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By Liz Jackson and Lisa McGregor

Updated May 10, 2012 14:55:00

Liz Jackson reports on the impact of this historic judgement, the reaction it inspired and the inside story of the negotiations to create the law that would pave the way for Native Title. We hear from the power brokers who forced the nation to confront its history, and their critics.

Former High Court Chief Justice Sir Anthony Mason: "I foresaw that the judgement would be controversial but as often happens you don't actually foresee the extent of the controversy."

Former President WA Liberal Party Bill Hassell: "It was a sense of outrage. That the High Court, which is not elected by anybody, not accountable to anybody, had presumed to move into the legislative area to make a whole new law."

Aboriginal negotiator, Mick Dodson: "Certainly it was something different for the leadership, probably the first time when we had such a huge issue, being directly negotiated with the Prime Minister."

Former Prime Minister Paul Keating: "Well the biggest pressure came at the end. The greater body of the parliamentary caucus in the form of senior people in the cabinet wanted me to give it up towards the end... and I said you've got to be joking, you've got to be joking, but they weren't joking. You know they didn't think I could get it through."

"Judgement Day", reported by Liz Jackson and presented by Kerry O'Brien, goes to air on Monday 7th May at 8.30 pm on ABC1. It is replayed on Tuesday 8th May at 11.35pm. It can also be seen on ABC News 24 each Saturday at 8.00pm, on ABC iview and at abc.net.au/4corners.

Transcript
JUDGEMENT DAY 7 May 2012
KERRY O'BRIEN, PRESENTER: Volatile politics at the time, but a rare historic breakthrough for Aboriginal Australians. Welcome to Four Corners. Eddie Mabo was a remarkable Australian who grew up naively believing that he owned his traditional family land in the Torres Strait Islands. He was working as a humble gardener at James Cook University in Townsville when he discovered otherwise, and launched a case that challenged the accepted common law principal of terra nullius - that Australia was essentially unoccupied when white settlers arrived here in 1788. He was David taking on Goliath. Legal Aid was his slingshot. It took ten years, but on June 3 1992, twenty years ago next month, the High Court ruled against terra nullius, and native title was enshrined in common law. But that was just the beginning. What followed was a riveting moment in Australian political and social history, when then-Prime Minister Paul Keating took up the challenge to provide a legislative framework for a ruling that promised to change the fundamental relationship between black and white Australians. It was an intense and highly-charged process of negotiation, with Aboriginal leaders, the states and powerful mining and pastoral interests, with some opponents predicting all kinds of dire outcomes for white Australians. On the eve of the anniversary, Liz Jackson has obtained exclusive interviews with the key architects of Mabo and its outcome, including former High Court Chief Justice Sir Anthony Mason, for this compelling report.

LIZ JACKSON, REPORTER: Judgement Day: June the 3rd, 1992. There was nothing in the early morning papers to tell Australians that this was the day the High Court would release its historic judgement in the Mabo case. It concerned what the judges would call the "darkest aspect of this nation's history" - the parcel by parcel dispossession of Aboriginal people from the land they owned. What the judges would call "our nation's legacy of unutterable shame". The judgement overturned 200 years of common law, and found that native title had survived British sovereignty. And it tore the country apart. The Chief Justice, Sir Anthony Mason saw it coming.

ANTHONY MASON, FORMER CHIEF JUSTICE OF THE HIGH COURT: I foresaw that the judgement would be controversial, but as often happens, you don't actually foresee the extent of the controversy, nor do you see the consequences of the controversy. I certainly thought there would be controversy. I thought that there would be objections from mining interests and from pastoral interests.

CAMPBELL ANDERSON, FORMER PRESIDENT, AUSTRALIAN MINING & INDUSTRY COUNCIL: I don't think we said that we'd lost, but we'd said, "Goddammit. What the hell's happened here? What are we going to do?"

PAUL KEATING, FORMER PRIME MINISTER: Oh I thought this was a spark that could light... light the fire.

LIZ JACKSON: Six of the seven judges on the High Court bench declared the law to date had been based on a fallacy, "terra nullius" - that the land was owned by nobody. While clearly there were people here when the British arrived, 19th century judges had deemed them too backward, too barbarous, too primitive, to have their rights over land recognised and respected. It was time to change the law.

(to Sir Anthony Mason) And what was it factually that persuaded you that way?

ANTHONY MASON: The fact that, first, Australia was not an uninhabited country. Secondly, that the Indigenous people were not uncivilised, without customs of their own and recognition of some rights of their own; and thirdly, that they did have ties with land - as is apparent of course from their myths and their culture.

LIZ JACKSON: And that had not been acknowledged by the law in Australia before?

ANTHONY MASON: No, it hadn't.

BILL HASSELL, FORMER PRESIDENT, WA STATE LIBERAL PARTY: It was a sense of outrage that the High Court - which is not elected by anybody, not accountable to anybody - had presumed to move into the legislative area to make a whole new law in an area where the public politically had already rejected that law, as they did in the 1980s; it was lost in the Western Australian Parliament and the Labor government had run away from its commitment to Aboriginal land rights, because they knew the public wouldn't accept it.

MICK DODSON, FORMER SOCIAL JUSTICE COMMISSIONER: Well, to put it perhaps in simple terms, the Aboriginal Torres Strait Islander people have been here for a long, long time. The British came along, took the country without our consent, decimated the population, ignored any rights we may have had, asserted in fact that we had no rights to the land. And that had remained unaddressed - that was wrong of course - and that had remained unaddressed for, for two centuries or more. That's what Mabo meant. Mabo addressed that wrong.

PAUL KEATING: When the High Court decision came down I thought, this is the crack of light one should crawl through, because this has got the truth about it; whereas they're a set of rights as distinct from a gift. You know the set of legislative land rights are a gift, whereas this was a set of rights earned by way of traditional association.

LIZ JACKSON: And this was a crack of light to getting towards national land rights? Is that what you're talking about?

PAUL KEATING: Getting towards dealing with the fundamental colonial grievance - that was the disposition en masse of the lands of the original occupants of Australia.

ANNOUNCER (1992): It now gives me great pleasure to introduce the Prime Minister of Australia to launch the International Year of Indigenous People.

LIZ JACKSON: It's six months after Mabo, in the Sydney suburb of Redfern. Until now Paul Keating had had very little involvement in Aboriginal affairs. He'd taken no public stance on indigenous rights or grievances. That was about to change.

PAUL KEATING: The plight of indigenous Australians affects us all.

LIZ JACKSON: It was only about half way through the speech that the crowd began to take in what Keating was actually saying.

PAUL KEATING: It begins, I think, with an act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases and alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion.

LIZ JACKSON: The Prime Minister then made his public commitment to Mabo as the road to reconciliation

PAUL KEATING: We can make it an historic turning point: the basis of a new relationship between Indigenous and non-Aboriginal Australians.

MICK DODSON: Oh, it gave all of us a great deal of hope; particularly I felt encouraged by it, enormously encouraged by it because for the first time, at least since Federation, we had a prime minister ah who had the courage to speak truths that were hitherto unspoken.

NICK MINCHIN, FORMER LIBERAL PARTY SENATOR: To me it was Keating trying to create some mechanism by which he could rescue a government with which was in trouble and give it some, you know, purpose - and an agenda that would distinguish it from the Coalition, which at that time of course was well ahead in the polls. But I thought it was risky for Keating to do that, because it was well outside the sort of mainstream Australian sense on these issues.

