-
00:02
Thanks, Crystal
00:05
so good evening everyone and welcome to the 5th event in the Brennan Justice Talk series for 2021
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and tonight we're focusing on the issue of indigenous justice and treaties my name is
00:20
Dr Elise Methven i am one of the co-directors of the Brennan Justice and Leadership program I am
00:27
joined here by a few members of our Brennan team one of my fellow co-directors from the UTS LSS
00:34
Mac Middleton, Crystal McLaughlin our Brennan administrator and most importantly our special
00:43
guest and presenter for the evening Australia's first Indigenous Senior Council Tony McAvoy
00:52
I would also like to acknowledge the attendance of other members
00:55
of our faculty and the university tonight including our Dean Professor Lesley Hitchens
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now I'd like to hand over to first nations student
01:07
Olivia Henderson to do the acknowledgement of country
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thank you Elise uh on behalf of the Brennan team I'd like to acknowledge the Gadigal
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people of the Eora Nation upon whose lands our city campus at UTS stands and also from
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where I am broadcasting today I would like to pay my respects to elders both past and present
01:31
acknowledging them as the traditional custodians of the knowledge of this land I would further like
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to acknowledge the traditional custodians of the various lands on which all of you
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are attending and joining us today and pay my respects to their elders as well thank you Elise
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thanks so much Olivia for that acknowledgement of country now tonight we have the unique pleasure of
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being connected with uts law students across multiple years or clearly passionate about
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the issue of social justice and before we begin formally i'd like to lay out some just light zoom
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housekeeping rules so this zoom event is being recorded for teaching learning and event purposes
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only key speakers and those that ask questions in discussion time will come up in the zoom recording
02:28
you each have the ability to hide and show your camera as well as mute and unmute your microphones
02:35
when you are not speaking please put your microphone on mute if you find the event is
02:42
freezing on your zoom click hide camera and that should free up some bandwidth
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now tonight we expect quite a large number of students in the brennan community to tune in
02:56
so please ensure your you that you do turn your camera on
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when asking a question during the discussion time we'd love to see your face
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lastly and a very important request for our current students in order to claim your five
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roj points if i could please ask you to all list your full name now in the chat box
03:21
as it appears on the uts systems our brennan team here will award you your points after this event
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you can also use the chat box after this for any other questions during the event uh and mac and
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crystal will respond while tony mcavoy presents so now that we've got our housekeeping settled
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i'd like to introduce you to our very special guest and key speaker Tony McAvoy sc who will be
03:53
speaking on the issue of indigenous justice and treaties Tony McAvoy is australia's first
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indigenous senior council um he's a weirdy man who is a barrister at frederick jordan chambers
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co-chair of the indigenous legal issues committee of the law council of australia
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and assisted the royal commission into youth detention in the northern territory during 2016-17
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notably between 2011 and 2013 tony was an acting part-time commissioner of the new south wales
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land and environment court tony has recently been appointed as a commissioner on the new
04:38
south wales independent planning commission so i'll now hand over to to tony thanks tony
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thank you elise and thank you olivia thank you to the Brennan Program for inviting me to speak
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um i'm i'm quite um humbled and flattered to have been given the opportunity to speak this evening i
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try and always take up the opportunity to speak to students if i can
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i see students as being the key to a better future for us all
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the the bio that you've just heard um i think is probably a bit overly long and i
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apologize for that um but i suppose that's what happens when you find yourself in the position
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to do things which are important and then you have the drive and the obligation
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to follow through on those opportunities and fortunately for me i've been in in some places
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where opportunities presented themselves for me that i have been very interested in and felt
05:58
very passionate about pursuing and so it i always find that
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as most people do that that makes the work a lot easier today's topic is indigenous justice
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in the context of treaties but i suppose in front of my mind is the issue of indigenous injustice
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as as a concept
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i think that the the four main areas i should tell you about that i generally focus on in my
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work and in my extracurricular sort of interests are indigenous over incarceration
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interests treatises is another native title both as a professional pursuit and
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i suppose and the associated issues of resource use and heritage protection and climate change
