Public Policy Debate
Restrictions on speech, and what are the limits of acceptable public policy positions, have been the subject of much controversy, often under the rubric of "political correctness". Few areas have been more fraught with such concern than indigenous policy issues.
This is, in part, because "racist" has been used as a, perhaps the ultimate, word of exclusion. To be racist is to be indubitably excluded from the bounds of legitimate debate.
Which, of course, provides a very powerful weapon for anyone who wishes to exclude alternative points of view.
This is the fundamental problem with such exclusions: alternative points of view can be excluded simply by extending the appropriate definition. It is a bizarre state of affairs where it is considered "racist" to argue for "colour blind" public policy or to raise concerns about cultural coherence or development, or general social cohesion.
The problem arises because racism is seen as an ultimate sin. Failure to endorse "approved" policy directions aimed, regardless of actual effect, at eliminating differences in outcomes between racial groups can be characterised as racist "by implication". This is not helpful to open public debate. And it is only by open, continuing, examination that societies can hope to continue to progress and develop, let alone deal effectively with the many, and changing, challenges that confront them. In particular, it is not in the best interests of Aboriginal and Torres Strait Islander peoples that examination of policies aimed at their betterment be so heavily constrained.
Politics and political debate both suffer an enormous "problem of the commons" where people are able to impose costs on others for their own purposes and where investment in activity of general benefit is dissipated over many people, limiting both due care and public effort. The coercive underpinnings of political action make such transfers of cost far easier. (The problems of "underinvestment" in the public good are another reason why reliance on political action is something to be carefully considered.)
Killing Public Debate
Ethical positions are typically based on certain fundamental propositions. Moral argument and enquiry is carried on by defending those propositions, and applying them to actual situations.
This principled approach to ethics provides a coherent "bottom line" against which positions can be tested, accepted or rejected, or compromised over, as appropriate.
Unfortunately, much public discourse in modern democracies is characterised by what might be called "attitude moralism" where what is defended is not some set of general principles, but an attitude towards certain issues and groups. The result is not only political positions without functional "bottom lines" -- one is dealing with a moveable feast -- but also an approach to politics fundamentally opposed to reasoned discussion.
If what counts is one's "attitude", then raising of difficulties or unfortunate consequences or opposing claims is not a matter of legitimate disagreement, it is a sign of a "sinful" attitude and can be discounted without requiring considered argument, or any serious consideration whatsoever, except as an exercise in rhetoric or polemic. Opposing or critical positions are not merely discounted in advance, they have no legitimacy or avenue of legitimacy.
"Attitude moralism" provides low cost status. One does not actually have to do anything, incur any costs; one merely has to have, and state, the correct beliefs. Indeed, far from being costly, there can be real costs in proposing alternative outlooks: they are a sign of "sin" and of being "sinful". And it certainly saves on mental effort, including information gathering and serious consideration.
Policy positions become a matter of "hurrah" and "boo" words and phrases, with challenging of approved positions being a "boo" matter. We do not get government by discussion, but status by assertion.
With certain exceptions, the mainstream urban press in Australia appears to display a significant similarity of attitude on particular issues, such as indigenous issues. One is struck by the stories which do not get reported and the way particular issues are treated. Stories of corruption in "indigenous" bodies get very limited coverage; stories of abuse of power within Aboriginal communities get little or no coverage; the (low) level of participation in ATSIC elections does not get treated as newsworthy; cross-racial complexities in "totem" issues tend not to be covered; inquiry results hostile to "official" indigenous leadership positions are treated as problematic. (The characterisation of the "dissident" women in the Hindmarsh Island case as dissidents actually said a great deal about public power and authority in Australian society, and much of the mainstream press' supportive, at times even subservient, attitude to, certain sorts, of power and authority). There is a contrast between reporting of republican and constitutional issues -- with talk of a "horse and buggy" constitution, the monarchy as an outmoded (i.e. old, out of place) institution -- and the treatment of the age of Aboriginal society as a sign of special value. Similarly, the enforcement of Christian theology via, say, Tasmanian law on "unnatural" sexual acts, is given a different status from Aboriginal religious claims over land use. Secularism in public policy is required for the wider community, but not indigenous Australia.
Such treatment of issues as difficult and complex as the circumstances of indigenous Australians may allow the journalists involved to see themselves as "good" people, and may make life with their colleagues easier, but do a profound disservice to the interests of indigenous Australians. Not only does it make it more likely for other groups in Australian society to feel alienated from the public debate, with likely negative consequences for social harmony and cohesion, it also makes development of effective policies grounded in the actual circumstances of indigenous Australians much less likely. A pre-characterised public "discussion" floating in the air of comfortable conformity and assumed attitudes cannot hope to have that grounding in truth which can be the only basis for building a better future for indigenous Australia.
MODELS OF INDIGENOUS POLICY
Discussion of Aboriginal and Torres Strait Islander issues in the media, journals and formal politics tends to be dominated by two general "models" or theories about how the world works. The first model is the anti-discrimination model -- where social outcomes are analysed in terms of revealed discrimination. The second dominant model is the welfare model -- where social outcomes are analysed in terms of assumed malleability in response to direct government action. More surreptitiously, and rarely expressed in public fora, is a common presumption that poor Aboriginal and Torres Strait Islander results are all, or mostly "their own fault". What might be called the "the self-inflicted" model.
Each of these models is discussed below in turn, followed by a brief examination of the choices confronting indigenous Australians since the beginning of European settlement and an attempt to draw together a more workable synthesis.
Poor Aboriginal and Torres Strait Islander Health Outcomes Information taken from Bhatia, Kuldeep & Anderson (1995). Aboriginal life expectancy at birth is 16-18 years lower for boys than the Australian average, slightly more for girls. Aboriginals have more than twice the rate of circulatory disorders, almost 4 times the rate of injury and poisonings, 7 times the rate of respiratory disorders, but the same rate of cancer in deaths as the Australian average. The 25-34 age group has the most unfavourable death rate compared to the general Australian population. In Australia, only Aborigines suffer an increasing impact of non-communicable diseases -- particularly cardiovascular and diabetes -- without much decline in infectious-disease mortality. Identification of Aborigines in regular health data is generally recent. However, Aboriginal health improvements have been very limited and have lagged seriously behind improvements in health of comparable people in US, Canada and NZ. A lower proportion of the Aboriginal population than the general Australian population consumes alcohol regularly but those that do, do so more harmfully. This contributes to other forms of death -- transport, accidents, falls, etc. Information taken from ABS (1997) "Indigenous Australians suffer a higher burden of illness and die at a younger age than non-Indigenous Australians, and this is true for almost every type of disease or condition for which information is available" Compared to non-indigenous Australians, indigenous Australians
There was also little improvement in the death rate between 1985 and 1994, with no decrease in the death rate for Indigenous females. |
The Anti-discrimination Model
On average, the social outcomes of Aboriginal and Torres Strait Islander people in many areas of life -- such as life expectancy, arrest and incarceration, income, employment, educational attainment -- are noticeably, in many cases dramatically, below that of the Australian average.
One possible causal factor for such results is discrimination: intended or inadvertent present or past treatment different, and worse, than that given to other Australians in similar circumstances. Treatment which significantly reduced the opportunities, and consequent outcomes, for Aboriginal and Torres Strait Islander Australians.
It is demonstrably the case that such discrimination has occurred in the past, some of it on a massive scale. It is not difficult to find evidence which implies continuing discrimination. However, it is a reasonable question how causally complete such explanations are. Other groups have suffered discrimination as severe or worse than the most critical plausible analysis of the current situation for Aboriginal and Torres Strait Islander Australians yet have comparative social outcomes are or were dramatically better than the current results for Aboriginal and Torres Strait Islander Australians. (83)
It is very common, however to view discrimination as providing, perhaps not explicitly but by implication, a sufficient explanation of all inferior outcomes for indigenous Australians. Thus, indigenous conviction rates are often viewed as primarily matters of discrimination. Indeed, it is not hard to sift out evidence suggesting discriminatory police practice. (84) But that is far from the only, or the dominant, feature of the problem. Violence within many indigenous communities is very high; (85) a common phenomena among displaced indigenous communities around the globe which is connected to the collapse of traditional male roles.
Social processes are complex interactions between actions of individuals and social constraints and institutions. Looking at social outcomes primarily in terms of discrimination easily slips into a form of analysis where the group in question is cast in an entirely passive role; acted upon but not acting. In the case of the effect of discrimination on social outcomes, the question is not only its level and form, but also the response, and internal institutional, personal and social resources, of the group suffering the discrimination.
Nor is the current level of, nor even the legacy of past, discrimination in Australian society sufficient to explain the poor average social outcomes of Aboriginal and Torres Strait Islander Australians.
In a sense, the anti-discrimination model is reassuring in its simplicity. It can easily be taken to imply that, if the problem is discrimination, then its removal is straightforwardly the solution. There may be some issues about making up for consequences of past discrimination, but the way forward in policy still looks relatively clear. Unfortunately, the realities are not that straightforward.
The "Self-inflicted" Model
An obvious response to the poor average social outcomes of Aboriginal and Torres Strait Islander Australians is to hold that these are essentially self-inflicted. Discrimination on the basis of race is illegal. Vast sums of money have been specifically spent on Aboriginal and Torres Strait Islander programs; they have, at least formally, access to the full range of opportunities that Australian society provides. Therefore, so the argument goes, the problems must be self-inflicted. Groups of Aborigines drinking in parks, degraded publicly-provided housing, Aboriginal youth gangs and so forth adds strong visual images and experiences to such views.
One must surely, however, immediately wonder about whether members of any group would willingly choose to have such poor average outcomes. Clearly, choices are made which involve poor social outcomes, but that is very unlikely to be the intention of them.
A fundamental part of how we interact with the world is the culture and skills we acquire and use. The former in particular can so permeate our consciousness that we can be quite unaware of its importance or distinctive content. Nor can it be assumed that merely living in the same society, or even the same community, automatically involves a shared culture.
For the purposes of this study, 'culture' is defined as transmission from one generation to the next, via teaching and imitation, of knowledge, values and other factors that influence behaviour. (86) It provides a deep structure through which we view the world and ourselves. In economists' terms, it is that which, distinctive to a group, moulds preferences into identifiable, common patterns. It constitutes a set of informal constraints, a way of structuring our relations with others in a world of limited information and computational ability. (87)
Incorporated in a culture are informal institutions such as families, kin and clan structures, friendship networks and so forth. Societies can also develop formal institutions of both a state and non-state variety. The gulf between cultures which do not develop formal institutions and those where formal institutions are a dominant element in social life is particularly wide.
Aboriginal societies evolved to operate, generally successfully, according to the wants, needs and circumstances of a hunter-gatherer existence in an isolated continent. (The degree of Aboriginal success and harmony with their environment is often exaggerated: the arrival of the Aboriginal peoples was probably associated with the extinction of the Australian megafauna (88) while the Tasmanian Aborigines displayed clear signs of a loss of technological ability and cultural development; (89) like other peoples, the Aboriginal cultures had their successes and failures.) Torres Strait islander culture evolved around a settled agrarian base.
The arrival of the First Fleet at the Botany Bay represented the early Industrial Revolution meeting the Old Stone Age -- probably the greatest cultural, institutional and technological gulf that has ever suddenly confronted two groups of people in human history. (90) It is unreasonable to suggest that cultures based on hunter-gatherer existence, even ones of considerable sophistication, can brush aside dislocation and decay by war, disease (91) and displacement, deal with being confronted by a visibly stronger and materially more successful culture and society and then automatically provide their members with the wherewithal to survive and prosper in an advanced industrial society.
Particularly when full participation in the invading, and soon surrounding, culture was effectively, and purposely, denied for several generations. Alcoholic or other narcotic solace was, and remains, one avenue of escape, and one to which indigenous Australians had no cultural or biochemical resistance.
Culture, and its attendant institutional structures, is so important in transmitting skills, values, attitudes, aspirations, sense of identity -- the real bases of social achievement -- that it is impossible to understand Aboriginal and Torres Strait Islander Australia without understanding the scale, and implications, of cultural dislocation and, in some areas, collapse.
The notion of poor average social outcomes for Aboriginal and Torres Strait Islander Australians as being wholly or largely self inflicted is an inadequate analysis. That social outcomes are not independent of the behaviour of members of a group is clearly true. Indeed, improved health results are unobtainable without fundamental changes in personal behaviour, such as personal hygiene. However, a great deal more can be said than that. For example, that the understanding of the causes of ill-health incorporate understanding of the importance of diet and hygiene, rather than sorcery, ritual or spirit-world action. Moving from one "mental map" to another, and the associated skills and understandings, is hardly an easy or automatic process.
The Welfare Model
A particular group is observed to have poor average social outcomes. In a developed welfare society in the second half of the twentieth century it seems natural to conclude that remedial action, understood in terms of government intervention, will have a positive effect; with that effect following from the intention of the intervention.
In the 10 years to 1994-95, over $11bn was spent by the Commonwealth on Aboriginal and Torres Strait Islanders programs, or almost $40,000 per Aboriginal and Torres Strait Islander (1994-95 dollars). (92) Significant general social expenditure was also available to Aboriginal and Torres Strait Islander Australians. There has also been significant expenditure by State and Territory Governments.
This expenditure has not appeared to yield commensurate results. Indeed, the apparent, and conspicuous, lack of success in such expenditure may have a role in undermining public support for special programs.
The welfare approach might be seen as a reparations model, in which case it would be done as a "one off" payment, or, at the very least, as something clearly limited in scope. Alternatively, it could be seen as a pure "safety net", in which case there would seem no good argument for differentiating such programs from the general welfare safety net.
Given the lack of explicit limits or "use by dates" in the operation of differentiated programs, the welfare approach to indigenous policy has to be justified by an intention of improving social outcomes for indigenous Australians, particularly in comparison to the Australian average. This is certainly the stated intent of such policies.
In this form, the welfare model can be seen as a simple input-output model. Public monies provide the inputs, either as direct transfer payments or by purchase of education, training or other services. The belief is that such inputs will be sufficient to produce improved social outcomes. Public policy is seen as a matter of "intent + resources = results".
However, the experience of public policy has not borne out this hope. Social outcomes for indigenous Australians have remained stubbornly unresponsive to such expenditure. Such welfarist approaches do not have an impressive track record, either in Australia or elsewhere (see below).
The fundamental failure is that good social outcomes are not merely the result of resources, they are the result of how resources are created, acquired and used. Successful cultures and social groups are successful, not because some outside force gave them resources, but because they have adapted successfully to the circumstances in which they have found themselves. It is successful adaptation which has to be achieved: whether at the level of individuals, families or cultures. That is the only real, sustainable and ongoing source of social success, of good social outcomes.
Welfare represents provision of resources. How resources are provided determines incentives. The offer of such resources focuses effort on the acquisition of such resources rather than on development of other ways of adapting to circumstances. In particular, the rules for such programs themselves restrict behaviour. The potential for unintended consequences is very high.
The welfare model provides resources on the basis of proven disadvantage or other failure. The problem is not merely that it "subsidises failure", in the sense that resources are provided if one is in poor social circumstances; thereby reducing the incentives to change those social circumstances. The problem is that the welfare approach does not provide a path of successful, autonomous adaptation to circumstances, and undermines alternative paths by being the source of a continual flow of relatively easily accessed resources. (The operation of many of the eligibility criteria for transfers -- attempting to restrict access on the grounds of other activity or income sources -- is an admission of the problems of undermining alternate activity.) It displaces other forms of social activity. The comparative weakness of indigenous civil society both invites policy intervention and makes the displacement effect greater. The lives of indigenous Australians are more pervaded by policy interventions than any other Australians, for good and ill.
One of the fundamental problems with the welfare model is poor information feedback. Not only can recipients be insulated from the effects of poor decisions, or otherwise discouraged from making good ones, but those making administrative and policy decisions generally are not affected by the consequences of those decisions. Actual effects feed very poorly into program design, policy development and implementation.