PAUL KEATING: Oh I knew absolutely. You only had to touch this issue and it went off on you all over the place. That's why no-one ever done anything with it.

LIZ JACKSON: Three months later, against all expectations, Paul Keating won the 1993 Federal election,

PAUL KEATING (1993); Well thanks you ladies and gentlemen. This is the sweetest victory of all.

LIZ JACKSON: Now Keating had the mandate of this victory to move on Mabo.

PAUL KEATING: The High Court decision was just an opportunity for the moment, but the moment would close quickly unless there was a system of protection - a legislative system of protection for native title.

ANTHONY MASON: Paul Keating's role was important because he supported the Court's decision; he took the very important step of supporting the enactment of the Federal Native Title Act. Without the Federal Native Title Act you would not have had a system, a process for orderly handling of Indigenous land claims, and that was absolutely essential.

LIZ JACKSON: Beyond the claims of Eddie Mabo and others, the High Court judges had not determined where native title was, or what rights attached to it. But they had made it clear, in black and white, that any grant of freehold since 1788 extinguished it. But the impact of native title on mining operations and pastoral leases was unclear.

PAUL KEATING: Could there be co-existence of title? Could you have grazing and a traditional way of life happening concomitantly? On this, of course, the judgment was very silent - not silent but mixed.

LIZ JACKSON: Six weeks after the election, the Prime Minster called a formal meeting with Aboriginal leaders from the Central, Cape York , Northern and Kimberley land councils, the West Australian Legal Service and the Social Justice Commissioner. It was one of the rare occasions that Aborigines have been invited into the Cabinet Room. There were customary formalities first - a presentation by artist Wenten Rebunjta

MICK DODSON: Governments say they always consult, but this was a bit different because not only was the Government consulting, it was also trying to negotiate an outcome with us.

LIZ JACKSON: At later talks with the Mabo Ministerial Committee, the Aborigines presented a Peace Plan - their basis for future negotiations.

MICK DODSON (1992): I am not authorised nor am at liberty to discuss the specifics of today's meeting, but certainly we are encouraged by the approach of the Prime Minister.

LIZ JACKSON: Fundamentally, the Aborigines wanted the Commonwealth's proposed legislation to override the states' land management powers, and affirm and protect Aboriginal rights, including the right to veto access to their land.

PAUL KEATING: A lot of that I agree with, of course. A lot of that I agree with. I mean not saying the states would agree with it, but certainly I agree with it. So you've got to get the psychology right. They'd always been done over. They'd always been done over. So all of a sudden they're brought into the system, and they're saying, "What does this mean? What does this mean?" And I'm saying to, "It means for the first time you're not going to be done over. You're going to have real rights here." And they're saying, "Really?"

LIZ JACKSON: It's one week later and the Prime Minister Paul Keating is a guest at the annual dinner of the Australian Mining Industry Council. He's being met by the President of AMIC, Campbell Anderson. The council is made of the CEOs and directors of the major mining companies in the country, and they don't like Mabo. The director of Western Mining, Hugh Morgan, had recently called on the Commonwealth to repeal the Racial Discrimination Act so the states could just extinguish native title.

(to Campbell Anderson) Do you think most of the board felt it would have been a better thing had it never been found?

CAMPBELL ANDERSON: I think from the mining industry's point of view there is no doubt that that was the case. Whether we would all have called for its total extinction - I suspect we would have in the first instance as our first response.

LIZ JACKSON: And failing that?

CAMPBELL ANDERSON: Well, to see how we could impact on the legislation, the enabling legislation, that was going to be passed, which is what we sought to do.

LIZ JACKSON: The Prime Minister knows these people well. He was for years the shadow minister for minerals and energy.

PAUL KEATING (1992): Ladies and gentlemen, thank you very much for having me here tonight to speak to you

LIZ JACKSON: Tonight he's come to deliver the message that he's committed to Mabo.

PAUL KEATING (1992): Now, the other important issue is the question of Mabo, and where it goes. I have said to Campbell and his colleagues who saw me last week with APIA and the National Farmers Federation, that I think Mabo is a distinct opportunity for Australia and should be pursued ambitiously.

LIZ JACKSON: Keating is aware of the miners' concerns.

PAUL KEATING: Well the mining concerns were pretty real, because there were mining operations and exploration operations over what was obviously native title land, and yet Aboriginal people had been given no say, no compensation - and so therefore the chances are that the High Court would find grants invalid..So the mining industry were horrified - and not it wasn't faux horror, it was real horror. They weren't putting on an act, you know - they didn't know where they stood.

LIZ JACKSON: So certainty is what they were looking for?

PAUL KEATING: Yeah, well, more than that: validation.

LIZ JACKSON: There was an early call not just for validation but for extinguishment. I mean Hugh Morgan was out there pretty early on saying that what you should do was give the states the land management rights and let them just extinguish native title.

PAUL KEATING: Oh well, I just disregarded those people, yeah. Just, you know, didn't didn't that didn't even touch the sides with me, that view

LIZ JACKSON: Meanwhile, in Canberra, Government has produced a Mabo discussion paper. It proposes validating all titles issued after the 1975 Racial Discrimination Act, removing a major concern of the miners and the pastoralists. It canvasses giving native title claimants limited veto rights and the right to negotiate over future developments. It proposes setting up a tribunal system run by the states, but according to national standards set by the Commonwealth.

It was produced the week before the COAG meeting between the Prime Minister and the state premiers, where Keating hoped to seal a deal. It was never going to be easy.

By nightfall it was clear that Richard Court would never agree to a national solution

RICHARD COURT, FORMER WA PREMIER: I was alone in the sense that I was explaining that Western Australia was in a different position. We were a large state - one third of the Australian land mass - and only seven per cent of our state was freehold land, so most of the rest could be claimed under this new concept of "native title".

LIZ JACKSON: By the end of the second day, the talks had collapsed.

(to Paul Keating) What was the fundamental sticking point? I mean what caused the talks to collapse?

PAUL KEATING: Oh I... look, it's very hard to pinpoint any one thing. It's just that they wanted... they didn't want the Commonwealth in there really at all. Land management was for them.

LIZ JACKSON: Why was it important to keep Federal control over the process when, constitutionally, the states had had management land management control before that?

PAUL KEATING: Well, the 1967 referendum gave the Commonwealth power to legislate for Aboriginal people, and I believe we needed a national approach to native title, not a state-sponsored approach, national principles and...

LIZ JACKSON: Because... because why? Why?

PAUL KEATING: Well, for... for the greater guarantee of justice and equity.

LIZ JACKSON: You didn't trust the states?

PAUL KEATING: No.

LIZ JACKSON: Why not?

PAUL KEATING: You couldn't trust them out of your sight.

LIZ JACKSON: Because?

PAUL KEATING: Well they'd go and rob them. Again. They'd take it off them.

LIZ JACKSON: Paul Keating has put to us that the reason he thought it was important that the Commonwealth run the system was he didn't trust the states.

RICHARD COURT: Oh well thank you. Perhaps we don't trust the central government.

LIZ JACKSON: Six months later, Richard Court's government enacted a law to extinguish all native title in Western Australia.

(to Richard Court) Your act was found to be inconsistent with the Racial Discrimination Act.

RICHARD COURT: Our act that we put in was ruled out in a High Court challenge...

LIZ JACKSON: On the basis that it was inconsistent with the Racial Discrimination Act.

RICHARD COURT: Yeah, basically the Federal Government legislation overruled our legislation, and I don't accept that it was a racist act. I find that offensive.

