The Rule of Law and Reconciliation

Opening Address to the Law Society of New South Wales Young Lawyers' Conference

Justice Jagot 20 October 2017

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This event is taking place on the land of the Cadigal People, a clan of the Eora Nation whose traditional lands encompass the area which we now know as the Sydney CBD. I acknowledge the Cadigal People, their elders past and present, as the traditional owners of this land.

Most of you will have heard similar statements at other public events identifying and acknowledging the traditional owners of the land on which the event is taking place. Some of you may have wondered why such a statement is made, the purpose it serves, or whether such a statement can achieve a meaningful purpose. I also have considered these questions and my views have developed over time. That development in my own mind has occurred with the benefit of having been a member of the Federal Court's panel to deal with matters arising under the Native Title Act 1993 (Cth) and the list judge responsible for native title matters in New South Wales for some 7 years.

In this role I have had the privilege to read and hear evidence from Aboriginal people in different parts of Australia about their relationship to their traditional lands. This evidence is not generally heard other than by anthropologists and Aboriginal people themselves. It does not take hearing much of this evidence to realise that the relationship of Aboriginal people to land is almost outside of the conceptual sphere of Western people, particularly urban Western People. The land is central to and informs the entirety of Aboriginal life. Under an intricate web of traditional laws and customs developed over millennia, to Aboriginal people, the land is the centre of society, culture, family, spirituality, the past, present and future.

Given this how extraordinary it now seems that it was only in 1992, with the decision of the High Court in Mabo No 2[1], that the fiction of terra nullius was overturned.

Terra nullius means "nobody's land". This doctrine has existed in the law of nations throughout the development of Western democracy. The fact that it is a Latin phrase gives us the clue that it is derived from Roman law – the concept that ownership by seizure of a thing no one owns is legitimate. You can see why such a concept might have attracted expanding European empires competing for trade and political dominance in the 17th and 18th centuries. But even then the rule of law had apparent primacy. The instructions to Captain Cook were to take possession of the great southern land with the consent of the natives or, if the country was uninhabited, to take possession of it.[2] Cook saw plenty of Aboriginal people but, coming from the dense population of England which had been subject to intensive agricultural techniques for centuries, not evidence of a kind he would recognise as the hallmarks of permanent habitation or cultivation of the land – Australia was thus terra nullius and remained so until 1992.

We now know this perception, of lack of permanent habitation and cultivation was wrong. The archaeological record indicates that Aboriginal Australians crossed from Papua New Guinea to Australia some 65,000 years ago.[3] They occupied every part of the continent. It seems that every part of the land, no matter how apparently inhospitable, was woven into the complex social, cultural and spiritual network of Aboriginal people. The archaeological record shows that the Aboriginal people also cultivated the land, making use of the animals, plants, soils, and minerals, including in extensive trade networks. Australia far indeed from "nobody's land"; was land that had been occupied by one people, joined in a unified culture, which had continued uninterrupted for longer than any other.

The law of Australia, inherited from that of England, imposed the doctrine of terra nullius on the continent but it was the same law that also declared the doctrine no longer applied. This is the hallmark of a society in which the compact of existence under the rule of law is of such ubiquity and strength it is never really questioned. While there is no single agreed definition of the rule of law, central to it is the essential compact between a nation's citizenry and its government that we live under a common set of known requirements which apply equally to the individual and to the state.

Terra nullius, albeit wrongly applied to Australia, dictated the relationship between Aboriginal and Torres Strait Islander peoples and the nation state of Australia until declared inapplicable by the High Court. By the doctrine of terra nullius, the common law of Australia could not and did not recognise the laws and customs of Aboriginal and Torres Strait Islander peoples. It should be apparent from this that, in such a context and until 1992 and the Mabo decision, to acknowledge that land is the land of Aboriginal people would have conflicted with legal doctrine. That legal doctrine, in common it must be said with a number of others, did great harm to our society, and its consequences continue today, despite it being more than 20 years since the High Court declared the doctrine not to apply in this country.

