Category Archives: federalism

What to do? The indigenous crisis

I’d like to unravel the Howard Government’s new plan with respect to indigenous welfare. There are a couple of different issues there.

First, I’m not happy with the use of the word “crisis”, because that suggests something that suddenly crops up. It’s not sudden – it’s more like a chronic problem that has now snowballed to the extent that it can’t be ignored any longer. It has been known for a long time that there are massive problems in some indigenous communities. I’ve written about these issues before.

I’ve been inspired to write this post after reading two posts, one by my lovely friend RG and another by Miss Politics. They were food for thought, because it made me realise that I had a different point of view, but each had good points to make. I was commenting on their blogs, but I then realised I’d be better off writing my own post, as the comments were turning into mini-posts.

1. Political opportunism

The indigenous welfare plan was described in The Age headline yesterday as a “black children overboard” stunt, designed to increase the Howard government’s popularity before a Federal election where they are facing some serious competition. Obviously, this headline produced some controversy.

Yes, I think there is definitely a giant dollop of political opportunism. The Howard government has been in power for 10+ years, and they finally decide to act now, just before an election? Forgive a girl for being a little cynical.

But the next question is: if it saves women and children from abuse, does it matter what the government’s motives are? I say that it does not. Anyone who reads my blog regularly will know that I am not a fan of the Howard government. But if they manage to do something good, I’m not going to gainsay them just because I dislike many of the things they do. I wonder if there’d be nearly so much outcry from the Left if Prime Minister Rudd had instituted this plan? Forgive me yet again for my nasty cynicism. I can only echo the words of Noel Pearson:

Quite frankly, I couldn’t care less whether John Howard or Kevin Rudd ruled this world. My priority is to take advantage for immediate intervention for the protection of children…

I’m not going to reject this initiative without having a closer look at it. On the other hand, I’m not just going to swallow it whole either.

2. A change is needed

Welfare payments have been poured into indigenous communities for the last 30 years in an effort to alleviate poverty, but if anything, paradoxically, conditions have become worse. Perhaps the money isn’t getting down to the grass-roots – but surely if the system was working, we’d be seeing some sort of improvement by now?

Some of the responses to Howard’s plan infer that the problems of the indigenous community will be cleared up if we address the underlying social issues. I presume that this refers in part to the need to recognise native title, the need for reconciliation and for saying “sorry”. Yes, I agree, it is important to acknowledge that some terrible things have been done to indigenous people in the past.

I am a very strong supporter of native title, although unfortunately, as presently conceived of by the Courts and the Native Title Act, it is such a weak property right so as to be non-existent.

However, I think that these issues should be part of a long term strategy, not something that can be used to fix problems here and now.

Terrible things are happening to indigenous people now. It is important to tackle them head on, decisively. I’m all for the long term plan mentioned above, but it is not the priority. Let me quote from a newspaper article in The Age from last year:

In the western desert community of Papunya the cultural notion of “secret men’s business” has taken on a particularly sinister interpretation for at least four under-age girls, the youngest being just seven.

Seven months ago the girls were found to have serious sexually transmitted infections — some of the worst in the medical books — but health workers claim child welfare authorities are yet to send anybody to the community to investigate.

In the meantime it is believed that at least one of the girls was reinfected by her abuser.

Not only is it claimed that officials from the Territory’s Family and Child Services Department (FACS) have not travelled the 280 kilometres to Papunya, health care workers at the community have told colleagues in Alice Springs that they have been reprimanded for not first consulting with parents and community elders about the spate of infections.

A health care worker who regularly visits Papunya told The Age by way of background: “The situation is astonishing. What the medical staff were being told to do was consult the potential perpetrators of abuse. Where else in Australia would this happen?”

Because the infections include resilient strains of gonorrhoea and syphilis, there are suspicions that the abusers are more likely to have been men, rather than teenage boys.

“FACS should have sent out a team of experts as soon as the infections were detected who could talk to the children and parents in their own language while the issue was immediate and before anybody could put pressure on the girls to remain silent,” the health care worker said.