LIZ JACKSON: It's the 17th of June, 1993 and the Newspoll is showing 43 per cent of people are in favour of allowing Aboriginal people to claim native title, 46 per cent are against. It's two weeks after the Wiradjuri people lodged a Mabo-style claim over a third of NSW. It's one of many native title ambit claims with no chance of success, but people are rattled.

Paul Keating is going on Radio 2UE's John Laws show. The Prime Minister is here to reassure the listeners. The first call is about the Wiradjuri claim.

(Excerpt from Radio 2UE, 1993)

PAUL KEATING: The claims don't have a snowball's chance in hell of succeeding. They've got nothing to do with Mabo, nothing whatsoever.

CALLER: Never mind about Mabo...

PAUL KEATING: Okay, what's your problem?

CALLER: I have to buy my land, why can't they buy theirs?

PAUL KEATING: If there'd been a treaty here in 1788, then the thing is, maybe. Maybe that the Crown might have bought its land.

CALLER: There couldn't be a treaty, Mr Keating, you know that, because there was too many tribes and clans and whatever.

PAUL KEATING: Oh, right, well thank you for your anthropological advice.

CALLER: Well that's in the history, I'm only talking in history. Right, now...

PAUL KEATING: I think you're talking prejudice, mostly, aren't you?

JOHN LAWS: Okay, now we must take another call, because that was the idea, the let the people of Australia talk to you...

(End of excerpt)

LIZ JACKSON: This is the second call

(Excerpt from Radio 2UE, 1993)

CALLER II: Good morning.

JOHN LAWS: Okay, the Prime Minister is here.

CALLER II: Yes, good morning. Just a very broad question, Mr Keating, is, why does your government see the Aboriginal people as a much more equal people than the average white Australian?

PAUL KEATING: We don't. We see them as equal.

CALLER II: Well, you might say that, but all the indications are that you don't.

PAUL KEATING: But what's implied in your question is that you don't; you think that non-Aboriginal Australians, there ought to be discrimination in their favour against blacks.

CALLER II: Not... whatsoever. I... I don't say that at all. But my... myself and every person I talk to - and I'm not racist - but every person I talk to...

PAUL KEATING: But that's what they all say, don't they? They put these questions - they always say, "I'm not racist, but, you know, I don't believe that Aboriginal Australians ought to have a basis in equality with non-Aboriginal Australians. Well, of course, that's part of the problem.

CALLER II: Aren't they more equal than us at the moment, with the preferences they get?

PAUL KEATING: More equal? They were... I mean, it's not for me to be giving you a history lesson - they were largely dispossessed of the land they held.

CALLER II: There's a question over that. I think a lot of people will tell you that. You're telling us one thing...

PAUL KEATING: Well, if you're sitting on the title of any block of land in NSW, you can bet an Aboriginal person at some stage was dispossessed of it.

CALLER II: You know that for sure, do you?

PAUL KEATING: Of course we know it for sure!

CALLER II: Yeah, [inaudible].

PAUL KEATING: You're challenging the High Court decision, are you you? You're saying the High Court got this all wrong.

CALLER II: No, I'm not saying that at all! I wouldn't know who was on the High Court.

PAUL KEATING: Well, why don't you sign off, if you don't know anything about it and you're not interested. Good bye!

CALLER II: Yeah, well, that's your...

PAUL KEATING: No, I mean, you can't challenge these things and then say, "I don't know about them".

JOHN LAWS: Oh well, he's gone.

(End of excerpt)

LIZ JACKSON: The caller has hung up.

(To Paul Keating) And you felt you could deal with that?

PAUL KEATING: Well you can never quite deal with it. You can only... you can deal with it. It doesn't say that you send everyone away as satisfied customers. I mean, I think the Native Title Act was material in the decline in the standing of the government, you know, from 1993 onwards - particularly in Western Australia and Queensland.

LIZ JACKSON: Did you political damage?

PAUL KEATING: Oh, huge.

LIZ JACKSON: How nervous did that make your political colleagues?

PAUL KEATING: Oh, a lot of people in the Labor Party very nervous. A lot of lot of my colleagues didn't want a bar of it. Didn't want a bar of it.

LIZ JACKSON: Up till now the Coalition had been keeping a low profile in the Mabo debate. Internally they were divided with no clear public position. But at the NSW National Party Conference, their leader, Tim Fischer decided to change that.

TIM FISCHER, FORMER NATIONAL PARTY LEADER (1993): Delegates of the National Party: the subject of my address today is Mabo and the monarchy, and let's not forget, the economy.

LIZ JACKSON: When it came to Mabo, Fischer told the delegates that there was no room for guilt.

TIM FISCHER (1993): Rightly or wrongly, dispossession of Aboriginal civilisation was always going to happen. Those in the guilt industry have to consider that developing cultures and peoples will always overtake relatively stationary cultures. We have to be honest and acknowledge that Aboriginal sense of nationhood or even infrastructure was not highly developed. At no stage did Aboriginal civilisation develop substantial buildings, roadways, a wheeled cart as part of their different priorities or approach.

(to Liz Jackson) I was merely acknowledging they went one way, others went another way.

LIZ JACKSON: But you were suggesting in that speech that because they never did develop roadways or even a wheeled cart...

TIM FISCHER: They elected not to or they chose not to or they did not do.

LIZ JACKSON: ...that they had no native title entitlements.

TIM FISCHER: They had, I think, less of a claim.

(in 1993) Mabo has the capacity to put a brake on Australian investment, break the economy and break up Australia - a break, a break and a break up we can well do without.

LIZ JACKSON: You did say that at that time that Mabo had the potential to put a "break on investment in Australia...

TIM FISCHER: Yes.

LIZ JACKSON: ...break the economy...

TIM FISCHER: Yes.

LIZ JACKSON: ...and break up Australia."

TIM FISCHER: There was, you must remember...

LIZ JACKSON: Was that a "yes" to that as well?

TIM FISCHER: ...a very fragile set of circumstances applying, as people began to realise that that which they thought was a fair dinkum title to lands that they were operating on may not have any legality whatsoever.

LIZ JACKSON: It's late September 1993, and the protesters are heading for Parliament House in Canberra. The government has released an outline of the proposed Native Title Act. Outside Parliament House, this group burn a copy of the consultation paper.

Two weeks later inside the Parliament, the so called "A-team" of Aboriginal leaders have been meeting over three days, face-to-face with Paul Keating, to negotiate a deal. Their bottom line concerns have remained the same: a right to control access to native title land; keeping the protection from extinguishment provided by the Racial Discrimination Act; and for the Commonwealth to control the process. Right now they're worried.

MICK DODSON: Certainly it was something different for the leadership, probably the first time when we had such a huge issue being directly negotiated with the Prime Minister, and so much being at stake. I think there was doubts all around.

LOWITJA O'DONAHUE, ABORIGINAL LEADER: I was frustrated that we weren't going forward, I thought, in the way we should - which finally led, of course, to Black Friday.

LIZ JACKSON: The following day, a Friday, the A-team announce to the press they feel betrayed. They've heard Keating's Cabinet is prepared to suspend the Racial Discrimination Act in a bid to get the states onside.

MICK DODSON (1993): I could be cynical and say it's true to form, historically. I think the reality of the situation, as the Government sees it, is a political reality is that those states and territories and other vested interests, can politically do more damage to it than indigenous people can.

