Last month’s blog post (“Get your punk at woollies” February 2025) spoke to an article I had found on my Google Drive (from 2015). That article concluded with a quote from Audre Lorde of which I am fond, namely, “The Masters tools will never dismantle the Master’s house”.
This month’s post again draws on Audre’s wisdom and my recently found Google Drive (what a trove of material from my time with the court it contains).
In the last few days there has been reporting of yet more failures in Australia’s Closing the Gap targets.1 This has been combined with reporting as to Australia’s incarceration rates generally and highlighting that the Northern Territory (the only Australian State or Territory with a majority First Nations population) has the second highest2 incarceration rate in the world, imprisoning more that 1% of its population.3
With respect to Indigenous populations and Closing the Gap targets, The Guardian reported 13 March 2025:
The rates of Aboriginal and Torres Strait Islander people imprisoned increased by 12% in a year and was up 20% since 2019 – despite state and federal governments agreeing to reduce rates of incarceration by 15% by 2031 in June 2020…. First Nation children in out-of-home care increased from 47.3 per 1,000 in 2019 to 50.3 per 1,000 in 2024..
In the context of the above news, especially as regards out of home care, I found two more interesting items, from my “fantastic typewriter”4, on my Google Drive. They are attached:
Draft Indigenous Children’s Act
The first is a proposal I had written in 2013/14 and submitted to the Court’s Aboriginal Committee (of which I was a member).5 The proposal had followed many months of meetings with the Director General of the NSW Department of Community Services (as they then were) and working closely with the Department’s then Principal Legal Officer Derek Smith6 to whom much credit is owed in the proposal having been possible.
The proposal was presented to the committee and a report prepared. However, the proposal was rejected. One committee member made clear their view that “we shouldn’t be doing magistrates’ work”. I didn’t care whose work I was doing if it kept kids with their family or led to better outcomes.
I always regretted that the pilot was rejected as it really had the Department’s backing. They were genuinely wanting a way to affect change. And that chance was lost. And it would have done something far more concrete about keeping Indigenous kids out of care than anything the court has, in fact, done. It may have even (as I suspect the Department hoped for) changed Departmental culture.
The second item from my “fantastic typewriter” is a document I produced in 2017. I in fact produced it on my flight home to Australia after a conference in Toronto. It was a proposal for legislation, utilising the Federal Constitutional power in section 51(xxvi) – the race power inserted into the constitution following the 1967 referendum – allowing the commonwealth parliament to make laws for “the people of any race for whom it is deemed necessary to make special laws”.
On that long haul flight, I drafted a proposal for a commonwealth law that would require, as the above pilot would have trialled, any application relating to Indigenous children, to be filed under the Family Law Act and determined as a “best interests” matter rather than under State child welfare laws relying on the undefined and spurious allegation of “neglect”.
My proposal didn’t really go anywhere. I had a meeting with ALS and David Shoebridge, then a member of NSW parliament, both of whom were enthusiastic (and I am eternally grateful to David Shoebridge, now a Federal Greens parliamentarian, for his tireless pursuit of transparency regarding Australia’s defence ties with Israel, (thus implicating Australia in the actions of the IDF, not something I ever voted for or ever will)).
In hindsight, I am conscious that changes in legislation or the jurisdiction dealing with an application will change little if anything. Just typing this piece, I hear the words of past judicial colleagues in my mind, phrases such as “we can’t treat them any differently” (with its clear “othering”), “it’s no surprise they don’t know how to parent but we can’t change that” or the even more problematic “Aboriginal people have to lift their game so the Department stops removing their kids?”. Really? As if every action of child welfare agencies is valid and above question (which review after review, let alone common sense, proves is false). But will judges with those attitudes hearing cases regarding the fate of Indigenous children make any difference? I doubt it.
Whether this proposal or any other, I don’t think change will ever come from our nation’s parliaments or courts. Again, as Audre Lorde wrote “The Masters tools will never dismantle the Master’s house. I see no sincerity in anything that comes from our political class, whether regarding Indigenous affairs or anything else, nor the court.
I cannot help but smile when I think of the clarity of Mandawuy Yunupingu’s words (perhaps a more eloquent version of the old western line “white man speak with forked tongue”):
All those talking politicians
Words are easy, words are cheap
Much cheaper than our priceless land
But promises can disappear
Just like writing in the sand
So, Hawke promised treaty in 1988. Keating was passionate at Redfern in 1992. Rudd apologised in 20087 and Albanese promised a voice in 20238. All just words from politicians9 (and, sometimes, added to by judges). Lovely words and window dressing but action? That would take genuine desire, belief and commitment. And that is sadly lacking.
