Many thanks are due to IFLS Visitor Sarah Keenan for kicking off the IFLS 2011-12 “season”. Her talk, “The Secret Life of Property: Time & Belonging under Australia’s Northern Territory Emergency Response Act” (announcement here), was a big draw. On a hot July day with a serious subway delay to boot, she spoke to a packed room. Fascinating at both the factual (the legal scope of the Northern Territory Intervention is breathtaking and the full picture was not previously clear to me) and theoretical (can property mean something other than exclusion?) levels, the talk left us all with new ideas, questions, and concerns. As promised, here are some links to things Sarah mentioned and other things she thought might help us more fully understand the context and concepts.
Find Wurridjal v Commonwealth of Australia here. Kirby J’s dissent, which Sarah highlighted, starts at para 204 and looks like it runs to about para 316. Here is an Australian media report on the dissent, covering the controversy over Kirby J’s comments about the racism he saw in the majority decision. Here’s some of what he said:
- History, and not only ancient history, teaches that there are many dangers in enacting special laws that target people of a particular race and disadvantage their rights to liberty, property and other entitlements by reference to that criterion. The history of Australian law, including earlier decisions of this Court, stands as a warning about how such matters should be decided. Even great judges of the past were not immune from error in such cases. Wrongs to people of a particular race have also occurred in other courts and legal systems. In his dissenting opinion in Falbo v United States, Murphy J observed, in famous words, that the “law knows no finer hour” than when it protects individuals from selective discrimination and persecution. This Court should be specially hesitant before declining effective access to the courts to those who enlist assistance in the face of legislation that involves an alleged deprivation of their legal rights on the basis of race. All such cases are deserving of the most transparent and painstaking of legal scrutiny.
- Vigilance of such a kind ultimately led this Court in Mabo v Queensland [No 2] to re-express the legal rights of the indigenous peoples of Australia to enjoy interests in their traditional lands that had been denied by previous understandings of the common law. Such understandings had been “founded on unjust discrimination in the enjoyment of civil and political rights … contrary both to international standards and to the fundamental values of our common law”. Why should this Court be less vigilant today? Why should it reject the Aboriginal claimants’ case unheard at trial if the claims are (or might be rendered) legally arguable by the claimants who wish to tender evidence and argument to sustain those claims?
- My purpose in these reasons is to demonstrate that the claims for relief before this Court are far from unarguable. To the contrary, the major constitutional obstacle urged by the Commonwealth is expressly rejected by a majority, with whom on this point I concur. The proper response is to overrule the demurrer. We should commit the proceedings to trial to facilitate the normal curial process and to permit a transparent, public examination of the plaintiffs’ evidence and legal argument. The law would then determine whether intuition was correct and a proper case can be presented that brings the claims within demonstrated legal entitlements that have not been respected in the legislation. The law of Australia owes the Aboriginal claimants nothing less. [Link to source – footnotes omitted]
Here is the other case Sarah mentioned, Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs  FCA 1397.
Here is activist/litigant Barbara Shaw talking about the intervention and the case:
this is part 2 of the interview
The 2007 Report of the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, entitled “Little Children are Sacred“, used to justify the intervention, is available here.
Some websites which collect information/organize/report and comment against the intervention
Roll back the intervention based in Alice Springs and run by a group mainly made up of Aboriginal women living under the Intervention.
Stop the NT Intervention [Sydney based]