NOEL PEARSON, CAPE YORK LAND COUNCIL (1993): I personally wrote to the Prime Minister earlier this week, and said if there was one issue on which I will never be reconciled, and my organisation will never be reconciled - and that is, if there be any infringement of the integrity of the Racial Discrimination Act. I've done my share of cajoling and reasonable argument and sleazing around the corridors, but I think the ball's in the Prime Minister's court as to whether it is... the states are going to party to this national reconciliation; whether the Indigenous people of this country are going to be party to the national reconciliation.

LIZ JACKSON: The Prime Minister called meetings with the A-team.

PAUL KEATING: I'm picking a number out of the air, but I'd say probably for 10 or 12 days there was to-ing and fro-ing around these issues. Of course Aboriginal people were experienced in negot... at that stage, the negotiating - they're putting pressure on, you know they're saying things in public, you know, they're doing things to put pressure on you, you know?

LIZ JACKSON: Behind closed doors Keating was persuaded that validating all pre-existing titles could be done without suspending the Racial Discrimination Act. Part of the quid pro quo was that the A team would publicly support the validation sought by the miners and the farmers. Keating's message was, "Compromise now if you want a Native Title Act", and he would support most of what they wanted.

LOWITJA O'DONAHUE: What I was pleased about, that Keating was always able to say, "Well, I can't negotiate on that." And he was open and truthful when he thought that he could deliver, and if he couldn't he told us to our face.

LIZ JACKSON: Was veto one of those issues?

LOWITJA O'DONAHUE: Veto was one of those issues, yes.

LIZ JACKSON: Ten days after Black Friday, a deal had been agreed. As the Prime Minister got closer to tabling the Native Title Bill, his senior Cabinet colleagues were having second thoughts. Opinion polls taken in late October showed 35 per cent in favour of the Bill, 41 per cent against. The Mining lobby was taking out full-page ads, warning of dire financial consequences, and calling for "One Australia for All Australians".

PAUL KEATING: Well the biggest pressure came at the end. Look... the greater body of the parliamentary caucus, in the form of senior people in the Cabinet, wanted me to give it up towards the end, and I said, "You've got to be joking, you've got to be joking". But they weren't joking. You know, they didn't think I could get it through.

LIZ JACKSON: At midnight, in the last days before the Bill was tabled, Paul Keating rang the President of the National Farmers Federation, and nailed down the farmers support. Keating gave his personal assurance that their titles were secure.

GRAHAM BLIGHT, FORMER NFF PRESIDENT: I mean here was a discussion about trying to have two titles on one piece of land that were recognised titles. And that was something that was very difficult for pastoralists to understand - well anyone to understand, in fact. And the trust issue got us over the line there.

LIZ JACKSON: You trusted Keating on...

GRAHAM BLIGHT: I trusted Keating to deliver.

LIZ JACKSON: On the 16th of November, Keating tabled the Native Title Bill in the House of Representatives - a Bill "to rectify the consequences of past injustice". Over the following days, the Coalition fiercely opposed it.

JOHN HEWSON, OPPOSITION LEADER (1993): You raised the expectations of farmers: you sold them out. You raised the expectations of miners: you sold them out. You're asking the people of Australia to sign off on a blank cheque that will cost them hundreds of millions; indeed the minister behind you say, "Billions of dollars!" Open-ended commitment, for what? Because you want to go down in history as the man who could reconcile black and white Australia?

PAUL KEATING (1993): We will triumph with this Bill of principal, and why the nation will embrace it: for righting a wrong 200 years in the making.

JOHN HEWSON (1993): The megalomaniac at the desk wants to go down in history as the one person who wanted to reconcile black and white Australia!

PAUL KEATING: And there's no way you can slide and hide behind the [inaudible] of our guillotines - to cover your shame of trying to denude the first Australians, the Indigenous Australians, of the land that should be theirs!

LIZ JACKSON: The Bill was always going to pass in the House where the government had the numbers. The problem was the Senate, where the minor parties held the balance of power

PAUL KEATING: We were being held to ransom in the Senate by the two Greens from Western Australia, who thought they had a better solution for Aboriginal people than the one the government was offering. I had Christabel Chamarette and Dee Margetts over with their classic whitey line: "We know better for Aboriginal people". You know, I said, "You're just another bunch of whiteys like all the others." You know, "You always know better than them." I said, "I'm dealing with them, but you know better than them, is that right?"

LOWITJA O'DONAHUE: I think I gave up actually, on them.

LIZ JACKSON: The Greens were talking to Aboriginal people who wanted to hold out for more than the A-team had delivered. After days of tense negotiations, the Greens came on board.

The division in the Senate came just before midnight, and just before Christmas,1993. The debate had been running for 111 solid hours, the longest in 92 years of Senate history. Finally the result came in.

DOUG MCCLELLAND, PRESIDENT OF THE SENATE (1993): Order! The result of the division: there being 34 ayes and 30 noes, the question is resolved in the affirmative.

LIZ JACKSON: The native title bill was through.

PAUL KEATING: It was done within 18 months of the court decision. Like, in 200 years of procrastination and 18 months they had an Act of Parliament to protect and award native title.

LOWITJA O'DONAHUE: I think it was important for Keating, 'cause Keating had made a decision, I think, that this was the biggest thing he was going to do, you know, during his term, and he wanted to have something, you know, that he'd achieved during that period of time, and he chose native title as being it, and of course he pulled it off.

LIZ JACKSON: Twenty years have passed since the High Court handed down the Mabo judgment, 18 since the Native Title Act was passed. Governments have come and gone, and the Native Title Act has been amended. The High Court has also made significant rulings, which have expanded the resilience of native title, but also made it much harder to prove.

What hasn't changed is that Australian law now recognises the prior ownership of the land by Aboriginal people. And while much of native title has been extinguished, there are places it has survived. This is one, in the Pilbara region of Western Australia. Four Corners was here last year with the owners of the land.

It took seven years to negotiate a deal with Rio Tinto to mine on their land, but the benefits are substantial.

ELAINE JAMES, ABORIGINAL ELDER: Well my best hope is by, you know, people got opportunities to be self-sufficient, you know, one day own business and put up something for their... feed the children, you know, they're just still comin' up you know. They'll be the ones that gonna benefit more. You know, big step for us was just getting to this final agreement, you know, although it's been a very hard road for us to get there, and finally we are here.

LIZ JACKSON: Over the past 20 years, there have been 140 successful native title claims, over both land and sea. Native title is now recognised as covering 17 per cent of Australia

(to Campbell Anderson) How do you think Mabo has changed Australia?

CAMPBELL ANDERSON: It certainly required the industry to talk more to Aboriginal people, and I think that's a plus. I think the Aboriginal... the relationship between the mining industry and the Aboriginal people is much better than is generally considered in the community, and I think that's probably because of Mabo rather than despite it.

ANTHONY MASON: I don't know that I had particular hopes, but I thought it meant a lot that Indigenous land rights were recognised. I thought that would enable the Indigenous people to take more pride in their inheritance than they had done otherwise. I also thought that it would enable them to see that the justice system in Australia was capable of delivering results - results that actually protected their interests.

RICHARD COURT: One of the downsides of what's happened as a result of the system that's been put in place: there's a very strong focus on money, you know, there's a strong focus on settling claims with, sort of the, you know... the financial, you know, dollar - and at the end of the day it takes a lot more than money to bring about true reconciliation.

MICK DODSON: What we want is an acceptance of our history and what has happened to us, the first Australians. Now don't deny the historical truth. If you can do that, you'll free your heart.