We have to deal with the practicalities of this now. As the mother of a young girl, the above extract makes me feel sick to the core.

I believe that just focusing on reconciliation as a solution is problematic. Yes, I have marched on reconciliation marches and the like. Of course I want indigenous and non-indigenous Australians to live together in mutual respect. However, the “sorry” campaign can carry an inference that the problem is the fault of non-indigenous Australians, and once we apologise, the problem will go away. I don’t think it will. It’s a bit like those child abusers who say, “I couldn’t help it, my family was poor, my father abused me, my mother was a drunkard.” It may be an explanation, but it is not an excuse. The perpetrator of the abuse has a choice.

One of the examples
raised by Nanette Rogers, Crown Prosecutor for the Northern Territory, when she blew the whistle on this issue last year, was that of a 6-year-old girl who drowned while being raped by an 18-year-old man, while other children watched on helplessly. I don’t think colonisation provides an excuse for that kind of behaviour. And it is not the fault of the non-indigenous community that he did this terrible deed. Yes, the young man might be poor and disadvantaged, but that doesn’t mean he is excused from raping and killing small children. It was his choice, and his responsibility.

I believe that one of the important pieces of the puzzle to true self-determination is taking responsibility for your own actions, and being aware that you can change the way in which you behave. To this end, I agree with Noel Pearson that there has to be an end to the “victim” mentality – that of blaming others for your troubles. I believe in empowerment of indigenous people; that they can control their own destinies. It should all be about teaching people to stand on their own two feet.

One of the main things which stops indigenous people from taking control of their own destiny is the endemic drinking, drug use and petrol sniffing which afflicts communities. It is very hard to control your own actions if you are totally trashed. Your brain and body are literally destroyed. Further child abuse is far more likely to happen when parents are “out of it”, and don’t notice what is going on with their kids. Even if adequate educational facilities are provided, if your parents don’t care whether you go to school or not, you are unlikely to attend.

3. The proposed plan of action

Pros of the plan

I think that indigenous communities do need drastic action at least in the short term to break the cycle of despair (including banning alcohol on reserves, and making support payments dependent upon children attending school). I would be much more worried about the banning of alcohol if it were not for the fact that many indigenous leaders are asking for it to be done. I must take this into account.

I also think that the fact that someone is actually doing something about this issue is good, whatever the motives behind it. I note that some indigenous leaders have given support to the plan. If some think it is a good idea for their communities, or are prepared to give support to a modified version of the plan, who am I to gainsay them, as a white city gal? On the other hand, I think it’s also really important to listen to those leaders who criticise the plans, as they may have good points.

Cons of the plan

The downside of Howard’s plan is the very hasty, aggressive nature of it. As much as I say that I’d like something to be done now, I would have preferred a little more thought and consultation to go into it. Personally, I like to take a deep breath and think through the implications before I do something. Paradoxically, this is because I am a very emotional person, and so I need to think in case I shoot from the hip and end up hurting someone without intending to do so.

If a thing is worth doing, it’s worth doing well. In this sense, I tend to agree with Lowitja O’Donohue:

Ms O’Donoghue, a former ATSIC chairwoman, said her opposition was based on a fear the intervention was too draconian.

“The people who are speaking out now welcome the intervention but we do not support the draconian intervention,” she said.

“Army trucks rolling in is pretty frightening for a community that’s been demonised. Governments should listen to a proper strategic plan in how they go about tackling this emergency. Of course it’s a national crisis.”

I note also that Rex Wild QC, the joint author of the report Little Children are Sacred has also criticised the plan, saying that the Federal Government should have been trying to build up a relationship of trust with indigenous people. Wild said on Lateline Business

“Well, the first problem is that people’s backs are immediately up. We didn’t have that problem when we arrived. …[W]hen we did our work, we were well-received because we spent some time preparing the people for what was coming. The troops didn’t arrive. We didn’t arrive with a battle ship. We arrived gently…”

Scaring people is not a helpful way to try to get them on board. But then, on the other hand, if it stops little kids from being raped or women from being beaten, it’s a lesser evil to prevent a greater evil. Perhaps it’s a start to a greater focus on these issues. I hope so.