One kind of harm, and the one we as lawyers may be able to do most about, is silence. The acknowledgment of country which is now commonplace at public events is an antidote to the silence within which the history of Aboriginal peoples is wrapped at least from the perspective of many, even most, non-Aboriginal peoples. One reason the silence prevails because we do not know our own history. I hope things have changed but as a product of the NSW State school system of the 1970s and 1980s Australian history consisted of a turgid recitation of so-called "discovery", occupation, exploration, WW1, Gallipoli, and conscription debate. I was taught nothing about Aboriginal history or culture. I was not taught how terra nullius ensured Australia became a British colony, with no recognition of the laws and customs of its first people, I had no idea that Aboriginal people resisted European occupation and the frontier wars here mirrored those elsewhere as the appetite for land led to the expansion of European settlement across the continent, nor did I appreciate the depredations on Aboriginal Peoples of diseases to which they had never been exposed before European settlement. Did I know then that Aboriginal people were used as the equivalent of serfs in the pastoral industry? I don't think so. Did I know that Aboriginal people did not hold the benefits of general enfranchisement across all states in the Commonwealth for all voting purposes until 1965, the year I was born? No. Did I know that Aboriginal People were not counted as citizens until the 1967 Constitutional referendum? No again.

I do not think I was atypical for my time. The blanket of silence which cocoons us from our history is not often penetrated. From a Western perspective, the acknowledgment of the traditional owners of country breaks the silence. It also acknowledges historical fact as opposed to legal fiction. There is no part of Australia which was not the country of Aboriginal people. Not all traditional connections to country survived disease, massacres, mass dislocations as a result of the pastoral industry, or the implementation of government policies of the day. But as the Mabo decision showed, some did and the common law could recognise those that did.

The opposition to the Native Title Act, enacted as a direct result of the Mabo decision, seems long ago to me, yet it is the recent past. If you were not alive then, and given this is Young Lawyers, you may well not have been alive and certainly would not have been aware of what was going on, people were led to believe that their suburban backyard would be under threat from a native title claim. Of course, anyone who had read even the headnote to the Mabo decision would have appreciated this was impossible but such were the times in your lifetime.

What does all this mean for lawyers? It was the law that imposed terra nullius. It was the law that precluded full enfranchisement of Aboriginal peoples. It was the law that failed to recognise Aboriginal people as citizens. And it was the law that overturned each and every one of these matters. How can we think the rule of law is a good thing when it can entrench such injustice? When told that the law assumed that his wife was under his direction, Mr Bumble's response in Oliver Twist was that "[i]f the law supposes that... the law is a ass – a idiot".[4] Dickens, of course, knew more than a thing or two about the law, having been apprenticed to an attorney at law at 15, and later a court reporter. No doubt we all agree with Mr Bumble – but it is apparent that Dickens himself agreed back in 1837 when he wrote Oliver Twist. You need to remember here that women were not universally enfranchised for the vote in the UK until 1928.

The law, it seems fair to say, generally lags behind society on social issues. Societies move on and the law catches up. But not always, as native title in Australia shows us. In that sphere the High Court led. It declared the law and society moved along subsequently.

It follows that a definition of the rule of law as having a minimum content of a common set of known requirements which apply equally to the individual and to the state does not necessarily protect us from bad laws. More content is required. Orthodox conceptions of the rule of law in a Western democracy provide that content. Touchstones include the principles that:

  • powers of the legislative, executive and judiciary are separate and independent;
  • the judiciary alone declares what the law is; and
  • laws apply equally to all people.

It is the third of those touchstones which failed to be engaged in Australia's laws in relation to its indigenous peoples. It is extraordinary how often in the past the concept of "all people" has meant only some people – history shows us that "all people" has meant many things including:

  • only male people, provided they own land;
  • only white male people;
  • only white male and white female people.

If that is how you conceive of "people" then it is not hard to see why you would think a law enfranchising only white males who own property upheld the rule of law.