KERRY O'BRIEN: Eddie Mabo didn't live to see his triumph. He died five months before the High Court ruling in 1992. He was just 55. The ABC will broadcast a powerful telemovie telling his remarkable story on Sunday night, June 10. Next week on Four Corners: we go inside the world of football in this country - the real school of hard knocks. We feature the latest global research on hits to the head, and how the various codes in Australia are dealing with the long-term effects. It's a story every parent should invest the time to watch. Until then, goodnight.
END TRANSCRIPT
Background Information
NEWS AND ANALYSIS
Video: Judge breaks ranks to lash media over Mabo case | ABC News | 7 May 2012 - Former chief justice Sir Anthony Mason has taken the unusual step of breaking ranks to speak publicly on the historic High Court Mabo judgment. He has spoken to Four Corners, which is examining the impact of the historic judgment 20 years after it was made.

Mataranka town native title claim recognised | ABC News | 21 Mar 2012 - Aboriginal native title over the Northern Territory town of Mataranka has been officially recognised.

WA announces billion-dollar native title offer | ABC News | 4 Feb 2012 - The Premier Colin Barnett has announced details of a $1 billion money-and-land offer to native-title claimants in Western Australia. If accepted, it will settle the long-running dispute involving claimants in Perth and the South-West.

Opinion: Indigenous sacrifice for the miners' gain | ABC Online Indigenous | 19 Jul 2011 - Few non-Indigenous Australians understand the depth of connection between my people, their land and our Dreamtime. It has been interwoven by tens of thousands of years of family life, cultural practice and sacred ancestral burials. Our heritage is the country that we walk on and live with. It is deeply embedded in our cultural identity. By Colin McKinnon-Dodd.

Opinion: The 10-point plan that undid the good done on native title | SMH | 1 Jun 2011 - As prime minister, the pastoral lease question was a vexing and torrid one for me. And for this reason: notwithstanding that the Commonwealth government's legal advice was that the Mabo (No. 2) judgment had the effect of extinguishing native title on lands subject to pastoral leases - I did not agree with that advice. That is, I did not personally agree with the logic behind the advice. By Paul Keating.

'Unfinished business': Keating calls for reversal of native land rights laws | 1 Jun 2011 - Paul Keating delivered the annual Lowitja O'Donoghue Oration at Adelaide University last night, persuasively arguing for the reversal of laws requiring Aboriginal title claimants to establish association with their land. Here is the complete transcript.

Opinion: Promise of Mabo not yet realised | The Australian | 29 May 2010 - Small minority of Australians will mark this coming Thursday. It will be the 18th anniversary of the Mabo case on native title rights handed down by the High Court of Australia in 1992. I believe Australians will one day give consideration to the hope of Bonita Mabo, widow of Eddie Mabo, that June 3 be recognised officially as a national day. By Noel Pearson.

Native title change racist: Aboriginal groups | The Age | 22 Feb 2010 - Indigenous groups say proposed changes to the native title law are racist and a throwback to the Howard era, and will reduce Aboriginal land rights to little more than a symbol after 10 years of struggle. In submissions to a Senate inquiry into Native Title Amendment Bill 2, the nation's key indigenous bodies say the bill relies on a view that the constitution allows the making of laws that are detrimental to Aborigines, something a Labor opposition once said was ''morally repugnant, socially divisive and would endanger reconciliation''.

Opinion: Act closed wounds but not the gap | ABC Online Indigenous | 7 Jan 2009 - We now have a system where, for many indigenous people, having their native title recognised is not achievable. Alternative forms of land and social justice are not accessible for many, or are dependent on state or territory policy. By Tom Calma.

Audio: 'An act of recognition' - the Redfern speech | Radio National Awaye | 8 Dec 2007 - When the then Prime Minister Paul Keating gave the historic Redfern speech on December 10, 1992 he challenged the nation to confront its past - and to open its heart. We reflect on the speech in its context, and now, 15 years later.

Opinion: Noel Pearson: A mighty moral victory | The Australian | 23 Sept 2006 - Just when the whitefellas were getting relaxed and comfortable about native title, Justice Murray Wilcox of the Federal Court has dropped a bombshell right in the centre of Perth, a metropolis that governs the most booming natural resources economy in the world.
LEGAL AND HISTORICAL BACKGROUND
The Mabo Judgement - Read a transcript of the 1992 High Court Decision relating to the Mabo judgement.

Mabo - The Native Title Revolution | Screen Australia Digital Learning - This archived website delves into the Mabo legal case and the important issues it raises for Australians and indigenous peoples everywhere. It gives an overview of the case and provides an insight into both the man at its centre, Eddie "Koiki" Mabo, and Torres Strait Islander culture.

An Overview of the Wik decision| UNSW Law Journal | 1997 - The Wik decision provides the latest determination by the High Court of the rights of indigenous Australians in respect of Australian lands; in particular, lands over which pastoral leases have been granted. Although the decision covers more than pastoral leases, this article deals exclusively with that issue. In that respect, it seeks to provide a brief summary of the decision, placing it within the broader legal framework established by the decision of the Court in Mabo.

John Howard's Amended Wik 10-Point Plan | Australian Politics | May 1997 - The former Prime Minister released the following statement to the media on 8 May 1997, updating the original 10 Point Plan released on 1 May 1997.

The Federal Government's 10 Point Response to Wik | Indigenous Law Bulletin | 1997 - The 10 point plan, retrieved by the Australasian Legal Information Institute.

Paul Keating's Redfern Speech | Australian Politics | 10 Dec 1992 - Paul Keating's seminal speech on indigenous issues was given by the then Prime Minister at Redfern Park in Sydney. This page contains the text, audio and YouTube video of the speech.
Native Title Amendment Act 1998
The Mabo debate: a chronology | Parliamentary Library - This paper is intended to provide a summary of the Mabo decision, within a chronological framework, of widely reported views and developments.
USEFUL LINKS
ABC Online Indigenous www.abc.net.au/indigenous/

Australians for Native Title and Reconciliation (ANTaR) - ANTaR is a national advocacy organisation working for justice, rights and respect for Australia's First Peoples. www.antar.org.au/

Indigenous Land Corporation www.ilc.gov.au/

National Native Title Council - The Vision of the National Native Title Council is to effect positive change in the resolution of native title. nntc.com.au/

National Native Title Tribunal - The National Native Title Tribunal assists people to facilitate timely and effective native title outcomes through delivery of a wide range of services. www.nntt.gov.au/

Northern Land Council www.nlc.org.au/
RELATED FOUR CORNERS PROGRAMS
The Wik, The Law, The Land | 10 Feb 1997 - This program examines the ground-breaking reading of history which was crucial to the high court's judgement which allowed for Aboriginal title to co-exist with pastoral leasehold. Transcript

Tags: discrimination, history, indigenous, race-relations, courts-and-trials, native-title, indigenous-policy, territorial-disputes, australia

First posted May 3, 2012 14:34:00

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By Liz Jackson and Lisa McGregor Updated May 10, 2012 14:55:00 Liz Jackson reports on the impact of this historic judgement, the reaction it inspired and the inside story of the negotiations to create the law that would pave the way for Native Title.

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Answer the questions in the photo uploaded in sentences, not dot point.

Then in your own words, write a 600 word reflection on the Mabo Case. Answer the six questions in your reflection.

Why was the Mabo case so significant? What acts/legislations played a significant role in shaping this case? What is your view on the case? Do you agree with the outcome? What did the case lead to? Where is native title today?

