The most regrettable aspect of this week’s report by Victoria’s Yoorrook Justice Commission is its biased attempt to rewrite Indigenous history and portray it as “truth-telling”.
The fact that this commission found that Aborigines had been subjected to injustice was no surprise. That is exactly what the state government told it to find when it presented the commission with the letters patent in 2021.
That skewed foundation forms the basis for something far more dubious: a proposal by Yoorrook to wind back equality before the law by establishing a separate Indigenous-controlled and Indigenous-designed system of child protection and criminal justice for young people.
If it is acceptable for Indigenous people to control and design parts of the justice system to suit themselves, how long will it be before other groups start asking for the same treatment?
This is not the first time equality before the law has been under threat. But it is one of the most serious challenges to this doctrine.
This is what Yoorrook says about criminal justice: “The present-day criminal justice and child protection systems are deeply rooted in the colonial foundations of the state of Victoria. Australia is a settler colony, meaning the colonisers ‘come to stay’ …
“Colonisation, as implemented by colonial and later Victorian state authorities, created the structure, systems and conditions under which first peoples continue to be subjected to harm and systemic injustice.”
This seems to be asserting some sort of race-based entitlement to make and apply laws that is superior to the democratic legitimacy of laws based on universal franchise.
There is only one way to deal with this lunacy and that is to follow the example of former federal attorney-general Robert McClelland.
Twelve years ago, McClelland was faced with a push for “legal pluralism” from the Australian Federation of Islamic Councils. It wanted Australian law to recognise elements of sharia law.
“If there is any inconsistency between cultural values and the rule of law then Australian law wins out,” said McClelland who is now Deputy Chief Justice of the Federal Circuit and Family Court.
Yoorrook’s call for a separate system of juvenile justice for Indigenous children should be rejected, not only because it erodes the principle of equal treatment, but because it rests on a flawed foundation and would entrench racial division.
This commission’s letters patent did not ask this commission to investigate whether Aborigines had been subjected to injustice. The existence of injustice was simply assumed.
Nor did the letters patent instruct the commission to provide a balanced picture of the Indigenous history of Victoria. It was told by the state government to find systemic injustice – and that is exactly what it did.
The first objective in the letters patent instructed the commission to “establish an official public record based on first people’s experiences of systemic injustice since the start of colonisation”.
This explains why the picture that emerges from this report is so one dimensional.
All Australians, particularly those with convict forebears, are fully aware that bad things happened in colonial times. But that is not the full story of this country’s people.
If Yoorrook had been allowed to consider the full history of Indigenous Victoria – the good and the bad – this report’s tale of unending woe might have been more nuanced and could even have carried some weight.
But that was not to be. Instead, a narrative of victimhood was set in train from the very beginning.
This report casts no light on the question of whether Indigenous people have benefited in any way from the introduction of concepts such as the rule of law, democracy, equality of citizenship and the suppression of traditional forms of punishment.
That would have meant going beyond the monotonous tale of grievance and giving Indigenous people a balanced picture of what has been gained and lost over the past 200 years.
This would have meant confronting the harsh reality of pre-colonial life and making an informed assessment of whether the lives of Indigenous people have improved.
In a recent book on the voice referendum, Indigenous leader Bess Price is uncompromising in her criticism of elites who imagine what pre-colonial life was like for Indigenous people.
“They romanticise it, creating what I call a Disneyland version,” she writes in the foreword of The Spirit Behind the Voice.
Price, who is the mother of Senator Jacinta Nampijinpa Price, is a former minister in the Northern Territory government and is one generation removed from first contact with white men, who she refers to as kardiya.
She makes it clear she has a very different perspective to that of Indigenous leaders who have no lived experience of what she described as “the Old Law”.
“They never talk about the downside, the acceptance of violence as a way to settle conflicts, the misogyny and acceptance of violence against women, the forcing of young girls into marriage with old men, the belief in sorcery.
“The old ways still cause a lot of problems, like continued violence against women, family feuding and the humbugging that forces so many to give their money to addicted kin for grog and gambling.
“All these things come from the culture we were taught as children. The so-called First Nations leaders tell us that all of these things are caused by kardiya (white men), by racism and colonisation.
“They have made everything worse, but all of these problems come from our own culture.”