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in june this year in adelaide at i think probably the first live conference i'd been to uh in a year
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and a half there was the australian institute of aboriginal torres strait islander studies
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summit and during the course of that week-long conference one of
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the theme days was on treaties and i was asked to give a keynote presentation at
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the at that particular summit the theme of my presentation about treaty was that we
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as first nations people need treaties for our protection from the political
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policy circus that swirls around us i made the point at that conference that at present
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our only real protection at a national level is the racial discrimination
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which i'm assuming most of your law students is commonwealth legislation that's from the whitlam
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era 1975 piece of legislation legislation but we know we know that the racial discrimination act
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can be suspended we know that because we saw it happen uh when the native title act
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was passed and we saw it happen when the uh the northern territory intervention legislation was
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passed which was extremely discriminatory towards the aboriginal people of the northern territory
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and so on both of those occasions the federal parliament suspended the
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operation of the racial discrimination act and they could do that because it
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wasn't that those protections aren't enshrined in the australian constitution
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we also know that because of section 8 of the racial discrimination act
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governments can claim that their racially discrimination racially discriminatory
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legislation or acts are special measures for the benefit of first nations people that
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that claim to an act or legislation being a special measure can be made
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by government regardless of whether first nations people have requested
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that benefit or not or consent to it and so we saw in the case of maloney queen was maloney which was
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a case from palm island in north queensland where the queensland government had had enacted a
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series of amendments to the liquor act providing for alcohol management plans on and many other
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aboriginal communities in queensland prohibiting alcohol from being brought into those places
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and the court found that the act of discrimination of of restricting the the access to alcohol in
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those places which were predominantly aboriginal was racially discriminatory but nevertheless
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it was a it was it was a special measure for the benefit of aboriginal people
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because there were a whole range of behaviors that were said to be associated with the use of alcohol
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um but the high court confirmed that this could be done without the consent of the people concerned
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so we have no constitutional protection against
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legislation said to be for our benefit or or racially discriminatory legislation that
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that can be that would ordinarily offend the racial discrimination act
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and we have no protection of our position as first nations or first nations peoples um
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obviously we're not protected in any substantial way in the constitution
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our rights are protected to some degree in the native title act and in some
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aboriginal land rights legislation but those protections can be written so i don't say that
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treaties are a panacea i don't say that they can reduce the shocking rates of over-incarceration or
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reduce or cure our terrible rates of preventable disease but they might give
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us some security and protection in the form of a positive protection against injustice
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my observation from working with first nations all over australia
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i've got clients from the torres straits through to western australia
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my observations are that of those people who live on their own country and own their own lands
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what they see is greater control over their country in their lives so this
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is particularly so for aboriginal people in the torres straits torres strait islanders
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or people who don't live on their own and so in many places around australia people were removed
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from their country at the turn of the 20th century and placed into reserves including my grandparents
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grandparents and they were removed from country that was a particular
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particular mechanism for disposition which was used in queensland and
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in queensland we see that there are really
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substantial former missions where people were brought in from all over all over the region
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in those places people want to be able to return to their country to live and so i had many clients