These have to be uploaded onto your padlet page by end of school Monday 5th September.

Include any sources you have used in a bibliography. Simply copying and pasting your answers will not be tolerated.

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In his findings, Justice Moynihan published the following comments regarding Eddie Mabo:
'I was not impressed with the credibility of Eddie Mabo. I would not be inclined to act on his evidence in a matter bearing on his self interest ( and most of his evidence was of this character one way or another) unless it was supported by other creditable evidence.'
Justice Moynihan was not prepared to find that Eddie Mabo had been adopted by Benny and Maiga Mabo. (pp.149-153)Vol 1 Moynihan's findings.
149

Doctor Beckett carried out an investigation which showed something like 14 per cent of children in the period from World War II up to his time on the Island had been adopted and he thought, probably correctly, that this was an underestimate. The rate of adoption is he thought likely to have been higher at earlier times. Many instances of adoption appear in the genealogies Exhibit 237.

Interesting enough the fact of adoption was concealed from the child and its discovery an upsetting event; eg the evidence of Caroline Modee.

One of the points of complete traditional adoptions seems to have been in order that the adopted child might inherit the adopted parent's land. The point of this was that in return for a place in the adoptive family and getting the land the adoptive child would look after the adoptive parents in old age; see for example Dr. Beckett t. 2345. It may also have served as a way of redistributing population or land; (Beckett t. 2201).

It seems that adopting parents had a preference for blood relationship albeit very slight but it was not regarded as essential at any time to which the evidence related; see eg. Beckett (t. 2201); J Wailu (t. 1256); Mrs. Lawrie (t. 2615); J Rice (t. 168) and associated exhibits. If Dr. Beckett is to be accepted the reason for favouring the blow has come ultimately to be pragmatic.

M. The Adoption of Eddie Mabo

When Eddie Mabo was born his sister Jessie and brothers Nicey and Robert were already established in the Mabo household while another brother Sasak had been placed with the Fred family.

150

Nothing emerges upon which one could confidently conclude as to how this came about. Nor does anything emerge to suggest that Eddie Mabo was handed over because of some adopting arrangement rather than on account of the condition of his natural mother and her death. There is no evidence of gifts having been made.

It appears that a number of children were brought up by Benny and Maiga Mabo during their lifetime. One witness at least (Sam Passi t. 1115) spoke of Eddie Mabo being brought up by his (Passi's) aunty Maiga and of others being brought up 'too'. Sam Passi, a very important and traditional Islander, would have been aware of the distinction between bringing up and adoption for the purpose of inheritance. Some witnesses spoke of Eddie Mabo having been adopted but I have reservations about that evidence

Those doubts encompass such considerations of whether a child would have been told, the information was second hand or more remote, the reliability of something said so long ago and other considerations I canvassed earlier.

The daughter of Benny Mabo's sister Kabozi was legally (in accordance with Queensland law) adopted by Benny and Maiga in 1951; Exhibit 233

It would seem that one of the essential aspects of Island adoption in order that it might have the effect that the child became the heir to the adoptive parents was that the child was relinquished to the adopting parents for that purpose rather than put in their care for some other purpose.

It emerged in cross examination that Eddie Mabo went to Thursday Island to live with his natural father Robert Sambo who had by then remarried for some six months in 1947-48. Eddie Mabo

151

sought to explain this in terms of Benny Mabo being in jail on Thursday Island so that he went to stay with his natural father Robert Sambo and his wife. } have the distinct impression that Eddie Mabo was less than frank about his relations with his natural father from whom it now suits him to distance himself.

There is no record of any jail term having been imposed on Benny Mabo for the relevant years; Exhibit 278 Annexure C and had it occurred Mr. Killoran would have expected to know of it but did not; t. 3234. It appears from the social history card for Mika Mabo Exhibit 280 Annexure N that Eddie Mabo went to live with Robert Sambo and his new wife as from the date of their marriage. He was claimed as a dependent by Robert Sambo in his tax return for the 1997-48 year; Exhibit 280 Annexure S. There is also the evidence of Tapim Bennyfather of the fact that Robert Sambo has asked him to approach Benny Mabo to have his son back; see Exhibit 118A. A letter written in 1966 (Exhibit 63) showed that Eddie Mabo called Robert Sambo "Dad" although he initially denied ever having done so. He then he did so out of respect because Robert Sambo demanded it; t. 758 and acknowledged (t. 861) that up to his death Robert Sambo insisted that he (Eddie) was a Sambo. Eddie Mabo claimed a Commonwealth Army pension in 1980 as the son of Robert Mabo although Benny Mabo had served in the Army and island adoption were recognised by the Commonwealth for the purpose of social security payments.

In the circumstances I am not prepared to conclude that Robert Sambo relinquished his son Eddie to Benny and Maiga Mabo for the purpose of adoption to be their or Benny Mabo's heir

152

or that Eddie Mabo was adopted with the consequence that he became
heir to Benny or Maiga Mabo. (end of quote)

As a result, Justice Moynihan declined to find that Eddie Mabo inherited any of the lands belonging to Benny Mabo. All but one of the blocks had been claimed on the basis of inheritance from Benny Mabo. The single exception was a block claimed through Benny's wife Maiga. It follows that Justice Moynihan refused to find that Eddie Mabo had any rights to the areas which had been the subject of his claim.

Keywords: adoption, inheritance, Killoran, Patrick, Mabo, Benny, Mabo Case, Mabo, Edward Koiki, Mabo, Maiga, Moynihan, Justice Martin, Moynihan's findings, oral evidence, Passi, Sam, Sambo, Robert, World War 2, 1990

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In his findings, Justice Moynihan published the following comments regarding Eddie Mabo: 'I was not impressed with the credibility of Eddie Mabo.

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Queensland Coast Islands Declaratory Act

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Queensland Coast Islands Declaratory Act

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This weekend marks the 20th Anniversary of the High Court of Australia's decision to recognise Native Title. And here on Mabo Day in Townsville - many of the local community have gathered to remember the man who led the legal challenge for land rights - Eddie Mabo.

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Paul Keating 2UE - 1992 on Mabo - Talk Back Radio - John Laws

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Paul Keating talks to John Laws - 1992 on Mabo - Talk Back Radio - John Laws

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Native Title Introduction

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What is Native Title? | The Aurora Project

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Until 1992, Australian law did not recognise that Indigenous people had any rights to land and waters arising from their original ownership under traditional law and custom. The High Court Mabo case changed all of this when it decided in favour of a claim to Murray Island by the Meriam people.

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Queensland Coast Islands Declaratory Act  

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Queensland Coast Islands Declaratory Act  

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Aboriginal and Torres Strait Islander map

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Aboriginal and Torres Strait Islander map

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Charter of Human Rights and Responsibilities Act 2006

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Charter of Human Rights and Responsibilities Act 2006

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Victoria

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The Australian Human Rights Commission is undertaking a major project on the relationship between human rights and technology

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Victorian Equal Opportunity and Human Rights Commission

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Victorian Equal Opportunity and Human Rights Commission

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Victorian Equal Opportunity and Human Rights Commission

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Call us, we can help. Call 1300 292 153 weekdays from 9am-12.30pm and 1.30-5pm for free information about the law and how we can help you. Don't face discrimination, sexual harassment, victimisation or racial and religious vilification alone. We have staff who will help resolve your complaint through our free, fair and timely dispute resolution service.

