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Editors --- "Bits" [2001] AltLawJl 61; (2001) 26(3) Alternative Law Journal 156


The Aboriginal People

by Aldo Massola; Cypress Books, Melbourne 1969; 64 pp.

Aldo Massola was a Melbourne anthropologist and curator at the National Museum of Victoria. He published scores of papers, monographs and books on Aboriginal life, art and culture. One of his better known books, at least in the 1970s, was Bunjil’s Cave (Lansdowne 1968). There is an Aldo Massola Collection at the Australian Institute of Aboriginal and Torres Strait Islander Studies in Canberra.

Here's a topical quote from The Aboriginal People. Having given a characteristically brief and vivid account of John Batman's illegal 'purchase' of land in the Port Phillip district, Massola writes: 'No Aborigine, chief or otherwise, could sell or dispose of any land, simply because he did not own any. The land belonged to the group. Further, land selling is, or was, an idea entirely foreign to Aborigines: it was his birthplace, his territory, and the centre of the activities of his totem ancestors, who had become part of the landscape; there was such a spiritual bind between himself and the land that he felt part of it.'

The book had black and white photographs too, but they were tom out in the copy I bought. I found this in a sec­ ond hand bookstore one Saturday morning. It's long out of print but it and his other books are available from Australian booksellers via a websearch.


Simon Rice is a Sydney lawyer.

The Draft Declaration and Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance

Document A/CONF.189/PC.2/L.1/Add.1, UN General Assembly, Geneva, 2001.

Did you know that we are two years short of the end of the UN's Third Decade for the Elimination of Racial Discrimination? Along the way there have been two World Conferences to Combat Racism and Racial Discrimination {1978 and 1983). This year, in Durban from 31 August to 7 September, is the third and last. It's known as WCAR for short, and will run parallel with both an NGO forum and Youth summit.

The UN General Assembly has no illusions about the success of its three decade campaign: 'racism, racial discrimination, xenophobia and related forms of intolerance, ethnic antagonism and acts of violence are showing signs of increase'.

And so to the Draft Declaration. It's a monstrous and bewildering accumulation of words from around the world, nations competing to have their hopes and fears, their spin, their special interests, their matters of pride and others’ matters of shame, recorded in the Declaration. The document is bracketed for disputed words and phrases, italicised for proposed insertions and struck out for proposed deletions.

Through it all still glimmers a glorious aspiration - a world free of racial conflict, where difference is respected not feared. To see what has been adopted so far, and what is still under discussion, go to < racism1 index.htm> . Go to Documents and search for the UN document number above (AICONF etc). And to follow the conference and its outcomes, use our own HREOC site: <> .


Simon Rice is a Sydney lawyer.

The Barrister, Rastaman and the Rat

A hypothetical scripted by Ste­phen Gray; Law Week 2001, Law School, Northern Territory Univer­ sity, 2001.

Northern Territory University Law Lecturer and Vogel Award winner Stephen Gray scripted The Barrister, the Rastaman and the Rat, a hypothetical relationships between the government and judiciary and how those powers dominate with little consideration of social and cultural needs of the individual.


The staging of this hypothetical was to highlight Law Week's 'Safer Communities' theme with an emphasis on educating the wider community on roles of the legal profession within relevant organisations. The event was advertised extensively by mail to all law students, and through media advertisements. As a result, the audience was made up of mostly students and lecturers or legal advisers. It can be assumed the audience had shared knowledge in the field of law.


The hypothetical was based on Indigenous land and native title rights, in particular access to Aboriginal land.[1] This is an important concept to debate because the reception of English law and strict application of the rule of law clearly ignored Indigenous customary law. The Northern Territory is in a unique situation. Customary law is functional and this fact cannot be ignored by the judiciary and parliament.