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in queensland and for many that's their goal to be able to create some existence on their own
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country which they and their descendants can take the benefit of and live in some degree of security
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and safety with their families
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so one of the observations i suppose i can make is that
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the real battle from my perspective is is one for self-determination self-governance
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the central feature of the united nations declaration
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and the rights of indigenous peoples is the right to self-determination
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the the united nations declaration provides for indigenous peoples to have the right to
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free prior and informed consent or acts by government which affect our rights
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of course the united nations declaration and the rights of indigenous people has been
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endorsed by australia but it hasn't been brought into domestic legislation and in fact um it hasn't
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been brought into domestic legislation in canada new zealand australia or the us
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the treaties it seems to me as a means for
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gaining access to those rights which are articulated in the international
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instruments such as the united nations declaration the rights of indigenous
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people able to be protected in a way that is greater than having
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rights protected by mere legislation
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the difficulty we have in australia is that there are no treaties here to guide us
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many of you will have read about the batman treaty in victoria which was
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ruled unlawful by by the courts some of you will have heard of the noongar
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agreements in western australia so they were a series of indigenous land use agreements which
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settled the single native title application over south the bulk of south west and west of australia
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some people have described those lugar agreements as a form of treaty for australia but in my view
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they they don't have the essential great ingredient of securing any transfer of power
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another form of agreement which was intended to be a treaty is the
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uldra agreement which was entered into by the narunga people
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of the york peninsula of south australia the south australian government before the last
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change of government had announced a treaty policy and invited a number of
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nations to participate in treaty negotiations one of those nations was the naruto people they
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engaged me to assist them in their negotiations and provide advice and there was a race on it
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happened very late in the term of parliament of the government for um or their labor government
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and there was a race on to see if anything could be fashioned prior to the election and
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what became apparent to the moronga negotiating team and me was that the negotiators
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attending these meetings on behalf of the south australian government had not
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considered at all how there might be any transfer of power from
18:43
the south australian government to the narrator they were interested in
18:51
service type regions
18:57
that were really about government agencies doing things better and it seemed to me that
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although there was a great level of commitment to the notion of achieving the treaty by the
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minister for aboriginal affairs in south australia at the time klein ma an indigenous man
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that commitment hadn't translated to knowledge and commitment of the bureaucracy
19:30
as to what was needed to make sure so even though the minister and the government would have liked
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to have called the agreement with the muranga people a treaty so they could say that they
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had entered the first treaty in australia the narunga people refused to have the word treaty
19:53
in the document and insisted on being called brother or agreement and that made sense because
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i think it's easy to understand how having entered an agreement that's called a treaty
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um the other people were unlikely to be invited back to the negotiating table at any time in
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the near future to renegotiate so the contents of the agreement were insufficient for them to
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consider naming the arrangement of treaty so because we don't have
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treaties in australia that we can look to what where we tend to look is to british columbia
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for guidance because of their monetary process that process has been going on for some 20 years
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interestingly that process commenced when the
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the first nations in in british columbia through a collective forum entered into a an overarching
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agreement with the british colombian provincial government and the canadian federal government
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to set down some principles and the framework for this process the bc treaty commission was created
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and there's approximately 60 first nations out of 140 who are presently involved in the treaty
