The major policy reasons which have been used to justify the Mabo Edict are analysed.
1. Dispossession from land central to problem of Aborigines
The blame for the appalling conditions in which the majority of Aborigines live is placed on dispossession from land along with supposed racism and indifference of non-Aboriginal Australians (especially the Anglo Saxons).
Ron Brunton argues:
The government ... asserts that dispossession from their land is "central to the social, economic and physical problems experienced by Aboriginal people since Colonisation." Certainly, the claim about dispossession is made frequently by supporters of land rights and echoed by government reports such as the Royal Commission into Aboriginal Deaths in Custody. But where is the rigorous evidence that would support this claim? Where is the research that demonstrates that Aborigines who have been granted land rights have better health and fewer social and economic problems than Aborigines who lack these rights? Indeed, to the best of my knowledge, no-one has carried out the necessary research, perhaps because of the fear that it might turn out that no link existed, thereby undermining a crucial prop of the Aboriginal movement. (Brunton 1993:18)
How would Aborigines live if Australia had not been conquered? Would their economic standards of living be any better? Would their tribal law and customs be superior to the Common Law and statutory mix which prevail today? Would they have developed the land, in the way it has been developed? A negative answer to the latter three questions spring to my mind from common sense and logic. The first question is considered further below.
2. United Nations Covenants and the expectations and
concerns of the international community
International opinion, expectation and concern, and United Nations treaties and covenants are cited politically and judicially to support race and anti-discrimination policies.
What are the expectations of the international community? Stephen J in Koowarta v Bjelke-Peterson 1982:168 upheld the Racial Discrimination Act (Commonwealth) 1975 on the premise that the Commonwealth Parliament had the power to legislate on matters which were of international concern. He came to the conclusion that race discrimination was a matter of international concern. Those who focus on the international factor rely much on the existence of multi-lateral covenants or treaties. What does this prove? To my mind nothing.
These multi-lateral treaties or Covenants are drafted by behind the scene bureaucrats in the United Nations. They are badly drafted and contain many contradictory clauses. This reflects the drafting process in which delegates from different countries with varying philosophies put their views forward, which views are often accepted in a spirit of compromise.
The treaties are signed by governments the vast majority of whom have little or no commitment to the principles enshrined in them. Governments which oppress their hapless subjects have signed treaties against race discrimination and recognising civil and political rights and other human rights concepts and ideas. These include many countries 'with totalitarian forms of government; communist, fascist and non-ideological dictatorships (notably in Africa and South America).
Does the mere signing of a treaty or Speeches made in the General Assembly, Security Council or other organ of the United Nations provide evidence of international concern or an international obligation?
Many judges of the High Court from Koowarta onwards have answered 'yes' to this question. How they did so is beyond my comprehension.
There is no evidence of widespread and substantial international concern about racial discrimination. Whatever words are spoken or written within the United Nations Organisation proves nothing, for the reasons stated above. The words and actions (actions being more important than words) of the populations of nations and their governments are alone relevant. International concern can only be gauged by the impossible process of finding out what the people of the world think and how their governments operate.
The reliance on the international dimension and UN treaties are also an infringement on Australian sovereignty. They are signed by the Australian Government without reference to Parliament and constitute an erosion of the power, authority and sovereignty of the Parliament - and therefore effectively undermine the sovereignty of the people.
These criteria are irrelevant and should be abandoned.
3. Judicial decisions in accordance with fundamental,
humane and community values
This factor is analysed below under the heading Should Judges Make Laws.
4. Social Justice
Can the Mabo Edict be justified on the basis of social
justice and the need for reverse discrimination and
affirmative action policies? The philosophy behind
anti-discrimination, minority rights and social justice
movements and policies require careful analysis, which space
does not permit. Some brief comments on the concept are
provided.
