Brennan Justice Talks 2020 Indigenous Justice

>> Jane: Evening everyone and welcome to the second event of the Justice Talk series and tonight we're going to be focusing on Indigenous justice issues. My name is Jane Wangmann I'm one of the co-directors of the Brennan Justice and Leadership program and I'm joined tonight with Erika Serrano who's the other co-director from the law student society and Crystal McLoughlin who's our program administrator and most importantly we're joined by our special guest and keynote, Dr Chris Wilson. Before we start the proceedings, I'd like to acknowledge the traditional owners of the land on which we are sitting and participating in this Zoom session I am coming to you from the land of the Gadigal people of the Eora nation and I pay my respects to their elders past and present. I acknowledge that for some of you, you're coming from other traditional lands and I acknowledge those traditional owners and pay my respects to them. I'd also really like to extend a very warm welcome to any Aboriginal and Torres Strait Islanders who are in the room participating in this session.

So before I introduce Dr Chris Wilson, formally I'm going to just take a moment to do a few of the housekeeping things and some of you know this because you've participated in a Justice speaks event before. As you know from Zoom you all have the ability to hide show your camera and mute and unmute your microphones. It's really useful to be on mute if you're not talking just because there can be a bit of background noise. If this in this event if you find that your Zoom is freezing, it's a good idea to just hide your camera because it might free up some bandwidth for you. When you are speaking so if you wanted to ask Chris a question, we'd really love it if you could put your camera on just so that we can see a friendly face if you're comfortable to do so. Lastly a very important request and Crystal did this earlier for some people that were in the room earlier, is that if you do want to claim your five ROJ points, if you could put your full name as it appears in Careerhub in the chat function then Crystal and Erica can mark off your names for that purpose. You can also use the chat box to put any questions that you might like to ask Chris if you don't want to do so orally. All right so that's our housekeeping so now I'd like to introduce you to our special guest Dr Chris Wilson. Chris Wilson is a lecturer here in the faculty of law at UTS. He's an Arabana man and he researches in the fields of cyber security, computer-related crime and Indigenous traditional knowledge in a digital context. He completed his Doctorate at the University of Oxford I think in 2019 and his thesis examined the structure and operation of data access offences in the context of criminalisation theory and the evolving nature of the use of computing technologies. For the duration of his doctoral work, Chris was a Charlie Perkins, Roberta Sykes and Chevron scholar. In the faculty of law here, he teaches real property, Indigenous people and the law and criminal law and procedure. It's a great real great pleasure to have Chris here as our Justice Talks keynote tonight. I've heard Chris speak on a number of previous occasions both as a seminar session like this and in podcasts and it we're in for a very informative engaging evening so welcome Chris and I will hand over to you.

