Justice For A Land Apart


The Northern Territory has always exulted in the image of a "land apart" from the rest of the continent of Australia. A tough rugged environment matched by the tough rugged people who have made the "Territory" their home. This is an image that has been promoted assiduously by tourism promoters and successive Northern Territory administrations since self government.

The Territory has been written about by Ion Idriess, Douglas Lockwood, Xavier Herbert, Ernestine Hill and many others over the years. It has been the subject of many feature films and documentaries, most recently "Australia" with our most glamorous exports Nicole and Hugh again portraying the selfless and heroic pioneers undaunted by corruption in high places; fire and flood prevailing over the scourge of the excess of rum and sexual exploitation on the frontier.

Whether as a strategy for encouraging tourism or painting a picture of our Northern frontiers being defended by our heroic servicemen and women, or as an attempt to describe the complexities of societies trying to come to terms with racism and distorted social conformity, the Territory has provided a backdrop to a story that has captivated and enthralled Australians living in the "distant south" and in countries beyond our shores for decades.

The image portrayed over the years in books, movies, documentaries and TV programs has, of course, some foundation in reality. The men and women who came into the North and opened up this part of the world were indeed tough, independent and resilient human beings — driven no doubt by many different dreams and visions. Some were missionaries, some were aspiring pastoralists, and some were simply searchers for a safe haven from the outcomes of other lives. Many were the agents of governments sent to assert their authority over the lives and futures of the newcomers and the Aboriginal people of this region.

Aboriginal people, in all their diversity, had been living here on their ancestral lands for millennia, practicing their law, culture and ceremony and teaching their children the skills and knowledge to enable future generations to continue to sustain themselves and their environment in balance for centuries to come.

The impact created by the arrival of newcomers on the lives of the Aboriginal people in this country is a legacy that underpins every aspect of the lives of Territorians to this very day. Every policy of government, every economic decision, every decision on the allocation of health, education and justice resources in the Northern Territory to this day and into the foreseeable future is impacted by our failure to build a just and equitable society where all our citizens can share equitably in the resources available to the Territory.

For Traditional Owners of the lands and seas, this has meant an ongoing struggle to be able to fulfil their customary responsibilities to the land and sea and to assert their rights and responsibilities as First Peoples.

Five years on, and the Northern Territory Intervention, for many Aboriginal Territorians, still hangs like a veil of exclusion from the same rights and privileges available to every other citizen of this country. The proposed Stronger Futures Legislation would see the Intervention extended for another 10 years. Yet again, without adequate consultation it seems, the Federal Government seeks to impose a set of measures that would punish rather than encourage and assist Aboriginal people to find meaningful, long-term solutions to issues.

There is no doubt there are social problems in Aboriginal communities. Aboriginal people, like other Australians, want their families, their children and their communities to be healthy, safe and free from violence, crime, alcohol abuse and social dysfunction. However, many would also say, and indeed are saying, we do not want to be subject to discriminatory, coercive measures and legislative regimes that would see us return to the days of native welfare protectors. Liberation from disadvantage and welfare dependency should not be at the expense of people’s basic rights, nor should this be at the expense of one’s culture and identity.

The gloomy reality is that our people continue to remain dependent, disempowered, and disengaged by programs authored for and about us, but hardly ever by the community members for whom they are targeted.

Yet the possibility that Indigenous people should be engaged in setting the social and cultural benchmarks for their well-being and development, and be encouraged at the local level to work towards achieving these — is something that is still not contemplated by Governments. We are now in the second decade of the 21st Century and we seem incapable of resetting the relationship with Aboriginal people, beyond some form of assimilation. The consequence of this policy paralysis is more iteration of philosophically compromised policies — of which the NT Intervention is a case in point.

Among other things, the incorporation of Indigenous people’s rights and interests within the modern Australian nation requires inclusive land tenure and planning regimes, equitable natural resource extraction practices and effective public funding and citizenship services that embraces Indigenous cultural imperatives. Reforms in these areas should not be marginalised as Indigenous benefits but rather as necessary changes to a paradigm that has alienated Indigenous people from modernity.

Government policies and strategies should be driven by a genuine desire to establish a new relationship with Aboriginal and Torres Strait Islander peoples. They should be about assisting us to navigate the pathways to modernity rather than trying to coerce us in directions that consistently require us to throw overboard the strengths and values that underpin our societies and cultures. This is assimilation and it has failed. These changes are needed to build a resilient nation confronting overwhelming social and environmental challenges.

For our part, there must be strong leadership at the family, local community and regional level among Aboriginal people so that we can encourage members of our community to take control of their own destinies, and build a better, resilient and stronger future for the next generation. Self-determination, governance and economic development are essential building blocks for this. To establish these building blocks as foundations for a resilient pluralist society we need a new philosophical narrative; a new paradigm of thought to replace the doctrine of discovery and "terra nullius".

Indigenous people, the greatest victims of modernity, have a special status to lead a global discourse about such a doctrine — one that exalts their values at the discovery of western philosophy and policies proclaiming discovery of them. It should be a way of thinking that embraces the interconnected Indigenous worldview of sustainability and reliable prosperity at the interface with ageing industrialism, resource exploitation and ever greater wealth pursuits.

There are not many jurisdictions of comparable size in the world that can boast such a range of legal minds and advocates as there are in the Territory from criminal lawyers, outstanding refugee advocates, heads of Commissions and administrative lawyers. The people of the Northern Territory should feel well served. But in this contentment lies the potential seeds of our demise.

The law and the institutions which produce the legislation and the practitioners who hold responsibility for maintaining the balance of justice in our society must never become complacent and allow our own sense of contentment and well-being to blind us to the threats that lurk on the fringes of our society. We must be prepared to critically examine our system and the laws that are enacted under it when that system fails or discriminates.

We must all ask whether what we are doing is effective when we have a system that has seen the incarceration rate of Aboriginal people double over the past 20 years. Indigenous Australians now constitute 26 percent of the national prison population, which for a people who comprise less than 2.5 per cent of the Australian population is appalling.

In the NT, ABS statistics indicate that Indigenous people make up 82 per cent of the Territory’s prison population. Research shows that Indigenous children are also over represented in juvenile detention centres, and our children are also much more likely to be the subject of child protection orders. On the basis of these statistics, it seems at least 25 per cent of our young people will have an encounter with the criminal justice system at some point in their young life.

The statistics are indicative of the disadvantage experienced by many Aboriginal people, but they are also telling us that the response to addressing disadvantage has not been so effective, despite the efforts made to date. The situation is certainly not aided by policies and administrative responses that disempower and punish Aboriginal people, rather than engage them in devising solutions to the problems that confront them.

We must be vigilant that we do not make lazy judgements on the merits of the rights of any group of people that seek redress from our legal system and ensure the quantum of justice does not become dependent upon our perceived ability to pay for the delivery of justice.

This is the second of two extracts from Patrick Dodson’s Tony Fitzgerald Memorial Address. The first, Ending Constitutional Racism, can be found here.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.