This has been a particularly severe problem in indigenous policy, where, until comparatively recently, policy was developed entirely without consultation or consideration of indigenous views or wishes. The aforementioned lack of reliable statistical data on results indicates a continuing lack of systematic concern with actual effects.
Similarly, the well-funded skills development programs do not seem to have imparted the life skills required for improved health results, for example. One may reasonably ask questions about whether the selection of training, and adherence to it, was sufficiently efficacious or whether other policy failings have swamped the effects.
The development of the Aboriginal and Torres Strait Islander Commission (ATSIC) has been an attempt to increase indigenous input into policy and control over policy implementation. The creation and structure of ATSIC embodies the difficulties and tensions in indigenous policy. It represents an attempt to provide a structure for indigenous self-determination, with an electoral process choosing the Commissioners, though only about 30% to 35% of eligible voters participate. However, the Chair is appointed by the Minister and the degree of self-determination is inherently limited by the normal Parliamentary processes of control and oversight of expenditure of moneys appropriated through taxation.
But ATSIC's status as an indigenous institution is highly ambiguous at many levels. It disposes of funds granted to indigenous peoples, rather than resources arising out of their own efforts. It was created for, rather than by, indigenous people, so does not grow out of their experience and social structures. It represents a notion of authority based on Westminster concepts of adult suffrage and representation which are alien to indigenous cultures. It is structured on cartographical principles, rather than being based on, for example, indigenous cultural boundaries or groupings.
Lacking grounding in indigenous culture and experience, ATSIC's operation is not naturally enmeshed in the checks and balances of a vibrant civil society, making it an easy prey for corruption, nepotism and patronage. Nor is it notably successful as a representative body, given the low voter turnout. How many of those who fail to vote do so because they do not wish to be a special case, separate from mainstream Australia, is an interesting question. If ATSIC is neither culturally grounded nor popularly representative, it is merely providing the facade of representation and cultural respect without the substance of it. As such, it is a hollow, expensive distraction. Unless it can provide at least one or the other -- and if it were properly grounded in Aboriginal cultures it would likely to provide both -- it should be dispensed with.
Land councils can suffer similar contradictions as indigenous organisations, with similar, or even greater, problems.
There is a major complication in that Aboriginal cultures are generally innocent of the concept of formal obligations and structured very strongly around kin groups. The accusations of nepotism and cronyism (and corruption) which have come to regularly attend Aboriginal bodies (93) in many ways represent a "clash of cultures" where culturally strong kin obligations clash directly with the formal obligations which are required under Australian law and political practice, but which have little or no resonance in Aboriginal cultures. Such tensions are hardly unique to indigenous Australia, being a well-known difficulty in Africa and elsewhere. They do, however, create significant difficulties in providing public moneys for indigenous programs.
Such issues also create general problems with asset management, efficient use of assets being based quite strongly on formal obligations. These problems are not insurmountable, but are real and have to be faced. They are part of the process of cultural adaptation which must take place if Aboriginal and Torres Strait islander conditions are to improve.
Indigenous policy has been moving towards the development of skills and acquisition of assets (or "empowerment"). Unfortunately, use of inalienable title in many Aboriginal land grants of the 1970s and 1980s greatly restricts the utility of such land (see below). The approach seems "totemistic", as if mere possession of land, no matter how restricted, is enough to garner serious benefits. Indeed, the preamble to the Native Title Act says
"The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders....have been progressively dispossessed of their land. 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"
as if the only issue was the possession of one particular form of asset -- land -- fair retention of which would have been, and is, enough in itself to ensure full, effective participation in all the benefits of a modern industrial society. This is a view of spectacular silliness, suitable only for statements of vacuous political self-importance.
The welfare model does offer various advantages as a form of political exchange. The deployment of resources provides means of garnering support and facilitating patronage networks. The simple "input-output" approach with effects being taken to flow fairly directly from intentions plus resources allows easy display of moral purpose without the difficulties of working out actual effects. Questioning the value and efficacy of such programs can easily be construed as hostility to the recipients or the cause of indigenous advancement.
The input-output model of policy also encourages general confidence in political action, particularly at the national level. Questions of discovery of the actual effects of policy, one of the major advantages of federalism through allowing observation of different policy approaches, do not arise. On the contrary, policy diversity is simply a case of "inefficiency" while, given the assumption of public interest efficacy, questions of the advantages in division and decentralisation of power do not arise.
Yet the brute fact is that indigenous social outcomes have not been positively responsive to the welfare approach: indeed, in many areas, such as violence within indigenous communities, there has been deterioration. Nor is Australia unique in this regard -- similar results have been the experience in New Zealand and North America. For example, Maori unemployment rates have fallen far further as a result of labour market deregulation than they had ever responded to social spending.
Rational Ignorance and the Quiet Life The intent + resources = output model is, for the general public, a means of dealing with ignorance. Measuring results is difficult and costly, and no doubt would be irrational for most people. Intentions are easy to grasp, as are expenditures (at least in a comparative sense: $1bn is a big program, $1m a small one, $300m is less than $500m, and so on). So the dialogue of politics is conducted in terms of intentions, responding to the (rational ignorance) of the public. Endorsement of intentions is also an easy way of salving the conscience. For bureaucrats, on the other hand, it is a device for an easy life. The answer to every problem is more money and the question of actually putting effort into working out better ways of doing things does not arise. (In particular, the question of whether it is an appropriate role for government does not arise.) Thus annual reports of Departments and statutory bodies typically have statements of activity rather than measures of actual results. Which indicates, of course, a major weakness in political mechanisms; they are poor at processing information and at producing appropriate incentives to improve the processing of information. |
Looked at closely, the welfare model for indigenous policy looks very much like a "cargo cult" attitude to policy. Prosperity and good social results come from "dropping" resources on groups with poor social outcomes. Even the language of "disadvantage" implies that the solution is some sort of giving, that social justice is a gift.
Actual experience does not bear this out.
The welfare model, even more than the anti-discrimination model, implicitly assumes that the path to achieving better social outcomes for indigenous people is granted to them from the outside. It constructs their policy identity in terms of passivity and failure and encourages, to a degree which is counter-productive, a belief that the central issues of indigenous life are something that someone else has to be responsible for solving.
To achieve better outcomes, indigenous people need to develop ways of operating in modern society. Such development ultimately has to come from an internal process of cultural and institutional adaptation. It cannot be given from outside. It may, by very careful policy, be assisted; but no more than that.
We may also wonder whether there is indefinite electoral tolerance for expenditure on indigenous specific programs which do not appear to be working -- "failure to work" being inferred from the fact that the problem does not seem to be going away, and is of a type which, at least notionally, should. Popular support for welfare expenditure is a mixture of compassion and social insurance. Programs for which most people are never going to be, or likely to be, eligible are particularly vulnerable to popular disapproval, as they do not provide a general social insurance element. Expensive, ineffective, apparently endless provision for an identifiably discrete group is an area of social expenditure particularly vulnerable to popular disapproval.
Problems with Transfer Payments
Transfer payments -- known in many Aboriginal communities as "sit down money" -- have been a common responses to disadvantage, including disadvantage based on past discrimination.
The growth in government expenditure in OECD countries since 1960 has been dominated by growth in transfer payments. A recent IMF study, (Tanzi and Schuknecht [1995]) has found that growth in government expenditure since 1960, unlike earlier expenditure growth which was largely directed to physical and social infrastructure, has not been associated with improvements in social indicators.
Transfer payments represent a centrally directed coercive transfer of income from one set of citizens to another. This results in them being a costly form of exchange.
They are costly to raise because of the compliance, administrative and activity-displacing costs of taxation. Ordinary commercial and charitable exchanges involve trades both parties wish to take place. Since the exchange is voluntary, (94) the enforcement costs are far lower and the resources exchanged are much more likely to satisfy the preferences of the transactors.
Taxes have high compliance and administrative costs because people have to be forced to pay them. Taxes impose penalties on undertaking some activity that has no connection with the benefits being received. It is rational, therefore, for people to do all they can to avoid taxes, including undertaking taxed activities less than they otherwise would. Taxes, by raising costs and lowering incomes, also render many potential economic transactions non-viable. The total xtra cost of taxes may be as high as 20 to 40 cents for every dollar of taxes collected.
So, for tax funded expenditure to be a net social gain, it has to be very effectively spent. Effective spending in turn requires good information about what is valued. Yet political mechanisms are poor ways of generating and using information about preferences and effects.
In particular, the key decision makers are typically highly removed, and insulated, from the effects of their decisions.
It is hard to see how, as is sometimes suggested, the process of coercive transfer or direction of resources is somehow uniquely bonding or socially developing.
In fact, coercive transfers of resources typically involve narrower levels of social action and interaction than other alternatives. For example, work provides all sorts of ancillary skills and benefits welfare dependency does not. This is hardly surprising, since private action is action, the inter-acting of autonomous decision makers; the stuff of which a vibrant civil society is made. It is not a one-way process of dependence. Far from having a monopoly of the social and the public, government is often a second best form of both. The lack of evidence of long term social benefits from transfer payments, is not surprising.
Nor does the experience of large scale use of transfer payments in indigenous policy in Australian provide counter-evidence for this poor record.
Interventionism
The twentieth century has seen a vast increase within Western societies in the scale and scope of intervention by government in social processes. Confidence in the capacity of government to intervene successfully in economic processes has clearly receded somewhat in more recent times, particularly in the light of the failures of the command economies.
Even so, confidence in the capacity of government to intervene in social processes remains high. Aboriginal and Torres Strait Islander policy, in particular, revolves around government action to remedy social problems.
There is widespread confidence in the view that
- Poor outcomes for Aboriginal and Torres Strait Islanders are due to a deeply flawed society
- Deliberate policy action can efficaciously remedy those flaws
- Government is likely to undertake such policy action.
The distinguishing feature of government is the operation of legal coercion (in Australia, within a parliamentary democracy). So confidence in highly interventionist policy is the belief that the operation of legal coercion can be relied upon to efficaciously improve the operation of social processes. To improve them so as to induce better social outcomes for a group specifically regarded as poorly treated by the general society.
One might reasonably ask, what evidence there is for this proposition?
The argument is that society is seriously flawed, but political action can correct this. But is this political action somehow freestanding? Or will it also reflect underlying social norms and processes? Does it have other failings and inefficiencies?
Four realms of state action can be distinguished. In the first two, the government provides basic rules and ensures provision of desirable services which either would not be provided or would be seriously underprovided otherwise -- the rule making and enforcing and public good funding operations of the state. The legal coercion powers of the state are clearly essential for rule making and enforcing and may be of substantial assistance for ensuring provision of public goods.
The third realm concerns the actual operation of public utilities. In particular, natural monopolies carry a risk of an unacceptable concentration or inappropriate use of private power, leading to inefficient provision and monopoly profits. One solution may be industry-specific regulation. Another solution may be for public ownership for such roles as system planning and setting market rules. (95)
The democratic/public interest aspirations of the state, and its rule-making role, and, paradoxically, its lack of commercial focus can make it a preferable wielder of monopoly power, though there is clearly a trade-off with the inefficiencies of public ownership and dangers of state power.
Failures of Welfare Policy (I): US Inner Cities An example of the dubious reliability of the remote application of legal coercion as a social mechanism is provided by inner city America. Many policies intended to help have had perverse consequences while many other policies have had unintended negative effects:
US inner cities are more pervaded by government action than any other part of US society: policies largely decided upon elsewhere. The relative weakness of civil society is both cause and effect, with poor social outcomes prompting policy intervention leading to a displacement of voluntary action in an interactive and destructive spiral. |
The fourth realm of state action covers areas where the state is claimed to simply do significantly better in replacing or significantly altering social processes. Here, a very great deal of reliance is being made on the democratic/public interest aspirations of the state. Yet, how likely is it that the state, the wielder of legal coercion, would be, significantly and systematically, over decades, more moral than the surrounding society? And there are significant costs to the wielding of legal coercion.
Nor is it to be forgotten that the concept of the "public interest" is not a stable one. Far from it, as indigenous policy shows particularly strongly (see below). There are many implied social contracts in public policy which have been reneged upon by government because such contracts prove to be unenforceable. Looking at the lack of fundamental improvement in Aboriginal and Torres Strait Islander conditions over the last two decades, the presumption that political action is more moral and efficacious in such social processes than other social action has not been supported by the actual results.
Failure of Welfare Policy (II): Some Results The failures of welfare policy are particularly well documented in the US. For example, in 1968 and in 1980, 13 percent of the US population was classified as poor despite a quadrupling of expenditure on social welfare. In 1954, black males had a labour force participation rate only slightly lower than white males. By 1976, black male labour force participation was 7.7 percentage points lower than white males. In 1950, 17 percent of black births were to single mothers, by 1980 48 per cent were. Yet, in 1980, government health expenditure was 6 times, public assistance 13 times, education expenditure 24 times, social insurance 27 times and housing 129 times the 1950 figure. Experiments in Seattle and Denver with income maintenance also provided evidence of deleterious effects from income transfers. Work effort declined in families receiving income maintenance: most strikingly young males who never became heads of households reduced their hours of work by 43 percent. Family break up accelerated -- dissolution of marriages was 33 per cent higher among whites and 42 per cent among blacks receiving income maintenance than non-recipients. (96) An example of perverse effects is provided by the effect of family income assistance in Australia on the unemployment rate among couples with 4 or more children. In August 1985, unemployment rates showed very little difference by family size. By August 1995, the unemployment rate for couples with 4 or more children was almost 10 per cent, compared to about 4 per cent for couples with no children or less than 4 children, despite the overall unemployment rates being about the same in August 1985 and August 1995. The much more generous family income assistance available by August 1995 depressing the incentive to seek work (by raising income not connected to work and raising effective tax rates through the assistance phase-out provisions) must be the prime suspect for an otherwise surprising result. That the unemployment rate for single parent families had climbed from 12 to 18 per cent and the number of single parent families had increased 40 per cent over the period is similarly hard to explain without reference to the structure of income support. (97) |
Indigenous Australians as Rational Actors
Aboriginal and Torres Strait Islander cultures evolved in order to deal with the problems and circumstances which confronted indigenous Australians in their various geographical and climatic circumstances. Some of these cultures worked better than others, (98) but all dealt with relatively static circumstances for many thousands of years.
With the coming of European settlement, the small hunter-gatherer groupings had to deal with a wave of changes entirely outside past experience. Their cultures provided almost no assistance. Devastated by new diseases, confronted with far superior levels of technology and far more effective forms of social organisation, rapidly greatly outnumbered and effectively entirely excluded from the decision-making of the new society, indigenous Australians were confronted with a very poor range of options in dealing with the invasion of their homelands. The almost complete inability of the previous cultural reference points to assist must have greatly inhibited the ability, and thus the motivation, to invest in long term responses. There was no clear "map" of action.
Violent resistance was tried by some, but was ultimately fruitless. Trading useful skills for a place in the new society was another path, most obviously used by indigenous stockman and police trackers. The former, in particular, were very important in developing the frontier. (99) However, without absorption of a comparatively high level of understanding of the ways of the new society -- including the value of formal education, the nature of property, the forms and uses of assets -- such trades could only provide a relatively marginal place in the new society. The lack of recognition as full participants, fuelled by both conflicting interests (from those who wished to displace indigenous Australians from their land) as well as mutual incomprehension, provided further barriers. The complete unacceptability of Aboriginal men as spouses by respectable European women was a particularly strong statement of social distance. The role of missionaries in providing an educational entry to the new society was, therefore, crucially important.