>> Chris: Thanks Jane. Thank you all for joining. I'd also like to pay my acknowledgment o traditional owners of the land I'm presenting from which is also Gadigal peoples the Eora Nation. I'd like to pay my respects  to the Elders of the lands where you're all viewing from. Also like to acknowledge my own community my old people. So Arabana and Dieri. So my community is the Southeast and Southwest of Kati Thanda Lake Eyre in Central South Australia. I'm only where I am today because of the sacrifices my grandparents and great grandparents made to keep our family together under quite oppressive policy structures that were in place. So I was invited to talk to you tonight  kind of on this topic of Indigenous Justice and the role of law in creating and addressing Indigenous Justice. It's a very big topic so what I've decided to do is just throw out some kind of prompts to get us thinking and hopefully that sparks some questions from you all. Before I turn to those I do want to kind of problematise this idea of justice when we talk about it in relation to Indigenous communities and this idea of Indigenous Justice because when we think about justice in particularly social justice, it tends to be this idea of you know equality of expanding access of ensuring equal opportunity, of ensuring maxim potential but part of that underlying idea, is an implicit notion of kind of assumptions built into the dominant system that's saying this is what should be achieved this is what should be kind of the experience of everybody and what that can miss when we talk about Indigenous Justice, is the silencing effect that that can have on Indigenous communities and defining for themselves what success is and what justice is for them and that's a really important kind of thing to grapple with in your thinking. We've had generations and generations of Indigenous communities being controlled and being told what's good for them to a large extent that continues today and we're only just at the phase now where law and policy is starting to pivot to give Indigenous communities a voice to say you know what does success look like for us? what does justice look like for us? And the answer to that question is going to be different for all the different Indigenous communities around the country and that's because the experience of each Indigenous Community under the imposition of Anglo-Australian law through the process of colonisation has been quite different. So this idea of colonisation, this idea of the imposition of a legal system I've tried to capture with this little sketch that you see on the screen which is kind of the Imperial Powers jostling for territory. The way that played out across the continent is vastly different for each community so each community has had different experiences of injustice but also different opportunities. So my community for example, our experience of kind of government control structures was shaped by the fact that my great-great-grandfather was a Scottish immigrant and he was the first non-Indigenous owner of Anna Creek cattle station and when that was sold, he used some of that money to buy Finnish Springs cattle station along with my great great grandma Arabana woman Laura Peralta, and they had children but because of being a land owner, because of the connections that that gave to kind of South Australian Parliament, my great-grandparents were able to get exemption certificates and my family was able to stay together and in fact the relationship between my community and pastoralists and station owners was relatively productive. To the point where in the 50s and 60s my community actually made the conscious decision to cease doing some ceremonial practices because if those practices were stumbled upon by someone who shouldn't be there, the traditional penalty would have been death and that would have put those relationships at risk. So my communities kind of experience is going to be completely different from somebody else's, even though it's still operating within a broad legal framing so I think it's really important moving into this kind of discussion that we just bring that understanding that we've got you know 500 different Indigenous communities, different languages, but also 500 different experiences of interacting with Anglo-Australian law. So some of the points that I'd like to run through and for us to think about whenever we're thinking about working with Indigenous communities or thinking about participating in programs or research whatever it might be and the first one is the Indigenous Justice and achieving it and kind of Indigenous Injustice is not an Indigenous problem. The reason I point that out is because so much of the talk and the work historically and contemporarily in relation to Indigenous Justice, is always framed as this kind of deficit model. So it's Indigenous communities aren't achieving this like other members of society so we need to put in a program to change that statistic. So when you go in with that deficit model and that kind of idea of having this gold standard in society that everyone should meet, you create issues. The other thing that kind of this idea of it not being an Indigenous problem, is that while the specifics of the experiences are different between countries modern countries that were colonised by the United Kingdom, so America, Canada, New Zealand, Australia while those specifics are different, what we see at the macro level is the same kind of issues operating across all communities. So over incarceration, legacies of child removal practices and policies, disenfranchisement, lack of capacity for communities to build and structure themselves. So researcher Maggie Walter described that a couple of years ago in the context of over criminalisation, as being this idea that if colonisation didn't have anything to do with that if it wasn't a problem introduced and a