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Indigenous Law Bulletin

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Atkinson, Geoffrey; Cerexhe, Carolyn; Kerr, Susan C --- "Stirrings: Koori Kids Betrayed as Carr Extends Curfew Laws; Yanny v Eaton: Walden v Hensler Reversed?; Wik Music" [1997] IndigLawB 40; (1997) 4(1) Indigenous Law Bulletin 25


Stirrings

Koori Kids Betrayed as Carr Extends Curfew Laws

by Susan C. Kerr

Social justice and the reconciliation process were treated with contempt by New South Wales Premier Bob Carr recently, when he announced controversial extensions to the Children (Parental Responsibility) Act 1994 (NSW). This legislation commenced operation as a pilot in Gosford and Orange in March 1995. Under the Act, police are granted the power to remove young people aged up to fifteen years from any public place, at any time, if they are not under the direct supervision or control of a responsible adult. Police may either escort young people to their nominated residence, or may detain them in a 'prescribed place', which includes juvenile justice institutions, for up to twenty-four hours. Young people face criminal prosecution if they leave or attempt to leave a prescribed place without authorisation.

While this legislation contravenes basic rights of all young people in New South Wales, it will impact more heavily on Indigenous young people through both their extensive use of public space, and the higher incidence of police surveillance and intervention to which Indigenous people are subjected. Reporting on its operation, a Review Committee of the New South Wales Attorney-General's Department criticised the limited effectiveness, limited utility, and high cost of the legislative scheme. The legislation was found to breach fundamental human rights principles, and to impact in a discriminatory way on Indigenous and homeless young people.

Following similar calls from key youth lobby groups, human rights organisations, academics, concerned community groups and the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Mick Dodson, the Attorney-General's Review Committee ultimately recommended the immediate repeal of the legislation. Crumbling under pressure from councils in country New South Wales, including Bathurst, Bourke, Wagga Wagga and Tamworth (where the extensions were announced), and apparently unable to sustain continued National Party demands for tougher juvenile crime control measures, Carr ignored all calls for repeal.

Displaying a breathtaking arrogance reminiscent of some of our more notorious Liberal Premiers, past and present, Carr refused to even consult on the proposed extensions, ignoring, among other things, the crucial Recommendation 62 of the Report of the Royal Commission Into Aboriginal Deaths in Custody (which calls for wide community consultation on all proposed policing and justice initiatives). Given the breadth and strength of opposition to this legislation, this display of arrogance represents a severe blow to social justice in New South Wales, particularly for Indigenous young people.

In a veiled attempt to 'soften' the blow, Carr announced that country communities would have to apply to have the Act operating in their area, and would be required to demonstrate the implementation of crime prevention programs and social services. These councils have been able to exert considerable pressure on the Government to not only ignore widespread calls for repeal of the legislation, but to extend its operation further. It would be naive to think that these councils will not also be able to demand that the government permit introduction of the legislation in their towns. Ad hoc, piecemeal measures will be thrown together to get councils through these new 'hoops'. But once councils have the Act operating in their towns, so-called social services and crime prevention schemes will be starved of funding until they collapse, leaving the Act in force much as it is now.

This piece of legislation is a shameful and sad indictment of the present Government's (lack of) commitment to social justice. Its adverse impact on young people whose use of public space is culturally significant, and on homeless and other disadvantaged young people, and the basic human rights principles it breaches, will be analysed in detail in a forthcoming issue of the Indigenous Law Bulletin. Meanwhile, I urge everyone to put pen to paper on this issue. Write to your papers and local members: injustice loves lethargy; silence empowers violence.

Yanner v Eaton: Walden v Hensler Reversed?

by Geoffrey Atkinson

This case involved the taking, killing and consumption of meat of 2 crocodiles in the gulf region of north west Queensland. The defendant, Mr Murandoo Yanner, was the subject of a search warrant by police from Mount Isa, who located a package of meat and some skin material in a freezer at Mr Yanner's home. A Wildlife and Fisheries Officer from that Queensland Department confirmed to the police that the meat and skins came from crocodiles which are protected under Queensland fauna conservation legislation.

Mr Yanner appeared before Mr I A Fisher SM at the Mount Isa magistrate's court on 11 October 1996, on two summary offence charges under the Nature Conservation Act 1992 (Qld). The defence relied, in part, on ss 211, 223 and 224 of the Native Title Act 1993 (Cth) ('the NTA'). These nullify the operation of restrictive laws on Indigenous people who seek to use or remove flora or fauna, in fulfilment of native title rights and obligations.

Considerable material (including digital satellite maps, topographical reports, an expert witness on anthropology and Indigenous genealogy, and compilations of case law comparisons) was produced in court to support Mr Yanner's claim to a native title right to take the crocodiles. The police prosecutor's cross-examination appeared to focus on the assertions that the defendant (a) was obliged, like everyone else, to obey all Queensland laws, and (b) had hunted in a boat with an outboard motor, and therefore could not have been hunting in a traditional manner.

The magistrate dismissed the charges. He accepted that the line of case law affecting native title and customary hunting and fishing rights in Australia on State prosecutions for offences against fauna-protection legislation had been substantially affected by the NTA. That line of case law includes Walden v Hensler ((1987) [1987] HCA 54; 61 ALJR 646), Mason v Tritton ((1994) 34 NSWLR 572) and Derschaw v Sutton (see 'Exercising native title hunting rights: Derschaw v Sutton' by Lachlan Kennedy in Vol 3, 85 Aboriginal Law Bulletin 31).

In each of these decisions, the Indigenous appellants appear to have lost their cases based on an arguable defence of exercise of customary rights. This was due, variously, to failure to show that the activities were non-commercial in nature, or to establish evidence acceptable by a court of the existence of particular clan affiliations, or of land customs relating to the rights claimed.

The Attorney-General of Queensland, Mr Denver Beanland, has lodged with the Queensland Court of Appeal an application for an order to show cause why the verdict of acquittal should not be set aside against Mr Yanner. The Queensland Government has now assigned at least 3 Senior or Queens Counsel, 2 junior Counsel, 2 Crown Law Clerks, and the Solicitor General of Queensland to this appeal. There is every indication that the Government of Queensland is anxious to use this appeal to reopen, all the way to the High Court of Australia if necessary, the legal question of extinguishment of native title rights, particularly in regard to hunting and fishing.

An application for legal assistance to the Commonwealth Attorney-General has now been made to ensure that the defendant's legal position is properly argued and upheld before the Court of Appeal (and, if necessary, the High Court).

Wik Music - Lyrics to a Song

by Carolyn Cerexhe

Caretakers for this ancient nation

Court judgment gives an indication

Tribal feet dance out of station

And the rulers cut the music

State heads call for legislation

Headlines build up angry tension

Separate camps meet to form direction

And we bargain for the music

Goal posts get moved; don't get wider

Cost of peace is getting higher

Mobile phones are ringing louder

Can't we listen to the music?

Many cheeks are smudged with lipstick

Makeup covers back room antics

Fast politics is highway plastic

For those who will not listen

On the land they keep on living

On the land they keep forgiving

In this land we live by sharing

We're turning up the music

Can't we learn, while the world is looking on?

Take the chance to be strong.


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