[1988] Reform 138

• Matters relating to crime and punish­ Justice Toohey said the relevance of Abo- ment are primarily the prerogative of riginality as a factor in sentencing is read­ the States and it is the State courts ily understood and should be readily ac­ before which most Aboriginal offend­ cepted. The offender’s Aboriginally may ers appear. be relevant in pointing to the story of his life, the community (white or black) in • The High Court’s role as a unify­ which he finds himself and the particular ing force in matters of sentencing has circumstances giving rise to the offence. been a limited one and that the Court He cautions against the court focusing un­ has not been disposed to grant spe­ duly on customary laws rather than look­ cial leave where sentencing only is in­ ing at all aspects of an offender and the volved. circumstances of the offence. The sugges­ tion that Aboriginally should be a miti­ • It is difficult to generalise about Abo­ gating factor or given some formal recog­ riginal offenders because ‘some lead nition was more suspect. It carried over­ lives that are, at any rate, no differ­ tones of patronage and superiority. ent from those of their white neigh­ bours, whereas others live in remote The irrelevance of Aboriginally is not nec­ areas, heavily influenced by custom­ essarily to mitigate; rather it is to explain or throw light on the circumstances of an ary law.’ offence and in so doing making the way to an appropriate penalty. Justice Toohey’s paper considered at Depending on the facts Aboriginally may some length the way in which the Courts well be a factor in mitigation, but on the should have regard to Aboriginal custom­ other hand it may be relevant to aggrava­ ary laws. He drew a distinction between tion. Justice Toohey also considered that the place of customary law as a defence the notion of special sentencing options to a criminal charge and as a factor in was also open to criticism if too much em­ the sentencing process. He pointed out phasis is placed on Aboriginally rather that the ALRC in its report: The Recog­ than on the circumstances of the offender. nition of Aboriginal Customary Laws rec­ ommended the former required, in large On the general question of punishment part, legislative recognition whereas in his for certain offences and whether these may view, the latter could be accommodated be dealt with by an Aboriginal commu­ to a great extent within the existing law nity, Justice Toohey commented: and sentencing discretions available. it is important that we not set up one sys­ Justice Toohey referred to ALRC Dis­ tem as intrinsically superior to another; cussion Paper No.30, Sentencing: Penal­ however, in the absence of some notion ties (1987) which posed two questions: of self-government, the ultimate authority in matters of sentencing will come from statute and common law. • Should aboriginally be listed as a factor relevant to sentencing? * * * • Should special sentencing options be available for aboriginal offenders or aborigines: toomelah report should special rules regulate the oper­ ation of sentencing options in relation The inquiry was struck by the fact that to aboriginal offenders? even after numerous State and federal gov- [1988] Reform 139

eminent enquiries into Aboriginal and Tor­ is reasonably provided with services. res Strait Islander needs, the awarding of joint responsibility for Aboriginal affairs to • Toomelah: situated 18 km to the the Commonwealth Government by a con­ south east of Boggabilla with a pop­ stitutional amendment in 1967, the con­ ulation of 500, all of whom are Abo­ clusion of a Commonwealth-State arrange­ rigine. It has very limited services in­ ments with respect of funding for Aborigi­ cluding an inadequate water supply nal Affairs in 1976, and the passage of the Aboriginal Land Rights Act by the New and sewerage system. The roads are South Wales Parliament in 1983, the peo­ all unsealed and the community is in­ ple of Toomelah still suffered living stan­ accessible after heavy rain. dards far below those experienced by the vast majority of non-Aboriginal residents of New South Wales and, for that matter, for Based on preliminary findings by Race the vast majority of Australians. Words, Discrimination Commissioner Irene Moss, intention and good-will are simply not suf­ HREOC announced a formal enquiry in ficient. July 1987. The inquiry was constituted by Justice Einfield, President of HREOC, Sir In June 1988 the Human Rights and James Killen, a former Federal Minister Equal Opportunity Commission and Ms Kaye Mundine, a Senior Common­ (HREOC) published its report on the wealth Public Servant active in a number problems and needs of Aborigines living in of Aboriginal organsations. The Terms of the New South Wales — Queensland bor­ Reference of the inquiry were: der region, in particular, the communities of Goondiwindi, Boggabilla and Toome­ • to inquire into and report on the so­ lah. Long standing tensions between cial and material situation of per­ the local Aboriginal and non-Aboriginal sons in Goondiwindi, Boggabilla and communities had resulted in violence and Toomelah and identify the social and damage to property in January 1987. Sev­ material needs of these and nearby enteen Aboriginal men were charged with communities; offences. There were claims that the cause • in particular to inquire into and of the conflict and violence was racial ten­ report upon the extent to which sion and HREOC decided to launch an in­ any problems or deficiencies identi­ vestigation into the underlying causes. fied have been caused by inadequate educational and/or employment op­ The three communities which were the portunities and/or other facilities and centre of the inquiry had the following the existence of the Queensland — profiles: New South Wales border between the town of Goondiwindi and the other • Goondiwindi: a prosperous regional two towns; centre on the Queensland side of the Macintyre River. It is the general ser­ • to investigate and report on the state vice centre for the area and has 4 000 of the community relations in Goodi- residents well supplied with services.• windi, Boggabilla and Toomelah and the way in which problems identi­ • Boggabilla: situated 9 km south east fied can be solved among these and of Goondiwindi on the New South nearby communities; Wales side of the Macintyre River. • to report on the impact of community It has a population of 500, approxi­ relations on the social and material mately 40 of whom are Aborigines. It needs of these communities; [1988] Reform 140

