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Chris Merritt
Legal Affairs Contributor
25 August, 2023
Strange days at nation’s leading law school

Thanks to the government of Bob Hawke, there can no longer be any debate about whether this country is entirely sovereign, legally independent and completely decolonised.

This reality is difficult to reconcile with a plan by one of the nation’s leading law schools to “decolonise” its law degree and embrace “indigenisation” of the law.

It’s clearly time for a history lesson. When Hawke pushed through the Australia Acts in 1986 he severed the last legal inks between this country and Britain, preventing the Privy Council in London from hearing appeals from state supreme courts. Before then, the gradual nature of the evolution of Australian independence meant there was unending debate about the true date when this country threw off its colonial shackles.

It definitely did not happen at federation in 1901 because Britain still controlled Australian foreign policy, a caveat that was only removed in 1942 when wartime prime minister John Curtin adopted the Statute of Westminster.

Curtin played an immense part in the shift to independence.

But it was Hawke in 1986 who put an end to the last vestige of colonialism. He completed the rise on this continent of a new sovereignty in which equality of citizenship is shared by all, regardless of race.

Sir Anthony Mason, a former Chief Justice of the High Court, recognised that the Australia Acts marked the end of the legal sovereignty of the British parliament and that ultimate sovereignty now resided in the Australian people.

Two years before the Australia Acts, another of Hawke’s changes came into effect when Indigenous people were placed on the same electoral footing as all other citizens. They previously enjoyed the option of voting at federal elections. Hawke made it mandatory.

His vision was built on equality of citizenship – a principle that until recently was unquestioned by all Australians, particularly Aborigines and Torres Strait Islanders.

“In Australia, there is no hierarchy of descent,” Hawke said in 1988. “There must be no privilege of origin. The commitment is all. The commitment to Australia is the one thing needful to be a true Australian.”

Since that time it has been ludicrous to question the legitimacy of Australian law by claiming some colonial taint or racial privilege.

The British bowed out of our affairs long ago – and they did so with good grace, unlike the unfortunate manner of their departure from America.

For better or worse, our laws are our responsibility – and ours alone. They are the product of parliaments that are accountable to all citizens – including Aborigines and Torres Strait Islanders who, since Hawke’s time, have been on a completely equal footing with other Australians.

All this history has been necessary in order to show just how strange it is that one of the nation’s great law schools, Thomas More law school at the Australian Catholic University, has produced a document outlining a plan to “decolonise” its law degree and “indigenise” its content.

The are two problems: the first is that the process of making and applying the law has already been decolonised, as outlined above. The second is more serious: “indigenising” a law degree by emphasising the perspectives of one community group looks a lot like recognition of a hierarchy of descent.

This plan is outlined in a document dated July 31 that is entitled: Indigenous Law Blueprint: Thomas More Law School. It has been approved by the law school and will be used as a guide to review the law degree.

In many ways, it reveals the same philosophy of grievance over historical wrongs that underpins the extended version of the Uluru statement. It refers to Australia in some places as “the settler state”.

“For Thomas More Law School, to engage in decolonisation is to acknowledge the need to transform the imposition of Western frameworks,” the blueprint says.

“To engage in Indigenisation is to acknowledge the need to validate Indigenous knowledge.

“A council of elders or alternatively an elder in residence should exist within each indigenous higher education unit (IHEU) at ACU.”

The most contentious part of this document is its proposal to inject Indigenous perspectives not just into new elective subjects, but into all of the subjects, known as the “Priestley Eleven”, that are compulsory for all recognised law degrees.

Those subjects are administrative law, civil procedure, company law, contracts, criminal law and procedure, equity, ethics, evidence, constitutional law, property and torts.

In the real world, this blueprint is best described as a try-on – an example of the kind of malarky that emerges when people ignore Hawke’s warning against a hierarchy of descent.

Indigenous law is well worth incorporating an a valid elective, or even a series of electives, in a mainstream law degree.

But “indigenising” an entire degree course would mean accepting that the perspectives of one ethnic group are superior to the fundamental principle that we are all equal before the law, regardless of ethnic origin.

Patrick Keyzer, dean of law at the Thomas More Law School, said that while the blueprint had his support he viewed it as “guidance and food for thought”.

“We are not about to strip out the entire legacy of the colonial system. That is not what we are about,” he said.

The law school would continue to meet its obligations for accreditation but would be reviewing its curricula to determine where indigenous content could be included.

There would be some subjects in which interaction between Indigenous and non-Indigenous academics would be useful. But that would not be the case in others, he said.