problem with the system, then the only alternative would be that the English of the British were just unlucky enough to find four distinct geographical locations that housed the most criminally inclined communities on the planet. So when we talk about Indigenous Justice in the Australian context, obviously we're focused on communities here but what we're actually talking about structurally is a problem that's shared, it's a challenge that's shared. So Canada had residential schools similar to our stolen generations. Native Americans had similar experiences with disease being introduced with alcohol and tobacco being used in similar ways to make communities more docile. All these experiences are shared so if our framing coming in is that Australian Indigenous people are suffering from some kind of inherent deficit, then we're missing the bigger problem and we're not going to find a solution. Having just said that, I just said we're going to miss the bigger problem and not find a solution part of this side the year of speaking about problems is also it gives us this idea that there is a solution that we can participate, it's a problem to be solved that's again another angle where we can bring in those preconceived ideas that you as an individual will have about what should happen. So you're coming in perhaps with this idea that particular opportunities should be available and from a broad theoretical framing that might be great, but that might not be what the community needs at that time and by coming in with that angle there's a misalignment in what the community needs and what the problem is you've identified that you think is going to be solved. We end up in kind of a cycle of not really getting anywhere because the community themselves haven't had that agency to participate in that defining. The other thing that's important to think about my next point, is that Indigenous Justice isn't about race. This can be a tricky thing to grapple with because so much of the language around the Indigenous experience is centred on Indigenous people as a race of people. Using the language of race and racial discrimination really misses part of what's going on here and that's because Indigenous identity as we understand it, is a product of the settler-colonial relationship so it's a legal infused identity. A lot of early policies shaped on ideas of race and the language of race still gets used today but when we want to think about Indigenous justice, we're thinking about collectives of people who were the owners and had legal systems in place, had some of the most complex social structures ever to be created on the planet that still operate but as a collective, have been defined by the law as a group and those long-standing claims to land rights, to self-determination, to sovereignty, that all stems from that moment of kind of colonial imposition of law, the taking of land, the taking of rights. It's that unresolved legal dispute that creates Indigeneity as a particular form of identity so it's a political identity, a legal identity even though a lot of the time we think about it as being a racial identity. We see this play out in a couple of areas of the law. So the first one is Native Title. Native Title is not some kind of special right that Aboriginal have because of their racial identity, it's that connection to country, that ownership of country that survives the colonial imposition of law and it exists as a form of legal inheritance. So it's not that Native Title is a special kind of provision for Indigenous people based on their race, it is a type of inheritance that's passed down in within Indigenous communities in accordance with that community's custom and that community's legal system. This kind of framing of Indigeneity as being a racial issue versus a political or legal, a colonial issue emerged again this year. You might have seen coverage of this you might have looked at it in some of your courses perhaps and that was the case of Love and Commonwealth and Thoms and Commonwealth and this was the issue of two individuals who were dual citizens, they were also Indigenous and the government was trying to deport them to their second country of origin and the issue before the court was, could an Indigenous Australian be deported from the country under the Aliens power in the Constitution. The reason I bring this case up, is it's a really good example if you go and read the different judgments of the way the majority and the minority conceive of Indigeneity. For the minority, who said that these individuals could be deported or that it would fall within the Aliens power, Indigeneity was racial and when you conceive it as racial it then becomes an affront to our ideas of equality and justice that an Indigenous person should be carved out of the Aliens power. The majority however, incorporated those ideas that I'm talking about. This idea that it's a product of the semicolonial structure that it's about that socio-political and legal identity created because of that special relationship that gives Indigenous people their claims. So the majority in doing that in articulating it that way, we're able to decide that Indigenous Australians were therefore not within the Aliens power. Now the language they use in that is all about connection to country they do create some room for issues in their judgment, in the way that Indigeneity is defined and who gets to decide that. The broader shift that we start to see in the judgments there is finally this idea of Indigenous identity being the product of that settler-colonial relationship really coming to the fore and when that comes to the fore, you can start to make more sense of what's going on. Third point that I'd like to bring up, is just this idea that fixing a law doesn't immediately fix an issue. So we have we exist in a time where attention spans are quite short and we exist in a system