I have just spent a stimulating and inspiring two days at ANU College of Law in a consultation workshop as part of an important research project into Indigenous cultural competency for legal academics led by Marcelle Burns of UNE. The project is funded by the (now sadly defunct) Commonwealth Office of Learning and Teaching. This is a project of substance, and of national importance. The standing of the project leaders and those who participated in the workshop is testament to this.
I emerged from this overall positive discourse to news that former Prime Minister John Howard found ‘appalling’ the idea of a treaty with Indigenous Australians, and that former Prime Minister Tony Abbott dismissed a treaty out of hand. In the first place, Mr Abbott said, a treaty is entered into between two nations – I suppose he means that as a definitional question this is a logical impossibility, for Indigenous Australians hold no seat at the UN (incidentally an institution of which Mr Abbott does not approve). In the second place, Mr Abbott said that going down the path of treaty would spoil the chance for constitutional recognition of Aboriginal and Torres Strait Islander Australians.
These two comments offer a case study in the very issues that occupied our thinking in the workshop. How could it be that two men could rise to be Prime Minister of Australia, senior lawmakers, with such an abject lack of the knowledge, skills, and attitudes that sound in inter-cultural competence – a necessity for all professionals but in particular for lawyers.
The law is a discipline of authority. Further, it is complicit in the colonisation and oppression of Aboriginal and Torres Strait Islander Australians. We in the law pretend that the fact that law is posited is sufficient to afford it neutral and objective standing. We have a longstanding tendency to ignore its context and to read it as truth itself.
This understanding of law, taught to every law student, allowed the fiction of terra nullius to dispossess First Nations peoples. It cleverly declared English sovereignty as a function of international law, one that could only be challenged in an international forum. Why is this clever? First Nations peoples are declared by international law itself to hold no standing so they cannot avail themselves of its machinery to challenge English claims to sovereignty.
Mr Abbott has used this understanding of law to oppose treaty. He uses the mask of the law’s own authority to silence the aspirations of many Indigenous Australians (and indeed at least some non-Indigenous Australians also).
Sadly however, for a voice heard loudly (and frequently) in lounge rooms across this nation, Mr Abbott’s knowledge is defective. He has failed to consider the history of Aboriginal and Torres Strait Islander peoples in Australia – their history before and since colonisation. We know, we have always known, that First Nation peoples did not cede sovereignty. We know as an intellectual/jurisprudential and pragmatic fact, that First Nations existed and continue to exist with their own legal systems. We know that the coloniser has never entered into just terms settlement with Indigenous nations of Australia.
The only impediment to our doing so is to continue to construct a ‘truth’ whose purpose is to exclude Indigenous voices and lived experience.
Australian universities will fail in their educative mission if we as educators ignore the complexity of Australia’s history and its present. In law schools in particular, to educate graduates who are able to fulfill a vocation of service, we must engage with the history and the present of Aboriginal and Torres Strait Islander Australians, the reality of legal pluralism in Australia and the price paid by Indigenous Australians of the myth of the common law.
Apart from defective knowledge, I see both former Prime Ministers demonstrating a lack of two fundamentally important skills for law graduates. The first of these is critical thinking. This can be described as:
the art of knowledgeable and skilful disobedience directed towards legal claims and arguments; legal doctrine, rules and processes; and the social and political consequences of legal decisions and choices
For example: I too learned that treaties were instruments between nations within an international law context, where I understood the rules for determining nationhood. My initial response to talk of treaty (decades ago) was to stand firm as Mr Abbott did, resting on my secure knowledge of the Truth of Law. But then I thought…why might people make this claim? On what basis are they arguing this? Is there a gap in the law, or a gap in my own understanding of the law? Importantly in the context of critical thinking, I asked myself: what if I am wrong?
In turning the issues around in my mind, I also asked myself what are the implications for justice. I wondered is there a way to navigate these competing claims?
As an (academic) practitioner of the law, it is my professional responsibility to think critically about all claims. It is also my responsibility to serve the interests of justice and in particular to serve the community. All communities in fact. And so too is it the responsibility of lawmakers, especially those who have the advantage of a legal education. But we as educators must take our students on this journey.
The second skill I see lacking is active listening. If these two former Prime Ministers had listened to the voices of Indigenous Australians, if they had been truly present in their no doubt myriad engagements with diverse communities across Australia, they would surely have heard the aspirations of Aboriginal and Torres Strait Islander peoples. Coupled with critical thinking, this might have better informed their views.
Finally, critical thinking and professional responsibility do not come without the requisite attitudes. In the past couple of days as we have discussed the requisite competencies for legal practitioners (and therefore for students and for academics), I have heard reference to ’empathy’, to ‘humility’, and to ‘generosity of spirit’. I personally consider these to be essential attributes of law graduates and practitioners. But sadly, these are not on display in the reported comments of two former PMs.
To be ‘appalled’ at the expression of aspirations of peoples demonstrates a singular lack of generosity and a coldness of heart that represents an inability to serve as we are called. I see also Mr Abbott’s concern that treaty would derail recognition (however that might actually look) as serving his own stated priorities, without sufficient generosity or humility to engage with the priorities of others.
While of course, both former PMs are entitled to hold their views, they represent to me the antithesis of what we aim to achieve in higher education, and in particular the knowledge, skills and attitudes that signal an effective legal practitioner. These men continue to wield authority and power in Australia, yet they display a lack of leadership through their narrow prism of the law.
I would like to think that law schools can better serve the community – all Australians – by educating our graduates in the competencies that are prerequisites for contribution to a more equitable and just society. I am hopeful that the Indigenous Cultural Competencies project will contribute to this.