Greg Smith proves that the NSW Opposition should remain in opposition

(Not that I’m saying the NSW Government has proved it should stay in government, mind you!)

Anyway, the SMH this morning has reported that the NSW Opposition spokesman on legal affairs, Greg Smith, apparently thinks that people with disabilities are dangerous.

Talk about epic fail!

I actually think that Hatzistergos gets this pretty much right:

“The comments made by the shadow attorney-general in Parliament on this issue are outrageous and serve to demonise people with disabilities and mental illness,” Mr Hatzistergos said. “They also underline his complete lack of understanding of the challenges faced by these vulnerable members of the community as they go about their daily lives.”

So yes, he’s milking it for all it’s worth, politically-speaking. But I’ve got to say, I don’t think I want Greg Smith anywhere near any responsibility for policy relating to people with disabilities!

(Oh, and kudos to Hatzistergos for using “people first” language there, too. I don’t agree with a lot of what he says, but he seems to be an astute politician. And while he is very much against any sort of Charter of Rights, many of the public events that I’ve seen him at have been human rights events. Which I take to say more about his astuteness as a politician than his own personal stance on human rights, but I think it’s not a bad thing at all that the NSW AG shows his face at human rights events on a regular basis.)

The power of language

In a post about how privilege can make someone less able to make decisions which take multiple angles into account (that precis doesn’t do it justice, so I recommend reading the whole thing!), Old Feminist said this:

That’s why Americans not speaking English, or “Black English,” is so threatening. If the white male experience isn’t universally understood, it loses a lot of its power.

I’d never quite managed to pinpoint why people in English-speaking countries are often so threatened by people speaking another language, and I think that pretty much pinpoints it.

I think there’s an obverse side to it, too: someone speaking another language really highlights that there is another experience other than the white male experience, and highlights FOR someone who only experiences the white male experience that they cannot understand another experience (at least, not without some effort).

Thirteenth Down Under Feminists’ Carnival

Apologies for the delay (been away and/or computerless the whole weekend): the Thirteenth Down Under Feminists’ Carnival is now up at SAHM Feminist.

I haven’t had a chance to look through properly, but it looks like a rich collection of links.

Thanks, Demelza!

Muslim school in Camden rejected by the Court

The Land and Environment Court has dismissed the appeal by the Quranic Society against a decision by Camden Municipal Council not to allow a Muslim school in the area.

I haven’t read the decision yet – if I get the chance to do so next week, I may post about it – but the ABC article linked above gives the court’s reason for dismissing the appeal as being that the school “was not suitable for the rural nature of the land.”

I’ve written about this school before, and again, I’m skeptical about the Court’s reasoning – but I’ll wait until I get the chance to read the judgment before I say too much about that.

What I want to draw attention to, though, is comments like this (from the ABC article):

Mabo – what it means, what it doesn’t mean

Most Australians would be aware, at least, of the High Court’s decision in Mabo, which was handed down on 3 June 1992. Many would also recognise the phrase terra nullius and would know that it has something to do with the Mabo decision.

However, there has historically been a lot of misinformation about the meaning of Mabo, and on this, the 17th anniversary of the decision (and the final day of Reconciliation Week this year), I thought it was worth posting about what it means, what it doesn’t mean, and some of the current issues related to native title.

Question #1: Did Aboriginal and Torres Strait Islander people have any land rights prior to the Mabo decision in 1992?

They did, but these were very limited – basically, between the early 1960s and the Mabo decision, most states had put into place legislation (as the Federal government had done for the Northern Territory) which granted Aboriginal and Torres Strait Islander people some ownership of land which had been reserves. Notably, Western Australia did not have any such legislation – and as you can imagine, that’s a big deal, given it’s the largest state.

Question #2: If there was already legislation, what was the significance of Mabo?

Well, first of all, the legislation only gave a very specific group of Aboriginal and Torres Strait Islander people any rights to land (again, any Aboriginal people from Western Australia didn’t have any protection!).

But the real significance of Mabo (in terms of how it protected land rights) was the recognition of native title in the Australian common law. Before Mabo, there had been a case (Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141) in the Northern Territory in which a judge had rejected the concept of native title, essentially on the basis that there had never been any governmental recognition of native title.

This decision was criticised for a while, but (possibly because of the limited land rights granted to some Aboriginal and Torres Strait Islander people by legislation) the question of native title didn’t come up again properly until Mabo.

Question #3: Did Mabo grant Aboriginal and Torres Strait Islander people any land rights?

No. In fact, ironically enough, it actually validated the dispossession of Aboriginal and Torres Strait Islander people that took place before 31 October 1975. The significance of that date is that on that day, the Racial Discrimination Act 1975 commenced.