My perspective is that such policies by and large are immoral and unfair. In a clash of interests between A (an Aboriginal claiming native title) and B (a land owner who is Anglo Saxon) A may be preferred because A belonged to a disadvantaged group who had been oppressed and dispossessed in the past. This in effect means that B who has done no wrong is unfairly discriminated against. A who has suffered no injustice in his own right in interpersonal relations will have benefited. The rationale for this is that the ancestors in the group to which B belonged is said to have discriminated in the past against the group which A belonged to.
The injustices of the past cannot be addressed by providing benefits to descendants and supposed descendants. This involves depriving a person who has rights to land at this time, and who has committed no wrong. The person who benefits has not specifically suffered and therefore does not deserve the benefit. The supposed rationale and justice in this redistribution is that the ancestors of one group have harmed the ancestors of the latter. This may not be entirely accurate where the person whose interest in land is affected is not an Anglo Saxon, for example, recent immigrants. The person who benefits may only be part Aboriginal.
This process takes no account of the way in which B and his predecessors in title have developed the land and increased its land value. Would the Aborigines who lay claim have developed the land in the same way? If the land is to be handed over to an Aborigine on the basis of native title surely he should pay compensation for the improvements effected to the land by the settlers?
If B is white and Spanish American or yellow and Chinese or brown and Indian and A is Aboriginal, how did the discrimination occur?
A fundamental distinction must be drawn between interpersonal justice and social justice. Lawyers, philosophers and others who recognise the importance of the common law philosophy and methodology (as distinct from rules of common law) recognise interpersonal justice as the foundation of a judicial system. They are however, intensely suspicious of social justice in its various manifestations.
Interpersonal justice is best portrayed as a process of balancing of interests, where there is a dispute between individuals. The scales of justice are an appropriate metaphor. Justice is administered between individuals in particular situations. Invariably there is merit and demerit on both sides. Justice is about balancing competing claims.
Absolute justice is an impracticable concept. It cannot be realised in practice. Many of the critiques of the traditional legal system have attacked the law for failing to provide justice. Since their notion is one of absolute of near absolute justice (not the balancing of claims) their criticisms are invariably unfair.
Social justice, which involves providing justice to groups, is difficult, if not impossible to achieve in practice. The attempts to achieve social justice through law, have lead to conferment of ill defined, undefined, vague and wide discretions on courts, tribunals and members of the political and bureaucratic executives. The results are invariably counterproductive generating more injustice than justice. The history of communism provides a clear illustration. The history of democratic socialism also provides an illustration (though to a lesser extent) to those who are willing to open their eyes and their minds.
Whatever the merits and demerits of social justice based laws enacted by Parliament, supporters of true justice (as they see it) cannot but take issue with Mabo which represents an exercise in social justice law creation by judges who should confine themselves to interpersonal justice.
5. Reparation for past oppression
There is undeniable evidence that unspeakable atrocities were perpetrated on the Aboriginal people. There are also unhistorical exaggerations which are provided to paint the picture blacker than it was. The simple question, however, arises. Is it practical or just to attempt to redress injustices, however grievous, which have been perpetrated between 100 and 200 years ago? Can these injustices be redressed by granting benefits to supposed descendants many times removed from those who suffered?
A letter to the Editor column of a newspaper asks the question:
"Is there a place on earth where a group of people occupy a tract of land that wasn't at some time in the past — however distant — taken from another group of people by force?" (Richards:1993).
There are many peoples in Europe (the Polish people in particular) who could make claim to tracts of territory, based on history (what happened in 1914, 1939 or earlier). Two world wars in this century have dispossessed people and provided territory to other nations. Common sense dictates that there is a limit within which adjustments can be made.
In relation to the settlement or conquest of Australia, there is a dimension that people have obtained land, developed it and paid for it. There is injustice in depriving these people of land in order to provide benefits to descendants of those who suffered generations ago. There is also the possibility that, those who are not descendants or who are only partly descendants, may benefit.
Must the people of Australia in perpetuity bear shame and guilt for what has taken place in the past? Will the people who are vocal and rhetorical about shame and guilt expect the Japanese and the Germans to bear shame and guilt for what happened in World War II for 100 or 200 years?