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Australia is now the only democratic nation in the world without a national charter or bill of rights. It is long past time that we redressed this and modernised our system of government by introducing an Australia-wide human rights law. We should provide the best possible protection for vulnerable groups like children and the elderly and for important values like freedom of speech.

Until recently, no Australian government had achieved a charter of rights. The first, failed attempt was not by a Labor government but by the Nicklin Country Party government in Queensland in 1959. The breakthroughs came in the Australian Capital Territory with the Human Rights Act 2004 and Victoria with its Charter of Human Rights and Responsibilities Act 2006. Other States may also be on the way, including Tasmania and Western Australia where recent inquiries have recommended change.

But is there a need for national reform? After all, there is rightly much to be proud of in our political freedoms and democratic institutions. The problem is that while our system of government generally works well for most Australians there are too many examples of it failing to protect the rights of the most vulnerable and disadvantaged in the community. We possess problems of law and accountability that range from restrictions on freedom of speech under sedition law to the removal of Aboriginal people as part of the Stolen Generations to the treatment of people with mental illness. Despite the many good things about our democracy, Australian law still routinely permits the mistreatment of people in ways that are unjust and infringe the dignity, respect and freedom to which all human beings are entitled. We should aspire to do better.

A large part of the problem lies in how human rights in Australia are uniquely dependent on the wisdom and good sense of our elected representatives. This can be an especially frail shield when any one party controls both houses of the federal or any other parliament. Without a charter of rights, freedoms can be ignored or taken away too easily. As Australians we like to assume that we have our rights, but as a matter of law we do so for only so long as they have not been taken away. While the legal system has many checks and balances to temper public power, we have no law that ensures respect for our basic freedoms.

One example of the problem from recent years is how Australia locked up children in conditions that caused many of them to become mentally ill. It seems unthinkable that this could have occurred, yet it did. The problem was the law, which said that the detention of people seeking asylum in Australia was mandatory. That law was applied without exception, even to unaccompanied children already suffering trauma.

One of these children was five-year-old Shayan, who arrived in Australia in March 2000. Along with other members of his family he was taken to the Woomera detention centre, a facility ringed by desert in South Australia. While in detention, Shayan witnessed hunger strikes and riots, saw authorities responding with tear gas and water cannons, and watched as adult detainees harmed themselves. By December that year, the detention centre's medical records reveal that Shayan was experiencing nightmares, sleep disturbance, bed wetting and anxiety. He would wake in the night, gripping his chest and saying, 'They are going to kill us.' He also drew pictures of fences containing himself and his family.

Three times during that year the detention centre managers strongly recommended to the government that Shayan be moved from Woomera. Despite further recommendations and psychological assessments reporting high levels of anxiety and distress, it was several months before he and his family were moved to Villawood detention centre in Sydney.

At this time, Shayan was diagnosed with post-traumatic stress disorder. During the next few months he was admitted to hospital eight times for acute trauma and, because he refused to drink, dehydration. He also became more withdrawn. Medical staff consistently recommended that he should be removed from detention and drew a direct link between Shayan's trauma and his experiences in detention. However, it was not until August 2001 that the government transferred him into foster care. In doing so, he was separated from his parents and sister until they were released in January 2002.

Shayan was one child among many. The statistics make for grim reading. The Human Rights and Equal Opportunity Commission found that the number of children in immigration detention peaked at 1,923 in 2000-01. By the end of 2003, a child placed in detention was kept there for an average of one year, eight months and eleven days. Some children were detained for more than three years. Almost all of the detained children were found to be refugees and so were eventually released into the community.

The detention of children like Shayan occurred under an Australian law introduced in 1992 by the Keating government and continued after John Howard became Prime Minister. In other nations, it would have been counter-balanced by law, called a bill of rights, charter of rights or human rights act, setting out and protecting people's fundamental human rights. In Shayan's case, this might have included the rights of children and more general rights such as freedom from arbitrary detention. By contrast, the Australian immigration law was unchecked. In fact, when it was challenged in the courts it was held to be legally unobjectionable.

The High Court of Australia ruled on the detention of children in 2004. Held in the Baxter detention centre near Port Augusta in South Australia, four children sought a court order for their release, arguing that the mandatory detention regime in the Migration Act did not apply to children. This was unanimously rejected on the basis that the Act was expressed in clear terms, with no exceptions made for children. According to Chief Justice Murray Gleeson: 'It is hardly likely that parliament overlooked the fact that some of the persons covered Â... would be children. Human reproduction, and the existence of families, cannot have escaped notice.' It was also argued on behalf of the children that the law breached the Australian Constitution. This too was unanimously rejected on the basis that the Constitution does not guarantee their freedom from involuntary detention.

Another High Court case that year went further, finding that detention remains lawful even where the conditions are harsh or inhumane. A final High Court decision in 2004 added that the detention could be indefinite. Ahmed Al-Kateb arrived in Australia by boat in December 2000 without a passport or visa. Taken into detention under the Migration Act, he sought refugee status but was refused. In June 2002, Al-Kateb indicated that he wanted to leave Australia for 'Kuwait, and if you cannot please send me to Gaza'. In August he stated, 'I wish voluntarily to depart Australia, and ask the minister to remove me from Australia as soon as reasonably practicable.'

Al-Kateb was born in Kuwait in 1976 of parents of Palestinian origin. Simply being born in Kuwait did not confer Kuwaiti citizenship, and the absence of a Palestinian nation left him 'stateless'. The Commonwealth sought unsuccessfully to remove him to Egypt, Jordan, Kuwait and Syria as well as to Palestinian territories (which required the cooperation of Israel). Faced with this stalemate and no foreseeable end to his detention, Al-Kateb applied to the courts for his release. In nations like the United Kingdom and the United States, judges have found that the law does not permit indefinite detention. But the Australian High Court found by four to three that the Migration Act and the Constitution permit unlimited detention. Al-Kateb could be held in detention until his removal from Australia, which in turn might have lasted until an independent state of Palestine was created.

One of the majority judges, Justice Michael McHugh, conceded that Al-Kateb's situation was 'tragic'. He also noted that 'Eminent lawyers who have studied the question firmly believe that the Australian Constitution should contain a Bill of Rights.' But in the absence of such a law he found that 'the justice or wisdom of the course taken by the parliament is not examinable in this or any other domestic court' since 'it is not for courts Â... to determine whether the course taken by Parliament is unjust or contrary to basic human rights.' With these words, McHugh spelt out what it means for Australia not to have a charter or bill of rights. Without such an instrument, there may be no check on laws that violate even the most basic of human rights.

Australian law is at odds with the fundamental rights of humankind set down in the Universal Declaration of Human Rights, adopted in 1948 by the General Assembly of the newly formed United Nations. After recognising the 'inherent dignity and ... the equal and inalienable rights of all members of the human family,' the declaration sets out our basic rights as 'a common standard of achievement for all peoples and all nations.' These rights are described in a straightforward way and include that 'Everyone has the right to life, liberty and security of person' and that 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'.

Since the Universal Declaration was adopted, other treaties and conventions have set out in more detail the basic rights of all people. The two most important are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These entered into force internationally in 1976 and were ratified for Australia by the Fraser government.

Many nations around the world have brought about a charter or bill of rights based upon these international instruments. Even though their introduction was often contested, these laws now receive broad political support. This is certainly the case in the United Kingdom, where the Labor government and the Conservative opposition even agree on the need to strengthen their Human Rights Act 1998. An August 2008 cross-party report by the parliamentary Joint Committee on Human Rights found that British law should go further by providing better protection for children and generally for the rights to health, housing and education.