where election cycles are short and that creates a big problem when you're dealing with issues as complex as this. So when we're looking at the status of Indigenous communities this is something that's been building and developed for over 200 years. Changing one law doesn't solve that problem, it helps but it's not going to immediately fix it. So there's a couple of examples of this. So you may or may not be aware of the use of the term self-determination in relation to Indigenous communities. Self-determination became the dominant legal and policy idea in the 70s particularly under prime minister Gough Whitlam at the time and that was at the moment when Australia was pivoting away from those pre-existing policies and laws in relation to Indigenous communities that controlled where they could live, who they could marry, whether or not they could go to school, whether or not they could work there's very paternalistic control structures. They were dismantled and pulled away rightly so and self-determination became the policy ideal. We'll let Indigenous communities kind of make their own decisions, run themselves but the problem was bringing down those  protection laws, those assimilation laws and not putting anything in its place meant that for Indigenous communities who were costed on country that wasn't theirs, whose networks and culture had been controlled and decimated, who hadn't been allowed to go to school, were suddenly left in this bureaucratic limbo and told to fix it themselves. When communities couldn't do that, that was then pointed to as an example of Indigenous people not being capable of doing it and we saw the pivot back in policies, back to more paternalistic, back to more controlling policies because the idea of dismantling the system, didn't help the communities move on from that point. Another thing these policies you know have an effect on some of you may have heard me say this before because I recognise some of the names and I mentioned this on the podcast they did with the Law Society, my skin colour is a product of government policy. I'm the lingering effects of my great-grandparents decision to get exemptions certificates. The exemption certificates meant that our family could stay together but it also made an offence for my direct family to interact with other Aboriginal people. If they did so, those exemption certificates would be revoked and control would be exercised. So not only does that have kind of the visual manifestation, what it did for my manner was growing up she was taught by her mum and dad to be scared of Aboriginal people because if that contact was made, he put the family at risk. That's something my nana still grapples with today, it creates cultures of shame and it's disrupted the flow of knowledges of cultural traditions between generations and it also creates tensions that can't be necessarily resolved the way they might once have been resolved and that spills over to other social issues within the community. From our legal perspective we kind of look at that and say well the law's gone it's been fixed. Those effects keep flowing through generation after generation. My last point that I wanted to just touch on is this idea that Indigenous justice necessarily involves law and policy making space for Indigenous community-led Solutions and practices and this is the thing that's kind of come up a lot in what I've spoken about some of these ideas of self-determination even though our experience with that has been mixed. When the law comes in with its predisposition to those forms of formal equality, there's a lack of space in there for Indigenous communities to make those claims about what that community wants and what that community needs at that particular time. That creates a number of issues but we also see that coming through as kind of a a logic issue for the law. So I mean when I look at Native Title, I always think of the Grandfather Paradox in science fiction. So Grandfather Paradox in science fiction if you don't know, is that if you travel back in time and kill your grandfather, you would never have been alive to be able to go back and kill your grandfather in the first place. Native Title to me works the same way. So for all the discussion on Native Title in relation to ideas of sovereignty and kind of settling these ideas of kind of Indigenous injustice but particularly that idea of making space for Indigenous sovereignty and Indigenous laws, the High Court is always bound by the fact that if it was to determine that Indigenous sovereignty existed, then it itself would not exist to make that determination. So we're stuck in a kind of a bit of a logic loop and law is the system of logic needs that to work. So the court system and law when we think of it within the body of Anglo-Australian law itself, isn't always going to be equipped to make that space and this is where ideas for treaty making, for different forms of agreement making, from the executive of either the federal or the state government with the leadership of an Indigenous Community or an Indigenous Nation, almost extraneously from the domestic legal system but not quite, kind of works to resolve some of those issues. That could be a really difficult thing to get your head around, but hopefully that Grandfather Paradox analogy goes some way so you can see the space where that's kind of operating. With the current pushes for treaties, that is part of the issue that's coming into play there. A treaty process is the idea of giving that agency to the community, to define who they are themselves, define what they need. To reset the relationship in a sense with either the state government which is where we're seeing this happen at the moment, particularly in Victoria and Queensland, or with the Federal government. So they're the points I wanted to raise to give us thinking and happy now to open the questions.

