Aboriginal and Torres Strait Islander readers are advised that the following article contains images of deceased persons.
National Reconciliation Week is marked between 27 May and 3 June each year, bookended between two significant milestones in Australian history: the successful 1967 referendum and the 1992 Mabo decision by the High Court.
The theme of National Reconciliation Week 2019 is “Grounded in Truth: Walk Together with Courage”. Truth-telling and justice are central ideas in law, which fulfils an essential role in advancing reconciliation. While it has ushered in high points including the abolition of terra nullius and creation of the Native Title Act (1993), it also facilitated the Stolen Generations and continues to be laden by disproportionate rates of Indigenous incarceration.
In the spirit of this year’s theme, we invited two ANU Law academics to reflect on the historic events upon which National Reconciliation Week is founded and to share their perspectives on how the law can encourage Indigenous and non-Indigenous Australians to “walk together”.
Justin McCaul is an Indigenous Academic Associate undertaking his PhD at the ANU College of Law. Nearly three decades after the High Court decision, he believes Mabo Day (3 June) is as important as ever.
“Eddie Mabo’s courage and profound insight to question the laws that regulated land and tenure in Australia represented such an important step.
“It’s a date that needs to be celebrated. In 2019, a lot of Aboriginal and Torres Strait Islander people, as well as academics, lawyers and human rights advocates, question the extent to which the laws we have set up through the Native Title Act deliver on the spirit of that initial High Court decision. There have been successful native title outcomes, but the roadblocks and some of the decisions in the process are still very much stacked against Aboriginal and Torres Strait Islander people.
Eddie Mabo, a Meriam man from the island of Mer (Murray Island) in the Torres Straits, successfully overturned the legal doctrine of terra nullius. Photo by Leigh Blackall via Flickr (CC BY 2.0)
“National Reconciliation Week is about reminding people about the history of Aboriginal and Torres Strait Islander people, both before and after colonisation. Because of initiatives such as National Reconciliation Week, knowledge among non-Indigenous Australians has improved a lot. It’s important for institutions to be self-reflective about what they know about Aboriginal and Torres Strait Islander peoples' history and culture, and the contributions they can make to advance the reconciliation process.
“For the ANU College of Law, (reconciliation) is really important because we are the national law school where some of the best and brightest minds come to study. The contribution academics can make in analysing and facilitating understanding about native title, an inherently complex field of the law, is significant.
“In my (PhD) research, I’m taking deliberative democracy theory and overlaying it on the native title system. My argument is that, through the native title system, mobs are trying very much to influence and shape public policy, not just native title outcomes.
“I think that comes about because, for our people, native title isn't just about viewing land as a property asset; the land is invested with rich spiritual and cultural meaning. Because of the way we see ourselves and our relationship to Country, when you’re talking about native title from an Aboriginal perspective, you’re talking about livelihoods: education, health, jobs and training. Native title is therefore both a legal outcome but also a point to begin discussion about a whole range of policies that will help Aboriginal and Torres Strait Islander people to realise their aspirations.”
Mary Spiers Williams is ANU Sub Dean of Undergraduate Indigenous Studies. Her expertise is in criminal law and the impact of state laws on Indigenous peoples. Her scholarship is informed by the tensions of her descendency from first colonisers and Darkenjung people, and her identity as a legal practitioner and scholar.
Next semester she will teach Indigenous Peoples and Civil, Political and Legal Rights in Australia (INDG1002) a course that provides opportunities to examine closely key political and civil rights moments since first colonisation. She addresses two myths: the “emancipation” of Indigenous Australians following the 1967 referendum and the “post-colonial” status of legal institutions.
Prime Minister Gough Whitlam AC symbolically hands the Wave Hill station back to Vincent Lingiari AM, representative of the Gurindji people, in 1975. Photo via Wikimedia Commons (CC BY 4.0)
“There is a bizarre myth that in 1967 the racism in Australia’s Constitution and Australia’s laws was ‘fixed’ by the outcome of the 1967 Constitutional Referendum. It is not a complete nor honest account of what happened, and has permitted Australians to continue to claim that we, as a Nation, do not have a problem with race and racism against Indigenous peoples.
“Law has always been at the cutting edge of colonisation and it continues to perform a function of legitimising the control and marginalisation of Indigenous peoples. It is one of many discursive feints where the responsibility for that marginalisation is left with Indigenous people.
“On the one hand, you have a huge number of laws that have marginalised and disadvantaged Indigenous people and continue to actively do so. We are radically over-regulated and controlled by the reach of bureaucracy; state laws and sub-rules and so on can reach into Aboriginal and Torres Strait Islander peoples’ lives in a way they never would to non-Indigenous, especially privileged so-called white communities.
“Having said that, there is this emancipatory potential within state law if one has a nuanced understanding about what it is and what it is capable of doing. One of the biggest obstacles is that our legal institutions have not changed in any meaningful way since first contact. We have never had a moment, legally, where you can say we are ‘post-colonial’.
“One of the things I teach is how to really strictly adhere to rules of reasoning and to make sure there is evidence and proper inferences. I show students where the gaps are encourage them to see the tremendous bias against Indigenous people wherever there is an opportunity. Once you have a really disciplined approach to the law as a mechanism, then you can show them how it works and the framing can be broadened to include Indigenous perspectives on society.
“(INDG1002) is a course designed to look at critical political and civil rights moments since European colonisation of Australia. One of the many purposes is to give our students an opportunity to understand legal concepts and how the law operates in this context.
“Law is a tool that needs to be used, but people need to understand how to enliven its emancipatory potential. The Mabo decision is an example of both the potential of state law to recognise Indigenous peoples' rights, but it is also an example of a case that has disappointed Indigenous people in the limited imagining of the Indigenous relationship with Country in contemporary Australia."