When Australia ratified the two international human rights covenants we agreed to make them part of our domestic law. While there has been action in a few areas, such as in regard to privacy and racial discrimination, the covenants have not been enacted in full by the federal parliament. This leaves us in breach of international law.

The best way to bring about an Australia charter of rights would be to honour our international commitments by passing an act through the federal Parliament to make the covenants part our of law. No change to the Constitution would be required, and there would thus be no need for a referendum. As an ordinary act of parliament, the charter could be changed over time.

In taking this step, we should follow the United Kingdom precedent by enacting a charter that provides the leading role to parliament and not to the courts. The courts should be able to interpret legislation to be consistent, so far as possible, with the protected human rights (a role they already play using international human rights standards ). Where this is not possible, the courts should not be given the power to strike down a law. They should only be able to declare that in their view the law is incompatible with the charter and that the law should be referred back to parliament for further consideration.

As an ordinary Act of parliament the charter would not transfer sovereignty from parliament to the courts, but heighten human rights concerns within the political process. In other words, the charter would strengthen and broaden the scope of our democratic system, not transfer key decision-making powers to the judiciary. This is in sharp contrast to the United States and Canada, where their Supreme Courts have the final say on issues such as abortion. Indeed, Victoria's Charter has even been drafted so that it does not disturb existing law as it relates to abortion.

Proof of the limited role that can be given to the courts can be found in the record of other nations. The impact of the United Kingdom law is monitored by the Department for Constitutional Affairs, which has found that the Act has not produced a significant increase in litigation or created a 'litigation culture' of rights protection. Where it has been applied in the courts, the Human Rights Act has proved useful in balancing issues like the need to fight terrorism with the democratic principles required for a free society. In its report for April to June 2001, the Department found that in local and magistrates courts only a 'small fraction of the overall case-load' involved human rights issues (the figure of 0.01 per cent of cases is given for the County Court). Not only did few cases involve questions of human rights law, but where such issues were raised they were, in general, 'as additional points to existing cases' that could have been lodged 'even if the [ Human Rights Act] had not been in force.' The evidence that the United Kingdom law has been anything but a 'lawyers' picnic' has been affirmed by a further, independent academic study. It found that in the Scottish courts between May 1999 and August 2003 human rights arguments were raised in 'a little over a quarter of 1 per cent of the total criminal courts caseload.'

While an Australian charter of human rights would not give the courts major new powers, it would still make a difference to the protection of human rights by giving effect to many, usually assumed, freedoms for the first time. Like the Universal Declaration of Human Rights, a charter could also have a symbolic force that promotes important values like human rights, community responsibility and respect for cultural diversity. In fact, the most important contribution a charter of rights can make is not the benefit it brings to the small number of people who succeed in invoking rights in court. It is how it can help to prevent the making of bad laws and how it can be used to educate, shape attitudes and bring hope and recognition to people who are otherwise powerless.

The impact of a formal statement of rights at the community level is demonstrated by a 2003 study of the Americans with Disabilities Act 1990. Researchers David Engel and Frank Munger interviewed people with disabilities and examined their life histories. They found that the new law was having a profound effect, but not in terms of court action. Indeed, none of their interviewees had brought such a case. Instead, they found the law affecting 'the way people talk and think, usually in social contexts far removed from the courts.' In granting basic rights to people with disabilities, the Act 'played a crucial role in their lives.' They went on: 'Rights transformed their self-image, enhanced their career aspirations, and altered the perceptions and assumptions of their employers and co-workers - in effect producing more inclusive institutional arrangements.' The study demonstrated how the legal protection of rights enhanced the culture of rights protection at the individual and community levels, with a very positive effect on the day-to-day lives of people with disabilities.

A charter of rights would also have a powerful effect on the making of new laws and on improving the accountability of government to the Australian people. It would do so in three ways. First, the existence of a charter would make it more likely that human rights concerns are raised when a law was passed, rather than at some later time after damage has been done. At present, many problems go unnoticed and unreported in the media until they reach crisis point. The charter would help to short circuit this by ensuing that human rights are considered before each new law is enacted.

Second, a charter of rights would create an Australian reference point against which to examine proposed laws. Laws would be debated in parliament and within the community not only according to how they meet external international standards, but on the basis of our own developing sense of human rights. This would strengthen the law-making process and, through parliamentary committees, community involvement with the political system.

Third, for any law already on the books the charter of rights would allow an independent determination of whether it breaches human rights. In the courts, an affected person could argue for an interpretation of the law so that it protects rights or that the law be sent back to parliament for a second look. With the benefit of hindsight, this could provide a crucial second chance to get the law right. This has certainly been effective in the United Kingdom whenever Parliament has moved to fix every human rights problem referred to it by a court.

An Australian charter of rights would mark an important shift not only in the law but in how we approach politics and government policy. The focus would be on ensuring that basic freedoms and human dignity are taken into account at the earliest stages of the development of law and policy. The charter would recognise that the decisive point in protecting human rights is not in court after damage has been done, but in government and parliament before a law or policy comes into effect.

This key, preventative aspect of a charter means that the role of protecting human rights would be exercised most frequently by government departments and agencies that interact with the public. The police, for example, would have day-to-day responsibility for applying human rights in protecting the community from crime and safeguarding the rights of the accused. In this and other areas like mental health the charter would require that the work of government be undertaken with due regard to our common freedoms.

Of course, governments, parliament and courts already take some account of human rights. The charter would not be inserted into a system in which human rights are always ignored. But rights are now usually only referred in an ad hoc way because there is no obligation in the law for them to be considered. When they are needed most, human rights can simply be absent from the debate. By contrast, a charter would mean our fundamental freedoms are given a higher status and legitimacy within government. Their protection would be approached more seriously and systematically.

An Australian charter of human rights would better protect our freedoms in the law. It would provide valuable insights for government and the community on as to how effective the law can be in protecting human rights. In doing so it will show how any law has its limits, and indeed how the law can, by itself, not fix some of the most intractable problems. This will reveal how any strategy for better human rights protection must also pay close attention to political and other forms of leadership and to community attitudes. Without reinforcement from these quarters, the positive impact of a charter will be blunted.

George Williams is the Anthony Mason Professor and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales. This article is developed from his book A Charter of Rights for Australia (UNSW Press, 2007), which was the basis for his address to the Evatt Seminar: A human rights charter for Australia? convened in NSW Parliament House on 7 May.

The Evatt Seminar at NSW Parliament House was a further contribution by the Evatt Foundation to the debate that was commenced by the Australian Attorney-General in presenting the Annual Evatt Lecture in 2008, when he announced a national consultation process on the protection and promotion of human rights. Among other activities, to mark the 60th anniversary of the Universal Declaration of Human Rights on 10 December 2008, in association with Sydney University Press the Foundation published Moving in the Open Daylight: Doc Evatt, an Australian at the United Nations, by Ashley Hogan (with a foreword by Michael Kirby). On 31 July 2009, the Foundation will host an address on Labour & Human Rights by Geoffrey Robertson Q.C., as part of the Fringe Program of the 45th National Conference of the Australian Labor Party.

You can read more about the Evatt Foundation and human rights by clicking on the following link:

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Australia is now the only democratic nation in the world without a national charter or bill of rights. It is long past time that we redressed this and modernised our system of government by introducing an Australia-wide human rights law.