The greatest moral and practical shortcoming of the "protection" regimes was their failure to provide paths to full, effective participation in Australian society. Cultural distance, admittedly immense, was seen as some sort of permanent, perhaps genetic, failing. Aboriginal leaders in the first part of this century agitated against, and denounced, this failure to allow the full benefits, through full participation, of Australian society to indigenous Australians. Protection gave a, highly patronising, role within Australian society to indigenous Australians. While it permitted "exempt" Aboriginals to leave the constraints of reservation life, this status could be revoked at any time. So, while there was more capacity to invest in participation in Australian society, its inherent insecurity discouraged such investment of time and effort. Indeed, the legal restrictions on indigenous Australians generated clear incentives to not identify as Aboriginal or Torres Strait Islander Australians. However, such denial of ancestry did not generate the human and social capital required for full participation in Australian society.
The change to "assimilation" did at least entail a belief that indigenous Australians should and could participate fully in Australian society. The very limited "human capital" (in the form of economically useful skills and appropriate life skills) and "social capital" (in the form of appropriate cultural adaptations and institutions) possessed by most indigenous Australians was taken to be overcome by simply transferring to mainstream Australian culture -- if necessary by separation from families and adoption into non-indigenous families. (However wrong the separation of the "stolen children" from their cultural origins may seem now, it is appropriate to remember that it was state intervention intended to give better prospects for the next generation.)
Assimilation provided wider options for indigenous Australians without properly addressing the human and social capital issues. The wider options certainly allowed a more favourable set of choices for indigenous Australians, choices which were taken advantage of, but did not fully deal with the circumstances of indigenous Australians. Indeed, as with the NT Cattlemen award case in the Northern Territory (see above), a blanket assumption of complete equivalence, narrowly conceived as a single, "one size fits all" approach, could be very harmful.
The adoption of the welfarist approach, with special programs and institutions, improved the recognition of indigenous Australians at the superficial level: that there are cultural distinctions is acknowledged. Unfortunately, these are treated in either a very superficial way, or imposed in legislation as some sort of cultural reservation or "zoo" (as with indigenous land ownership). Such an approach does not allow for cultural change and adaptation, except in ways which respond to the incentives of government programs and legislation -- such as seen in the Hindmarsh Island case, where cultural practices (secret gender based religious traditions) not part of the local culture were claimed to be part of that culture, the plausibility of the claim resting largely that such practices were known to be part of other Aboriginal cultures. In other areas of public policy, cultural difference is not acknowledged usefully at all, as with housing policy or the structure of "representative" bodies such as ATSIC. Even more destructively, the fundamentally welfarist approach encourages a focus on gaining resources from government largesse rather than building up independent paths to economic and social development. "Sit down money" has not been a positive factor in fostering self-sustaining processes required for genuine advancement.
The general approach of granting only communal inalienable title as the standard form of indigenous legal interest in land, as expressed via various Land Rights Acts, is also highly paternalistic, as if indigenous people cannot be trusted with full title. It imposes a unitary concept of "traditional" ownership. In determining what the continuing indigenous legal interest in land recognised by common law was, the High Court was bound to hold that they derive from indigenous customary forms. However, successful cultures evolve to deal with new and different circumstances. History is yet to produce circumstances as new and different as modern industrial society is to Palaeolithic hunter-gather existence. If indigenous Australians are to build a better future, then their legal interests in land should not be in a form "snap-frozen" by legislative fiat. They should be in forms that allow the titleholders themselves the widest possible range of options. The claim that indigenous cultures "require" such differentiation is spurious -- normal freehold title, as enjoyed by most Australian landowners, does not require sale or assets being borrowed against, it merely permits it as an option, which owners can decide not to take up if they so choose. It is a permissive form of title, treating owners as responsible decision-makers.
Seeking Indigenous Solutions
Clearly, past approaches to indigenous policy have not been effective or satisfactory.
What is needed is an appropriate set of principles to guide policy, principles which reflect social reality and an understanding of the successes, failures and limitations of past policy.
Normally, one would have started a discussion of principles with working out the appropriate goal of public policy. However, it is open to question whether any area of Australian public policy over the last century or more has been more marked by changes in policy goals and implementation than indigenous policy. The instability of public purpose and public policy in this area is a major reason for caution in formulating policy goals. Indeed, it is grounds for caution about political action generally.
The reason for this policy instability is clear enough. First, and most importantly, until comparatively recently indigenous Australians were overwhelmingly passive recipients of policy. They were neither involved in the formulation of public policy, nor did they have the institutional basis to formally participate, resist or adjust public policy. They were at the mercy of policy ideas and interests arising primarily from the wider Australian polity. As these ideas and interests changed, quite profoundly, so did policy.
Also important is the sheer difficulty of the issues involved in indigenous policy. Indigenous Australians simply do not "fit" neatly into the parameters of European settlement. They did not choose to participate in what became the Australian polity, it was thrust upon them. They are culturally distinct and their cultures have no alternative place of preservation. The question of how much they can or should be preserved in the modern world is complex. The cultural (including institutional and especially technological) separation was huge.
One of the reasons indigenous policy has been so vexed in Australia is that all sides have matters to be deeply uncomfortable about. Indigenous Australians faced far better armed, organised and numerous new arrivals. Much of their existing cultural and technological legacy was either of little value, no value or positively counter-productive in dealing with the invaders. They were supplanted in their own land. This reality both gets in the way of a vision of Australia as a free, liberal and moral society and confronts the descendants of the defeated with a legacy of failure and defeat. Even this, however, is complicated by many cases of partial or successful individual adaptation to the new society (Firebrace and Gardiner [1997]).
That disease was a far bigger killer than guns or poison -- as was normal when an epidemiologically isolated indigenous population met the much more disease experienced and resistant cosmopolitan Europeans -- does not alter the underlying realities. That the Europeans had overwhelming material superiority is beyond question. Australia now supports many times the number, and at much higher material standard of living, than was possible given the technology and culture of the indigenous peoples. The inevitability that the invaders would prevail leads some to deny it was an invasion -- something of such ease is merely "settlement" -- and gives descendants of the defeated apparently little, except a sense of grievance, to hang onto.
Oversimplifying somewhat; "protection" did not work because it was incompatible with treating indigenous Australians as full citizens and discouraged or frustrated investment in human and social capital. "Assimilation" did not work because it often treated indigenous Australians as "blank slates" without history or heritage and did not confront the human and social capital issue except as something to be (generally) dealt with from the outside. What is known as "self-determination", but is more aptly labelled "welfarism", has not worked because it has failed to provide structures and incentives helpful for successful adaptation to modern society.
This history of policy failure suggests an appropriate goal for indigenous policy:
to facilitate, to the extent it is reasonably practicable for public policy to do so, the full participation of indigenous Australians in the life and benefits of Australian society through fostering the development of the individual and institutional bases of such participation.
A key principle here must be anti-discrimination:
that people be judged and treated -- at law; in the workplace; as citizens in the discharge of civic responsibilities; in the provision of social services; in public places -- on their merits as individuals not according to their group membership.
Barriers should not be put in the way of indigenous Australians' participation in civic life. Neither the explicit barriers of prohibition nor the subtle barriers of negative incentives. Full application of the principle of anti-discrimination must imply that group specific programs, particularly transfer payments, are implemented only when such discrimination serves, very effectively on the ground, some other, central, public purpose. They should also, in accord with the international Convention, be conceived as terminating measures.
Other key principles are acknowledgment:
that the distinctive cultural identity and heritage of indigenous Australians be acknowledged as both a legitimate expression of the diversity of Australian life and as an historical reality
participation:
that public policy, in its development and implementation, incorporate the experience, views and preferences of indigenous Australians
and empowerment
that public policy, where practicable, allows indigenous Australians to make their own decisions, and to develop their own forms and structures for individual and social action.
These latter principles strongly suggest that decentralised decision making is the appropriate path forward in public policy. The creation of programs labelled "Aboriginal and Torres Strait Islander" which are centrally designed and essentially replicate mainstream programs do not represent a serious application of either principle. There must be a clear purpose to such program differentiation, with effective feedback on results. Otherwise, the principle of anti-discrimination directs the operation of programs common to all Australians. After all, rights as indigenous Australians can extend no further than the operation of activities which were part of the hunter-gatherer societies of the continent or the agrarian societies of the Torres Strait. Rights, freedoms and opportunities to gain the benefits of participation in a modern, industrial democracy pertain simply to being Australian.
A policy which overwhelmingly constructs the effective policy/political identity of indigenous Australians in terms of disadvantage and dependence does not represent an approach at all likely to achieve that successful adaptation to modern society.
An example of the problems of such policy formulation is housing policy. Aboriginal cultures, as hunter-gatherer societies, did not have internally evolved forms favouring sedentary existence. Nor can it be assumed that loss of aspects of historical cultures means that the cultural norms and adaptations of the surrounding society have been smoothly adopted. Simply allocating housing which assumes a sedentary, nuclear family structured culture neither encourages development of norms of respect for such property -- as something simply "given" it does not represent invested personal effort, and is usually valued accordingly -- nor represents housing of a form naturally functional for extended kin systems. Even the most apparently "formal" and impersonal processes, such as allocation of public housing, can involve deeply embedded cultural assumptions. Out of such cultural differences is created both poor public policy and poor community relations. The sight of poorly maintained, or simply abandoned, (100) tax-provided housing, is not likely to be positively viewed by, say, a low income family struggling to pay off a mortgage or unable to escape from rented accommodation. Nor does allocation of housing on that basis encourage appropriate cultural and institutional adaptation.
Indigenous societies around the world face major difficulties in adjusting and adapting to the modern world, even in those countries where there are no deliberate barriers to their participation in the economic, social and political life of the surrounding polity. Africa displays the enormous difficulties in evolving from tribal societies to modern market industrial societies. (101) However, welfarist approaches, either domestically or through foreign aid, have not shown themselves to be successful methods of fostering this necessary adaptation.
In part this must mean giving up some of what they have been. But so have all cultures. The achievement of the mass prosperity and life expectancies of Western societies was itself the result of institutional and cultural evolution. If the level of poverty, unemployment and lesser life expectancies of indigenous Australians are unacceptable, then the necessary steps to achieve better have to be undertaken. To refuse to accept the need to change attitudes to asset management, formal obligations, nutrition, beliefs about causality and so forth is to accept continuing poverty. Hard choices remain, but the issues involved are so serious they must be faced.
LAND RIGHTS AND NATIVE TITLE
The Role of Property Rights
Citizens of industrialised democracies take for granted a level of prosperity, and of increasing prosperity, which, far from being the normal human circumstance, is unprecedented in the sweep of human experience.
This prosperity is no random event, but the result of the evolution of institutions peculiarly suited to the production, and maintenance, of such prosperity (North [1990], Powelson [1994]).
Essential to the difference between the institutional structures of the industrialised democracies and the human norm has been far lower transaction costs, so a huge range of exchanges become possible. Not only are exchanges much easier and cheaper to transact, but those same institutional structures direct human effort far more to wealth creation through voluntary exchanges than to the pursuit, use and abuse of power. (102) Institutional structures with lower transaction costs have a fundamental and enduring advantage in providing freedom and prosperity to their citizens.
Well defined, tradable property rights have been basic to that institutional structure. Precisely because people can make decisions about their own property in their own way, and can be confident of gaining the returns from investment on their property, the capacity to discover and utilise more effective use of assets, indeed, to discover new assets, has been greatly increased. It puts decision-making in the hands of those most likely to be knowledgeable about the asset and with a direct incentive to extend and use that knowledge.
The more uncertain property rights are, either in their extent or in their security, the less incentive there is to invest in finding better uses for them, particularly over the long term. The larger the number of players that have to be dealt with, regardless of whether they contribute to the exchange, the higher the costs of transacting and the fewer exchanges will take place.
Exchanges where people are only involved if they can contribute some benefit to the exchange, maximising the incentive to discover such benefit, must make more productive use of resources than exchanges where some can force involvement without contributing anything due to some allocated privilege.
Complex differentiation of property titles -- for example, vesting de facto mineral rights in some holders of legal interest in land but not others -- decay the framework of property rights. Indeed, such differentiation allocates a benefit likely to be of far less benefit to the owners than the social losses from decreased economic activity, as in the case of miners abandoning activity in areas where a more hostile property regime applies, which has been the experience in the Northern Territory under the Commonwealth Northern Territory Aboriginal Land Rights Act.
Similarly, complex transactional process, involving many "moving parts" and involved parties, particularly if rights are not differentiable and tradable, undermine property right regimes, as do sudden changes in rules or wide operation of official discretions.
While we are the beneficiaries of a long, remarkably successful, process of institutional evolution, there is no certainty that we will bequeath as good a set of institutions to future generations. If we make poor choices regarding the institutional basis of our prosperity and freedom, then we can easily leave an more impoverished legacy to our successors than we received. Preserving a solid structure of general property rights, not ridden with special privileges or exposed to arbitrary official acts, is central to ensuring we pass on institutional structures at least as good as those we inherited.
Security, Wealth and Freedom
Secure, well-defined private property is an essential element both for sustained property and for a free society.
Unless citizens have resources which are securely theirs, to dispose of as they wish, they must be at the mercy of the whims of those holding official power. As Hayek pointed out, a relatively lowly paid official, armed with the appropriate legal discretions, has far more power over our life than the millionaire who lives next door. Secure private property is our buffer against the vagaries of power.
These points apply with no less force to land law. In the words of Kirby J, in the Waanyi case
"In land law certainty is a dominant demand of every mature legal system" (103)
The Mabo revolution in Australian land law has not increased the level of certainty, a point made by Kirby J in his Wik judgement (see Appendix IV).
Property rights, including property in land, did not derive from some pre-set principles, handed down from on high. On the contrary, they evolved over time from the interaction of power groups, interests and beliefs. Principles emerged as ways of handling the clash of interests, of codifying the results. The general tendency, because it provided for the widest and strongest congruence of interests in a pluralist society, was for property law, and land law in particular, to evolve towards simplicity, with increasing security and increasing discretion in its use.
Freehold title, with a single legal owner able to sell and otherwise make decisions regarding the land, represents the clearest outcome of this tendency. Secure private property is the basis for sustained prosperity because it allows clear delineation of who can decide what to do with what. The owner-decision maker is given excellent incentives to maximise the value generated from the asset. Freehold title provides a particularly efficient form of ownership. It massively reduces transaction costs in decision-making since there is a single holder of rights over the land. (104) As with other assets, mere "ownership" does not provide the basis for wealth. It is the secure right to use that asset as one sees fit which provides the basis for productive use of the asset.
That (normal) freehold title is neither communal nor inalienable are both very important advantages. That it is not communal allows far easier decision-making in its use. It also makes it more likely to be used in innovative ways. It means the benefits of successful decisions, and the penalties of poor ones, are concentrated rather than dissipated, maximising the incentives for effective use. It does not run the risk of a "tragedy of the commons" where resources are overused possibly to the point of exhaustion, because the incentives are to gain maximum individual use at minimum investment or care.
That (normal) freehold title is alienable allows property to pass easily to those able to use it more efficiently, by their willingness to purchase it, and provides security able to be borrowed against, allowing easier raising of capital for development. Far from being some triumph of gentler cultures, granting land on a communal and inalienable basis greatly reduces its value as an asset to the new owners. It also reduces the value of Australia's assets, and thus the ability to maintain or improve the general prosperity, by largely removing such land from normal economic processes.
The failure of the command economies, particularly in agriculture, provide a stark example of the deleterious effects of communal, inalienable title. Contemplating the apparent starvation of North Korea, it is lunacy to then advocate similar policies as the path to advancement for indigenous Australia.
Prior to Mabo No 2, the main complexity in Australian land law came from the operation of pastoral leases, granted under various statutes and comprising a wide variety of lease arrangements. Areas of Australia settled earlier are overwhelmingly freehold, while later areas were more commonly granted under leasehold, pastoral leases originating from an Order-in-Council of 9 March 1847. (105)
Leases for limited time periods or limited land use are clearly inferior forms of title to freehold. Short term leases are also notorious for encouraging short-term attitudes to land management: secure title allowing varied land use is considerably more open to better environmental management.