>> Jane: Thank you so much Chris. So much stimulating information in there. Does anyone and I remind you it would be really great if you could turn on your camera if you do want to ask a question just so it's much easier nicer to see a face if you're comfortable with that. Are there any questions that people want to ask on the floor?

>> Erika: If there is not I'm happy to kick off with a question if you don't mind. Thanks so much Chris again for speaking that was so interesting I'm still reeling from the Grandfather Paradox, trying to wrap my head around it. You did mention for example that fixing a law doesn't fix an issue and I recently read an article on the importance of providing or at least incentivising legal education for Indigenous people. I guess so that we have Indigenous voices on our Judiciary. So I just wanted to know what are your thoughts on this as well as the plan of introducing quotas.

>> Chris: Oh so. I think it's really important because well for a number of reasons and at a number of different levels. So I think it's you know important to have you know Indigenous judges, Indigenous politicians because that's the decision-making kind of avenue. I also think it's particularly important to have Indigenous lawyers working with their communities to increase access to the legal system in a more kind of comfortable relatable setting. There's something and anybody from any minority group knows this, when you relate or meet someone with a similar background or a similar experience or similar understandings, you're more at ease, you get each other so I think that front line legal work is really important. When it comes to legal education, I have a story that does show some of the risks of this for communities. So when Harvard in the U.S was founded, it was originally set up part of and in its founding charter was to train Native American students. So the third Native American student who ever went to Harvard, he was selected or kind of identified by his community the people, they fundraised and they sent him to Harvard to go to law school. When he was in law school, he ended up living next door to the governor of Massachusetts at the time. They became close and he actually sold his communities land out from underneath them. So there are historical kind of examples where this can also be dangerous but again that's kind of one of the things where the more numbers there are the less that can happen because when we think about these kind of things, we tend to assume that Indigenous people are going to think the same and they're going to act the same. We don't expect that of any other community or any other group of interest. I mean we have a whole chamber of parliament where people disagree but when you have an Indigenous community that disagrees suddenly you know they can't sort themselves out how can we help them kind of attitude starts to come through. So I mean that example I just gave is you know back from the 1600s but it that is part of the kind of risk management that a community has to grapple with when that happens and for particularly for Indigenous law students who move away from community to study, it's not just the geographical moving away. The more you study, the more you change, the more you learn, that time spent awake can result in disconnection from your community which creates other issues. So it's a complicated trade-off, but the end goal of more Indigenous lawyers is invariably a good thing. Quotas are interesting. I tend to favour quotas as a way to change expectations. So I've always viewed them as a transitory process and that's because so much of our idea of merit is inherently not (inaudible)... and deciding what merit is tends to look like them. So according within can catch... maybe my internet's not great is it back working?

>> Jane: I think we just lost I'll keep transitory nature of quotas.

>> Chris: I think my internet might be going up we might just have.

>> Crystal: It's back you might want to maybe perhaps stop sharing your video and then that might help us hear you.

>> Chris: Yeah I'll give that a try. All right where was I? Yeah so transitory nature kind of reshaping that idea of what merit might look like can also go to address you know some of the issues that Indigenous students in particular but this is a is also a problem that is shared across the country and across different communities, just in access to early education and kind of your ability to tap into networks to have resources I mean I went to Corn Area school if you Google it on the map you'll see it's quite a long way from anything. I was one of five people in my chemistry class, one of four people in my biology class. I did physics and maths over the telephone and I was the first person at my school to do physics in 36 years and my school's annual science budget was 200. So my even though I'm really lucky  in what I got to do compared to other members of my family, the resources I had at that stage you know it just weren't weren't there and I mean I was the first person in my family to go to uni, that understanding the system anyone whose first new family to go to uni knows this, that learning process of working out you know how the institutions work what you need to do is always challenge. Now I've got cousins who've all been able to go to uni and I've been able to work with them and explain things to them and help them. So I mean my family's produced three lawyers now, a couple of teachers. So that's again that idea of quotas of bonus points whatever it is addresses that first kind of generational issue and then it can spiral out from there. I hope that addresses the question.

>> Erika: It definitely does. Thank you for that Chris it definitely did address my question. I think we have a question from Maximilian if you'd like to unmute.

>> Maximilian: Hi Chris so my question is earlier you were talking in terms of not to look at things in terms of Indigenous problems and not to have a detriment mindset around these issues. What would you be what would you propose would be a good alternate for potentially government bodies to look at when dealing with issues in this area?

>> Chris: So part of the issue with that kind of detriment mindset is that your policy solutions or programs that you come up with and to apply too widely. So when I was talking earlier about you know my family's experience being completely different from another communities experience, when you come in with a deficit mind or like deficit measures which is a lot of the way closing the gap has been framed it's a little bit different this year, that's a really good case study for you to look at the shift that happens when more Indigenous communities are involved in creating them. You end up with these targets that then get applied to all Indigenous communities. So the key example I always fall back on is school attendance. So school attendance, policies are set in place to make sure Indigenous kids are going to school and the metric that is getting used is attendance and that idea comes from one study in one community in Western Australia that showed that there was a slight increase for that community's children in school achievement when they attended more than 80 of school so that study is the study that gets referenced in the closing in last year's closing the gap report as the Authority for why that's the national target. What that doesn't pick up, is the fact that schools in you know remote Queensland, in the Northern Territory, regional New South Wales, some of the Indigenous kids there speak three, four, five languages and English just isn't the first language. So the policy issue is the schools are not providing necessarily the right kind of education and a local solution to that could be, training more teachers from that community, having Elders build better relationships with the school and then you end up in the same kind of ballpark of your policy outcome, which is kids attending school because we know that is a good thing, but your framing is switched. So your framing is what does this community think it needs to create opportunities for their children rather than your children are attending school this is what we're going to do. That's my kind of thinking around that.

