“Unlike others, I am not motivated by reconciliation. Reconciliation can only take place amongst equals and after the truth is told. I am driven by the pursuit of justice. We cannot reconcile with Aboriginal and Torres Strait Islander people until we confront our colonial past and the fact that our prosperity as a nation is based on; the theft of another peoples’ land, of attempted genocide and the near destruction of First Nation’s language and culture.
People often ask me to reflect on why I do the work that I do at the National Justice Project. I founded, the NJP as a charity to fight to eradicate all forms of discrimination.
In part, I am motivated by my Jewish teachers and the progressive Rabbis that taught me to love others, to heal the world and seek justice as a basic tenet of my faith. In fact, the first line of my bar mitzvah portion (one of the most moving days in a Jewish boy’s life), begins with the words “Justice, Justice shall you seek”. Who would have thought that a bar-mitzvah parsha would so powerfully resonate through my life and career?
I grew up in a community, surrounded by Holocaust survivors and I felt a deep anger about the injustice of their suffering, so when I became aware of the discrimination, violence, harassment, abuse and mistreatment of Aboriginal and Torres Strait Islander people I could not turn away from that injustice and I was compelled to act. Ron Castan says it better than I, when he wrote “My determination not to stand by and see the Jewish people downtrodden and persecuted was meaningless if I was standing by and seeing another oppressed people downtrodden and persecuted within my own country.”
Given our own communal desire for a homeland and our history of persecution, I always hope that the Australian Jewish community will see the damage being done to Aboriginal and Torres Strait Islander people and take active steps to right the wrongs of the past. Sadly, I am often disappointed when many of my own brethren do not feel the same way.
I have been part of the struggle for Indigenous self-determination and respect for most of my legal career. When the Howard government attempted to terminate Indigenous community leadership in the NT, we commenced Federal Court proceedings to reinstate the directors of the Mutitjulu Community Aboriginal Corporation. Two weeks after the court overturned the government’s actions at Mutitjulu the Federal Government called the Northern Territory Intervention. As a result, I met with the representatives of 73 affected Aboriginal communities in Alice Springs and then gathered a team of lawyers led by Ron Merkel QC and Larissa Behrendt to make a complaint to the United Nations Committee on the Elimination of Racial Discrimination about the NT Intervention.
Later, when the government attempted to take over the Alice Springs Aboriginal Town Camps in 2009, I had the opportunity to work with Ron Merkel QC again, this time on behalf of Barbara Shaw and other town camp residents. We worked together to stop the Minister for Aboriginal Affairs, Jenny Macklin from proceeding with her takeover of the Alice Springs Town Camps and entering into a 40-year lease with the town camp associations.
As the NT Intervention dragged on, throughout 2010 I worked with Aboriginal Communities in the Northern Territory to fight for a fair rent to be paid by the Commonwealth Government for leases which the Commonwealth had taken over Aboriginal land which were compulsorily acquired under the Northern Territory Intervention legislation. In May of that year, I assisted traditional owners of Muckaty Station (Warlmanpa) to commence legal action against the Northern Land Council and the Commonwealth to overturn the nomination of their land as the site of Australia’s first radioactive waste storage facility.
Discrimination
I have been fortunate to work with likeminded Jewish lawyers throughout my career. I have already mentioned legal giant, Ron Merkel QC, but in addition I briefed the then President of the NSW Jewish Board of Deputies, David Knoll QC, to assist a group of Aboriginal people from Yuendumu make a discrimination complaint against an Alice Springs backpacker hostel that refused them entry and I have been fortunate to work with barrister, Stephen Castan on many deaths in custody. I still miss the friendship and collegiality of Steven Glass and Harry Freedman who were advocates for social justice, but their lives were taken too soon.
In January 2011 the Hermannsburg Bulldogs, an Indigenous Australian rules football team from Hermannsburg, in the Northern Territory were dumped from the NT league without due process after a troubled grand final. Our legal team had them reinstated into the Central Australian Football League competition after their wrongful suspension.
Government misconduct and systemic discrimination
Throughout my career I have been horrified by the impact of systemic discrimination on Indigenous peoples, particularly through the cruelty of police, prison and detention centre guards, health workers and child protection workers.
I have helped women fight for the return of their children who were wrongfully removed by child protection agencies. I have sought justice for the family of Aboriginal women like Andrea Pickett – who was brutally murdered after the Western Australian Police and the WA Department of Child Protection failed to protect her from her ex.
Andrea’s death is not a once off, Baby Charlie Mullaley was murdered after police wrongfully arrested his mother and let his abductor get away – even after his mother and grandfather begged them to search for baby Charlie. We are representing families appearing at the Senate Inquiry into Missing and Murdered Women and Children which is currently investigating these and other similar cases.
I have appeared in too many inquests for Aboriginal Australians who have died in custody or as a result of discriminatory health care. In 2015-2016 I acted for the Deaths in Custody Watch Committee of WA at the inquest into the death of Ms Dhu in police custody. I also act for the family of David Dungay Jr who died in Long Bay Correctional Centre in December 2015, the family of Naomi Williams who died after being turned away from Tumut hospital and I am assisting the family of the late Wayne Fella Morrison, who died in Yatala Prison in September 2016.
I am currently representing families of three young Aboriginal men who died in WA Prisons, a Federal Court action against the WA Government for holding two boys in solitary confinement for more than 300 days and in an NT inquest which is investigating the systemic failures that led to the deaths of four Aboriginal women who were killed by their partners.
One of my most important cases involved an attempt by the Morrison Government to overturn the principle set by the High Court in the Love & Thoms case, which determined that Aboriginal people can never be aliens in their own land. This principle was an expansion of the Mabo case and recognised tribal authority.
The most satisfying part of this work is seeing positive change but it is slow and there are too many lives that have been lost while we wait for change.
Technology is a double-edged sword. I have seen the worst of it when I took legal steps to force Google to remove racist material vilifying Indigenous Australians from their search results. Recently I worked with the Jumbunna Institute for Indigenous Education and Research to establish callitout.com.au, a web platform that collects data and reports on racism and vilification of Indigenous peoples. The callitout website and the annual report are modelled on the ECAJ and NSW Jewish Board of Deputies work on fighting anti-Semitism.
Over the years I have acted for Aboriginal Communities in WA and the Northern Territory, participated in many rallies and spoken at different events defending the rights of Indigenous Australians, refugees, ethnic minority groups and genocide survivors and denouncing all forms of racism and anti-Semitism and human rights abuses.”