Former prime minister Malcolm Fraser called this week for a bill of rights, noting that the British common-law system had failed indigenous people in this month’s Federal Court action on the stolen generation. He also called for a political solution, now that the courts had failed. He called for an apology over the stolen generation and reconciliation in the form of an agreement between indigenous people and other Australians. He said governments must act more vigorously and with greater conscience. And if governments will not act, then this is a matter on which people must act to secure a government that will. The dignity and self esteem of Australia at some point will demand it.
It was an extremely powerful statement. It was predicated on the need for this nation to resolve the position of indigenous people in its society, to heal past wrongs so the nation can move forward. That he would suggest voters turn on the present leadership of the political party that he has been a member of and served all his life is a measure of his strength of feeling on the question.
This part of his speech was most telling. Ultimately, it must be up to the political leadership of the country to ensure the healing is done. Whether that is a post-Howard Liberal Government or a Labor Government was left open. Mr Fraser noted that the Labor position on the stolen generation was still lacking.
Mr Fraser’s call for a bill of rights might have merit on other grounds, but it would not help the stolen generation. The action in the Federal Court this month would probably not have changed with an Australian bill of rights. It failed largely because of the absence of enough evidence to found an action in negligence. That shows Mr Fraser is right in his call for a political rather than a legal solution. Courts of law are not the right place for a resolution of this great national friction.
The common law has played a role in helping the indigenous cause. After all, it was the application of the common law that result in the Mabo case recognising native title. And it was the application of common-law property rights that upheld those rights in the case of pastoral leases in the Wik case. But they were long, expensive battles, To some extent, Prime Minister John Howard is right in saying that a bill of rights would only provide further a blossoming of litigation. More litigation is hardly likely to help the cause of the stolen generation. It would just force them to fight on alien territory. It would throw the burden of proof on them in circumstances where there is unlikely ever to be enough evidence in the form required by the courts.
But that does not exonerate Mr Howard. Indeed, it strengthens the case that there is a need for political action, if legal action is incapable of providing a remedy.
It may well be that a bill of rights might help in other aspects of human and indigenous rights, but it can only be part of reconciliation.
In the meantime, Mr Fraser is right to draw attention to the increasing international condemnation of the Australian Government’s attitude and to press the case for a change in attitude or failing that a change in political leadership.
The Howard Government’s present concentration on practical reconciliation is helpful but not enough. These matters have an emotional plane that must be addressed. Mr Howard’s insistence that a formal apology is dangerous because it will spawn claims for compensation is nonsense. The Commonwealth has been sued for compensation without an apology and states which have apologised have not been sued.