• to recommend to all relevant per­ • Community members display higher sons and/or authorities steps which than average rates of a range of dis­ might be taken to resolve the identi­ eases for which they cannot get ade­ fied problems of these communities. quate treatment. • Housing conditions have been ac­ The inquiry looked at the histori­ cepted by authorities at all levels cal background to the three communi­ of government although they lack ties and in particular focused on the physical safety and protection from inter-government conflicts involving fed­ weather and are a danger to the eral, state and local government author­ health of occupants. ities and the way in which these had had a particular impact on the Toomelah Abo­ • The health services at Toomelah are riginal Community. It also examined the wholly inadequate. particular problems of the Toomelah Abo­ riginal residents in relation to housing, wa­ • The secondary schooling facilities for ter and sewerage, roads, education, the Aboriginal children at Toomelah were role of local government, and the local so­ unsatisfactory and resulted in se­ cial environment. vere discrimination against Aborig­ inal students attending schools in The Commission’s report made formal Queensland and a consequential high findings in relation to each of these issues drop out rate. and then proceded to make recommenda­ tions in relation to each of them. The re­ • The Goodiwindi State High School in port found that: Queensland has been overtly racist against Aborigines contributing in the Toomelah community of 500 Aboriginal major part to racial tension, unhap­ people endures appalling living conditions piness and stress and the high drop which amount to a denial to them of the out rate. most basic rights taken for granted by most other groups in society, and by other Aus­ • The Moree Plains Shire Council has tralian communities of similar size. Their levied rates on residents but has not houses are sub-standard and overcrowded, actually contributing to a range of diseases. supplied the services expected. The community has for decades lived with­ out an adequate and certain water sup­ The Commission’s report went on to ply, a properly functioning sewerage sys­ tem and a safe means of sewage disposal. make specific recommendations seeking to The lack of a sewerage system is partly remedy each of the identified problem ar­ due to the damming of the Macintyre River eas. It was also very critical of the rele­ without offering and making available the vant government departments and the role dammed water to the Toomelah commu­ they have played in the current condition nity as it is offered and made available to of the Toomelah community. These in­ other nearby towns and private properties. cluded criticisms of the departments, both The community is frequently completely Commonwealth and State, with special re­ isolated from all services in contact with sponsibilities for Aborigines. The report the outside world due to closure of the in­ urged that the policy of Aboriginal self­ adequate access roads by rains. determination should be effectively im­ In addition the report found: plemented particularly with respect to the provision of basic services and the [1988] Reform 141 establishment of a decent quality of life for Furthermore, according to the Report: all Aboriginal and Torres Strait Islander Frequent denials of existing rights and bro­ peoples. ken promises of new rights have brought about frustration mixed with anger and * * * lack of Aboriginal and Islander trust and faith in the federal and State Governments. aborigines: a u.n. report * * *

I am the inferior of any man whose rights I trample underfoot. sexual harassment case Robert G Ingersoll, 1884 blame the victim. The President of the Australian Law Reform Commission has The lack of attention given to the criticised a recent sexual harassment deci­ rights of Aboriginal Australians has been sion as a dangerous throwback to the days criticised in a recently released report of of blame-the-victim. Justice Evatt said the United Nations Working Group on she was concerned at the decision to award Indigenous Populations compiled by its no damages against Dr Atallah Sheiban, of chairwoman Professor Erica Daes. Indi­ Sydney, after he was found to have sexu­ vidual Aborigines and representatives of ally harassed three former receptionists. Aboriginal organisations have made regu­ lar visits to Geneva in recent years to ap­ Speaking at a function to mark the pear before the Working Group and Pro­ fourth anniversary of the Commonwealth fessor Daws made an extensive tour of Sex Discrimination Act, Justice Evatt said Australia early in 1988. Justice Einfeld, who heard the case as president of the Human Rights and Equal The Sydney Morning Herald (5 Au­ Opportunity Commission (HREOC), had gust 1988) said the report found that Abo­ implied that ‘if there’s any discomfort rigines lived in ‘poverty, misery and ex­ about [sexual harassment] it may be the treme frustration’ while being denied self­ woman’s problem’. determination and the social status en­ joyed by most Australians. The conclu­ She said the decision threw into doubt sion reached in the report was that ‘Aus­ who was actually responsible for sexual tralia stands in violation of her internar harassment. tional human rights obligations relating to non-discrimination or unequal treatment I think we need to look at this very care­ fully and make sure that we are prepared in general and to the provision of certain to assert strenuously that a woman does minimum services in particular’. have the right to integrity of her person, no The report also commented: matter what. That should be recognised by everybody. The problems are wide-ranging and in­ If the woman is concerned about it, it’s not volve, inter alia, Aboriginal and Islander because she’s in some way neurotic or un­ self-government, their participation in na­ able to cope with male behaviour. We have tional and State Governments, land and to fight about this. natural resources, preservation of identity Ideas that regard the victim as responsible and existence, traditional ways of life, cul­ can flow if they’re not carefully guarded ture, language, education, health, housing, against. They can flow into all kinds of the position of women, children’s rights other areas of violence and coercion against and administration of justice. women.