Rees, Neil; Terry, John --- "Editorial - Commonwealth Responsibility" [1983] AboriginalLawB 16; (1983) 1(8) Aboriginal Law Bulletin 3

• Editorial – Commonwealth Responsibility

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Editorial – Commonwealth Responsibility

by John G. Terry and Neil Rees

The Aboriginal people have cause to be angry at the way in which in the Anglo-Australian legal system weaves its way around them with breathtaking hypocrisy and mind-boggling cynicism. On the one hand, federal and state constitutions together with the common law fail to recognise the existence of the country's original inhabitants, insisting that upon the arrival of the first British invaders the place was desert and uninhabited; on the other hand the High Court in the Tasmanian Dams Case asserted the power of the Commonwealth to make special laws for this non-existent group. No less a paradox is that Tasmania has been accepting Commonwealth funds for Aboriginal development for over a decade, yet counsel for the Tasmanian government was apparently instructed to argue that the Tasmanian Aborigines had become extinct.

Recently the same High Court struck down a strong and potentially effective set of provisions outlawing racial discrimination in NSW as being inconsistent with a weak and cumbersome Commonwealth law made under the external affairs power (in Viskauskas v. Niland), and the immediate response of the federal parliament was to legislate away the operation of the judgment. The people of Tennant Creek divulged important and sensitive information to a white judge in expectation of having their claims to land recognised only to have the Northern Territory government proclaim the area subject to town planning laws and thus outside the land commissioner's powers. On the same day as the federal minister characterised the occupation of the continent as "brutal and genocidal" stating that the recognition of land rights should be seen as reparation for past wrongs, the Western Australian Liberal Party state conference overwhelmingly supported a resolution opposed to land rights on the basis that they were racist, divisive and against the best interests of the development of WA.

What is the nature of a system which allows such double standards and confusion to reign?

The combined effect of the Koowarta Case, Viskauskas v. Niland and the Tasmanian Dams Case is unequivocal. The Commonwealth has full powers to make laws with respect to Aboriginal people. It should legislate to recognise their integrity as a race, to make adequate financial provision for the enterprises they undertake, to recognise their legitimate claims to land and to guarantee the freedom from interference by those state agencies opposed to Aboriginal aspirations. Where necessary it should over-ride state laws which impede the ability of Aboriginal people to move rapidly to take their place alongside other Australians.

How many more books must be written to explain the phenomenally high rates of Aboriginal imprisonment? How many more studies need to be carried out in relation to the appalling housing conditions in which so many Aboriginal people are forced to live? How many more Aboriginal children will be removed from their families, ignored by the education system and forced onto the dole queues? How much longer will white people bicker among themselves, even at the highest levels of the political and legal systems, before the one body that has the resources and the finances and the power to make inroads into the injustices-the Commonwealth Parliament - takes positive action?

During the years of Fraserism the Australian people witnessed the spectacle of the central government inert in response to the Queensland government depriving the people of Arukun and Mornington Island of the little security they enjoyed over their homelands and the Western Australian government allowing the desecration of sacred land at Noonkanbah for its own financial benefit. In NSW where there has been a Labor government since 1976, a Community Welfare Act which contains the potential for further violations of Aboriginal families remains in force. A land rights Act which addresses itself to neither the question of land nor the question of rights was passed earlier this year in conjunction with an Act which renders valid the revocation of Aboriginal reserves which had been purportedly effected unlawfully. The previous federal Liberal government argued that it did not know if it had the power to intervene in these matters. It was also a manifestation of the New Federalism that it did not do so. That government did not take action because it was not interested. Now there is no room for such argument: the doubt is removed.

One cannot but feel that the special laws power was argued by the Commonwealth in the Tasmanian Dams Case because it was expedient in the circumstances rather than because of any real concern for or understanding of the Aboriginal interest. One hears too often the expression of opinion that in south-eastern Australia the real Aborigines have become extinct and all that remains are their half-caste descendants who are not real Aborigines at all. There should be an end to this nonsense, born as it is of ignorance and a particularly nasty form of nineteenth century thinking about blood lines and miscegenation.

The Commonwealth government has a clear responsibility to all Aboriginal people whether they are living a relatively traditional manner in the Top End or an urban existance in the suburbs of Melbourne. Until now this idea has been given no more than token recognition.

The niceties of the constitutional issues having been resolved it is time for the Commonwealth to act swiftly and deftly lest we spend another two hundred years in neglect or worse.