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‘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.’


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


[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.





In his submission to the Australian Senate on its 2008 debate on a proposed Bill of Rights, Professor James Allen contends that a bill of rights would be a terrible idea as it would take away power from the legislators in parliament and give it to the judiciary.

Allen’s first argument is that rights are an abstract concept; they are ‘vague’, ‘amorphous’  and ‘emotively appealing’. [1] But what are these rights that Allen refers to? The recommendations of the National Human Rights Consulting Committee state that they are:

  1. To respect the rights of others;
  2. to support parliamentary democracy and the rule of law
  3. to uphold and obey the laws of Australia
  4. to serve on a jury when required
  5. to vote and to ensure to the best of our ability that our vote is informed
  6. to show respect for diversity and the equal worth, dignity and freedom of others
  7. to promote peaceful means for the resolution of conflict and just outcomes
  8. to acknowledge and respect the special place of our Indigenous people and acknowledge the need to redress their disadvantage
  9. to promote and protect the rights of the vulnerable
  10. to play an active role in monitoring the extent to which governments are protecting the rights of the most vulnerable
  11. to ensure that we are attentive to the needs of our fellow human beings and contribute according to our means.[2]

These recommendations seem to be more about civic responsibilities than individual rights. They pertain to maintaining a cohesive, equitable and peaceful social order in which one would assume that most human beings would wish to live in order to maximise their own and their loved ones’ safety, survival and ability to thrive . However Recommendation 13 does state that the following are included into the definition of the Australian Human Rights Commission Act 1986 (Cth):

–         the International Covenant on Civil and Political Rights

–         the International Covenant on Economic, Social and Cultural Rights

–         the Convention on the Elimination of All Forms of Racial Discrimination

–         the Convention on the Elimination of All Forms of Discrimination against Women

–         the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

–         the Convention on the Rights of the Child

–         the Convention on the Rights of Persons with Disabilities

–         the Declaration on the Rights of Indigenous Peoples.[3]

These are international conventions and declarations that Australia has signed and ratified at the United Nations, meaning that we believed them to be necessary for the peaceful coexistence of all nations and individuals.

Being a part of the international community brings its benefits and its responsibilities. When Australia’s sovereignty is threatened, we expect that the international community will uphold our national rights under the cover of the United Nations. Also, we expect to be given a voice at the international table. As a nation we want these rights to be upheld for us through the security of international cooperation. Therefore, Australia cannot cherry pick its way through its rights and obligations. Like the individuals that make up the nation, it must uphold the laws and universal structure that it has ratified and to which it has agreed through being a participant and through which it benefits.

However, Allen might argue that such international obligations override our sovereignty and allow the Australian judicial system to override the will of the people. Alan argues that leaving the judicial system in charge of overseeing the enforcement of such obligations and rights would deplete our democratic system stating that it would ‘diminish politics and (over time)… politicize the judiciary’[4]. Most importantly, for Allen, it is the ‘reading down provision’ within legislation that will allegedly give judges the ability to rewrite the law. This concerns Allen greatly as he considers that judges are simply ‘ex-lawyers’ who are left  to ‘decide what aspects of other statutes are or are not consistent with the vague, amorphous rights provisions’[5]. But is this a valid concern? Is it judges who breach or wilfully dismiss legislation, or the legislators themselves? Which group is more of a threat to democracy in these times of terrorism and war?

If we take Allen’s contention and the example that he has given, has Bill of Rights legislation in other countries like the United Kingdom, Canada and New Zealand contributed to a downgrading of democratic oversight or has it actually contributed to ensuring that citizens and others were protected from onerous legislation brought into being post 9/11? Allen does not gove any outrageous examples of human rights legislation being a threat to our democratic system. On the contrary, human rights legislation such as the Racial Discrimination Act has been interpreted by judges very carefully to establish a breach in accordance with the principles of the legislation. I will use the example of the Racial Discrimination Act 1975 (Cth) to show how the judiciary are far more careful about principles of legisaltion than are legislators.

Australia has obligations to implement protections against racial hatred under theInternational Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Sections 18C and 18D were introduced in response to recommendations of major inquiries including the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. These inquiries found that racial hatred and vilification can cause emotional and psychological harm to their targets, and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by impliedly condoning such acts. The courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification. T

The courts have held that for conduct to be covered by section 18C, the conduct must involve “profound and serious” effects, not “mere slights”. The courts have also found that section 18C is an appropriate measure to implement Australia’s obligations to prohibit racial hatred under the ICCPR and ICERD. While many laws restrict freedom of speech, such as laws applying to defamation, advertising and national security, section 18C fills an important gap in legal protections for those affected by racial hatred and vilification.[6] While this important piece of legislation continues to protect social cohesion in our communities, legislators in the form of political parties influenced by lobbyist thinktanks, such as the Institute of Public Affairs, have actively tried to elimate such legislation on the basis that it limits freedom of speech. In this respect, it seems that the judiciary are far more able to independently weigh the objectives of such legislation than are lobbied legislators.

