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Aboriginal Law Bulletin (ALB)
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Brown, A. J. --- "Administrative Justice for Aboriginal People -- Can it be Done?" [1993] AboriginalLawB 14; (1993) 3(61) Aboriginal Law Bulletin 21


Administrative Justice for Aboriginal People – Can it be Done?

by A. J. Brown

Changing policies are creating new opportunities for Aboriginal and Torres Strait Islander people to seek justice at the hands of governments. But what does Aboriginal reconciliation mean in administrative terms? Reporting on the role of the Commonwealth Ombudsman*, A.J. Brown suggests that the issues involved in administrative justice for Australia's indigenous peoples go very deep.

Australia's Ombudsmen are uniquely placed to seek out justice for Australian citizens in their dealings with almost the full gamut of government agencies. An independent officer with a national staff of eighty, the Commonwealth Ombudsman is empowered to investigate a wide range of complaints about government administration, to make recommendations to Federal Government agencies as a result, and to take her recommendations to the Prime Minister and Parliament if necessary.

The Ombudsman is especially important to low income and disadvantaged groups - an importance given greater recognition as the Ombudsman's office has taken on an enhanced role within the Federal Government'ss access and equity programs. Although not an advocacy service for persons feeling aggrieved by government conduct, her role is unique among publicly available mechanisms for redressing administrative justice. Because it is free of charge, non-adversarial and because the office shoulders the burden of investigating complaints rather than requiring complainants to prove any kind of formal 'case', the Ombudsman's role has been emphasised as an important or potentially important tool in achieving social justice.

In 1991, Julian Disney of the Australian Council of Social Services stressed the importance of the Commonwealth Ombudsman's Office from the point of view of those who:

... lack the money to pursue most of the other avenues of review that we provide in the community and often have severe literacy problems which prevent them from using any system that relies on writing, as most avenues do. Most importantly of all, they usually lack the confidence and the presence to be able to pursue issues with people in positions of authority.[1]

Aboriginal and Tones Strait Islander people have had diverse experiences with non-Aboriginal decision-Inaking structures, and share a huge diversity of experience as they have asserted identity and claimed sovereignty in the face of government policies and programs. Precipitated by a review by the Senate Standing Committee on Finance and Public Administration, and the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the Commonwealth Ombudsman has commenced development of a new, three-pronged role aimed at increasing the contribution of administrative review mechanisms to social justice for Aboriginal and Torres Strait Islander people:

The development of this role comes at a critical time, and involves critical challenge. Despite the diversity of their experiences of public administration, indigenous Australians have always had a very special and often tortuous relationship with non-Aboriginal government.

Aboriginal people remain one of government's most distinctive client groups, the recipients of many and varied services and programs, notwithstanding that the heritage of government relations is largely one of conflict. Many Aboriginal communities have known a history of total dependence, for food and physical well-being, upon the same governments that moved them from their land. Aboriginal groups have continued to reclaim as much as possible under non-Aboriginal land rights laws, even where those same groups, maintaining their claim to Aboriginal sovereignty, believe such processes have no legitimacy over their own customary law.

The legacy of this history continues today, a critical factor in the ongoing relationship between Aboriginal and Islander people and the practices and policies of contemporary public administrations. This was emphasised in the national report of the Royal Commission into Aboriginal Deaths in Custody:

Many Aboriginal people would argue that the control remains just as effective today whatever may be the rhetoric of government. They would say that economic dependence upon government and the restrictions placed upon them by discriminatory practices achieve the same result - their lives are controlled by others who share neither their culture nor their perspective on any issues because they have not shared their history.

It is difficult for non-Aboriginal people to comprehend just how absolute the domination of Aboriginal people has been. With the probable exception of those who have elsewhere experienced colonization, no other people in Australia, not even those who have suffered at the hands of and escaped totalitarian racist regimes, have shared with Aboriginal people the additional dimension of eviction from their own lands. Nor have they experienced the consequent cultural and economic loss, not to say anger, of becoming despised supplicants of those who effected, or benefited from, their dispossession.[3]

As the Royal Commission recognised, this history continues to provide a context for the evaluation of government programs, even where those programs have made the slow transition from 'protectionism' to 'assimilation', to 'self-management' and 'self-determination'.[4] The challenge for public administrators, with their growing understanding of Aboriginal cultures and identity, is to reconcile their role today with the often tragic complexities of administrative history, and to consider that what was 'good administration' even ten years ago, in the light of changing standards and expectations, may now be seen as inappropriate in cultural and governmental terms.[5]

The challenge is not simply one for legislators, but for each agency and for each administrator, guided by, and responsible for implementing, the law of the land.

Ombudsmen, as protectors and promoters of 'good administration', have a special role to play as public administration attempts to catch up with its history in relation to Aboriginal people. Unlike the legal system, the Commonwealth Ombudsman is empowered to report not only on the legality of administrative actions, but on their fairness and appropriateness regardless of their legality; and unlike the Administrative Appeals Tribunal, the Ombudsman can examine and make recommendations not just in relation to identifiable decisions, but entire administrative processes, practices and procedures.[6]

The way in which these challenges are faced will depend on the issues that Aboriginal and Torres Strait Islander people bring forward for investigation, and on the changing political context as Anglo-Australian law and lawmakers respond to community-based movements toward reconciliation. But it will also depend greatly on the willingness of public administrators to carry out their duties with newfound cultural sensitivity and recognition of the past, and the role of Ombudsmen as contributors to progressively improved standards of administration.

*The Commonwealth Ombudsman is Ms Phillipa Smith, who has a background with the Australian Council of Social Services, Australian Consumers' Association, NSW Department of Health and the Commonwealth Administrative Appeals Tribunal.


[1] Evidence to the Senate Standing Committee on Finance and Public Administration, Review of the Office of the Commonwealth Ombudsman (AGPS, December,1991), p.74.

[2] Aboriginal Deaths in Custody - Response by Governments to the Royal Commission (April 1992), Vol.2.p.859;Review of the Office of the Commonwealth Ombudsman, Report of the Standing Committee on Finance and Public Administration (December 1991), Recommendations 17, 18 and 20, pp.68-76; Commonwealth and Defence Force Ombudsman, Annual Report 1991-92, pp.2-3, 10-11, 101.

[3] Report of the Royal Commission into Aboriginal Deathss in Custody, 'Self-Determination' in Part C, The Underlying Issues Which Explain the Disproportionate Number of Aboriginal People in Custody, National Report, Vol 2 (AGPS,1991), p.502.

[4] An overview of the transition is given by McCrae, Nettheim and Beacroft, Aboriginal Legal Issues (Law Book Company, 1991), pp.9-32.

[5] Government land use planning roles are perhaps the dearest example, as brought out by the changing premises of Australian law following the High Court's recognition of native title in the Mabo case in 1992. See Council for Aboriginal Reconciliation, Making Things Right: Reconciliation after the High Court's Decision on Native Title (January 1993);Report of the Royal Commission, 'land Needs' in Part C, The Underlying Issues Which Explain the Disproportionate Number of Aboriginal People in Custody, Vol 2 (AGPS, 1991) pp.467-500.

[6] Ombudsman Act 1976, section 15.


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