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process there the the treaty outcomes for the few that have entered the treaties are ones which
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involve the creation of a form of self-government government which is akin to
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a fourth tier of government in my view it and it takes
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takes from each of the existing levels of government that we are familiar with so from
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local government from state government from the federal government and they have roles in taxation
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they have power in respect of environmental protection and planning control they have roles in
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child protection education health but they also deal with issues such as parking and
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purely local government issues
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it seems to me that that type of that level of self-management is what many first nations in
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australia despite a degree of self-management which allows each nation to be able to make its
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own decisions and exist in an economically and politically largely independent fashion
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but one of the difficulties that's that i foresee in the following the british columbian model
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is that each of the transfer in respect of
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not not all but many of the areas in which jurisdiction has been transferred from
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or recognized by the british columbian or the federal government in the first nation
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there is reserved to the provincial government or the federal government a
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a role in terms of being the final arbiter and so in respect of child protection for
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instance the first nation can have its own child protection system but it needs to be accredited by
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the state the provincial government in order to have that decision-making function
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there can be other legal processes which are able to be undertaken in the first nation courts but
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many of them have appeal rights to the equivalent of our supreme court in new south wales or
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into the federal jurisdiction and so whilst the agreements that are available they're available
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online the ones that have been entered into it whilst they don't explicitly speak of
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of a
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submission to the ultimate power of the
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the provincial government or the federal government in fact the way in which they operate
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can be interpreted as some form of submission so in australia one of the political mantras which
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exists is that sovereignty has never been seated and i i envisaged that it will be very difficult
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for many first nations in australia to enter into an arrangement which can be interpreted as
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agreeing to a form of domestic dependent sovereignty which ultimate sovereignty is
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uh is seated there there are some ways around that and many people have have spoken about it here in
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australia um but it seems to me that one of the options for dealing with that particular problem
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is to provide for a contestant whereby the agreements record the assertion by the first
26:00
nation of ongoing and undisplaced sovereignty and record the assertion by the statement
26:08
of a lawful and continuing sovereignty and note that the parties are
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acknowledged the contest
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now i accept that that's a long way from where we are at the moment where
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the federal government won't even discuss treaties
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the political position is one where
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the the only jurisdictions in which uh treaty processes are underway
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are ones which are not conservatively held governments
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and if there is to be a national treaty process in australia it seems at the moment
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that it won't happen unless there's a change of government away from the liberal national park
27:17
i have given you this evening an overview of a very
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detailed and technical subject but i i i can share with you that
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advocating as i do
27:51
against government policies that have the effect in government legislation that has the effect of
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causing our children to be removed from our families rates that haven't been seen
28:07
since stolen generation seeing our young people incarcerated at rates that are extraordinary the
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whole of the youth prison population in the northern territory are aboriginal aboriginal kings
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having advocated about those matters for years
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years i started out in the aboriginal legal service in the 1980s and i remember the protests
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when john pat died in in western australia we were street marketing in brisbane when i was
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uh when i was a law student and working in the original labor service and that's the that's
28:55
the death which inspired the law commission into actual custody that was in 1987 1988
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i know that our lobbying at these subjects is we're only doing what we can at the bridges to
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reduce the worst
29:30
