Vol. 7 No. 3 April 1997 $5.95 WHAIDO 'IOU 'THINK 01=" -n-u:. 1-\1&1-{ COUKT'$ Wll<. t>~C.ISION? u E E s .. ...... L ~- a .c.:P D Margaret Simons on The state of D Volume 7 Number 3 April 1997 A magazine of public affairs, the arts and theology CoNTENTS 28 I'VE GOT NEWS FOR YOU Paul Chadwick sifts through the latest 4 on media ownership and diversity. COMMENT 30 The public hysteria of 7 CHANCING YOUR ARM extinguishment bas now CAPITAL LETTER An Irish Diary part II by Graham Little. given way to the private 8 36 discourse of negotiation LETTERS BOOKS and co-existence. Ray Cassin reviews the Santamaria revision; Meanwhile Borbidge and 10 Max Charlesworth gives an unabashed Co. have dispatched their THE MONTH'S TRAFFIC review of Shame and the Modern Self(p39); silks, with all due respect, John Hewitt salutes the grand old lion of 16 economics, J.K . Galbraith (p40). to ask the High Court to CHANGING CAPITAL THINKING overturn 50 years of Labor are now one year on in opposition, 42 decisions on excise. Some Lincoln Wright analyses some shifts in RELOADING THE CANON pollies have no shame. their economic policy. Peter Craven on the Great Book into Great Film phenomenon. -Frank Brennan 18 See 'Pastoral comical, NEWFOROLD 43 pastoral tragical', p4. Jon Greenaway looks at changes in POETRY the ALP and in the unions. Back and Spadework (p45) by Peter Steele. 19 46 ARCHIMEDES THEATRE Cover cartoon by Dean Moore. Geoffrey Milne asks why Shakespeare 20 gets top billing. Cartoons pp 10, 18, 20-23 by NORTHERN EXPOSURE Dean Moore. Has the Queensland of the Fitzgerald 48 Cartoon pll by Peter Fraser. Inquiry era changed at all? Cartoon p49 by Pat Campbell. FLASH IN THE PAN Graphics pp2, 10, 14, 16-17,25, Margaret Simons investigates. Reviews of the films Jerry Maguire, The 27, 28-29, 39 by Siobhan Jackson. English Patient, Lost Highway, Breal<ing Photographs pp3 1, 32 and 35 by 24 the Waves, Mars Attack s and Star Wars. Bill Thomas .. A DAY WITHIN YOUR COURTS Eureka Street magazine Michael McGirr tells of abuse, shame and 50 Jesuit Publications guilt. WATCHING BRIEF PO Box 553 Richmond VIC 3 121 Tel (03) 9427 731 1 27 51 Fax (03) 9428 4450 SUMMA THEOLOGIAE SPECIFIC LEVITY V OLUME 7 N UMBER 3 • EUREKA STREET 3 EUAI:-KA STAI:-ET COMMENT A magazine of public affairs, the arts FRANK BRENNAN and theology Publisher Michael Kelly SJ Pastoral comical, Editor Morag Fraser Consulting editor pastoral tragical Michael McGirr SJ Assistant editor Jon Greenaway Production assistants: L F"cum mNT CHR"TMA; w;th' tempomy hold on Paul Fyfe SJ, Scott Howard, Juliette Hughes, the prime ministerial reins, calling for the extinguishment Chris Jenkins SJ, Siobhan Jack on, of native title on pastoral leases in the wake of the High Contributing editors Court's Wik judgment. Adelaide: Greg O'Kelly SJ John Howard, back in the saddle, set about searching for Brisbane: Ian Howells SJ a solution by Easter. Extinguishment was not an option. The Perth: Dean Moore issue was money, not principle. The National Party and its Sydney: Edmund Campion, Gerard Windsor constituency were sure to be offended. The Liberals had to European correspondent: Damien Simonis step back and let their country cousins vent their spleen. Discrediting the High Court which delivered a 4-3 victory to Editorial board the Aborigines was a central part of government strategy. Peter L'Estrange SJ (chair), During the summer vacation, the Court was fair game, Margaret Coady, Margaret Coffey, being mauled by conservative premiers led by Rob Borbidge, Valda M. Ward RSM, Trevor Hales, whose knowledge of the Constitution led him to believe that Marie Joyce, Kevin McDonald, he could do a Bjelke-Petersen in replacing Mal Colston, over­ Jane Kelly IBVM, looking the 1977 amendment to the Constitution designed Peter Steele SJ, Bill Uren SJ to defeat any such repeated abuse of parliamentary represen­ Business manager: Sylvana Scannapiego tation. Advertising representative: Ken Head While Chief Justice Brennan privately corrected Fischer Patrons for his earlier erroneous attacks made during the WA election Eurel<a Street gra tefully acknowledges the campaign, alleging the Court had been tardy in reaching a support of Colin and Angela Carter; the decision in Wik, Attorney-General Daryl Williams said it trustees of the es tate of Miss M. Condon; was no part of his role to defend the judiciary, even from Denis Cullity AO; W.P. & M.W. Gurry; unwarranted public attack from his own government. Geoff Hill and Janine Perrett; According to Williams, 'The judiciary should speak for the Roche family. itself.' He thought 'the judiciary should develop mechanisms themselves in contributing to community debate' . The Eureka Street magazine, IS SN 1036-1758, judiciary maintained its silence. As Brennan said in his Australia Post Print Post