Bills of Rights legislation is not designed to limit freedom or democracy, as Allen asserts, but to ensure its survival. Such rights do not require a group of people ‘who think their moral antennae are better than everyone else’s, who are sure they’re right’ to rely on judges having greater moral and political perspicacity than do the elected representatives of the people. Such legislation requires legislators to ratify and enact international and universal legislation that they believe is required for their nation to be a part of the family of nations, and to put that legislation before both houses of parliament. It is not forced upon the people but openly enacted by the elected representatives of the people themselves after a process of consultation. The judiciary enforce the legislation, and yet Allen thinks this is where the problem lies.

However, if the judicial system is relied upon to ensure the people uphold their responsibilities on pain on incarceration if they do not, and that system is a functioning independent system, then why would we think that the judicial system could not enforce the rights that people have. These rights hold the legislature and the judiciary to account. They form an oversight so that special interests cannot undermine the democratic system itself.

Human rights are universal. They are found particularly in the Universal Declaration of Human Rights 1948. To dismiss them outright as undermining the people is to ignore their function as a guide for states’  behaviour towards their citizens and the people of other nations. Therefore, Professor Allen is quite wrong in ridiculing human rights or their advocates. We rely upon the judiciary to enforce our responsibilities, so we should also rely upon them to enforce our rights.

[1] http://www.aph.gov.au/senate/~/~/link.aspx?_id=903E9778B6F04920AB16797A5B9E37AF&_z=z




[5] http://www.aph.gov.au/senate/~/~/link.aspx?_id=903E9778B6F04920AB16797A5B9E37AF&_z=z

[6] http://www.humanrights.gov.au/glance-racial-vilification-under-sections-18c-and-18d-racial-discrimination-act-1975-cth

Nicholas Georgouras (2008-2011)


Nicholas GEORGOURAS (2008)






“This is because the formal duty of being truthful is something that is owed by an individual to everyone[3]. By making a false statement we commit a wrong against our general duty to be truthful[4]. If we could be alleviated from this obligation, all of our contractual rights would be void and there would be no security in relations between humans.”

Originally posted on janetthomas:

This essay will attempt to explain why the German philosopher, Immanuel Kant (1724-1804), thought that it is wrong to lie even to an enquiring murderer. To do this the essay will explain Kant’s theory of a Categorical Imperative which is a source of all universalized moral laws and how he applied it to the challenge of his theory by the Swiss philosopher Benjamin Constant. The essay will then discuss whether Kant is right in asserting the correct moral answer through the use of the Categorical Imperative.

Kant advocated a moral principle that, “It is a duty to tell the truth”[1].  He asserted that it would even be wrong to lie to a murderer who inquired as to the whereabouts of our friend so that he could harm our friend[2]. This is because the formal duty of being truthful is something that is owed by an individual…

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“Johan Norberg began the decade of 2000-2010 cheering the ability of capitalism to cure global inequality in his book In Defence of Global Capitalism (2003) and ended the decade trying to explain why capitalism had gone so terribly wrong in his book The Financial Fiasco (2009).”

Originally posted on janetthomas:

‘The world’s inequality is due to capitalism. Not to capitalism having made certain groups poor, but to its making its practitioners wealthy.’

Johan Norberg. Johan Norberg began the decade of 2000-2010 cheering the ability of capitalism to cure global inequality in his book In Defence of Global Capitalism (2003) and ended the decade trying to explain why capitalism had gone so terribly wrong in his book The Financial Fiasco (2009) . In the quote above he asserts that capitalism does not make people poor but makes people wealthy and this is the only cause of disparity in income inequality between people. It is the manifesto of laissez-faire capitalism that the ability to be able to earn money and keep it is fundamental to a human’s freedom. It is through the use of their own ingenuity and rationalism that human’s can thrive and buy property enabling them to establish wealth. Norberg…

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In this article Nichols makes an exploration of altruistic moral behaviour to determine the reason for its motivation…

Originally posted on janetthomas:


In this article Nichols makes an exploration of altruistic moral behaviour to determine the reason for its motivation. Firstly, he explores the available theories of the ‘moral mind’ and then sets out reasons for their acceptance or dismissal. Secondly, he explores what evidence there is for an emotional account being the motivating factor for moral behaviour. Finally, he determines that there is an affective system which is triggered by an emotional reaction and creates specific altruistic behaviour. This system he terms the ‘Concern Mechanism’. Nicholas concludes that the ‘Concern Mechanism’ is an affective system that is activated by an individual’s emotional or sympathetic response that recognises distress in others while only relying upon minimal mindreading ability (2001:425).

In his argument Nichols addresses two questions: one of which explores what mechanism actually initiates the motivational altruistic state itself. The other question seeks to find out which mindreading mechanism is required for…

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Originally posted on janetthomas:

Affluent developed nations hold 14.9% of the world’s population but 79.7% of its aggregate global income[1]. Global inequalities are greater today than they were 50 to100 years ago even though the world has become more connected through globalisation[2] . This gap will continue to grow because of political and financial power[3]. Socioeconomic rights such as a standard of living that is adequate to provide health and well being for an individual and their family would require only a barely noticeable shift in the distribution of global income[4]. This is attributed to a Western ‘double standard’ by the political philosopher Thomas W. Pogge[5]. This essay will assert through the exploring some of Pogge’s work, and the theories of  his supporters and detractors, why a “double-standard” arises in regard to global justice and contend that those who live in such wealthy nations cannot…

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