we can't get the protection we need from just simply participating in a system where we
29:40
against the worst aspect so we've got to
29:44
try and pay for something bigger and larger and better with greater protections
29:49
so i'll leave it at that point um i thank you very much for allowing me and inviting me to speak
29:58
i'm happy to take every question that you'd like to throw at me i encourage you to be
30:07
be vocal and take the opportunity to ask you questions thank you very much
30:19
thank you so much um tony for sharing your insights with us tonight
30:25
um as tony mentioned we've got plenty of time now for questions i'd invite you all to either pop
30:34
your hand up and ask tony a question live don't be shy uh and of course um you can pop a question in
30:44
the chat box as well um yeah the floor is yours if anyone would like to ask anything at all
30:58
all right we've got a hand up
31:02
thank you robin yeah ask away thank you hi tony lovely to see you and thank you for joining us
31:09
tonight i was really interested in
31:12
the framing that you gave on the possibility of a recognition of ongoing sovereignty and
31:18
the recognition that of the position that sovereignty is never seeded i wonder if
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you could talk a bit more about that because i know it is a um a concern and it will be a um
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something that needs to be uh acknowledged and recognized and incorporated in into our position
31:39
um hi robin thank you very much
31:43
yes well um in the u.s they've had a long history of dealing with domestic dependent sovereignty
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and they've had the benefits of operating under federal legislation
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many uh first nations there that's meant that they've been able to obtain economic independence
32:05
through uh taking advantage of the federal laws for the gaming and other other reasons they can
32:13
they are exempt from paying paying federal taxes and there's a whole range of um
32:20
benefits that people are aware of and have been dealing with for over 100 years
32:27
in the us um in canada it's it's not quite as clear-cut but the um
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the british colombian treaty commission has been working and publishing papers
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and if you go to their site their website you can see papers they've published on
32:50
the impact of of entering into agreements and how uh nation sovereignty can be expressed
32:59
in australia i think the that the
33:07
the grasping of sovereignty that we have is
33:14
is almost it's one of the very few things that we've been able to retain um you know
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we've had a huge effect on our people through the
33:32
outlawing of the use of our language our ceremonies rituals
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we've had our history stolen from us we've had children taken away and
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for many people that claim to sovereignty even though we we haven't been able to get
33:52
the ownership of our land back for many of us um is a really important bedrock i suppose and
34:01
because of that it's i could foresee that it will be very difficult for people to let go of it and
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there is the option to proceed on the basis that's the sovereignty
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question isn't resolved by a treaty and that the parties to the treaty agree that it's an issue
34:33
that the treat that the treaty doesn't resolve and so
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in my view that's not the sort of argument that an individual first nation should be having with a
34:48
state or federal government that's that argument needs to be had by a very well resourced
34:57
representative body that can speak on behalf of a large proportion of our first nations and who can
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can match it in terms of uh firepower with the with the state and federal government
35:13
and you know these things takes time to develop but i i can't see
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i have difficulty seeing why any state or federal government
35:34
i just i can't see it happening that they would acknowledge that the sovereignty has
35:39
continued in a way which is which was not displaced by the british sovereign justice
35:53
robert french former chief chief justice of the high court delivered a paper in 2017 2018 which
36:01
suggested that there could be a continuing parallel indigenous first nation sovereignty
36:11
and but that it would be confined to those matters which were left over
36:18
after state and commonwealth powers and interests had been accounted for
36:29
and so he thought that that might apply maybe to matters of spirituality and
36:36
conflict marriage perhaps um i thought that that
36:45
approach was
36:50
was a little too diminished in terms of its appreciation of the the
36:59
strength and
37:02
breadth of indigenous sovereignty i think it i think that has to accommodate something much
37:08
more expansive than just the crumbs that are left over and that we that we use the negotiation table
37:17
as a mechanism for the practical transference of jurisdiction where we can um there is no there is
37:27
no guidebook for this though robert um it's it's like myself i suppose who think about these things
37:37
regularly trying to figure out ways to deal with our own unique situation here in australia
37:45
and we're glad that you do charlie because that's thank you for sharing that particular
37:49
that point on sovereignty because i think um it might have been there'll have to be a way
37:56
to really accommodate that in my view anyway i don't want to hold the time thanks for that
38:02
thank you for your question robin and thank you tony i really appreciate it
38:07
we've got a few more questions coming in now
38:11
um and a more personal one for you tony um from erica uh she said as the first indigenous senior
38:20
council you provide so much inspiration for a new generation of lawyers what are your thoughts
38:26
on quotas or other forms of affirmative action to secure increased indigenous representation
38:36
i think in some fields and vocations quotas are appropriate i mean
38:42
many government agencies have targets for indigenous employment
38:50
there's a there's a question it's questionable as to how far you can go in terms of the professions
39:00
i don't think you can have a quota for judicial appointments or maybe uh
39:10
appointment of doctors but um it's certainly there are lots of arguments to be made for
39:23
having a proactive diversity and inclusion and so in speaking particularly about the field of law
39:33
the legal profession um at the present time there is a
39:40
inquiry going on into the judicial bias in the federal court system and so inquiry being