Despite oft repeated claims that the persistence of native title does not reduce the rights of existing pastoral lessees, the reality is that the existence of more than two private parties with enforceable legal interest in the same land must raise the complexities of dealing with that land, reducing its economic value through increased decision making (transaction) costs. Add on uncertainty and costs involved in establishing whether native title exists in the first place, and to what degree and for whom, and the burden on land use become considerable. Indeed, the evidentiary problems involved in establishing native title on the basis of largely oral evidence are very considerable. (106)
Native title does provide an acknowledgment that indigenous history and culture have value. It incorporates indigenous history and experience directly into mainstream Australian institutions far more completely than anything else has. The cost of overturning the foundations of Australian land law have, however, been high.
It also appears to offer (some) indigenous Australians the benefits of property rights, of enforceable claims on assets. However, the likely benefits are extremely limited due to its nature as communal, inalienable and partial title.
Before native title, the political identity of indigenous Australians had been constructed around concepts of disadvantage and discrimination. This has lead to high levels of welfare dependence, which have proved to be culturally and socially debilitating. Welfare handouts have, patently and predictably, failed to provide a way out of the cultural and social consequences of defeat and supplantation. How could they? The language of disadvantage and discrimination is not the language of achievement. It is not a basis for policy which is likely to create the opportunity for ongoing social achievement. Cultural and social success is based on achievement, which ultimately must come from within: achievement is precisely the thing which cannot be given. It is the ultimate statement of being ourselves.
Native title appears to offer something new: that the preceding societies were not simply a discard of history; that they generated rights which the supplanter society acknowledges and incorporates.
The problem is that they are very limited and variable rights. Determining who has what is not going to be a simple business. Not least because prior to 1788, this continent was a land of many cultures and social arrangements, there being no sole Aboriginal culture. There were also many different ways its resources were used.
And, in practical terms, native title rights are new rights. The common law may now say they always existed, but that has not been the case in past practice. Holders of existing rights over land (and seas) suddenly have to deal with claims they are not used to dealing with. The uncertainty involved, and the likely negotiation and litigation costs, are a new, and unexpected burden on rights already paid for on a different basis. Political resistance to such burdens has to be expected, has already manifested, and is likely to continue.
Broadly speaking, there are three paths open to deal with the uncertainty and sub-optimal use problems resulting from native title claims on pastoral and other leases.
Simple extinguishment
The first has the advantage of having one agent, the Crown, to which all native title claimants would be able to direct compensation claims, under Section 51 (xxxi) of the Constitution. It would also make freehold title secure. Normal economic activity could continue on land unencumbered by extra legal interests. However, this is not likely to be acceptable to indigenous Australians. Also, the limitations of pastoral leases as a form of land tenure would still apply. The poor quality of native title as inalienable, communal and partial would hardly assist cases for putting high compensation value on such extinguishment.
Codification.
Codification preserves traditional usage and provides a known framework for land usage. Codification is also likely to indicate how limited traditional usage of land, by the standards available to an industrial society, is and was. (107) However, it still leaves the difficulty of multi-party legal interest in the same land and the limitations of pastoral leases as a form of land tenure.
If codification is going to be developed from existing Aboriginal cultures, then it must be a costly and expensive task, with separate codes for each culturally distinct Aboriginal group. This complexity would also reduce considerably its value in reducing transaction costs. If it is going to be a single code for all native title claims, then it will gain simplicity and ease at the expense of any serious cultural authenticity. It will be the facade of cultural respect without the substance of it.
Nevertheless, it may provide a workable solution. One certainly preferable to a slow elaboration of what is meant through interminable court cases.
There is, however, a significant potential problem. If it is communal, there is less individual incentive to invest in its value, commercial or otherwise (and the native title has no clear interest in the commercial value of the lease anyway). (108) Getting decisions can also easily become a difficult process. If native title is inalienable, then it is not tradeable. There is no commercial value to be lost. A pastoral lease is tradeable and does have commercial value, dependant on the quality of the lease and the local circumstances. If two groups are to share a legal interest in the same land, but one is subject to potentially significant commercial loss from the relationship operating poorly and the other is not, great potential for poor relations are generated. The incentives for taking responsibility for consequences are not balanced -- any suggestion that the beliefs of the native title holders will operate in such a way to balance the incentives is entirely an act of faith and not much consolation for any lessee where that does not prove to be the case. Such imbalance is a very shaky foundation on which to build land law covering up to 40 per cent of the continent.
There should also be means available for reasonable exit by either parties from a relationship which fails to work effectively. It would not be fair public policy, for example, to make pastoral lessees effectively hostage to a relationship which they could not exit without significant loss of invested effort and capital, paid for and undertaken in good faith.
As indicated elsewhere in this paper, there are good reasons why, in prosperous societies, land law has evolved away from communal and inalienable title to alienable, individual title such as freehold.
If the native title rights were sufficiently limited that any effect on the operation of the lease was minimal, these considerations would apply to much lesser extent. Such rights, however, would clearly not provide much value in improving the material lot of indigenous Australians.
Conversion to freehold title
One way for a relationship to be exited is for one party to "buy out" the other. Provided neither party has incentives or ability to drive down the value of the rights of the other, and either can sell elsewhere, such purchase can be a mutually satisfactory way to resolve the relationship.
Conversion to freehold would involve concentration of the legal interest in the land in a single owner. Where a pastoral lease is converted to freehold title, the clear decision rights facilitating use and investment thereby creates value. To just convert the leases would create a windfall gain to pastoral lease holders because freehold is a superior form of title, giving more security and control. Such conversion should be optional, and done on the basis of fees paid for the extra rights gained. Where there are native title holders, such conversion would require "buying out" their legal interest. The funds paid to indigenous title holders could be the basis for building up a serious asset base including purchasing of additional freehold land. Clearly providing such an option could also provide the opportunity for regularising the restrictions on mining access which pertain to some freehold areas but not others. Such payments should be available to either title holders individually or, if they wish, through a relevant common body.
Such an approach has disadvantages for those indigenous Australians able to sustain native title claims and who are not willing to accept simple compensation. However, there would be significant gains to the general community in better incentives for increasing the benefit gained from land ownership.
What should also be done, either as part of a general settlement or in its own right, is to allow current Aboriginal land to become alienable. And if communal ownership is retained, it should be done through joint-stock corporations, possibly with restricted membership. A "layered" approach to indigenous legal interests in land should be developed. Areas of extreme cultural value should be held through devices such as deeds of grants in trust, with elders as trustees. Land of less significance should be able to be held through mechanisms such as restricted membership joint-stock corporations on normal freehold basis, while other lands should be able to be held on entirely normal commercial basis.
The delineation of inalienable property rights in Aboriginal land greatly restricts the value indigenous Australians gain from their land. An asset which cannot be sold cannot be borrowed against and thus has far less value than one which can be. The freehold solution should be extended. Indigenous Australians cannot have an adequate asset base with assets held on such a restrictive basis.
Native title has the further major drawback that it is communal, (109) as is land already granted to indigenous Australians under various Land Right Acts. The incentives in the use of communal property are typically poor, fostering over use and under development -- creating "tragedies of the commons" where the incentives is to use as much as one can without commensurate care or investment in improvement. Living in communal housing on communal lands, means that an individual is at the mercy of the vagaries of land council officials and politics. Not only does it generate poor incentives for use but it also creates the potential for authoritarian power structures which would not be tolerated in the wider Australian community. Any suggestion that particular bodies become the monopolistic agents for native title claims, and even more the management of indigenous assets, on the grounds of "simplicity", should be treated very warily as such monopolistic provision clearly reduces the choices, and thus the real power, of those caught within such monopolies.
Use of joint-stock corporations would allow collective ownership while providing individuals with genuine rights, rather than being entirely at the mercy of some communal body. Individuals dissatisfied with management of the joint asset, or who no longer identify with the relevant community, would be able to "cash" out their entitlements relatively easily. Title which does not allow individuals to "cash out" their holding make the alleged title of those who disagree with communal decision of little or no value.
The experience with inalienable title should generate caution over the practical value of native title rights. Indigenous Australians, less than 2% of the population, already, without including native title, have title over about 14% of the continent. However, the poor quality of the title, due to its inalienability and communal possession, has greatly restricted the benefit titleholders have gained from this land.
Retention of native title in such a form does not provide a serious basis for developing appropriate asset bases within indigenous communities.
It is a curious notion for a meritocratic society to embrace that some asset is permanently in the ownership of a particular group and their descendants without any possibility of consensually passing into other hands. And the concept of ownership involved has further oddities. Full ownership of an asset must include the ability to dispose of it. If one is unable to dispose of an asset, but is required to keep it for future generations, then one becomes not an owner, but a custodian. The asset demands your service, not the other way around. To put people in service of things, to allow them to have a legal interest in such an asset only on that basis, is a curious statement of human dignity. Nor is it an obligation likely to be willingly undertaken by most Australians. Why should it be seen as commendable and desirable for indigenous Australians?
The Right to Negotiate
Anyone seeking to engage in activity by using land in a way which is likely to affect someone's legal interest in that has reason to discuss such usage with the possessors of the legal interest. The creation in the Native Title Act of a "right to negotiate" imposes a statutory duty on those seeking to engage in economic activity on the land to negotiate with native title holders. It thus significantly raises the costs of engaging in economic activity on that land. This must have the effect of reducing the amount of economic activity on such land.
The imposition of a special mineral rights regime, with far greater transaction costs in gaining exploration rights, has greatly reduced the prospecting activity on Aboriginal land compared to land held under other titles. There have thus been significant costs imposed on the wider community in the form of foregone economic activity. In the Northern Territory, the Aboriginal Land Rights (Northern Territory) Act (ALRNT) originally gave a two-stage right to negotiate -- prior to exploration and, once minerals were located, prior to mining. This proved so injurious to mining activity that the latter right was removed from the Act in 1987. The Native Title Act, failing to learn from this experience, has right to negotiate in both the exploration and mining stage. This creates an effective "hostage" situation. Indeed, the operation of intermediate "holding titles" by miners, or requests to amend leases, could generate further rights to negotiate.
Giving a right to negotiate at both the exploration and mining stages increases the number of native title holders who will be able to claim benefits from such exploration when mining activity does not take place. The far greater ambit of coverage of the Native Title Act than the NT Land Rights Act would, at first sight, give the NTA regime more chance of avoiding the (severe) activity depressing effects of the ALRNT, even though the NTA gives the right to negotiate to both registered native title holders and registered native title claimants. (110) In fact, this is much less likely to be the case than might be thought. First, it is not likely that native title rights will be established over all pastoral leases and vacant Crown land (though the experience of the ALRNT cautions us against low estimates of the area eventually covered). So economic activity can avoid the areas with higher transaction costs (those with native title rights), reducing aggregate economic activity and, in particular, the likely economic benefits to native title holders.
Second, mining and other activity can move offshore. Thirdly, resources can be allocated to other industries. Raising transaction costs must be expected to both divert, and reduce, economic activity.
The development of mass prosperity has been based quite fundamentally on the evolution of institutions which lower transaction costs (North [1990]) -- in particular, the development of simpler, tradable and more sharply defined, property rights. Mabo, Wik, and the Native Title Act make Australian land law more complex. As such, they must be expected to have an adverse effect on Australian prosperity, even beyond the current period of uncertainty.
A Legislative Reserve?
The Native Title Act legislates for a centrally imposed, unitary concept of indigenous title separate, and much more constrained, than the forms of title otherwise available for Australians. It legislatively imposes a form of title in a way which constrains choice, creating, as with the NT Land Right Act, a form of "legislative reservation". It is one thing to respect culture(s), it is quite another to legislatively "freeze" it. Indigenous Australians should be free to make their own choices with their assets, not legislatively impelled to act according to some central notion of "their" culture(s).
The Native Title Act also continues and encourages the proliferation of externally created "indigenous" institutions. Such institutions are naturally focused on "rent seeking" from the wider polity. Rent seeking is not only economically inefficient -- it represents claims on resources without commensurate productive action, indeed at the expense of the productive action of others -- it provides no basis for cultural adaptation nor a sound basis for pride in achievement. It is corrupt in many senses.
While building up an adequate asset base, including appropriate useful forms of title, is a necessary condition for indigenous advancement, it is not a sufficient one. The institutional structures and skills, the social and human capital, necessary for advancement also have to be built up. But they must be built up from within indigenous communities, they cannot be created by simply adding money or assets. Native title, particularly given its severe limitations as a form of title and the relatively limited number of likely title holders, has at best a marginal role to play. The process of ascertaining native title may have some value, but only if the structures involved generate incentives genuinely conducive to building up the social and human capital of indigenous communities. And other means can be found for that.
A further defect of the Native Title Act is that it does not adhere to common law concepts of procedural fairness, understood in terms of certain rules of process which apply equally to all parties: for example, access to legal funding, and provisions requiring special treatment of indigenous witnesses. Long historical experience has found that decisions are much more likely to be both just, and seen to be just, if all parties are treated equivalently. Special treatment provides grounds for both unfair outcomes and resentment. It is again both patronising and dangerous to imply that indigenous Australians somehow cannot "cut it" in native title proceedings without special treatment.
The way forward is not to abolish native title, but to ensure indigenous legal interest in land is of a form which is not an unreasonable drag on Australian prosperity and which maximises the benefit to the actual title holders. This legal interest needs to be in forms which empower the titleholders, rather than freezing them as a historical curiosity.
Indigenous sport, music and art provide a basis for indigenous achievement and pride. Participation in the material benefits of Australian, and global, society requires skills and resources. The claim to opportunities to access decent health and education services, for example, is not based on being indigenous Australians, but simply being Australians. Continuation of rights of hunting and fishing has value in so far as it acknowledges prior claims, but it has limited practical benefit. Resources gained from the conversion of acknowledged rights into new, and more valuable, assets would provide a way of balancing acknowledgment of heritage with the achievement of a brighter future.
CONCLUSION
Since the early 1970s, the anti-discrimination model and welfare models have dominated public discussion, and public policy, for Aboriginal and Torres Strait Islander issues. They are dangerous ways to present the issues because they focus overwhelming attention on what allegedly is or is not done to Aboriginal and Torres Strait Islander people, rather on their cultural and institutional structures and skills and the incentives generated by public policy. While these models dominate public policy perspectives, policy will continue to be framed ultimately in terms of a passive role for indigenous Australians -- with more power to anti-discrimination authorities, more expenditure on programs labelled "indigenous", despite the patent, and stubborn, lack of response of actual social outcomes to these approaches. Without a fundamental change in approach, the profound, though not unrelieved, failure of public policy in this area will continue.
Cultures -- the knowledge, values and informal institutional structures transmitted across generations -- have consequences. Cultural content is not a matter of some lifestyle "taste sensation" where one can blithely choose combinations with no effect on basic social outcomes. They are matters which pertain directly to better or worse interaction with the world as it is. It is not possible to achieve industrial age life expectancies in an industrial age society with hunter-gatherer notions of illness, causality and nutrition. Similarly, it is not possible to achieve industrial age standards of living with hunter-gatherer notions of asset management or social organisation. In particular, the choice of communal, inalienable title is the choice of poverty: as the experience of the command economies has shown very clearly.
This is not a matter of cultural obliteration, it is a matter of cultural adaptation and evolution sufficient to achieve the levels of life expectancy, health and standards of living that all agree are minimally acceptable levels of achievement for Australian citizens. This is a process that all cultures have had to go through to achieve (where they have) such standards -- for example, freedom from endemic epidemics and high levels of infant mortality is an achievement less than two centuries old in European and European-descended societies. Indeed, the current life expectancies of indigenous Australians are equivalent to those of the general Australian population in the 1880s and 1890s. (111)
Aboriginal cultures were isolated for millennia from the developing knowledge, institutional development and understanding of other societies. The efforts, sacrifices, sufferings and achievements of generation after generation of the societies of Japan, Northwestern Europe and descendant societies and their adaptors have resulted in the achievement of unheralded mass prosperity and freedom. It is only if we understand the real basis for that success that we can see a way forward for those who do not yet fully share in it. Indigenous Australians cannot fully participate in that achievement unless they also adapt to those understandings and institutional achievements.
