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Alternative Law Journal

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Editors --- "Opinion" [2000] AltLawJl 40; (2000) 25(3) Alternative Law Journal 102

The hardest bridge

The success of the Corroboree 2000 march across the Sydney Harbour Bridge was heightened by the sense in the pre­ ceding weeks that the 'problem' of reconciliation might be insurmountable, and the government intractable. It is clear that matters of substantive economic and social inequality for indigenous Australians, such as standards of health, education, housing and employment, must of course be ad­ dressed, and programs to meet these needs are essential. However, 'reconciliation' is a wider concept that cannot only be about prospective 'practical' socio-economic strategies. Reconciliation (whatever that term may mean) must include the resolution and recognition of the role that law and the Anglo-Australian legal system have played in the devastation of the Aboriginal and Torres Strait Islander peoples, as well as protection from continuing oppression. Statutory implementation of concrete acts of reconciliation and justice cannot be delayed indefinitely.

The huge number of ordinary Australians who persistently, purposefully and physically expressed their support for a cause grounded in ideas of fairness, acceptance and diversity was no 'surprise' at all. Australians have upheld these qualities or traits as essential to the national character. The surprise lay in the refusal to allow a wide-ranging popular movement to be 'talked down' and undermined by political imperatives. Thus for hour after hour the rotarians, rastafarians, presbyterians, punks, sporting clubs and senior citizens marched expressing their concern at the enduring lack of recognition and enforceability of indigenous rights.

The success of the Corroboree event on many levels reflects the widespread view that until our legal system redresses the fundamental defects that underpin its application to indigenous Australians, reconciliation of our past history with our present aspirations for justice will remain unattainable.

The hardest bridge to cross is that between our comforting perception of the essential fairness and majesty of our le­ gal system and the reality of its operation for people on the margins of society.

This is similarly relevant to our understanding of the failed referendum on the republic. When contrasted with the way our Pacific neighbours have recently chosen to address perceived defects in their legal and political systems, Australia's bloodless attempt to overthrow our monarch stands out as a most reasonable, relaxed and comfortable threat to the established order. Like many such attempts, the Australian coup failed, but unlike most others, ours was notably accompanied by no rioting, bloodshed, demonstrations or even military or political retaliation. The supporters of the various views congratulated or commiserated with each other, a few harsh words were expressed, and everyone went on with their usual business. Twenty four years before, Australia's parliamentary leader was ousted. Similarly, no bloodshed or military intervention ensued, a new leader was duly elected and the normal processes of government, law and order continued uninterrupted.

The key to such peaceful transition processes is often said to be the stability and flexibility of the legal and political order in Australia, an order that has evolved out of the English constitutional model of parliamentary sovereignty and the rule of law, combined with a doctrine of separation of powers, and a federal arrangement that shares power between the central government and the States.

But despite the admiration we members of the 'lucky country' might have for a legal and constitutional order that is capable of accommodating such fundamental threats to stability of leadership, we cannot lose sight of the defects that undermine our system. Nor should we ignore the dangerous propensity to assume complacently that parliament and the democratic processes will recognise and protect our individual liberties and human rights.

The precarious rights of the accused, the convicted, the incarcerated, the indigenous, the stateless and the voiceless people are so often absent from the mainstream legal and political landscape. It is the voices of those at the margins of the political system, and subjected to the force of the legal order who we must hear from, even when we might not enjoy what they have to say. The articles in this edition of the journal reflect the concerns of many who experience the administration and operation of the law in very different ways from the lucky Australians.

Melissa Castan

Bronwyn Naylor

Melissa Castan and Bronwyn Naylor teach law at Monash University.

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