Footnotes
- One might begin to question by now whether there is any appetite in government to actual meet any target or whether the industry of data collection and hand wringing has merely become self-perpetuating and an employment vehicle for a cohort of public servants. After all, it doesn’t matter who runs the shop, the same grim news comes out each year. ↩︎
- Beaten only by El Salvador, a nation described by UNICEF as “one of the most violent places on earth”. Possibly this is related to the recent history of El Salvador as reported at dwherstories.com:
The U.S government has intervened in El Salvador to stop reform and revolution. In the 1960s, the Kennedy administration funded and trained two paramilitary groups that later became central to the country’s death squad apparatus. The death squads were fascist groups that murdered, tortured, and raped their political opponents.
In the 1970s, the violence only got worse. The violence was mainly directed at workers, peasants, and students. A relative handful of capitalists and landowners dominated the Salvadoran economy. Even the most modest reforms, such as a minimum wage, threatened the interests of those elites. So military officials and death squad leaders murdered labor organizers, stuffing their bodies into coffee sacks. By the end of the decade, the state and death squads were murdering 800 people a month.
One of those victims was Archbishop Oscar Arnulfo Romero. He denounced state repression and helped mothers find their detained or murdered children. Roberto D’Aubuisson, a death squad leader, ordered Romero’s murder. Romero was shot in the heart as he said mass on March 24, 1980. A month before, Romero had sent President Carter a letter, pleading with him to stop U.S. military aid to El Salvador. Romero received no response.
In December 1980, after decades of state repression against peaceful protest, five peasant guerrilla groups took up arms. That coalition was called the Farabundo Marti National Liberation Front (FMLN). The FMLN wanted to overthrow the U.S.-backed dictatorship and build socialism. For peasants, socialism was a new society that addressed the fundamental needs of the poor.
Throughout the 1980s, the United States provided the Salvadoran military with $1 million a day; a total of $6 billion dollars. Those funds helped the Salvadoran military to eliminate the insurgency and any perceived supporters ↩︎ - The vast majority of whom, surprise surprise, are not white. ↩︎
- I use that term by ironic reference to the cover art for this piece. Sadly, the creatures of my imagine did not come to life and, to the extent they were at least living embryos, they were quickly killed off by others. ↩︎
- It suffered the same fate as the proposal I submitted as part of the Multicultural committee, a proposal to improve access for deaf and hard of hearing people (litigants and lawyers – noting that the court had been subject of a complaint to the Human Rights Commission from a deaf person) – it was killed off, in the case of the access to deaf and hard of hearing people by being sent for “costing” and then buried. ↩︎
- Derek was a decent and principled man for whom I had enormous respect. Don’t get me wrong, we disagreed on a number of things, but his commitment was unwavering and, notwithstanding our different views, I would, like Obama defending McCain in the 2007 Presidential Debates, defend him, as I did when I eventually resigned from the court’s committee after attending a meeting with another member of the committee who referred to Derek (and perhaps the Department more generally) as “Nazi C^&**”. I could not tolerate that and took the only step I felt was open to me, being to resign. I did tend to refer to the Department as “The Baby Stealers” quoting an Ethiopian litigant whose child had been removed by the Department, a phrase which I once used in a committee meeting, and which caused offence to a fellow member whose daughter worked as a case worker for the Department. ↩︎
- Don’t get me wrong. The apology was necessary and the right thing to do. And I will never forget that Dutton boycotted the apology (even if he offered an apology for doing so 15 years later, in 2023). But as the Grannies Against Removal say “Apologising means you don’t do it again”. And the words of the apology are beautiful. I was chosen to read them at a community gathering at La Peruse in 2014 and the words made me cry. But what makes me cry more so is the meaningless of the whole apology without action (and the sneaking suspicion that sincerity is and has always been absent such statements, leaving them as mere gestures). ↩︎
- The referendum campaign was run a little like Howard’s republic referendum with such vagueness and so imprecise a question that even those who passionately crave action find the proposal problematic to abhorrent. And then the issue dropped like a hot brick. ↩︎
- Notably all Labor politicians, because LNP politicians just never even consider it. The clearest statement of how little they care was Howard’s 1997 10 point plan to extinguish native title, following the Wik decision, with hysteria around the “they’re [that othering language again] coming for your backyard”. ↩︎