39:49
undertaken by the australian law reform commission i'm happy to be on the advisory committee for that
39:57
inquiry that inquiry is looking at not only bias as it occurs in court where a judge might
40:05
be accused of apprehended bias because of some relationship with one of the parties or witness
40:12
but also in terms of bias within the system as a whole and how
40:19
notions of unconscious and implicit bias which is unknown to exist in australia can
40:28
infect the judicial reasoning process and what can be done to
40:35
to ameliorate that problem and so they look at training for judges to ensure that they are
40:44
understand what implicit bias is how they might stop themselves if they're if they're likely to be
40:53
engaging in that sort of type of bias um but then but they also talk about diversity and inclusion
41:01
and i think that's a very important conversation that needs to happen
41:12
on the same insane
41:16
sphere is the work that's being done by marcel burns
41:25
i clap
41:28
area indigenous cultural knowledge and learning um within the legal profession i'm particularly taken
41:39
by some work that's come out of new zealand in relation to the digitalization of the
41:49
law degree and new zealand universities and what they talk about there is a bi-durable um
42:00
bi-dual legal system so their system in new zealand they're trying to promote the education
42:07
in new zealand law schools of of the system as being a biodural system
42:12
and they are they they're advocating that the the profession and the judiciary should be
42:23
uh trained to understand the bi-general nature of their legal system
42:28
and if we take those principles and apply them to australia well we would say that there is a
42:33
multi-journal system in australia we would say that there is not only the the imported and
42:41
statutory law that's created by the parliaments of australia but there's also the
42:46
law of the various first nations that exist and continues to operate and be enforced and
42:57
it's a really fundamental change in the legal systems of
43:02
both countries but it's a discussion that i think needs to be had
43:06
straight a little bit away from the question there but i thought i'd throw that in anyway
43:12
yeah no i mean it touches on another question that we had from molly um that was about uh yeah the
43:19
legal system in new zealand but it was really interesting to hear your perspective on that
43:24
um i think it links quite nicely to the second part of her question which is um
43:32
do you think there is a place for a general governing document such as the treaty of
43:37
um maitani in our legal system um and she says thank you so much for your insights
43:45
i do think that there is a place for something of a national agreement
43:53
i and i have to say and i've said it said it before i'm very concerned about the development of
44:04
different trading processes in different states and territories
44:10
because the adequacy of the responses from the states um
44:18
the various states and territories will be reflected in the will reflect the various
44:25
bargaining powers of the first nations in each of those places and in some places it's stronger
44:31
than others and i know from being been involved in the negotiation of many many indigenous land
44:39
use agreements that it's not the quality of the agreement is not determined by the the strength of
44:52
your client's case the extent of their connection how traditional they are how
45:02
strong they are in their culture and how many people live on their country
45:08
it's none of those things the strength and value of their
45:12
indigenous land disagreements always comes down to their bargaining power
45:17
their capacity at the bargaining table to exert power and influence over their opponents at the
45:25
negotiation table and that's the state and so it seems to me that if we are going to ensure that
45:32
everybody benefits in a in an equitable manner from these treaty processes that
45:38
it's critical that we have a national treaty framework that gives some guarantees of minimum
45:48
outcomes and and appropriate resources to ensure that um everybody comes into it with the
45:56
with at least some bargaining power and so i i wondered about the position that we're
46:02
in at the moment where the federal government is refusing to to engage on this issue but i think i
46:09
think that's really interesting um way that you talk about that i mean in terms of bargaining
46:18
power um when when looking at our native title claims in australia um if we compare new south
46:26
wales to the northern territory do you think um i guess in the northern territory claims seem to
46:34
go through the court system a little bit quicker and a little bit more successful what do you think
46:39
are some of the reasons why native title claims in new south wales have those extra few few hurdles
46:51
new south wales
46:54
the way in which
46:57
sorry let's start again the native title claims process in australia is one which
47:06
is particularly onerous on first nations when he was on the high court bench
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justice french as his chief justice french as he was then wrote paper about
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the burden on first nations being so onerous that it was appropriate that we consider
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developing a presumption of connection um a rebuttable presumption that people
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had connection and it was a matter for the state to disprove it because the burden was too high
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for first nations and there was a australian law reform commission inquiry into that and
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the inquiry came back with a recommendation that perhaps
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we didn't need to develop a presumption but rather rely upon the development of systems within the
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federal court make appropriate inferences which meant that those burdens weren't so onerous well
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the problem is of course that um the judiciary is made up of a host of individuals and some judges
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are quite willing to make the inferences the numbers are are reluctant and in new south wales
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because you have to prove the continuity of your law and custom over from the from the time of
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sovereignty and in new south wales sovereignty pretty much means sovereignty 1788
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we're talking about 10 generations of people
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um in the northern territory a lot of the a lot of the places the
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the british didn't arrive until the late 1800s