4. Conclusion

One of the problems with indigenous welfare is the lack of coordination between Federal, State and Local governments. For this reason, I agree with the proposal last year by Noel Pearson, Patrick Dodson and Marcia Langton that a body such as the Productivity Commission be set up to coordinate indigenous welfare reforms.

I do hope that some positive things come out of the plan. I also hope that it will be ensured that communities have adequate services, such as fresh water, health care, educational facilities, mental health facilities, housing and the like. Proper services are vital to improving living conditions and living a healthy life.
I do not think that the plan will work without getting a majority of indigenous people on board. It is crucial that any process which is to have long-lasting beneficial effects on indigenous people be seen to have indigenous input and support. I know from my own experience that unless you have an internal desire to change yourself, there’s no hope of anyone else forcing you to change. Change must come from within. And realising that you have the capacity for positive change and growth will lead to real self-determination.


Filed under Australia, federalism, human rights, indigenous issues, politics, sexual offences, society, tolerance, Uncategorized

Justice for all?

In The Age today, I read an opinion by George Williams, a professor at the University of New South Wales. In summary, his opinion is that the law needs to be reformed in four ways:

  1. There needs to be more funding for legal aid and community centres. Obtaining justice is highly dependent upon being able to afford legal representation.
  2. The federal system needs to be reformed. At the moment, there is a tremendous waste of money and resources, as well as a tendency for each level of government to blame the other for problems.
  3. David Hicks needs to be given a fair trial or returned to Australia.
  4. Australia needs a national charter of human rights.

It’s interesting to read someone else’s ideas for legal reform. Let’s look at each point.

1. Legal representation

I would definitely agree that the legal system is weighted towards those who can pay for legal representation. One of my first posts on this blog was on how awful it was to be sued by our former landlords. And I am an educated lawyer, a commercial litigator and experienced advocate. How much scarier would it be if you had no legal training and no legal representation? There is a real potential for unscrupulous individuals to use litigation to bully people. Legal representation is far too expensive for most ordinary people. I know that I certainly couldn’t have afforded to hire myself at the rates at which my last firm used to charge. And I wasn’t working for a mega-firm at that time, either. When I worked for a mega-firm…well, let’s just say wounded bulls weren’t a patch on one of our firm’s bills. I suspect the six-minute billing unit is instrumental in pushing up legal bills. I continue my campaign for its abolition (mentioned in this post). I think six minute billing makes firms obsessed about meeting targets and maximise profits, and obscures the fundamental purpose of a law firm: to serve the client efficiently and effectively. It also drives legal representation out of the range of the ordinary person.

The answer is not just about providing more legal aid and funding for community legal centres, although that certainly helps. But I think it is deeper than this. I would like to see more opportunity for everyday people to learn about and understand basic concepts of the law (contracts, mortgages, wills, personal injury and the like). Unfortunately, many lawyers like the law to seem arcane and unknowable, because it keeps them in a job. I’m sure some lawyers deliberately over-complicate a matter so that they appear to be clever. Also, as I’ve mentioned in a previous post, sometimes lawyers don’t have an opportunity to sit down and think: “What’s this dispute about really?”

If a person cannot find adequate legal representation, they often have to represent themselves. I have written posts on litigants in person previously (here and here). Having worked in and around courts for most of my career, I have always found litigants in person very difficult to deal with. Litigants in person certainly use up valuable court time, often with spurious arguments, but a judge cannot just dismiss them, because there may be an argument of value in there. As I have said previously, the ideal situation is to find out what makes a litigant in person so that it can be nipped in the bud before the person becomes a fully fledged conspiracy theorist. Is it because legal advice is too expensive or difficult to obtain? Or is it because the person does not wish to take the legal advice he or she initially received? I think there needs to be more research into this.

