Earlier this year, I made a long-awaited trip to Tasmania—a place of natural beauty and darkness in equal measure. And a place to view history through the lens of justice and injustice.
First stop, Campbell Town. Our host was incredibly generous with his time. He ran us through a quick history of the town, noting that the British colonised Tasmania between 1803 and 1830. We don’t often realise that it took place before Victoria. He added, “but that’s only colonial history, not the history that came before”.
Like many places on the island, Campbell Town bears the overt mark of colonisation.
One of the “attractions” on the main street is an infinitely long row of red bricks lining the pavement. It tells the official story of early convicts who lived in the town. In particular, their names, ages, the convict ship they arrived on, the crime they committed, and years served.
One involved copious references to animals:
HMS Tortoise 1842
Stole Sheep – Life
A Thomas Myers received seven years for stealing a handkerchief.
A Thomas Sidney received seven years for leaving his employment. Tough luck there.
It was clear that Thomas was a popular name at the time.
Behind every plaque or statute, there was the story of Tasmania not told—that of its First Nations people. It bothered me that there was barely any effort made to acknowledge this history, as well as the injustices.
The traditional custodians of the Campbell Town area were the Tyerrernotepanner (chera-noti-pahner) Clan of the North Midlands Nation. Their lands were particularly fertile for growing grain and sheep grazing. This led to bloody conflicts between the Tasmanian Aborigines and white settlers.
“In 1828 the fighting had become so vicious that [Colonel George Arthur, Lieutenant Governor of Tasmania] declared martial law in the settled districts, labelling Tasmanian Aborigines as ‘open enemies’ of the state and giving them no protection under the law.
In 1830, Arthur issued his now famous proclamation … implying equality under the law for both black and white citizens, in an attempt to calm the escalating situation. This equality was, however, non-existent, with white people seldom properly punished for the same crimes for which Tasmanian Aborigines were hanged.”
— National Museum of Australia, “The Black Line” (accessed 14 June 2021)
By 1834, the “remaining” Tasmanian Aborigines were killed or exiled from their lands. This was part of a so-called “Conciliation Mission” led by George Augustus Robinson. Most died in the squalor of Wybalenna, an island off the Tasmanian mainland, or Oyster Cove in southeastern Tasmania.
The official plaques say nothing of this history. However, the local bookshop (The Book Cellar) had a selection of books on the topic for anyone who cared to look.
Law, for good or evil?
As a lawyer, it’s not uncommon to get bound up in discussions about the role of law in society. Does the law promote or prevent the achievement of justice? Is the true intention of the law to change or maintain the status quo? And the perennial classic, do lawyers serve the greater good or evil?
It’s easy to fall into simplistic arguments in this space. A trap of reasoning (of which I am often guilty) is what Daniel Kahneman of Thinking, Fast and Slow calls “availability bias”. We tend to overestimate the frequency of something occurring if a memory is easily retrieved, vivid, or personal.
News reports on certain defamation cases, say, might make you think that the law is a perverse tool for the vociferous. On the other hand, comments from the Federal Court judge, Justice Murphy, on the Robodebt class action (also known as Katherine Prygodicz & ors v Commonwealth of Australia, VID1252/2019) might make you think that the law can be a vehicle for the often voiceless.
The story of justice and injustice is no less evident in Australia’s history of colonisation through the flimsy logic of terra nullius. This was a legal fiction (very real for a long time) which the High Court rejected in Mabo & Ors v Queensland (No. 2) (1992) 175 CLR 1 on 3 June 1992. While Mabo was significant in recognising the rights and interests of First Nations people to their land, the case makes partial redress for injustices already done.
Justice Brennan questioned the long-held belief that the Crown was the universal and absolute beneficial owner of land:
“… The proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination”.
Further, of the common law:
“… the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, … Judged by any civilised standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned.”
However, there were limits to righting the injustice:
“In discharging its duty to declare the common law in Australia, this court is not free to adopt rules that accord with contemporary notions of justice and human rights, if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.”
While Mabo created a pathway to native title, later enshrined in the Native Title Act 1993 (Cth), any inconsistency with existing land uses could result in the extinguishment of a native title claim. One example is the grant of freehold land:
“There is no dispute that the rights conveyed by the grant of a freehold or fee simple interest are wholly inconsistent with the existence of native title and wholly extinguish such rights at common law.”
— Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales  FCA 169 (Griffiths J) citing Mabo at 68-70 per Brennan J and at 89-90 per Deane and Gaudron JJ).
Mabo is a judgment that acknowledges injustices of the past, seeks to dispense justice (but not to its fullest extent given the flow of history).
Postscript… Justice starts with us
Whether a legal system achieves justice or injustice must involve an assessment of trends over time. It is often difficult to understand whether we’re achieving net justice or net injustice at any given moment. This is because we’re always influenced by our perception of individual cases.
Ultimately, it’s important to acknowledge that the law is a construct of society. Black letter lawyers will detest this, but justice isn’t the sole domain of the courts. A society’s internal desire for justice—not only in a purely legal sense, can drive the start of genuine legal reforms.
Mabo was a start, but real change needs to happen in society. This is why we need to acknowledge the ongoing injustices felt by our First Nations people, whether the disproportionate incarceration rate and deaths in custody. Only then can we begin the healing and reconciliation process. If there is any personal contribution of justice that we can each make, start here with The Uluru Statement from the Heart.
This blog post coincides with NAIDOC Week. The theme for 2021 is Heal Country, which calls for stronger measures to recognise, protect, and maintain all aspects of Aboriginal and Torres Strait Islander culture and heritage.