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and so what you're talking about is people whose grandparents remember when the british arrived
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and they only have to prove their continuity of connection and their
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continuity of their law and custom for two or three generations so it's that much easier
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but that doesn't mean to say that the claims in new south wales could not be
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dealt with a lot quicker and so what we have in new south wales is um is is a system where
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the government has has failed over decades to adequately fund the department in government
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that deals with the aboriginal land claims under the average land rights act and the
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native title claims so if you look at um there's a report that came out last year prepared by
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chris ronalds under a independent inquiry she found that there there were
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something like 39 000 aboriginal land claims uh unresolved there's a claim
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that's unresolved from brewarana for the warren common
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that was made i think in 1985 that hasn't been resolved and and the same can be said for
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the native title system in new south wales and if you you know if you wanted to you could look at
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the western bundellung native title determination from 2018 i think and there are comments there by
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justice justice jago of the federal court i think in paragraph 40 or 41 i've quoted a few times
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where she says this is unacceptable totally unacceptable that people should have to wait
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15 years for a native title or whatever the number was in that case
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she said it in many cases because that's how long it takes new south wales
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and and in my view it's mostly because of the inadequate resourcing of the agencies to do it
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and that is a denial of justice outright denial of justice where the laws are created by parliament
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for the distribution or redistribution of land or recognition of rights and the uh and yet
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um through the executive government and the administrative government they failed to
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adequately source um the government to do its job so straight from the question no no yeah
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so thank you tony um we have another live question actually um from olivia so yeah go go ahead olivia
52:14
hi tony thanks for your talk um i was just wondering a little bit more about the um canadian
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agreements that you were talking about and that kind of fourth level of government
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and whether that has jurisdiction over a certain land area or over people and whether you think a
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system like that could work in the australian context yes i do think it could work in the
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australian context the question is a good one so the environmental and planning laws tend to be um
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confined to their indian lands as they call the lands that they've been able to acquire through
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agreement or their land claims processes or previous treaties
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the they but they also have uh jurisdiction over this citizenry and so
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it might be that they have jurisdiction over their citizenry within
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their territorial boundaries even though that that includes lands that they don't own
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um so it's it's not um it's not a straightforward territorial carve out which makes it a bit more
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complex but it's nothing it's it's no more complex than um than you know
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the system that we have here where you can park your car at uh in a in a ticketed parking area
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and get a ticket from a council officer but if you if we reverse out of that car park
53:55
and you crash into something then you get a ticket from a state officer from a police officer and not
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the council officer there are many examples where we deal with overlapping jurisdictions
54:08
in australia it would it wouldn't be anything that we haven't dealt with or couldn't deal with
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yeah so and i i think that um absolutely it could work and i i look forward to
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to sitting with some of my people at my country making decisions about what happens at home
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thank you
54:40
thank you tony um we've got about five minutes left so maybe time for
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one more quick question um but we've got one from maya and she has said uh you made
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the point that indigenous children are being taken away from their parents at record levels
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not seen since the stolen generations is there anything we can do in the immediate future
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to tackle this issue whilst working towards a treaty and or constitutional recognition
55:13
just to be clear i i do not say for a moment that we need to uh back off on
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all the other advocacy that we are doing we need to be going as hard as we can
55:30
trying to slow down and if we can't stop the effects of really often quite brutal
55:43
legislation and policy with respect to the protection of children i think
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it's difficult because the the danger for children is really embedded in