>> Maximilian: Thank you.

>> Erika: Does anyone have any questions that they. Oh sorry. Yes I think Sophie will I can't see everyone but.

>> Sophie: Can you guys see me? Right so I studied the Love and Thom's cases earlier this year in constitutional law and they were a really fascinating example into you know those the contrast of the traditional Black Ladder law interpretations of the Constitution and then where the majority landed in a more conceptually sort of flexible interpretation of the Constitution. I find this concept that you mentioned earlier about Indigenous Justice not being about race but a product of the settler-colonial relationship and I think that's such an interesting idea and this is quite a broad question but I wanted to know your thoughts on how the legal system and even us as law students how we can work on reframing this idea of race into more of a political and legal relationship further.

>> Chris: Good question. So I mean one thing I will point out firstly I think it's great you've looked at this case in constitutional law that's brilliant and that's part of kind of the key things to do which is to keep your mind open when you're looking at these cases, pay close attention to them and engage in conversations around that. So the broader thing that needs to happen is that that thinking and that framing, you start to carry that through whenever you're looking at any issue involving some kind of legal dispute and Indigenous people. So in your assignments, in your conversations with people. The biggest thing that anybody can do is have conversations and to listen particularly to Indigenous people and to take and carry that through but not just have conversations with people, have done some of the leg work so that those conversations aren't just talking around in circles but that you can kind of steer other people in that direction. So one of the best things you learn in law school is how to negotiate and how to argue. You can use your thinking around this and you're reading and your work to do that more broadly and just because it's not you making the argument in a court, doesn't mean that those legal skills aren't being put to use and aren't helping kind of move this conversation along. So I mean I had a month or so ago, we'll get personal now, I got a Facebook message from one of my friends from undergrad, who had to go to this party his work party and he just sent me this this was just after the Black Lives Matter protest went down. He sent me this message and he was kind of whinging about this idea that he's going to have to go and spend the afternoon with some middle class people who are just going to be talking about this and have no idea so he didn't want to go. So I just sent him a message and said well why don't you go and talk to them about it and shape that because that shouldn't be the job of Indigenous people to constantly have to have these conversations. I didn't get a response from him for a couple of hours and then he sent back a message and he's just like I'd never thought of it that way and then he went and he had those conversations and is that sharing of the load so I mean one of the most amazing things with the Black Lives Matter protest recently for all the political agi bagi that has surrounded it was just that show of solidarity and actually seeing that visible manifestation of people who support these ideas and showing a willingness to understand and engage and we need to use our skills to tap into that to shape those discussions.

>> Erika: Thanks Chris. Perhaps we'll move on to Rachel did you want to unmute Rachel.

>> Rachel: Hi yeah sorry I can't turn on my video because my webcam doesn't work. I have a few questions I've got three so I can ask them again but I'll just ask all three now make it easier. First one is what do you see as a main areas of policy reform outside of education because I know we've mentioned that increasing access to education means that they can implement or create more influence over policy but I know that there's problems with the deaths in custody which have actually increased since the Royal commission and there's also in terms of the quotas with access to education that doesn't seem to remove barriers for say less educated jobs like barriers of racism for example or denial of access to opportunity. My second other questions I'll just quickly ask is in relation to the Grandfather Paradox. The High Court can't rule on its own legality but then there's issues of why kind of legal fiction be erected to allow you know self-determination and sovereignty. My third question is in relation to the Black Lives Matter movement. Why it doesn't seem to have gained as much traction in Australia and is it because only three percent of the population is Indigenous?