The developing thread in public policy of building up an independent, privately owned asset base for indigenous Australians is far more potentially productive than the previous welfarist and anti-discrimination approaches. But only provided such an approach is:
- a basis for building up institutions, and assisting in the re-construction of a vibrant civil society, genuinely inclusive of indigenous Australians; and
- fostering the cultural adaptation which must occur if indigenous Australians are to gain rightful benefits of participation in Australian and global society.
Cultural (including institutional) adaptations must come from within indigenous societies and communities if they are to succeed. Forced persistence with, for example, communal and inalienable title is not only not a basis for progress in improving conditions for indigenous Australians, it will actually retard progress. Native title, construed as communal, inalienable and generally partial title, is not a path forward.
That public policy should be based on the principle that race should not matter, except when it does, is a contradiction that cannot stand. It is too subtle a mix for the coarse operation of political processes; its intellectual incoherence not only ensures that it will not achieve its aims, it is a sign of deep lack of seriousness, of lack of genuine concern with consequences, with what actually occurs for real people with real lives to lead.
What policy has not done is to allow Aboriginal peoples to find their own paths to successful adaptation to the benefits and pressures of modern society. It may be that many will fail -- achievement without the possibility of failure is an empty concept. Indigenous Australians do not start with an ideal set of cultural supports. But the consequences will be, as much as is practicable in a diverse society subject to the normal processes of happenstance, their own. Which is as it should be.
APPENDIX I: OFFICIAL “YES” CASE
REFERENDUM (ABORIGINALS) 1967
Argument in favour of the proposed law
The Case for YES
The purposes of these proposed amendments to the Commonwealth Constitution are to remove any ground for the belief that, as at present worded, the Constitution discriminates in some ways against people of the Aboriginal race, and, at the same time, to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Commonwealth Parliament considers this desirable or necessary.
To achieve this purpose, we propose that two provisions of the Constitution be altered which make explicit references to people of Aboriginal race.
The first proposed alteration is to remove the words "other than the Aboriginal race in any State" from paragraph (xxvi.) of Section 51. Section 51 (xxvi.) reads:
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:
(xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws."
The proposed alteration of this section will do two things. First, it will remove words from our Constitution that many people think are discriminatory against the Aboriginal people.
Second, it will make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Parliament considers it necessary.
This cannot be done at present because, as the Constitution stands, the Commonwealth Parliament has no power, except in the Territories, to make laws with respect to people of the Aboriginal race as such.
This would not mean that the States would automatically lose their existing powers. What is intended it that the National Parliament could make laws, if it thought fit, relating to Aboriginals -- as it can about many other matters on which the States also have power to legislate. The Commonwealth's object will be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia.
The second proposed alteration is the repeal of Section 127 of the Constitution. That section reads:
"In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."
Why was this provision included in the Constitution in 1900? Well, there were serious practical difficulties in counting the Aboriginals in those days. They were dispersed, and nomadic. Communications in inland Australia were poor, and frequently non-existent. Today the situation is very different and counting is practicable.
Our personal sense of justice, our commonsense, and our international reputation in a world in which racial issues are being highlighted every day, require that we get rid of this out-moded provision.
Its modern absurdity is made clear when we point out that for some years now Aboriginals have been entitled to enrol for, and vote at, Federal Elections. Yet Section 127 prevents them from being reckoned as "people" for the purpose of calculating our population, even for electoral purposes!
The simple truth is that Section 127 is completely out of harmony with our national attitudes and modern thinking. It has no place in our Constitution in this age.
All political parties represented in the Commonwealth Parliament support these proposals. The legislation proposing these Constitutional amendments was, in fact, adopted unanimously in both the House of Representatives and the Senate. We have yet to learn of any opposition being voiced to them from any quarter.
Just as every available Member of the Commonwealth Parliament voted for the proposals outlined above, we believe that the Australian electorate as a whole will give strong support and endorsement to them.
We urge you to vote YES to both our proposals as to Aboriginals by writing the word Yes in the square on the ballot-paper, thus:
YES This case has been authorised by the majority of those Members of both Houses of the Parliament who voted for the proposed law and was prepared by the Prime Minister, the Rt. Hon. Harold Holt, Leader of the Federal Parliamentary Liberal Party; by the Deputy Prime Minister, the Rt. Hon. John McEwen, Leader of the Australian Country Party; and by the Leader of the Opposition, Mr. Gough Whitlam, Leader of the Australian Labor Party. |
APPENDIX II: STATISTICS
Table 4: Commonwealth Expenditure on ATSI Programs
| Expenditure | |||||||
| Main Agency | Total | ||||||
| ($m) | (% Tot.) | (1994-95) $m | Per head (1994-95) $ | ($m) | (1994-95) $m | Per head (1994-95) $ | |
| 1966-67 | |||||||
| 1967-68 | |||||||
| 1968-69 | 10.1 | .. | 70.4 | $728 | .. | .. | .. |
| 1969-70 | 8.9 | .. | 59.0 | $574 | .. | .. | .. |
| 1970-71 | 20.0 | .. | 125.9 | $1,154 | .. | .. | .. |
| 1971-72 | 24.0 | .. | 141.0 | $1,216 | .. | .. | .. |
| 1972-73 | 44.3 | .. | 243.6 | $1,968 | .. | .. | .. |
| 1973-74 | 78.3 | .. | 377.6 | $2,856 | .. | .. | .. |
| 1974-75 | 124.8 | .. | 493.7 | $3,498 | .. | .. | .. |
| 1975-76 | 138.9 | .. | 472.6 | $3,136 | .. | .. | .. |
| 1976-77 | 121.0 | .. | 369.8 | $2,298 | .. | .. | .. |
| 1977-78 | 124.3 | .. | 351.6 | $2,188 | .. | .. | .. |
| 1978-79 | 132.6 | .. | 351.3 | $2,189 | .. | .. | .. |
| 1979-80 | 140.8 | .. | 340.4 | $2,123 | .. | .. | .. |
| 1980-81 | 159.4 | .. | 347.9 | $2,173 | .. | .. | .. |
| 1981-82 | 168.8 | .. | 330.9 | $2,069 | .. | .. | .. |
| 1982-83 | 198.0 | .. | 349.6 | $1,998 | .. | .. | .. |
| 1983-84 | 242.8 | .. | 401.6 | $2,098 | .. | .. | .. |
| 1984-85 | 281.2 | .. | 437.5 | $2.089 | .. | .. | .. |
| 1985-86 | 295.1 | 58.1 | 428.8 | $1,871 | 507.6 | 737.5 | $3,218 |
| 1986-87 | 332.1 | 56.8 | 449.9 | $1,794 | 584.3 | 791.5 | $3,157 |
| 1987-88 | 377.4 | 57.5 | 478.9 | $1,864 | 656.2 | 832.6 | $3,241 |
| 1988-89 | 450.0 | 57.9 | 527.2 | $2,003 | 777.6 | 911.0 | $3,462 |
| 1989-90 | 508.2 | 58.1 | 559.0 | $2,073 | 874.1 | 961.5 | $3,566 |
| 1990-91 | 604.4 | 54.1 | 638.0 | $2.310 | 1,117.9 | 1,180.1 | $4,272 |
| 1991-92 | 609.8 | 48.5 | 631.6 | $2,232 | 1,257.5 | 1,302.5 | $4,603 |
| 1992-93 | 796.8 | 55.4 | 815.4 | $2,783 | 1,438.0 | 1,471.5 | $5,023 |
| 1993-94 | 888.1 | 65.2 | 898.7 | $2,964 | 1,362.0 | 1,378.3 | $4,545 |
| 1994-95 | 941.5 | 63.9 | 941.5 | $2,999 | 1,473.4 | 1,473.4 | $4,693 |
Sources: Gardiner-Garden (1996), ABS, Tasman.
c = census
e = estimate
s = survey
APPENDIX III: COMMONWEALTH ANTI-DISCRIMINATION
LEGISLATION AND INTERNATIONAL INSTRUMENTS
Following the Koowarta decision, Commonwealth anti-discrimination legislation takes its constitutional validity from use of the external affairs power to implement various international human rights instruments. The international instruments relevant to the various Commonwealth Acts are listed below, along with the form of discrimination or other relevant maters covered by the particular Act.
RACIAL DISCRIMINATION ACT 1975
- the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination.
This Act makes it unlawful to discriminate against people on the ground of their:
- race, colour, or national or ethnic origin.
SEX DISCRIMINATION ACT 1984
- The United Nations' International Convention on the Elimination of All Forms of Discrimination Against Women.
This Act makes it unlawful to discriminate against people on the grounds of their:
- sex; meaning whether they are male or female;
- marital status; that is, whether people are single, married, widowed, divorced, separated, or living in a de facto relationship;
- pregnancy;
- family responsibilities; this means the responsibilities of an employee to care for or support a dependent child or any immediate family member. (The law in relation to Family Responsibilities applies only where a person has been dismissed from their job for that reason).
Also made unlawful by the Sex Discrimination Act is:
- Sexual harrassment; that is, behaviour that has a sexual element to it and which makes a person, with reason, feel humiliated, intimidated or offended.
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986
the United Nations':
- International Covenant on Civil and Political Rights;
- Declaration on the Rights of the Child;
- Declaration on the Rights of Mentally Retarded Persons;
- Declaration on the Rights of Disabled Persons;
the International Labour Organisation's:
- Convention 111, concerning discrimination in employment and occupation;
- Convention 156, concerning workers with family responsibilities.
This Act makes it unlawful to discriminate against people on the grounds of their:
- race, colour, sex, religion, political opinion, national extraction or social origin, age, medical record, criminal record, impairment, marital status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual preference, or trade union activity.
PRIVACY ACT 1988
- the United Nations' International Covenant on Civil and Political Rights.
This Act lays down privacy safeguards which Federal Government departments must follow in dealing with personal information about people. It applies when the collecting, storing, using, or allowing anyone else to use that information.
DISABILITY DISCRIMINATION ACT 1992
The United Nations'
- Declaration on the Rights of Mentally Retarded Persons
- Declaration on the Rights of Disabled Persons.
This Act makes it unlawful to discriminate against people on the ground of their:
- disability; which includes physical, intellectual, psychiatric, sensory, neurological, or learning disabilities. It also includes physical disfigurement and the presence in the body of a disease-carrying organism (for example, the HIV virus).
Source: Adapted from University of South Australia Equal Opportunity Database.
APPENDIX IV: HIGH COURT DECISION SUMMARIES
Koowarta
In this case, the High Court ruled on the constitutional validity of the RDA.
In his judgement, Gibbs CJ doubted whether the refusal to agree to transfer of the lease in question to the Commission, it not being a natural person and therefore being without race, constituted a breach of section 9 of the Racial Discrimination Act.
On the external affairs power, he rejected the idea that merely signing a treaty granted the Commonwealth legal authority, as the result would be that
"the executive can, by its own act, determine the scope of Commonwealth power" (112)
"in such a way as to render meaningless that 'limitation and division of sovereign legislative authority' which is 'of the essence of federalism'." (113)
That Australia had, in totality, the legal power to give effect to international treaties was clearly true. The question was where the specific legislative competence lay. (114) Chief Justice Gibbs ruled that the appropriate test was whether the provisions given effect to have the character of being an external affair, more specifically, that the manner in which the matter was treated in some way involved a relationship with other countries, or between residents of Australia and residents of other countries, which the RDA did not and so the relevant sections (9 and 12) were invalid.
In his judgement, Stephen J noted that international instruments have greatly expanded in role and number. He held that the federal structure of the Constitution implied some limit to the external affairs power. He cited the Charter of the United Nations, noted that the concept of racial equality
"permeated the law-making, the standard-setting and the standard-applying activities of the United Nations family of organisations since 1945". (115)
He therefore held that racial discrimination had thus become "very much a part of its external affairs and hence a matter within the scope of s. 51(xxix)". (116) He was inclined to agree with the Commonwealth that suppression of racial discrimination had become part of customary international law, even without the Convention. (117)
Mason J did not examine whether the Act fell within the race power, finding that it was a legitimate expression of the external affairs power. He held it would seem to follow inevitably from the plenary nature of the external affairs power that it would enable Parliament to legislate, not only for the ratification of a treaty, but also for its implementation by carrying out any obligation to enact a law that Australia assumed by the treaty. He noted that treaties are not self-executing, requiring actual legislative act to give them force. (118) He held that it could not overrule express and implied prohibitions in the Constitution (such as, for example, amending it by some other means than laid down in Section 128). (119) He rejected a dichotomy between internal and external affairs. (120) He cited the Engineers case to reject any notion of reserved powers (to the States) and held that the external affairs power itself is part of the federal balance. (121) The expansion of the ambit of the external affairs power was a consequence of the expanded ambit of international treaties. (122) He doubted the likelihood of any substantial disturbance in balance of powers in the Constitution and
"to the extent that there is such a disturbance, then it is a necessary disturbance, one essential to Australia's participation in world affairs". (123)
He denied that treaties could be divided into those of an international character and those pertaining to domestic affairs, since even those intending to "eliminate some forms of past abhorrent human conduct" are such that
"every nation stands to benefit from the elimination of activity which may contribute to the disturbance of international peace and security". (124)
Nor did use of the external affairs power require an actual treaty
"a matter which is of external concern to Australia having become the topic of international debate, discussion and negotiation constitutes an external affair before Australia enters into a treaty relating to it". (125)
Having so widely construed the external affairs power, he held implementation of the Convention was a valid use of the external affairs power, and that the Act was consequently valid.
Murphy J noted that the Australian States have no international character, (126) quoted his own previous ruling that without an expansive interpretation of the external affairs power
"Australia would be an international cripple unable to participate fully in the emerging world order" (127)
(a comment expressly rejected by both Gibbs CJ and Wilson J) and found the Convention a legitimate use of the external affairs power and thus the Act was valid under that head of power. He also added an Appendix citing a list of sources documenting substantial discrimination against Aborigines during the course of Australian history.
Aickin J concurred fully with Gibbs CJ. Wilson J also concurred, though he made some supplementary remarks. He explicitly rejected the notion that the Act was valid under the race power, because of the general character of the Act and the specific nature of the race power. It was open for the Commonwealth to explicitly outlaw discrimination against Aboriginal people under the race power, but not to do so in general. (128) He held that the Act lacked the external aspect which would make it a legitimate use of the external affairs power. (129) He noted that use of the defence power ebbs and flows with the degree of hostilities Australia may be engaged in and "there is no such ebb and flow in the conduct of Australia's international obligations". (130) He distinguished between Australia, as a fully competent international unit, and the Commonwealth, as a constituent element of a federation and limited to those legislative powers conferred on it by the Constitution, which rendered conduct of foreign affairs more complex than in a unitary state. (131)
Brennan J noted the distinction between the formation and performance treaty obligations and held that denying the Commonwealth power to legislate in some treaty obligations would not diminish the status of Australia as an international person. (132) He noted that the foreign affairs power is a growth point for Commonwealth power, because it grows as Australia's external affairs grow. (133) He deemed that,
"when a particular subject affects or is likely to affect Australia's relations with other international persons, a law with respect to that subject is a law with respect to external affairs". (134)
As
"today it cannot be reasonably asserted that all aspects of the internal legal order of a nation are incapable of affecting relations between that nation and other nations" (135)
"the international quality of the subject is established by its effect or likely effect upon Australia's external relations and that effect or likely effect is sufficiently established by the acceptance of a treaty obligation with respect to that subject". (136)
He ruled out treaties entered into merely to increase Commonwealth legislative power, such a treaty failing the test of affecting, or being likely to affect, Australia's relations with other nations. (137) Since the relevant sections of the Act were enacted in performance of Australia's Convention obligations, the Act was valid. He deemed the Act not to be a valid use of the race power.
Gerhardy
In this case, the High Court ruled on the constitutional validity of the South Australian Land Rights Act in the light of the RDA.