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australian policy and mindset in a way that is is very deep-seated so you know
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aboriginal children are removed from their families largely for what's all neglect
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or
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rather than physical abuse
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and that comes down to public views about parenting
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and so in the northern territory royal commission into the protection detention of children which i
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was seeing the council system we looked very closely at this in the northern territory and
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we it was very apparent to us that where you have families who are over living in
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very overcrowded conditions because there's not um and who are chronically impoverished
57:26
a social worker
57:30
is not going to understand the benefits for that child in remaining in their family in
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their community where they speak their language and they haven't have a skin name and they they
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grow up in the company of their peers and they go through more
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as opposed to
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doesn't have enough food and there these are these decisions
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that are being made all the time and children are being removed because
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because the system doesn't provide adequately for the value of our culture and our way of life
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and i don't i'm not sure how you change that
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it's a very deep-seated thing that um we are constantly dealing with that
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yeah i mean this this may be heretical but i am i have been and continue to be troubled
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by the close the gap process simply the name of it i find insulting um we
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it's it's in the insinuation is that everything will be good for us if we are more like the
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white horse and that's what the child removal process is about it's a process of assimilation
59:16
and it's it's it's hard and it will be the subject of another commission in another 10 years
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but i don't know the answer to that but it's it's a that that issue is one which
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really needs to be solved at a higher level of government i think then so i mean you can
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certainly um contact your local members and the ministers and complain about it
59:48
yeah and let them know that that you're a law student and you're worried about it you think
59:53
that more could be done but it's it's a big problem it's one of the big issues i think
60:02
it's that yeah it's a points of colonialism yeah yeah um well thank you so much um for
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answering all of those questions tony uh we really appreciate it
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uh i'm with yeah we're running a little bit over now but on behalf of the uts faculty of law
60:22
the law student society and all of the students here tonight i would like to thank tony mcavoy
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senior council for sharing your time and expertise with all of us here tonight your
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insights have shed further light on indigenous justice issues and the importance of treaties
60:40
on a personal note i hope that someday soon we do have the will as a country to implement a treaty
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and as you put it i hope that this will one day act as a positive measure to protect against
60:52
injustice uh thank you so much tony as a remind thanks tony as a reminder tonight's
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event accrues five roj points which will be awarded internally to each of you in your
61:06
career hub brennan workflow i would like to extend an invitation for you all to join our next justice
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talk on the 9th of september with special guest and uts law alumna kate eastman senior council
61:23
that concludes tonight's talk thank you so much everyone thanks everyone thanks tony i just wanted
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to second max um call for the treaty and you've given us so much to think about so we're all going
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away we take so many takeaways from that uh and hopefully we will try and aim for something bigger
61:43
and better and understand that involves a transfer of power so stay safe everyone um
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and yeah we look forward to seeing you at the next event thanks tony thanks everyone
61:57
thank you tony thank you everyone
62:11
you
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Australia’s first Indigenous Senior Counsel, Tony McAvoy SC is a Wirdi man who is a barrister at Frederick Jordan Chambers, Co-Chair of the Indigenous Legal Issues Committee of the Law Council of Australia, and assisted the Royal Commission into Youth Detention in the Northern Territory during 2016-2017.
Tony has developed a strong native title practice and has successfully appeared for claimants in several land claims. He has also acquired significant experience in the areas of environmental law, administrative law, human rights and discrimination law, coronial inquests and criminal law.
Notably, between 2011 and 2013, Tony was an Acting part-time Commissioner of the NSW Land and Environment Court. In 2021, Tony has been appointed as a Commissioner on the NSW Independent Planning Commission.
Australia’s first Indigenous Senior Counsel, Tony McAvoy SC is a Wirdi man who is a barrister at Frederick Jordan Chambers, Co-Chair of the Indigenous Legal Issues Committee of the Law Council of Australia, and assisted the Royal Commission into Youth Detention in the Northern Territory during 2016-2017.
Tony has developed a strong native title practice and has successfully appeared for claimants in several land claims. He has also acquired significant experience in the areas of environmental law, administrative law, human rights and discrimination law, coronial inquests and criminal law.
Notably, between 2011 and 2013, Tony was an Acting part-time Commissioner of the NSW Land and Environment Court. In 2021, Tony has been appointed as a Commissioner on the NSW Independent Planning Commission.