In Mabo, the High Court held that there was no general restriction in Australian law (either under the Constitution, general principles of common law or other legislation) that prevented the dispossession of Aboriginal and Torres Strait Islander people before the Racial Discrimination Act came into force. As a result, any land granted (ie no longer held by the Crown) before 31 October 1975 cannot be subject to native title claims. This includes most land in urban areas, and a significant amount of land in other areas.

However, the Court held that any attempted extinguishment of native title after 31 October 1975 is subject to the Racial Discrimination Act. That means that native title can be extinguished after 31 October 1975, but there must be a clear intention in the legislation to extinguish native title. (The High Court split on the issue of compensation.)

Question #4: You haven’t mentioned terra nullius yet. What’s that all about?

Although terra nullius is one of the “take-home” phrases from Mabo, the concept is actually not enormously important to the decision.

One judge (Brennan J) did focus on the concept, but this appears to be because he felt it necessary to overrule previous cases which he thought applied. Other judges seemed to simply accept that the concept of “native title” could exist whether or not a place was terra nullius. Whether or not Australia was terra nullius prior to the arrival of the British was irrelevant, and in fact, most of the Court did not actually reject the concept.

Question #5: What must Aboriginal or Torres Strait Islander people prove in order to establish native title?

They have to prove that native title has not been extinguished as described above.

They also have to prove a continuing connection with the land. (Since Mabo, this is governed by the Native Title Act 1993.)

This means that people who were forcibly removed from their land suffer a double-whammy. Where a group of people was entirely dispersed, it is likely to be very difficult to establish a native title claim.

The current Chief Justice of the High Court of Australia, Justice French, has recently suggested that the system is unfair and unwieldy. [NB: that link is a .pdf - there's a .html list of speeches here.] His Honour is widely quoted as saying that there should be a reversal of the onus of proof – that is, that rather than the native title claimants having to prove their continuous connection to the land, that the other party should have to disprove it. This is not stated in terms in the speech, but there is a suggestion that the difficulties faced by native title claimants are opposed to the generally beneficial purpose of the Native Title Act.

Some current issues

One current issue is that referred to French CJ: the difficulty that native title claimants still face in proving their continuous connection to the land in question. This means that native title cases tend to take years to resolve, with enormous amounts of evidence put before the court. This puts a strain on the parties (as litigation always does, and particularly because it is an issue which is so important to so many people) and on the justice system.

I’d highly recommend reading the Chief Justice’s paper, which I hope is reasonably accessible to non-lawyers.

Another current issue is the NT Intervention. One very topical issue is the pressure the Federal government is placing on some Aboriginal groups in the NT to enter into leases, with the Aboriginal groups leasing their land to the Federal government in return for an “investment”.

It’s not directly related to native title in the Mabo sense, but it raises the same sorts of questions – and makes many people fear that the government has some ulterior motive in requiring the leases to be granted.

There are other current issues, but this post is already long enough, so I’ll leave them to be raised in comments.

Cross-posted.

Indigenous Australian stories in the Australian mainstream

This post will be quite short, but I wanted to briefly discuss Indigenous Australian stories which are available in the Australian mainstream.

I think stories are important. One of the things about being in a minority or an oppressed group is that you get used to seeing people who are “not like you”, to not seeing people who are “like you”, in mainstream stories.

Or, if you do see people who are “like you”, they usually have some special role, no character development, they’re 2D and in black-and-white rather than full colour. Often entirely good or entirely bad.

So I thought that I’d write about the exposure that I had to stories of Indigenous Australians as I was growing up, to illustrate the paucity of information about the Indigenous Australian experience in the (relative) mainstream.

First of all: Dreamtime stories.

“You look nice!”

I don’t wear make-up very often. I tend to reserve it for three general situations: (1) where formal wear is required; (2) slightly more formal than usual work situations (eg job interviews); and (3) when I’m in the mood, because playing dress-up can be fun sometimes.

I’m wearing my red lipstick today in honour of International Whore’s Day, so I’ve got a bit of eye make-up on as well to balance out the red lips.

A colleague – who I’ve known for a while, but with whom I’ve only recently started working, so she hasn’t seen me in make-up very often – just came in and said: “you look nice!”

I bit back the comments about perpetuation of the patriarchal feminine beauty standard and just told her about International Whore’s Day.

However, I feel the need to rant a bit.

Stereotypes and assumptions

The theme for this year’s Reconciliation Week is “See the person, not the stereotype”.

A couple of months ago, I noticed some ads around the city. Each ad had two faces, and a question (eg “Who would you want to work with?”), and then the words “We’re hoping you couldn’t answer that” and url reconcilation.org.au.

You can see video versions of the ads here (15 seconds each). [Bonus feminist mini-rant: anyone notice anything about (a) those questions and (b) the male:female ratio?]