In his judgement, Gibbs CJ held that it would be "of very doubtful constitutional validity" for the Commonwealth to make a law stopping a State Parliament from making a law and that acts within the meaning of the RDA did not include State laws. (138) Gibbs CJ held that Section 19 did restrict a right upon racial grounds in an area of public life (i.e. the right of access). (139) He found that Section 19 did constitute an appropriate special measure under the RDA and the Convention (140) although the "obvious air of permanency" of the South Australian Act was of concern, since the special measures were, under the Convention, intended to be temporary. As the South Australian Act only began operation in 1981, that was a concern for the future. (141) He therefore ruled that the SA Act was not inconsistent with the RDA. (142)
In his judgement, Mason J also found Section 19 of the SA Act to be racially discriminatory, (143) however he also found it to be a permissible special measure under the Convention. (144) Mason J did not find the lack of a specified end point for the measures to be of itself problematic, though its validity would come into question should the objects of the Convention be achieved. (145)
Murphy J also found Section 19 of the SA Act to be racially discriminatory in an area of public life, (146) but found it to be a permissible special measure though he noted that the question of continuing validity may arise if the regime set up under the Section continued indefinitely. (147)
Wilson J declined to rule on whether Section 19 was discriminatory, finding it to be a permissible special measure under the Convention and also raised the issue of validity problems "at some time in the future". (148)
Brennan J held that the Commonwealth did not have the power to bar a State from legislating (149) and that the SA Act had to qualify as a special measure under the RDA to avoid inconsistency with the RDA. (150) After lengthy discussion of how to interpret international treaties, the tension between formal and real equality and what constitutes a special measure, (151) and a discussion of the proviso in the Convention that special measures not persist once the objectives of the Convention have been met, (152) Brennan J found the SA Act to be special measure within the meaning of the RDA and the Convention. (153)
Deane J found Section 19 a racially discriminatory impairment of the right to freedom of movement and of access. (154) Deane J raised the lack of recognition of any communal native title saying that "the common law of this land still has not reached the stage of retreat from injustice which the law of Illinios and Virginia had reached in 1823 [in recognising a continuing indigenous legal interest in land]". (155) He found the SA Act to be a permissible special measure. (156)
Dawson J raised doubts about whether the terms "human rights" or "fundamental freedom" had meaning in Australian law (157) and about whether Section 9 of the RDA was a valid implementation of obligations imposed by the Convention. (158) He found that the Viskauskas decision that the RDA was a complete statement of law on racial discrimination could not be read as precluding special measures by States. (159) He found that the SA Act was a special measure within the meaning of the RDA and thus valid, so no finding on whether it was discriminatory within the meaning of the RDA was required. (160)
Mabo No. 1
In this case, the High Court ruled on whether the Queensland Coast Islands Declaratory Act was valid in the light of the RDA.
In a joint judgement, Brennan, Toohey and Gaudron JJ endorsed the capacity of declaratory Acts to change the law, including overriding of judicial decision. (161) The judgement was concurred within its construction of the Queensland Act by Mason CJ and Wilson J. They deemed the Act, if valid, to clearly have the effect of extinguishing any title. (162) Citing Gerhardy, their Honours held that Section 9 of the Racial Discrimination Act did not prohibit the enactment of a law
"creating, extinguishing or otherwise affecting legal rights in or over land". (163)
The rights protected under Section 10 of the RDA are not necessarily legal rights, but included human rights such as the right to own property without being arbitrarily deprived of it. (164) The question was whether
"the Miriam people enjoy the human right to own and inherit property -- a right which includes an immunity from arbitrary deprivation of property -- to a more limited extent than other members of the community". (165)
The answer was no in the case of property rights existing under Crown land legislation. It was, however, yes in the case of traditional legal rights, as these were extinguished arbitrarily -- the source or history of the rights not being relevant, the relevant factor being their existence. Thus, on the assumption that traditional legal rights persisted,
"the Miriam enjoy their human right to the ownership and inheritance of property to a 'more limited' extent than others who enjoy the same human right". (166)
Consequently
"if traditional native title was not extinguished before the Racial Discrimination Act came into force, a State law which seeks to extinguish it now will fail" (167)
The form of property may be racially distinct but was protected by the general right against arbitrary deprivation.
In his judgement, Mason CJ agreed with Wilson J, except on the question of inconsistency with the RDA. He disagreed with determining whether the Queensland Act had breached the RDA prior to determination of the content and possessor of the alleged traditional rights. (168) He held that a legislative act was not an act within the meaning of Section 9 of the RDA, the Commonwealth Parliament not having the power to prohibit enactment of a law falling within concurrent Commonwealth power (169) and the Queensland Act being a declaratory Act, and thus did not purport to authorise the doing of an act which is inconsistent with Section 9. (170) As for inconsistency with Section 10, this was impossible to determine in advance of determining the content and possessors of alleged traditional rights. (171) The Chief Justice thus did not find the Queensland Act to be invalid, though his judgement left open the possibility that it could be found to be in breach of the RDA, upon the determining of the existence and nature of traditional rights.
Wilson J held that whether the Queensland Act would lead to disposal of land without regard to the interests of the Murray Islanders could not be predicted in advance, so Section 9 of the RDA could not be determined to have been breached. (172) As to the question of equality before the law (Section 10), as there were no persons of another race which enjoyed the same rights as those claimed by the Murray Islanders, it did not apply either. (173)
Deane J, in his judgement, found the Queensland Act to be in breach of the RDA since it singled out property rights of a particular racial group for extinguishment. (174) He further held that it would be anomalous for a Section incorporating a special provision barring management of property of Aboriginals or Torres Strait Islanders without their consent to permit extinguishment of property rights specific to Torres Strait Islanders. (175)
Dawson J carefully traced the history of colonial delegation, separation and annexation (176) and agreed with Wilson J on the reasons why the claim by the plaintiffs that the Queensland Act was beyond power, was not to be upheld. (177) On the question of inconsistency with the RDA, he agreed with the reasons of Wilson J holding that the Queensland Act was not inconsistent with Section 9 of the RDA. On Section 10, he found that no declaration of inconsistency could be made until the nature of the alleged traditional rights were determined. (178) He also raised as a reasonable question whether section 10 of the RDA was constitutionally valid. (179)
Mabo No. 2
In this case, the High Court ruled on whether there were continuing native title rights held by the Meriam people of the Murray Islands.
In a joint judgement, Mason CJ and McHugh J agreed with the judgement of Brennan J and summarised the decision of the Court.
In his judgement, Brennan J traced the history of interaction with the Murray Islanders, noting contemporary references to an existing, individualist, system of private property operating on the islands. (180) The question then becomes whether the annexation of 1879 had the effect of vesting in the Crown
"absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands". (181)
Brennan J deemed the circumstances pertaining to the Murray Islands not to be different from the entitlement of other indigenous peoples, since that would be to discriminate on racial grounds. (182) Brennan J noted a line of judicial authority which holds that when the Crown assumed sovereignty over the colonies "it became the universal and absolute beneficial owner of all the land therein" (183) Brennan J held that such a deprivation of traditional rights and usage in the land is unjust. (184) However, the Court
"is not free to adopt rules that accord with the contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives our law its shape and internal consistency". (185)
Brennan J identified one negative and three positive bases for the doctrine of absolute beneficial Crown ownership:
- there was no other proprietor
- the Crown is deemed to be the ultimate holder of property ("the feudal basis")
- all land in a colony is part of the "the patrimony of the nation" of which the Crown is the holder
- it was done as an act of Crown prerogative. (186)
Brennan J noted that international law recognised conquest, cession and occupation of terra nullius as three effective ways of acquiring sovereignty. (187) He traced the development of the concept of terra nullius as meaning "no previous law or sovereignty" and applying to settled colonies. (188) He held that further information meant that the theory existent at the time of settlement no longer bound legal judgement. (189) He posited the choice before the Court as being to find the Meriam people were "higher up the scale of social organisation" than the disregarded rights of the Aboriginal people or to reject the concept of terra nullius. (190)
Brennan J noted the development of international law, such as the decision of the International Court of Justice on Western Sahara (191) and held that, while the common law does not necessarily follow international law, it is a "legitimate and important influence" thereon. (192) He distinguished sovereignty, including radical title as ultimate granter of land, from beneficial ownership. (193) He found no reason why native title rights could not survive as a burden on the Crown's radical title. (194) He further held that individual usufructuary rights far from precluding communal proprietary rights, the former could not be admitted without also admitting the latter. (195)
Having rejected the proposition that there was no prior proprietor, and having found the feudal basis of Crown paramountcy did not preclude native title, Brennan J turned to the patrimony claim. He found that, while radical title had been extended to absolute ownership during colonial land sales, this was no reason to suppose native title had been eliminated over those lands where such sales had not taken place. (196) As for the prerogative claim, he noted that the Imperial Parliament retained ultimate legislative authority until the adoption of the Statute of Westminster and held that if Crown title is merely radical title, then the problem of vesting of the absolute beneficial ownership of colonial lands did not arise. (197)
Having rejected all the bases for the Crown having a universal and absolute ownership of colonial land, Brennan J then discussed the proposition that only the legal rights recognised by the acquiring sovereign or the officers thereof had force. Going through a range of past Imperial cases, he held that the simple change of sovereignty does not, unless there has been some express act, remove rights. (198) Brennan J thus deemed native title to have survived the change in sovereignty (199) and that to hold anything else would be a breach of equality before the law
"the common law of this country would perpetuate an injustice if it continued to embrace the enlarged notion of terra nullius and persist in characterising the indigenous inhabitants of the Australian colonies as people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land."
Furthermore
"dispossession is not attributable to a failure of native title to survive the acquisition of sovereignty, but to its subsequent extinction by a paramount power". (200)
Brennan J then commented on the nature and incident of native title, grounding it in the traditional laws acknowledged, and the traditional customs observed, by the indigenous inhabitants. (201) Brennan J noted that native title was recognised by common law but was not of common law and its alienability was governed by the law from which it arose. It was not barred by inconsistency with common law. (202)
Brennan J held that the persistence of native title depended on persistent occupation and acknowledgment of traditional law and, as far as practicable, custom. Once native title expired, then radical title expanded to full beneficial title, there being no other proprietor than the Crown. (203) Nor can a right or interest be acquired from an indigenous people by someone "not being a member of the indigenous people, does not acknowledge their laws and observe their custom" or by a process other than that acknowledged by traditional law except via the Crown. (204) Native title was protected by common law remedies (205) and was enforceable. (206)
Brennan J then returned to discussing the situation of the Meriam people, holding that their native title survived annexation. (207) Using North American precedent, Brennan J held that extinguishment of native title must be by an act which reveals a clear and plain intention to do so. (208) Brennan J then traced legislative and other acts pertaining to the Murray Islands. (209) He held that Queensland did have, subject to the Racial Discrimination Act, the power to extinguish native title. (210) Such extinguishment was not dependant on stated or actual intention. Rather it depended on the effect the Act had on the right to enjoy native title. Thus, if a lease is granted, the lessee acquires possession and the Crown title is expanded from radical title. In the case of reservation of land or the setting aside of land for public purpose, it depended on whether such purpose was compatible with continued enjoyment of native title whether extinguishment had occurred. (211)
Brennan J held that dispossession of the indigenous inhabitants was something which happened "parcel by parcel" not as a single act. (212) Brennan J set out a summary of his understanding of the common law pertaining to land title in Australia
- Crown acquisition of sovereignty cannot be challenged in a municipal court (213)
- on the acquisition of sovereignty, the Crown acquired radical title
- native title survived this acquisition of sovereignty but exposed native title to extinguishment by a valid act of sovereignty
- where the Crown had validly alienated land by granting an interest wholly or partially inconsistent with continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. It is thus extinguished by granting of freehold or leases but not necessarily by grants of lesser interests (e.g. authority to prospect for minerals)
- where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency
- native title to particular land is ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection to the land. Change in the those laws and customs is immaterial and membership depends on biological descent and on mutual recognition of a person's membership by that person and by the elders of other persons enjoying traditional authority
- native title is extinguished if the clan or group ceases to acknowledge those laws and (as far as practicable) customs, loses connection with the land or on the death of the last member of that clan or group
- native title can be surrendered to the Crown voluntarily but is otherwise not alienable to outsiders (214)
- if native title to any parcel of waste lands of the Crown is extinguished, the Crown becomes the absolute beneficial owner. (215)
Brennan J again noted that Queensland had the power to extinguish native title, subject to valid laws of the Commonwealth including the Racial Discrimination Act. (216) He then applied the above principles to the situation of the Meriam people and found that, in their case, native title had persisted. (217)
In a joint judgement, Deane and Gaudron JJ, discussed the acquisition of sovereignty and the past understanding of the common law about such acquisition, holding that all inhabitants were bound by the common law upon acquisition of sovereignty (218) with radical title to all land in the Colony being invested in the Crown. (219) Like Brennan J, they discussed a range of Imperial cases holding that acquisition of sovereignty involved a presumption of respect for existing rights (220) and similarly cite a range of North American cases for a broad understanding of the persistence of rights recognised by, but not, the common law. (221)
Deane and Gaudron JJ held it to be settled law that the common law, including land law as understood in England, was applied to the colony of New South Wales upon establishment, with the Crown having radical title. Where no existing native interest existed, the radical title of the Crown carried with it "full and unfettered proprietary rights". (222) Where such interest existed, either the interest or the common law would have to adjust accordingly. (223) The content of the common law native title will vary according to the pre-existing interest of the individual, group or community in question. (224) Changes in the local native system were not precluded, but transfer out of it can only be by way of the Crown. (225) Native title is only a personal right and does not constitute a legal or beneficial estate in the actual land. (226) It was thus susceptible to extinguishment by an incompatible grant by the Crown. (227) The notion that native title was no more than permissive occupancy was rejected, via authority of North American and Papua New Guinean cases. (228) Deane and Gaudron JJ again discussed at length the acquisition of sovereignty in 1788, noting the belief at the time that there were very few native inhabitants, the lack of any explicit acknowledgment or denial of native rights, apart from a passage in Governor Phillip's instructions, that the British subjects be subject to punishment should they "wantonly destroy them or give them any unnecessary interruption in the exercise of their several occupations". They noted the use of the rationalisation of denial of pre-existing Aboriginal interests in land. (229)
Deane and Gaudron JJ held that the Aborigines in 1788 held extensive, if varied, interests in the land and that, following legal principles operating elsewhere in the British Empire, these interests persisted as common law native title and a burden on the radical title of Crown ownership. (230) They discussed the judgement by Blackburn J in Milirrpum v Nabalco (1970) rejecting the plaintiff's claim of common law communal native title and the previous cases he cited, noting that all those cases deemed New South Wales to have been "practically unoccupied". (231) They then discussed the colonial history of interaction and dispossession, described as the
"conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame".
