire confidence. The resource drain of the native title process continues to be a problem while some Indigenous people are forced off their custodial lands due to the state’s financial inability to maintain infrastructure to remote communities. These remote communities need roads, transport, water, power, sewage systems, housing, food markets, policing, schools, health and community centers. To finance this it may bring better outcomes if settlement negotiations included these benefits in return for native title, while allowing the Crown to negotiate in good faith and with the consent of the titleholders for tourist, pastoral and mining interests which could involve Indigenous employment opportunities. It would be discouraging to think twenty five years after Mabo that ‘the benefits intended for Australia’s Indigenous peoples in relation to native title land and waters are being channeled into costs of administration and litigation that leave everyone dissatisfied and many disappointed’, as Kirby J noted in Wilson v Anderson (2002) 213 CLR 401, 454 [126]. It will be interesting to note what future law reform can bring to this issue.

 

 

 

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