Ms Annelise Featherstone, the Commonwealth Aboriginal Affairs Minister and her delegation, were travelling in an aircraft that was forced to land on Warrakia nation land. The senior elder Pembulwuy Kunuwinku asked the delegation if they had permits and told the party they were trespassing. Ron Levy,[2] legal adviser, pointed out the Minister would not require a permit under the Aboriginal Land Rights Act but the delegation members should have ministerial permits. However, he felt the emergency landing would satisfy 'a necessity'.

A member of the delegation, Woodhead, ventured off and returned with a painted spear. Pembulwuy told Woodhead the spear was sacred and wanted it returned. During a scuffle over the spear the blade nicked Woodhead and his bracelet broke.

Relevance to topic or law

Given the incident occurred on Aboriginal land, it appears Pembulwuy may have had a defence to criminal damages by honest claim of right. But David Dalrymple advised, whether on Aboriginal land or not, if there was an application of force a call on Aboriginal customary law would not assist Pembulwuy. However, Pembulwuy was advised to plead not guilty pending a 'special leave application' dealing with a like issue before the High Court.

The forum highlighted the ongoing challenge for legal professionals, courts and parliaments of the future: how do the two laws interact, and how can they co-exist? Given Indigenous people administer customary punishment it is crucial they are negotiated with at an early stage in developing law.

In subsequent scenarios, Stephen put to the panel alleged property offences and the application of mini­ mum mandatory sentencing provisions under s.78A of the Sentencing Act 2000 (NT). Pembulwuy was provided with good defence advice from his solicitor who articulated his ability to deal with oppressive (in his view) tactics employed by the police.

Typically, through impromptu set­ tings like this, one or two errors were picked up on, for example mandatory sentencing penalties. Was this an indication of how complex imposed mandatory sentencing for property offences is for the local police, solicitor and politician to grasp?

The Law Society was asked to com­ment on the doctrine of separation of powers between the executive and judiciary. Merran Short, a hypothetical and actual Law Society member provided a clear and concise explanation of one current argument relating to the appointment process of Queen's Counsel and the role the Attorney-General in publicly defending the integrity of the judiciary.

Although the opportunity was given to the two political representatives to seriously debate important issues in parliament they failed to raise any good argument on the matter of property offences and citizen's arrest at gun­ point. One response '... you would have to look at what the angles are ... if there is any political benefit. But I would be interested in the issue of tak­ ing alcohol onto Aboriginal land' only to be countered with 'No sympathy with Minister caught with alcohol ... but it is good public relations to have a Commonwealth Minister visit ... 'Neither responded to the leading question 'Would you raise any questions in parliament?'

The inclusion of media personnel highlighted the role they play in informing the public, the consequences of reporting unsubstantiated information and interaction with the judiciary. Comments made by panel members, to the amusement of the audience suggested that the local newspaper does not rate highly.

The debate appropriately high­ lighted many current issues of law the judiciary is interpreting and deciding upon, including statutes enacted by the Northern Territory parliament.

The storyline had more twists and turns than a roller coaster, with slight reference to the local identities. The main objective was to entertain.


The hypothetical raised legitimate concerns Indigenous peoples have related to sovereignty, land rights and access control, ownership and copyright of artwork, language and how native title rights are interpreted under Australian laws. It also highlighted the demanding role of the judiciary and executive in making law, interpreting, and upholding the law for all citizens in a democratic society.

Traditionally, the theory of legalism is strictly followed and High Court judges are reluctant to depart from their own decisions, but judicial activists question whether adherence to rules of law that seriously offend the values of justice and human rights should be maintained and applied.[3]

Stephen Gray creatively and clearly illustrated the complexity of cultural differences. The hypothetical indicated the willingness of the legal profession to explore cultural diversity within the Australian law.

Unlike a roller coaster that has an end destination, this hypothetical demonstrated how unclear the law is and left more questions than answers.


Trish Rigby-Christophersen is a law student at the Northern Territory University.

[1] Pursuant to the Aboriginal Land Rights Act 1976(NT).

[2] Principal Legal Adviser, Northern Land Council.

[3] Justice Brennan comments in Mabo and Ors v Qld (No 2) (1992) 175 CLR I at 30.

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