We can and should regret that it took so long for this touchstone to be engaged. We also can and should recognise the long-term consequences which this has caused for those peoples. As lawyers, we should recognise the role of the law in these events. We should recognise also that the strength of the acceptance of the rule of law in Australia meant that all of these profound changes over the last 25 years occurred by legal means. By the time of the Constitutional referendum in 1967 the time for change had long since been reached – more than 90% of Australians voted in favour of the Constitutional amendment, which students of constitutional history will know is extraordinarily high.[5] There were heated discussions about the Native Title Act to be sure (which even now seem curiously outdated). But the processes of Parliament continued. The Act was made. It was challenged by WA but the challenge failed.[6] It is rare legislation because it expressly identifies its context and objects in a meaningful Preamble. The Preamble is a powerful statement about our history. It records:

The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

...

The High Court has:

(a) rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement; and

(b) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and

(c) held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates.

The people of Australia intend:

(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

...

Not every lawyer can or should necessarily want to practice in the field of native title law or otherwise in areas dealing specifically with Aboriginal issues. But we are all lawyers and as lawyers we have a fundamental role to play in enhancing the rule of law. Part of enhancing the rule of law is to foster public confidence in our systems of governance. Part of our role is to be aware when the rule of law is threatened by encroachments on the basic concepts which it embodies, including the independence of the judiciary and the equality of every person before the law. Part is educative, not only to identify threatened encroachments, but also to recognise the unique history of Aboriginal and Torres Strait Islander Peoples, who were for 200 years unequal before the law and have to continue to deal with the generational disadvantages which this has caused. Part is not to permit silence to prevail, by educating ourselves about our history.

What then of reconciliation in Australia and the rule of law? The word "reconciliation" is one that itself may cause some discomfort. It may suggest a kind of practical equality in the history of the European settlement of Australia and its relations with indigenous peoples which was absent. It may also suggest parties moving together towards a middle ground. Yet the movement – legal, moral and practical it seems, is of Australia's non-indigenous peoples who have shifted ground towards full recognition of the unique history and culture of Australia's indigenous peoples. The indigenous peoples were here for 65,000 years and are still here. For them, I suspect, the ground is where it always was. 

Recognition by reason of awareness and acknowledgment by penetrating the silence are two ways in which every lawyer can fulfil their duty to the rule of law. You cannot recognise something unless you are educated about it. As lawyers we should educate ourselves about the history of our country and, in particular, those parts of our history where the full effects of the rule of law have not held sway. Almost invariably, those parts relate to the lives of the disenfranchised and the disempowered. The history of our indigenous peoples has been one of legally mandated disenfranchisement and disempowerment until recent decades. While part of acknowledging something is internal reflection, another part is ceasing to be silent about it. Acknowledging the traditional ownership of land by Aboriginal Peoples is to speak against silence.

Aboriginal peoples comprise but 3% of our population. But they are the 3% which occupied this land for millennia, who have practised a unique culture for longer than any other known, and were effectively dispossessed based on a legal fiction which enabled their disempowerment and disenfranchisement for two centuries. They are the 3% which bear the long-term consequences of the development of Australia which has seen so many others enjoy safe and prosperous lives. Failure to recognise these fundamental facts, to speak out about them when appropriate to do so, is to undermine the unique responsibility which we have as lawyers to protect and enhance the rule of law, even if merely by recognising that laws without moral content may be instruments of oppression rather than justice.



[1] [1992] HCA 23; (1992) 175 CLR 1

[2] 'James Cook's Secret Instructions', c.1768. National Library of Australia collection.

[3] See further Tony Wright, 'Aboriginal archaeological discovery in Kakadu rewrites the history of Australia', Sydney Morning Herald, 20 July 2017.

[4] Charles Dickens, Oliver Twist, chapter 51, p. 489 (1970). First published serially 1837–1839.

[5] See Dr John Gardiner-Garden, 'The origin of Commonwealth involvement in Indigenous Affairs and the 1967 Referendum', Background paper, 11, 1996–97, Parliamentary Library, Canberra, 1997.

[6] Western Australia v Commonwealth [1995] HCA 47; (1995) EOC 92-687 (extracts); (1995) 69 ALJR 309; (1995) 183 CLR 373.


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