2. The Federal System

This isn’t the first law reform that would spring to my mind, but I would also agree that the present system doesn’t really work. There is far too much opportunity for “buck-passing”. When I studied Constitutional Law many years ago, we learnt about Vertical Fiscal Imbalance – that is, the Commonwealth has all the money, and the State has responsibility for vital services like health and education. Obviously, it is a legal matter in that the High Court has construed the Federal taxation powers very broadly, narrowing the pool that the States can dip into.

I also think the taxation system in this country is very badly organised. All too often, money goes from one arm of government to another. So, as I have mentioned in a previous post, we got the baby bonus when our daughter was born, but had to pay it straight back to the Federal Government a month later because of the tax my husband had to pay after he got retrenched. And what about the first home owner’s grants? The Federal and State grants together don’t cover the amount of stamp duty a home owner has to pay to the State government – why not just give it straight to the State government instead of pretending to “give” it to us?

3. David Hicks

As I have discussed in a previous post, I don’t think Hicks should continue to be detained by the US. It is hypocritical of Australia and the US to try to force “democratic values” on other countries, but fail to practice them in one’s own country.

Nonetheless, I detect a certain amount of “bandwagoneering” on this topic. Yes, what has happened to Hicks is horrible, and it should not be allowed to continue. But lawyers should not be distracted by a high-profile “sexy” issue such as this, which affects only one person (albeit in a disasterous way). I am concerned that it is easier for lawyers to concentrate on an issue like this, and forget the smaller problems which affect many Australian people (such as the difficulties in obtaining legal representation mentioned at the beginning of this post). Everyone has a right to their case being heard.

4. Charter of Human Rights

When I was younger I was a great fan of human rights charters. I was more left-wing, less cynical and jaded. But I must confess that I’m not so enamoured of them now, although I concede that such a view is contentious and unfashionable. I come to this view after being thoroughly depressed by International Law and human rights law at university: it always seemed to me like shutting the door after the horse has bolted. Everyone looks at Rwanda and says “Genocide is an abuse of human rights” – but did anyone stop it happening at the time? A Charter of Rights just gives lawyers a reason to ponce around and act like they are good for humanity, but I don’t know whether it will really make such a difference in the long run. Feel free to castigate me for being such a nasty old curmudgeon.

I tend to think that if a government or an individual is determined to abuse someone’s rights, they’ll do it anyway. Look at the Freedom of Information laws, for example. They were designed to give the public access to government documents, but as far as I can see, the government has just devised niftier ways of hiding information from the public as a response. For example, I cite this recent High Court case on the FOI legislation. Depressing.

5. Conclusion

What would my priorities be? I like the first point made by Williams about the difficulties in obtaining legal advice. I’d also like a greater awareness of the law in the community, for legal advice to be more affordable and some research on litigants in person to be carried out.

In terms of the federalism point, I’d like there to be greater uniformity of laws across Australia (eg, Uniform Evidence Law, Uniform Torrens Acts, Uniform Criminal Codes etc). It seems stupid to have regional variation. I have some interesting arguments about ways in which Equity should be used more flexibly to make our commercial law fairer, but I’ll save them for the PhD thesis. On a more “political” level, I’d also like our taxation system to be simplified and the bureaucracy and doubling up to be reduced.

I’d like Hicks to be brought home, but I’d also like to keep in mind the plight of other everyday people in Australia who are in difficulty because they don’t understand the law and don’t know where to turn.

My main concern, I suppose, is that the law be approachable and accessible for as many people as possible, and that people have a chance to be treated fairly and equally, to obtain quality and affordable legal representation, and to have their case heard. I think all of my wishes flow from that basic tenet.


An interesting opinion in The Australian about the use and abuses of a Charter of Human Rights.

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Filed under Australia, David Hicks, federalism, human rights, law, law firms, litigants in person, society, tax law