>> Chris: Okay so first question: main areas of policy to reform. My thinking around this is that the vehicles for that need to come through the treaty making processes that are happening and I think that's because the issues are so multifaceted and they're so different for different communities that the way we kind of think about policy and the way we silo it into you know education policy, health policy those kind of things can actually start to, don't always address the broader issues at play and the reasoning for that is Indigenous communities world view is connected and structured in different ways. So probably health policy has been the better vehicle for thinking about these ideas and looking at health in a more holistic way and creating space for things that normally wouldn't be considered part of health to be built into policy. So I mean I'm aware of research that's gone into looking at links between issues like dementia and issues around falling, elderly people falling over, the stronger the connection that Elder has to their community, the less those issues happen. So creating that then creates the space for health policy to look at you know making sure services are available on country and within a community. The other really big issue that needs particular attention is cultural heritage protection. So you would have all seen particularly recently with the Juukan Gorge being destroyed, we have a cultural heritage protection system that was designed in the 80s as a stop gap. So it was created to bridge the gap before a more comprehensive cultural heritage protection framework was implemented and that was never implemented and when it had when that stop gap legislation through the Aboriginal Heritage Act has been used, that's resulted in issues like the Hindmarsh Island Bridge case. So that's a really key area for substantive legal reform that perhaps should be a focus there but I think treaty making is the main vehicle for most others. In relation to over incarceration and deaths in custody, that's very complex and there's lots of different things that can work there. One key thing is making sure Indigenous people you know understand their rights but then also research and understanding into specific kind of touch points. So for instance with possession of marijuana in New South Wales, there's kind of a three strikes system that happens and you can avoid you know having to appear in court. Particular orders can be made and it can be steered away from that. Of the people that do get a court attendance notice on one of those issues, eighty percent of them are Indigenous and when you speak to police officers about this, they say well it's not racial it's because these particular individuals didn't fit the criteria to have the diversionary path. So I look at that and I say well that means that we've got an issue there with those criteria we should look at changing that but that's not kind of a broad policy area it kind of needs that granular let's look at those touch points. What, why and how and in what context are Indigenous people interacting with the police, what is going on there that we can put those issues and deal with those issues as they arise. Another example of that is from New Jersey. So New Jersey abolished cash bail so New Jersey uses and this raises another host of issues, an algorithm to assess how likely someone is to abscond or how likely they are to commit another offence because what was happening and we have this issue in some states in Australia, where the majority of people on remand, so they've been arrested in their awaiting trial and they're being held in detention while they await that trial, vast majority Indigenous and in New Jersey the vast majority were African-American and that's because they couldn't afford to make bail or couldn't meet the conditions under the old system. So by switching to this model by removing cash, there's been a dramatic shift in the numbers of African-American individuals held on bail in New Jersey sorry unable to make bail in New Jersey and that then can help prevent those individuals from losing jobs, can stop further harm to their families and it has that broader ripple effect. To your next question, can't the High Court create illegal fiction to support sovereignty? That would have to be a fiction on a fiction because you still need that base idea of where kind of the assertion of sovereignty and control for the Australian legal system comes from. I mean I'm sure there's ways that it could be done but that requires quite inventive thinking and what would be badged as rather a high level of judicial activism that I just don't think we'd see on the court. Your Black Lives Matter question what was the framing was it?

>> Rachel: Was it because do you think it hasn't seemed to have gained as much attraction because there's only a three percent Indigenous population as opposed to like a much higher percentage of well not just Indigenous but black communities in America. 

>> Chris: Yeah so I think that's definitely a large part of it. I mean the issues of over incarceration of those interactions with the police, there's only a few media outlets that report on that quite consistently it just doesn't have hasn't had that high level of focus that comes into play. Particularly in the US and the US is just bigger, more people, more police interactions and what we've seen recently, is more filming of these interactions more visibility that's coming through and we're starting to see more and more of that  emerging in Australia but again I think it's that  population base and the fact that there's still a lot of stereotypes that operate in people's thinking when it comes to Indigenous experiences and Indigenous issues and it's part of this you know out of sight, out of mind issue. The US is just going through a phase where it's very upfront, very in your face, so there's much more need to grapple with that. Black Lives Matter protests is also interesting in the way it functions. If you look at I don't recommend this, but if you go through comments and conversations on Twitter between Americans and Australians, particularly Indigenous Australians, there's lots of arguments about how things work. So lots of Indigenous people refer to themselves as black b-l-a-k, there are high profile Australian Indigenous people whose Twitter fees just get filled up with Americans attacking them for calling themselves blak and that's because these ideas of racial discourse, the language around thinking about identity are really quite different between the US and Australia. This is why I favour thinking in that settler-colonial context because you know that is a better fit for the discourse because the comparators for Indigenous Australians and Native Americans it's not the African-American experience and that language and that interplaying those conversations, create issues because they're coming from different places. When you look at you know the history and the experiences of the collective.