They held that the propositions that
- the Colony was unoccupied or uninhabited for legal purposes (terra nullius) and
- that full legal and beneficial ownership invested in the Crown
had played a significant role in the dispossession and oppression of the Aborigines. (232) Deane and Gaudron JJ rejected the proposition that these past cases should be accepted, due to the moral significance of the issue in question. (233) Deane and Gaudron JJ then outlined the legal status of native common law title. (234) They held that native title could be surrendered to the Crown or lost by abandonment of connection to the land or the extinction of the group or extinguished by inconsistent grant or other dealings by the Crown. (235) Following Mabo No 1, they noted that the Racial Discrimination Act limited the power of States or Territories to extinguish native title. (236)
Deane and Gaudron JJ held that native title had survived the annexation of the Murray Islands (237) and had not been extinguished by any subsequent act. (238) Deane and Gaudron JJ concluded by noting they had used strong language, which they stated was not an attribution of moral guilt but a demonstration of why they had concluded as they had. (239)
In his judgement, the sole dissenting judge on the question of the recognition and persistence of native title under Australian law, Dawson J noted that
"there is ample authority for the proposition that the annexation of land does not bring to an end those rights which the Crown chooses, in the exercise of its sovereignty, to recognise". (240)
He held, in discussing cases also discussed in the judgements of Brennan J and of Deane and Gaudron JJ,
"there is no basis for a general presumption either for or against recognition or acceptance by the new sovereign of pre-existing rights, although a presumption in favour of their recognition may be raised in interpretation of a treaty of cession" (241)
and
"the question whether any native interests in the land have been extinguished by an assumption of sovereignty is a question of fact which can only be determined in reference to the surrounding circumstances". (242)
Dawson J held that sovereignty brought with it radical title, which precluded mere continuation of a title previously held -- it had to be held under the Crown, and be accepted by the Crown, though such acceptance could be by way of acquiescence in continued occupancy by the aboriginal inhabitants. (243) Dawson J discussed at length Canadian cases, and then discussed US cases, noting the individual circumstances of the latter. (244) Dawson J held aboriginal title to be
"an occupancy which the Crown, as absolute owner, permits to continue". (245)
Dawson J further held that
"upon any account, the policy which was implemented and the laws which were passed in New South Wales make it plain that, from the inception of the colony, the Crown treated all land in the colony as unoccupied and afforded no recognition to any form of native interest in the land" (246)
though land was set aside for the welfare of aboriginal inhabitants. (247) After a lengthy discussion of colonial practices, Dawson J stated that
"[t]he policy which lay behind the legal regime was determined politically and, however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of new policy to do that and that is a matter for government rather than the courts. In the meantime it would be wrong to attempt to revise history or to fail to recognise its legal impact, however unpalatable it may now seem. To do so would impugn the foundations of the very legal system under which the case must be decided." (248)
Dawson J then attended to the Crown lands legislation which he held to have made it
"abundantly clear that the Crown assumed ownership of the waste lands, unencumbered by any native interests" (249)
He examined at length such legislation, refers to Blackburn J's judgement mentioned above, and particularly Acts covering the Murray Islands. (250) He concluded
"as can be seen from the preceding summary none of these Acts that regulated or now regulate reserves (such as the Murray Island reserve) adverts to any native interests in the reserved land and, significantly, the power of an island council under these Acts does not extend to dealing with titles to land." (251)
Dawson J agreed with the comment of Blackburn J that the lack of any negotiation about boundaries for aboriginal reserves indicates the negation of any communal native title. (252) Dawson J discussed the acquisition of the Murray Islands and concluded that the Crown had excluded any native or aboriginal rights
"by acting upon the assumption (which was also the assumption lying behind the relevant legislation) that there was no such thing as native title and that the Crown was exclusively entitled to all lands not alienated from it." (253)
Dawson J noted that an island council was required by statute to govern according to the customs and practices of the islanders. While a 1980 by-law expressly required the transmission of land on the holder's death or permanent departure to be in accordance with native custom, Dawson J held that these provisions do not constitute a recognition of customary rights which, regarding land, are inconsistent with Queensland laws introduced upon annexation. (254) Dawson J then rejected various arguments advanced for the recognition of possession by the plaintiffs or some fiduciary duty on the part of the Crown. (255) He further rejected a claim that the Racial Discrimination Act was applicable to the case, concluding in particular that the Queensland Coast Islands Declaratory Act (the subject of Mabo No 1) was not inconsistent with the RDA. (256)
In his judgement, Toohey J noted that the
Meriam people are in culturally significant ways different from the Aboriginal peoples of Australia, who in turn differ from each other
however, the general legal principles remain the same. (257) Toohey J held that the Murray Islands were not terra nullius. (258) More generally, it does not apply to nomadic peoples either and
"the idea that land which is in regular occupation may be terra nullius is unacceptable, in law as well as in fact". (259)
He discussed a range of Imperial and US cases, noting the line of authority that lead to Blackburn J's ruling, referred to above, but rejected it in favour of the line of authority also cited in the judgements of Brennan J and of Deane and Gaudron JJ but given an alternative construction in Dawson J. (260) Toohey J noted that
"the proposition that positive acts of recognition are required before interests exist entails the difficult idea that on acquisition of sovereignty rights disappear, only to spring back to life immediately recognition occurs. Even more startling is the consequence that, immediately on annexation, all indigenous inhabitants become trespassers on the land in which they and their ancestors lived."
This was a consequence Toohey J held to be unacceptable to the common law. (261) Building on North American and Imperial precedent, Toohey J concluded that Meriam people did have traditional title. (262) Toohey J considered how native title could be extinguished, concluded it may be extinguished by valid legislative action, but could only be extinguished by executive action resting on clear legislative authority (263) and concluded there is nothing in the legislative history of Queensland, prior to the Queensland Coast Islands Declaratory Act, which extinguished native title in the Murray Islands, and the latter Act had been ruled as incompatible with the Racial Discrimination Act. (264) Along with the other Justices, he declined to rule upon the incompatibility of any deed in grant of trust with the RDA (265) but held there was a Crown fiduciary duty with regard to the traditional rights. (266)
After lengthy discussions of claim on the basis of long possession, (267) Toohey J examined the relevance of the Racial Discrimination Act to any extinguishment, finding that extinguishment of traditional title without compensation was impairment of a right enjoyed by other titleholders of different races and therefore in breach of the RDA. (268)
Native Title Case
In this case, the High Court ruled on whether the Western Australian Land (Titles and Traditional Usage) Act was valid in the light of the RDA.
The joint judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, considered the argument of the WA Government that native title had already been extinguished, examining at length the process of establishment of the colony and delegation of legislative power. (269) The joint judgement found that native title was not extinguished, but simply ignored, due to the view at the time that the Aboriginal peoples had no legal interest in land. Furthermore, such extinguishment was unnecessary, since any such interest would not have prevailed against the granting of freehold tenure. (270) Extinguishment was not deliberately taken because the legal theory held at the time deemed it unnecessary. (271)
The joint judgement then considered whether the WA Act was inconsistent with the RDA. (272) The joint judgment interpreted the equality before the law provision of Section 10(1) of the RDA as follows
"where, under the general law, the indigenous 'persons of a particular race' uniquely have a right to own or inherit property arising from indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or to inherit other property, the persons of the particular race are given, by s.10(1), security in the enjoyment of their property "to the same extent" as persons generally have in the enjoyment of their property...Security in the right to own property carries immunity from arbitrary deprivation of the property....Section 10(1) thus protects the enjoyment of traditional interests in land recognised by the common law" (273)
Further, if property of a particular race is subject to expropriation for additional or less stringent conditions (including lesser compensation) than is generally the case, that is also a breach of Section 10(1). (274) The joint judgement considered at length the operation of native title rights under the Act compared to other titles in land and found that the differing treatment of the former was inconsistent with Section 10(1) of the RDA. (275) The joint judgement also found that no State Act could retrospectively validate titles which had been affected by the operation of the RDA (276) and found the WA Act was ineffective in extinguishing native title. (277)
The joint judgement considered the constitutionality of the Commonwealth Native Title Act and found it to be valid except for Section 12 of the Act, which was ruled invalid. Section 12 sought to make the common law pertaining to native title "the force of a law of the Commonwealth", thus protecting it from State statutes. (278) The joint judgement considered the significance of the RDA. (279) The RDA did not alter the common law relating to native title. It added protections to it. (280) The joint judgement held the RDA could not be construed as overruling parts of the Native Title Act, originating as they did from the same legislature. (281)
In his judgement, Dawson J noted his dissent in Mabo No.1 and Mabo No.2, preferred the dissent of Wilson J on the question of how to treat native title under the RDA (i.e. so there was a single structure of property law which applied to all regardless of race) but, without resiling from his earlier views, decided to apply the majority decision of Mabo No.1 and Mabo No.2 in this case, following the principle of precedent. (282)
Dawson J agreed that no distinction in law could be found between the settlement of NSW and of WA (283) and that the WA Act was inconsistent with the RDA. (284)
Wik
In this case, the High Court ruled on whether pastoral leases extinguished native title. Brennan CJ held that pastoral leases did entail "exclusive possession" (285) and summarised the position of native title as
"native title 'has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory'. Those rights although ascertained by reference to traditional laws and customs are enforceable as common law rights. That is what is meant when it is said that native title is recognised by the common law. Unless traditional law or custom so requires, native title does not require any conduct on the part of any person to complete it, nor does it depend for its existence on any legislative, executive or judicial declaration. The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title." (286)
The acts of the first kind must have clear intent in the words to so extinguish. Acts of the first or second type are prevented, for States or Territories, by the RDA. The third merely requires valid execution of statute or by a valid act of appropriation including use for some purpose inconsistent with native title -- mere reservation of land for some stated purpose is not enough. (287) As pastoral leases entail exclusive possession, valid issuing of a pastoral lease extinguished native title. (288) This was a moral defect, but one which was not open to remedy by denying the effect of the law. The Aboriginal inhabitants did not become trespassers because, unless the lessee took some action to eject them, their presence would likely to have been known and implicitly consented to. (289) Nor could native title be revived once extinguished. Reversion rights resided only in the Crown as a consequence of fundamental principles of land law. Indeed
"It is only by treating the Crown, on exercise of the power of alienation of an estate, as having the full legal reversionary interest that the fundamental doctrines of tenure and estates can operate. On those doctrines the land law of this country is largely constructed. It is too late now to develop a new theory of land law which would throw the whole structure of land titles based on Crown grants into confusion." (290)
While it might have been argued Mabo No.2 had done just that, clearly it had not been on anywhere near the scale of the possibility raised by the Chief Justice. Brennan CJ lists some of the problems for native title itself, and for native title holders, if the doctrines of tenure and estate were not upheld. (291)
Dawson J reiterated his statement in the Native Title Case that he intended to follow the decisions of the court in Mabo No.1 and Mabo No.2. He therefore expressed his agreement with Brennan CJ. (292) McHugh J also agreed with Brennan CJ. (293)
Toohey J traced the history of leasehold in Australia and noted the "extraordinary complexity" of tenures in Australia, especially compared to England. (294) He cited comments by Earl Grey, Secretary of State, that pastoral leases were not to be taken to deny Aborigines their former use of the land. (295) He held that whether exclusive possession pertained to a pastoral lease turned on the statutory language. He did not find that the statutes in question had that effect. (296) He held that extinguishment can only be determined by delineation of the specific nature of the native title rights and the specific nature of the leasehold rights, with the latter prevailing to the extent of any inconsistency. (297) He further held that reversion of a lease does not automatically expand the Crown's radical title. (298) Toohey J stated that the decision in Mabo No.2 was not fully determinative (299) and held that the pastoral leases in question did not necessarily extinguish native title. (300) His orders were concurred with by Gaudron, Gummow and Kirby JJ.
Gaudron J argued on the basis of the wording of the Queensland Act under which the pastoral leases were granted, that the leases did not grant exclusive possession and, applying the rule of construction outlined by Deane and Gaudron JJ, that statute was not to be construed as extinguishing or diminishing native law title without clear and ambiguous wording to that effect, in line with general common law principles with regard to property, and that the Crown radical title did not expand upon reversion. (301)
Gummow J discussed the role of judiciary in the common law, and said of Mabo No.2.
"... nor did it rest upon the rejection of a particular common law rule by reason of its basis in particular conditions or circumstances. Rather, the gist of Mabo [No.2] lay in the holding that the long understood refusal in Australia to accommodate within the common law concepts of native title rested upon past assumptions of historical fact, now shown to be false." (302)
He also noted that the Court had rejected the proposition that the first fruit of extending the benefit of the common law to the indigenous peoples of Australia was to strip them of their right to occupy ancestral land. (303) He observed, of Mabo (No.2) that
"To the extent that the common law is to be understood at the ultimate constitutional foundation in Australia, there was a perceptible shift in that foundation, away from what had been understood at Federation." (304)
Gummow J suggested the adversarial processes had inhibited development of an appropriate historical method and discussed the difficulties in statutory construction given the change in the understanding of the common law since the passing of Acts under which the pastoral leases in question were issued. (305) Gummow J concluded that the leases in question did not confer exclusive possession and did not necessarily extinguish native title. (306)
Kirby J observed that
"Before the decision of this Court in Mabo v Queensland [No. 2], the foundation of land law in Australia was simple as it was clear"
i.e. that all rights in land came from the Crown and any indigenous legal title in land was completely extinguished and
"this apparently unjust and uncompensated deprivation of pre-existing rights distinguished the treatment by the Crown of the indigenous peoples in Australia compared to other settlements established under the Crown in the American colonies, Canada, New Zealand and elsewhere." (307)
Kirby J noted that while native title does not derive its content from English law, it is enforceable to the degree "native title is recognised by the common law as not inconsistent with its precepts" (308) though it is safer to hold that
"Aboriginal rights are sui generis, difficult if not impossible to describe in the terminology of traditional property law, being communal, personal and usufructuary". (309)
Kirby J rejected the notion that simple exercise of sovereignty by any dealing with land extinguished native title and the notion that it was a matter of factual inconsistency and instead held that it was a matter of examining the rights granted to see if they are consistent. Native title rights survived to the extent that they are so consistent. (310) He found such rights not to have been extinguished by the granting of pastoral leases under the relevant Queensland Acts. (311)
Kirby J's judgement was particularly useful for its directness and clarity. He pointed out that, given that legislators prior to Mabo No.2 operated on the assumption that there were no legally enforceable indigenous interests in land,
"It now falls to legislatures and courts to work out the consequences of the failure of this earlier social and legal strategy. There is an inescapable element of artificiality, in looking back over Australian legal history, which developed upon a particular hypothesis about Aboriginal legal rights, and endeavouring to reinterpret that history with the knowledge afforded by Mabo [No 2]"
He continued
"But it is important to understand that the decision in Mabo [No 2] was not a legislative but a judicial act. It did not declare that henceforth native title would be recognised. It held that native title had always existed" (312)
As a matter of legal theory, indeed so. As a matter of practical politics, Mabo No.2, with further elaboration in the Wik case, constituted the most dramatic incident of "judges as legislators" in Australian political history.
Kirby J was alive to the difficulties of the task confronting the High Court as a result of these decisions continuing
"[Native title] survived the advent of the sovereignty of the Crown in Australia. It was recognised by the common law. It would be enforced unless clearly extinguished. Thus the search must now be conducted to find indications of extinguishment. It is a search conducted at a disadvantage because it relies on legal materials written in a completely different legal environment of contrary understandings and beliefs. One of the founders of the Australian Constitution, Alfred Deakin, stated that judicial method enabled 'the past to join the future, without undue collision and strife in the present'. In this case, the present must revisit the past to produce a result, wholly unexpected at the time, which will not cause undue collision and strife in future." (313)
Hardly an easy task.
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Tanzi, Vito and Schuknecht, Ludger, The Growth of Government and the Reform of the State in Industrial Countries, IMF Working Paper, December 1995.
Tatz, Colin "Aboriginal Violence, A Return to Pessimism" in Australian Journal of Social Issues, Vol. 25 No. 4, Nov. 1990, Pp 245-260.
United Nations, International Convention on the Elimination of All Forms of Racial Discrimination, entered into force Jan. 4 1969.
Vamplew, Wray (ed.) Australians: Historical Statistics, Fairfax, Syme & Weldon Associates, Sydney, 1987.
Woodward, Justice Sir Edward, "Land Rights & Land Use: A View from the Sidelines" Paper delivered to Australian Constitutional Convention, 6 August 1985.
ENDNOTES
83. Examples include the interning of Japanese-Americans during World War II, Jewish minorities in Medieval and Modern Europe, the Chinese minority in Malaysia under the New Economic Policy, the Indian community in Fiji.
84. See studies by the Koorie Research Centre at La Trobe University, e.g. Gardiner, Greg, School to Street: The Aboriginal Youth Experience in Victoria, No. 2 1996.