approved private correspondence to Fischer (released with remarkable pp349181 /00314 haste by Fischer under an FOI request on the eve of the is published ten times a yea r National Party Conference on Wik): 'N either the co-opera­ by Eureka Street Magazine Pty Ltd, tion that is required among the branches of Government nor 300 Victoria Street, Richmond, Victoria 3 121 the dignity of this Court would be advanced by my making a T el: 03 9427 7311 Fax: 03 9428 4450 public statement to repel the attacks which you have made. e- mail : [email protected] Indeed, Courts are not capable of responding-nor would they Responsibility for editorial content is accepted by wish to respond-to media attacks.' Michael Kelly, 300 Victoria Street, Richmond. Howard endorsed his deputy's attack on the Court by Printed by Doran Printing, his silence and fudging of the issues, saying, 'The Chief Justice 46 Industrial Drive, Braeside VIC 3 195. didn't dispute the right of people to criticise court decisions.' © Jesuit Publications 199 7. Unsolicited manuscripts, including poetry and As for his deputy, 'No, I don't think Tim ever overdoes it. I fiction, will be returned only if accompanied by a think he is a fantastic deputy and a fantastic bloke.' stamped, self-a ddressed envelope. Req uests for Tim just happened to get his facts wrong. He just permission to reprint material from the magazine happened to fudge the distinction between erroneous should be addressed in writing to: criticism of the court for tardiness and acceptable criticism The editor, Eureka Street magazin e, of a particular decision. And it all just happened in time for PO Box 553, Richmond VIC 3 121. the National Party meeting to carry a resolution unanimously supporting Fischer's criticism of the High Court, and just as the government's legal advice was flowing in, revealing that 4 EUREKA STREET • APRIL 1997 extinguishment of native title was not an option. the Australian land mass. The taxpayers of Sydney In Wik, the High Court's new majority explored and Melbourne would not stand for it. Those wanting new ground uncharted in Mabo and held that a to maintain native title could expect support from pastoral lease does not grant the lessee a right of Treasurer Costello. exclusive possession. Therefore it is not a lease in the Pastoralists in Western Australia, South Australia traditional sense. It is in no way akin to a freehold and the Northern Territory have always had to provide title. A pastoral lease is a bundle of statutory rights Aboriginal access to their lands. Pastoralists in Cape granted to a person authorised to conduct pastoral York have agreed to do so, so we are talking only about enterprises often over a vast area of land. It is common pastoralists in the southern part of Queensland and for many other persons to be granted access and use the west of New South Wales. They will have to learn rights to such land. For example, the crown could issue to share the country like pastoralists everywhere else. timber licences, quarry licences and permits for stock Once extinguishment is ruled out, there are still access by others. problems, but they are solvable, honouring the In the middle of last century, Earl Grey, from the principles of non-extinguishment, non-discrimination Colonial Office, was insisting that the new governor, and certainty for investors whether they be miners, FitzRoy, guarantee continued Aboriginal access to pastoralists or bankers. pastoral lease lands. Such access Access and traditional use has always been a feature of of pastoral land should be pastoral leases in the western permitted only to those jurisdictions of Australia. But Aborigines who can satisfy a this century, there was no strict threshold test in apply­ legislated access and no stipulated ing for native title. The rights access in lease documents to hunt, camp, fish, conduct retained in the eastern jurisdic­ ceremonies and care for sacred tions. No matter, according to the sites should be exercisable High Court majority. Aboriginal without the need for elaborate rights of access and use would tribunal hearings with lawyers continue on all pastoral leases on all sides. unless such rights were These rights should be specifically excluded or unless the automatic, with an emphasis pastoralist could demonstrate a on local agreements. Pastor­ right of exclusive possession. Senate ~-~.-.A~e the alists and local Aborigines are The economic and political far better at talking about significance of a pastoral lease final shape of the legislation gates, guns and fires than are not being a lease with a right of Sydney QCs and Canberra pol­ exclusive possession lies not just by a narrow majority. iticians. If Aborigines claim in the continued co-existence of greater rights, such as the right native title.