By Karen Fletcher
In September the Australian Law Reform Commission had the temerity to brief the current federal government on its view of Howard's 10-point plan to extinguish native title.
It warned that the proposed legislation is probably illegal under the constitution, contravenes the Race Discrimination Act and a clutch of international treaties and UN conventions, and could give rise to many expensive claims for compensation by Aboriginal people deprived of their rights to land.
Despite the best efforts of Liberal MP Warren Entsch, chairperson of the Joint Parliamentary Committee on Native Title, and Attorney General Daryl Williams to "lose" the report, a few copies leaked out, and the committee has now been forced to admit that there may be a few "constitutional problems" with the Native Title Amendment Bill.
Williams wrote curtly to ALRC president Alan Rose in September: "While I understand that the Commission's comments were provided in response to a generally issued invitation which accompanied all copies of the Bill, I note that the Commission's functions, as set out in Part 3 of the Australian Law Reform Commission Act 1996, are confined to matters referred to it by the Attorney General.
"In my view, therefore, it would have been appropriate for the Commission to have consulted me before providing comments to the Government on a matter which is unrelated to any reference upon which the Commission is working. I should therefore be grateful if you would ensure that you undertake consultation with me should such occasions arise again in the future."
Or else what? Aren't we talking about an independent commission here?
Both the Law Reform Commission and Human Rights and Equal Opportunities Commission have lost significantly in Howard's two budgets. Legal aid commissions, too, have lost $30 million so far, and the government has pledged to cut $100 million or more over the next few budgets.
But cutting budgets is just one way in which a government such as this can deal with "legal problems" posed by its program of discrimination, exploitation and victimisation.
When a Refugee Review Tribunal recently caused embarrassment by granting refugee status to East Timorese applicants, the government quietly stacked the body with more sensible and cooperative members.
When a lesbian in Brisbane won a case against a fertility clinic which refused to grant her access to treatment, the Queensland government moved to amend the anti-discrimination legislation under which she made her complaint. When it realised this could not easily be achieved, it simply cut her legal aid.
The Queensland government is also moving to abolish the right of prisoners to judicial review of decisions made by public and private prison corporations, claiming that the process causes "management inefficiencies".
Many states are currently considering abolishing the right to remain silent, and there are already Australian jurisdictions where the requirement of a unanimous jury verdict has been abolished to allow criminal convictions by majority vote.
Some like to think that "The Law" has been distilled from centuries of precedent and honed by great legal minds into a tool for the pursuit of truth and justice. This is not true. Laws are made by those who rule, to suit their own purposes. Things may have changed since the days when the king's word was law, but only due to a bit of a shift in the balance of forces.
Neither the Mabo nor Wik decisions could ever have happened without sustained political campaigns for land rights, just as Magna Carta would never have been won without a struggle.
The law in relation to native title in Australia is a political, not a legal, battleground. In the end, the High Court will not rule according to the constitution, but according to the prevailing political climate.
Any institution which could seriously maintain for nearly a century that Australia was uninhabited at the time of European arrival could also find a precedent for any legal fiction Williams might dream up.