85. See Tatz (1990).
86. Boyd and Richardson (1985), quoted and used in North (1990) P.37ff.
87. North (1990). P.36.
88. Crosby, (1993) Pp 275-9. Flannery, (1994) Pp 180ff.
89. Edgerton, (1992).
90. Geoffrey Blainey (1976) P.230.
91. The indigenous population of Oceania is estimated to have fallen from 3.5 million in 1522 to 2.0 million in 1939, McNeill (1989) P.318. The Aboriginal loss of population is likely to have been proportionately greater.
92. See Table 3, Appendix II.
93. For example, Atkinson, Wayne & Atkinson, Graham "Locked Out By Family" Herald-Sun, 14 April 1997.
94. At least before the fact.
95. Public ownership may be the best option when the level of information required to regulate a private monopoly is high, the operating costs are relatively low so there is less concern about public sector inefficiencies and there is a danger of commercial alliances reducing competition in connected private markets.
96. Green (1996) Pp 70-72.
97. Statistics taken from Kryger, Tony, Unemployment in Families with Children, Research Note No. 25, October 1995, Parliamentary Research Service.
98. Tasmanian culture seems to have been a relatively poor adaptation (see Edgerton 1992), with the extreme isolation both limiting the capacity for exchange of ideas and permitting survival of a relatively poorly adaptive culture.
99. See, for example, Firebrace, Sharon and Gardiner, Greg, Surviving the Frontier: The Role and Contribution of Indigenous Women in the Development of Australia, Monash University Koorie Research Centre, No. 5 1997.
100. For example, due to a death, a usage that evolved in a nomadic, hunter-gatherer society.
101. See North (1990), P. 60, Powelson (1994), Pp 91-123.
102. Power is both a capital and a consumption good. Useful for both the wealth it can accrue and the direct utility it can generate. (Powelson [1994]).
103. North Ganalanja Aboriginal Corporation (for and on behalf of the Waanyi People) v Queensland, 135 ALR 225 at 274 judgement of Kirby J.
104. The separation of mineral rights from land ownership provides an efficient regime for mining as well.
105. 141 ALR 129 at 196 judgement of Gaudron J. In his judgement, Toohey J refers to "the clear intention of the Crown that the pastoralists should not acquire freehold of large areas of land, the future use of which could not be readily foreseen" (141 ALR at 173). A glance at a land tenure map hardly divides the country into areas whose future uses are foreseeable and those that are not. Indeed, as noted elsewhere, the better the title to land, the more incentive there is to discover new uses.
106. Not merely because of problems of documentation, but also because of the doubtful nature of much "expert" evidence. See Humphry (1996).
107. That the main commercial value of native title rights is their ability to impede economic activity by others indicates both their limited nature and their likely detrimental effect on general economic activity. Those who are in favour of reducing human resource use may find this a virtue. Being in favour of forms of indigenous title which are considerably less than optimal for resource use, however, is not noticeably compatible with genuine concern over the material living standards of indigenous Australians.
108. If native title holders have any intention of seeking to purchase the lease, they will actually have an incentive to drive down its value.
109. Outside the Torres Strait Islands. There, traditional property is held on an individual basis.
110. Native Title Act, Para 29(2) (a) and (b) and Commentary on Act, P C17.
111. Vamplew (1987) P.61.
112. 153 CLR at 198 judgement of Gibbs CJ.
113. 153 CLR at 200 judgement of Gibbs CJ.
114. 153 CLR at 194 judgement of Gibbs C J.
115. 153 CLR at 220 judgement of Stephen J.
116. 153 CLR at 220 judgement of Stephen J.
117. 153 CLR at 220 judgement of Stephen J.
118. 153 CLR at 224 judgement of Mason J.
119. 153 CLR at 225 judgement of Mason J.
120. 153 CLR at 226 judgement of Mason J.
121. 153 CLR at 227ff judgement of Mason J.
122. 153 CLR at 229 judgement of Mason J.
123. 153 CLR at 229 judgement of Mason J.
124. 153 CLR at 230 judgement of Mason J.
125. 153 CLR at 234 judgement of Mason J.
126. 153 CLR at 237 judgement of Murphy J.
127. 153 CLR at 241 judgement of Murphy J.
128. 153 CLR at 245 judgement of Wilson J.
129. 153 CLR at 247 judgement of Wilson J.
130. 153 CLR at 248 judgement of Wilson J.
131. 153 CLR at 249 judgement of Wilson J.
132. 153 CLR at 253 judgement of Brennan J.
133. 153 CLR at 254 judgement of Brennan J.
134. 153 CLR at 258 judgement of Brennan J.
135. 153 CLR at 258 judgement of Brennan J.
136. 153 CLR at 259-60 judgement of Brennan J.
137. 153 CLR at 260 judgement of Brennan J.
138. Gerhardy v Brown (1985) 160 CLR 70 at 81 judgement of Gibbs CJ.
139. 160 CLR at 86-87 judgement of Gibbs CJ.
140. 160 CLR at 87 judgement of Gibbs CJ.
141. 160 CLR at 88 judgement of Gibbs CJ.
142. 160 CLR at 89 judgement of Gibbs CJ.
143. 160 CLR at 103 judgement of Mason J.
144. 160 CLR at 104 judgement of Mason J.
145. 160 CLR at 106 judgement of Mason J.
146. 160 CLR at 107 judgement of Murphy J.
147. 160 CLR at 108 judgement of Murphy J.
148. 160 CLR at 159 judgement of Wilson J.
149. 160 CLR at 121 judgement of Brennan J.
150. 160 CLR at 123 judgement of Brennan J.
151. 160 CLR at 123-31 judgement of Brennan J.
152. 160 CLR at 133-39 judgement of Brennan J.
153. 160 CLR at 143 judgement of Brennan J.
154. 160 CLR at 145-46 judgement of Deane J.
155. 160 CLR at 149 judgement of Deane J.
156. 160 CLR at 153-54 judgement of Deane J.
157. 160 CLR at 157 judgement of Dawson J.
158. 160 CLR at 158 judgement of Dawson J.
159. 160 CLR at 160 judgement of Dawson J.
160. 160 CLR at 162 judgement of Dawson J.
161. Mabo v Queensland (1988) 166 CLR 186 at 211 judgement of Brennan, Toohey and Gaudron JJ.
162. 166 CLR at 212 judgement of Brennan, Toohey and Gaudron JJ.
163. 166 CLR at 216 judgement of Brennan, Toohey and Gaudron JJ.
164. 166 CLR at 216-17 judgement of Brennan, Toohey and Gaudron JJ.
165. 166 CLR at 217 judgement of Brennan, Toohey and Gaudron JJ.
166. 166 CLR at 218 judgement of Brennan, Toohey and Gaudron JJ.
167. 166 CLR at 218-19 judgement of Brennan, Toohey and Gaudron JJ.
168. 166 CLR at 196 judgement of Mason CJ.
169. 166 CLR at 197 judgement of Mason CJ.
170. 166 CLR at 197-8 judgement of Mason CJ.
171. 166 CLR at 198 judgement of Mason CJ.
172. 166 CLR at 204 judgement of Wilson J.
173. 166 CLR at 206 judgement of Wilson J.
174. 166 CLR at 232 judgement of Deane J.
175. 166 CLR at 232 judgement of Deane J.
176. 166 CLR at 235-40 judgement of Dawson J.
177. 166 CLR at 242 judgement of Dawson J.
178. 166 CLR at 243 judgement of Dawson J.
179. 166 CLR at 243 judgement of Dawson J.
180. Mabo v Queensland (1992) 175 CLR 1 at 16-25 judgement of Brennan J.
181. 175 CLR at 25 judgement of Brennan J.
182. 175 CLR at 25-26 judgement of Brennan J.
183. 175 CLR at 26-28 judgement of Brennan J.
184. 175 CLR at 29 judgement of Brennan J.
185. 175 CLR at 29 judgement of Brennan J.
186. 175 CLR at 30-31 judgement of Brennan J.
187. 175 CLR at 32 judgement of Brennan J.
188. 175 CLR at 32-38 judgement of Brennan J.
189. 175 CLR at 39 judgement of Brennan J.
190. 175 CLR at 40 judgement of Brennan J.
191. 175 CLR at 40-43 judgement of Brennan J.
192. 175 CLR at 42 judgement of Brennan J.
193. 175 CLR at 43-5 judgement of Brennan J.
194. 175 CLR at 50 judgement of Brennan J.
195. 175 CLR at 51 judgement of Brennan J.
196. 175 CLR at 53 judgement of Brennan J.
197. 175 CLR at 54 judgement of Brennan J.
198. 175 CLR at 54-57 judgement of Brennan J.
199. 175 CLR at 57-8 judgement of Brennan J.
200. 175 CLR at 58 judgement of Brennan J.
201. 175 CLR at 58 judgement of Brennan J.
202. 175 CLR at 58-9 judgement of Brennan J.
203. 175 CLR at 59 judgement of Brennan J.
204. 175 CLR at 60 judgement of Brennan J.
205. 175 CLR at 61 judgement of Brennan J.
206. 175 CLR at 61-2 judgement of Brennan J.
207. 175 CLR at 62-63 judgement of Brennan J.
208. 175 CLR at 64 judgement of Brennan J.
209. 175 CLR at 65-6 judgement of Brennan J.
210. 175 CLR at 67 judgement of Brennan J.
211. 175 CLR at 68 judgement of Brennan J.
212. 175 CLR at 68-69 judgement of Brennan J.
213. Thus, the jurisdiction of the High Court itself was not at issue.
214. Batman had negotiated purchase of land for the settlement of Melbourne and Geelong from local tribes. This sale was later nullified by an Act of the NSW Legislative Council. The principle that the Crown was the only acceptable intermediary for land's initial movement into normal land law was one continuing point of consistency in the Mabo revolution in Australian land law.
215. 175 CLR at 69-70 judgement of Brennan J.
216. 175 CLR at 70-71 judgement of Brennan J.
217. 175 CLR at 71-74 judgement of Brennan J.
218. 175 CLR at 77-80 judgement of Deane and Gaudron JJ.
219. 175 CLR at 80-81 judgement of Deane and Gaudron JJ.
220. 175 CLR at 82-94 judgement of Deane and Gaudron JJ.
221. 175 CLR at 89-91 judgement of Deane and Gaudron JJ.
222. 175 CLR at 86 judgement of Deane and Gaudron JJ.
223. 175 CLR at 86-87 judgement of Deane and Gaudron JJ.
224. 175 CLR at 87-88 judgement of Deane and Gaudron JJ.
225. 175 CLR at 88 judgement of Deane and Gaudron JJ.
226. 175 CLR at 88-89 judgement of Deane and Gaudron JJ.
227. 175 CLR at 89-90 judgement of Deane and Gaudron JJ.
228. 175 CLR at 90-94 judgement of Deane and Gaudron JJ.
229. 175 CLR at 95-99 judgement of Deane and Gaudron JJ.
230. 175 CLR at 99-101 judgement of Deane and Gaudron JJ.
231. 175 CLR at 101-04 judgement of Deane and Gaudron JJ.
232. 175 CLR at 104-08 judgement of Deane and Gaudron JJ paras 48-55, quote is at 104.
233. 175 CLR at 109 judgement of Deane and Gaudron JJ.
234. 175 CLR at 109-13 judgement of Deane and Gaudron JJ.
235. 175 CLR at 110-11 judgement of Deane and Gaudron JJ.
236. 175 CLR at 112 judgement of Deane and Gaudron JJ.
237. 175 CLR at 113-16 judgement of Deane and Gaudron JJ.
238. 175 CLR at 116-18 judgement of Deane and Gaudron JJ paras 69-76.
239. 175 CLR at 120 judgement of Deane and Gaudron JJ.
240. 175 CLR at 123 judgement of Dawson J.
241. 175 CLR at 127 judgement of Dawson J.
242. 175 CLR at 127 judgement of Dawson J.
243. 175 CLR at 129 judgement of Dawson J.
244. 175 CLR at 131-36 judgement of Dawson J.
245. 175 CLR at 138 judgement of Dawson J.
246. 175 CLR at 139 judgement of Dawson J.
247. 175 CLR at 140 judgement of Dawson J.
248. 175 CLR at 145 judgement of Dawson J.
249. 175 CLR at 145 judgement of Dawson J.
250. 175 CLR at 145-54 judgement of Dawson J.
251. 175 CLR at 154 judgement of Dawson J.
252. 175 CLR at 155 judgement of Dawson J.
253. 175 CLR at 159 judgement of Dawson J.
254. 175 CLR at 161 judgement of Dawson J.
255. 175 CLR at 162-170 judgement of Dawson J.
256. 175 CLR at 171-75 judgement of Dawson J.
257. 175 CLR at 179 judgement of Toohey J.
258. 175 CLR at 180 judgement of Toohey J.
259. 175 CLR at 182 judgement of Toohey J.
260. 175 CLR at 182-84 judgement of Toohey J.
261. 175 CLR at 184 judgement of Toohey J.
262. 175 CLR at 188-92 judgement of Toohey J.
263. 175 CLR at 192-96 judgement of Toohey J.
264. 175 CLR at 196-98 judgement of Toohey J.
265. 175 CLR at 198-99 judgement of Toohey J.
266. 175 CLR at 199-205 judgement of Toohey J.
267. 175 CLR at 206-14 judgement of Toohey J.
268. 175 CLR at 214-16 judgement of Toohey J.
269. Western Australia v Commonwealth (1995) 183 CLR 373 at 421-434 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
270. 183 CLR at 432 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
271. 183 CLR at 433 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
272. 183 CLR at 434-38 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
273. 183 CLR at 437 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
274. 183 CLR at 437 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
275. 183 CLR at 438-50 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
276. 183 CLR at 451 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
277. 183 CLR at 451-2 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
278. 183 CLR at 453-88 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
279. 183 CLR at 453-55, 462-63, 483-84 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
280. 183 CLR at 463 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
281. 183 CLR at 483 judgement of Mason, CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
282. 183 CLR at 491-93 judgement of Dawson J.
283. 183 CLR at 494-95 judgement of Dawson J.
284. 183 CLR at 495 judgement of Dawson J.
285. 141 ALR at 138-151 judgement of Brennan CJ.
286. 141 ALR at 151 judgement of Brennan CJ.
287. 141 ALR at 152 judgement of Brennan CJ.
288. 141 ALR at 153 judgement of Brennan CJ.
289. 141 ALR at 154 judgement of Brennan CJ.
290. 141 ALR at 158 judgement of Brennan CJ.
291. 141 ALR at 159-60 judgement of Brennan CJ. These included whether holders of native title would be liable to pay for improvements in the land upon expiry of a lease and whether the RDA would render ineffective adding statutory rights to a pastoral lease.
292. 141 ALR at 164 judgement of Dawson J.
293. 141 ALR at 219 judgement of McHugh J.
294. 141 ALR at 171-72ff judgement of Toohey J.
295. 141 ALR at 179 judgement of Toohey J.
296. 141 ALR at 181 judgement of Toohey J.
297. 141 ALR at 182-85 judgement of Toohey J.
298. 141 ALR at 185-87 judgement of Toohey J.
299. 141 ALR at 187 judgement of Toohey J.
300. 141 ALR at 187-88 judgement of Toohey J.
301. 141 ALR at 192-218 judgement of Gaudron J.
302. 141 ALR at 229 judgement of Gummow J.
303. 141 ALR at 230 judgement of Gummow J.
304. 141 ALR at 230 judgement of Gummow J.
305. 141 ALR at 231-32 judgement of Gummow J.
306. 141 ALR at 246-47 judgement of Gummow J.
307. 141 ALR at 249-50 judgement of Kirby J.
308. 141 ALR at 256 judgement of Kirby J.
309. 141 ALR at 257 judgement of Kirby J.
310. 141 ALR at 262-275 judgement of Kirby J.
311. 141 ALR at 285 judgement of Kirby J.
312. 141 ALR at 269 judgement of Kirby J.
313. 141 ALR at 269 judgement of Kirby J.
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