Hadjimichael, Noel --- "Larissa Behrendt Achieving Social Justice - Indigenous Rights and Australia's Future the Federation Press Sydney 2003" [2004] AUJlHRights 23; (2004) 10(2) Australian Journal of Human Rights 23

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Achieving Social Justice — Indigenous Rights and Australia’s Future

Larissa Behrendt, Federation Press Sydney 2003

This work by Larissa Behrendt, a prominent member of Australia’s indigenous leadership outside the formal ATSIC or community political leadership, is a welcome contribution to the debate over rights, the impact of law on various social/racial constituencies and the very notion of an Australian narrative or story.

Recognised by the national media as a leading light of the next generation of Indigenous leaders, Dr Behrendt asks some fundamental questions in the troubled area of reconciliation.

She asks why formal legal equality may not be enough. Her questioning then moves to the scope of the political goals arising from cultural Indigenous policy. Finally, Dr Behrendt identifies what steps she contends may be necessary to improve contemporary institutions for both Indigenous and non-Indigenous Australians.

It is a powerful and very compassionate analysis of the sorry state of Indigenous affairs in this nation. The book paints a picture of significant disadvantage compounded by institutional barriers to reform, reconstruction or respect.

As a commentary on an informed Aboriginal perspective regarding notable recent decisions, such as Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 and WSGAL Pty Ltd v Trade Practices Commission [1994] FCA 1079; (1994) ATPR 41-314, this is a valuable guide for all players.

The deconstruction of such decisions by Dr Behrendt allows her to argue that the experience of the most marginalised segment of contemporary Australian society, our Indigenous communities, has been one of seemingly neutral constitutional and criminal laws producing discrimination. Such outcomes are in part explained by our colonial heritage and national ideologies.

This book sparks a values debate that must be allowed to run its course.

It questions how the current constitutional arrangements, human rights regimes (both Federal and State) and mainstream party policies all interact to produce outcomes that disappoint, deprive and offer precious little incentive to pursue democratic political strategies to either Indigenous interests or their ideological allies.

The post-1996 era is characterised as a barren ground of lost opportunity and poor rhetoric. The Howard line on practical reconciliation receives harsh treatment and the previous Labor administration fares only a little better.

Much of the book would be valued by those interested in politics, the ‘history wars’ and the current debate over so called political correctness. It is a solid study of the national identity and the more prominent manifestations of Australian nationalism.

However, this work would have been stronger had there been greater attention to the experience (both legal and political) of the First Nations in Canada and New Zealand — settler nations that have dealt with similar issues. This was a feature that I missed and searched hard to find.

In particular, the experience of First Nations with the Canadian Charter of Rights and Freedoms would have made this book more valuable to the legal reader and those interested in similar constitutional monarchies.

Similarly, there is little analysis of why non-Indigenous Australians might oppose or even misunderstand notions of Aboriginal sovereignty. The absence of any strong or sustainable ‘treaty’ campaign warrants attention. Australians in the mainstream may well disregard this aspect of the debate.

To them, in particular the so called battlers and aspirationals, it is all about conditions of deprivation and economic disadvantage. One hundred years on from Federation, there appears to be broad acceptance of the legitimacy of the nation such as to require enormous political effort from Aboriginal interests to shift.

Dr Behrendt boldly reminds us that changing society and institutional structures hinges on reconstructing what it means to be an Australian what sort of society Australia should be. Such a path requires a new narrative as to our history post-1788 and a reshaping of the self image.

This is a powder keg awaiting a fuse.

The post-Tampa world of small ‘c’ conservative Australia, facing external security threats and an uncertain economic future due to global factors, may well be barren ground for such brave and ideologically contentious objectives.

Dr Behrendt makes good use of her sources and argues a strong case for change in our institutions. This may well deliver some cosmetic or symbolic benefit to Indigenous Australians at the bottom of the ladder of opportunity. The devil is always in the detail.

However, current political conditions and the strengthened position of seemingly controversial symbols like the flag, the role of the Crown and reworked multiculturalism may pose a greater threat to Dr Behrendt’s shopping list of desirable reforms than any single legal decision or constitutional impediment.

As someone who is sympathetic to the plight of Indigenous Australians and equally scornful of many of the decisions made under self-determination, I am faced with a difficult task. Do I trust the path sought by the most disadvantaged inhabitants of this wealthy nation or do I continue to ask questions? This book raises more questions than it answers. For this I recommend it as a valuable contribution to the debate. A debate that once engaged leading indigenous thinkers such as Charles Perkins and Neville Bonner. A debate that must be resolved prior to any cosmetic or symbolic institutional makeover. To do otherwise would be to paper over cracks that have existed since 1788. l

Noel Hadjimichael BEc, MPP, LLB (Hons), Solicitor.