>> Rachel: Okay thank you so much for answering my question.

>> Chris: That's alright.

>> Erika: Sorry Chris just conscious of time perhaps would you be able to answer one more question.

>> Student: Thank you. I have a question about the treaty you also mentioned that treaty is an important step to step a relationship between the Indigenous people and the government. Given that Australia is the only Commonwealth country who hasn't signed treaties with Indigenous communities, what do you think is the key factors that stopping Australia signing the treaties and what would that ever happen in this country?

>> Chris: So key aspect of that is political. So the political has historically been a political decision not to do that. We are so Victoria's the furthest along the treaty making process. Victoria is planning so the state government, is planning to sign treaties with Indigenous Nations within Victoria. Queensland has announced an intention to do the same. I actually favour that model of starting at the state level rather than the federal model. So I mean if we look at the international experience, so Canada engaged in a treaty process so there's treaties in Canada of varying degrees of success. There are treaties much older treaties in America in the United States, aided by the fact that Native Americans are excluded from the U.S Constitution. There's a particular Constitutional provisions relating to Native Americans in the US which has facilitated that process. You then have the Treaty of Waitangi in New Zealand. We're actually in a good place in Australia to look at what's worked and what hasn't worked in those and to take our time and to get it right. So I've favour keeping the discussion at the state level to test run. So the process in Victoria at the moment is setting up kind of there's a elected group of Indigenous Victorians who are not negotiating the treaty, they're setting out what the treaty how it should be structured, what it should include, what are some of the frames of reference for how it might be negotiated to kind of build a model and then each community is going to be able to adapt that model for their needs and by doing it that way, that's going to give other communities the chance to look at it and to see what's working what isn't and tweak it. Then the way I look at that is we're building a base level at that at that state level, Indigenous Nations can then start negotiating with each other and then we can end up with a national kind of framework over the top of it. So I am actually quite cautious about a push for the federal government to do any of this and it's because that experience is so different across the country, that it is inherently risky to me, I much favour that slow and steady state process. So Matt Walsh, another lecturer here at UTS, we gave a talk yesterday and he said that his grandma has a saying which is 'it took 250 years to knit the sweater that is Australian, it's going to take a while to undo the threads'.

>> Student: Yeah thank you for answering my question.

>> Crystal: That's such a good saying. I really like that Chris. I'll just push in here as well just before we wrap up because I know it's seven o'clock. I just want to thank you for your personal stories because I find the more I expose myself to these like events especially during COVID with we have a you know increase of online events and it's increased you know accessibility to all this stuff, I just learned so much more and more so thank you and I'm pretty sure I'm echoing a lot of everyone else's thoughts as well.

>> Chris: Not a problem. I think particularly in this area because there's so much and it's so complex, it's important to you know have those examples and hear that experience to both understand that it's going to be different for everybody but also to start in your own mind, starting that work of framing your thinking in a productive way. So yeah glad you like it.

>> Jane: Okay thank you very much Chris I'll give you a round of applause. Thank you so much it was incredibly informative and challenging and really wide-ranging into getting people to think about different issues. I'd also like to thank everyone for their great questions they were also really well thought out and deep. So we will wrap up now because some of you do have class. We look forward to seeing you at the next Brennan Justice Talks. There's one on the 14th of September about privacy and another one on the 6th of October about LGBTQI issues. You can book your spot by going to the Brennan Workflow and career hub. So thank you very much and hopefully we'll see you all next time. Thank you Erika, Crystal and Chris.

>> Erika: Thanks Jane, Chris, thanks Crystal.

>> Chris: Thanks everyone.