Patrick Dodson on the legacy of Territorian hero Tony Fitzgerald

Tony Fitzgerald taught me how to yell at the TV – usually while watching his beloved rugby union football.

Tony and I grew older together in Darwin. In 1984 he’d been here and back from the south and  I was new in town. Neither of us could remember when or where we first met and neither of us cared. If you knew Fitzy well you probably spent a lot of your time with him arguing – he was a hard man in and out of an argument, which he’d usually win through the sheer force of his reason and will – something he retained to the end.

We each loved Fitzy in our own way.

Here is his mate Patrick Dodson’s take on the man from the second Tony Fitzgerald Memorial Lecture delivered at the NT Library in Darwin Friday of last week. Thanks to the Criminal Lawyers Association of the Northern Territory for initiating this lecture series.

Long may it run!

Presented here is that part of Patrick’s lecture that relates to our man. Tomorrow I’ll post the rest of Patrick’s lecture, which looks at his recent involvement in the committee to report on proposed constitutional amendments to finally recognise the true place of Aboriginal people in this nation … and more.

Enough of me, over to you Paddy …

The man whose life and achievements that we celebrate and remember tonight – Tony Fitzgerald was in many ways an unlikely Territorian hero.

Tony was neither loud nor brash; he was measured and considered in his views and without prejudice or guile in his dealings with his fellow man.

But in the Territory mould his humour was subtle and understated – his loyalty unlimited – and his courage to confront injustice recognised by all who came into the orbit of his life – either friend or adversary.

As most of you here know, Tony was the NT Anti Racial Discrimination Commissioner from 2002 until his passing in 2009.

As Commissioner, Tony was passionate about the need to promote a fair and just society that was free from racial discrimination and inequality.

I recall a conversation with Tony in 2006. We were both in Daguragu attending the 40th Anniversary celebrations of the Gurindji Walk off from the Vestey properties.

We spoke of the struggles shared and observed from afar. We pondered the long term implications of the Howard years, then in their final throes, on Indigenous affairs and the lives of Aboriginal people, and we marvelled at the pride that the younger generation of Gurindji were displaying in the achievements of their leaders of the generation of the Strike.

In the midst of this conversation about things historic and matters of high importance and some of mundane irrelevance, Tony, like some soothsayer from a Greek tragedy, spoke of his concern that the high tide of Aboriginal self determination and achievement had peaked, and that forces within society had determined that enough was enough and that Aboriginal rights were now under threat more than at any time since the 1970’s.

He was not so wrong, as it turned out.

Within days of the Gurindji celebrations the Chief Minister of the Northern Territory, Claire Martin had initiated the Wild/Anderson Review into child abuse in the Northern Territory.

As we know, the report from that review, the Little Children are Sacred Report, became the catalyst for the Howard Government to initiate the Northern Territory National Emergency Response.

Tony was highly critical of the Commonwealth Government’s Emergency Response to Aboriginal communities.

He was particularly appalled at the intervention’s suspension of the Racial Discrimination Act, which since its enactment in 1975 has been important in ensuring the protection of all Australians from racial discrimination.

The suspension of the Racial Discrimination Act barely seemed to ruffle the nation’s conscience at the time.

Characterised as a special measure, and with minimal consultation with affected communities, the Government claimed that this would be a short lived exercise that would bring stability to Aboriginal Communities, properly house and educate all Aboriginal Territorians and improve their well-being.

Under this guise, the federal Government compulsorily acquired land, took control over Aboriginal communities and imposed an administrative and statutory management regime over the day to day lives of Aboriginal people in a way that would be unthinkable were this to apply to other citizens of Australia.

At the time the Northern Territory Emergency Response was imposed, many liberal minded people were enticed by the allure of the story the Government was putting before the people of Australia.

Tony Fitzgerald was among those who immediately recognised the Intervention for what it was – a cynical, political strategy to deliver the final assimilation of Aboriginal people and the destruction of their political, social rights and even their hard earned property rights under the 1976 Land Rights Act.

He was opposed to the discriminatory nature of welfare quarantining; the one size fits all approach, and the lack of engagement with remote Aboriginal communities under the intervention.

In the Anti Discrimination Commission’s submission to the Review of the Intervention in 2008, which was chaired by Peter Yu, Tony described the Intervention in the following terms.

The take-over, or Northern Territory Emergency Response, was conceived in Canberra without discussion with the NT government or the affected communities. The Northern Territory Emergency Response was coercive, heavy handed and designed on the run with limited planning as a short-term response to enable the commonwealth to obtain control, stabilise, normalise and exit.

Although styled as an “emergency” government response to the 97 recommendations of the “Little Children are Sacred” report, the Northern Territory Emergency Response ignored those recommendations and it is common knowledge that the government ignored the dysfunction, disadvantage and disorder prevailing in remote communities for the last 40 years.

The central recommendation made by the Anti Discrimination Commission was:

The Northern Territory Emergency Response in its present form should be scrapped and transformed from a quick fix, law and order plan into a range of long term initiatives aimed at overcoming remote Indigenous disadvantage and raising indigenous quality of life. The initiatives are required in the broad areas of (locally delivered) housing, health and education, and may take generations to build and deliver. There is no indication yet that government is willing to commit to the level of sustained local engagement required to effect change.

You may or may not agree with the intent or implementation of the Intervention in its various incarnations but certainly Tony Fitzgerald was of the same view as the United Nations Rapporteur on the Rights of Indigenous Peoples, James Anaya.

Dr Anaya in his report to the UN Human Rights Council said the Northern Territory Emergency Response:

Limits the capacity of indigenous individuals and communities to control or participate in decisions affecting their own lives, doing so in a way that discriminates on the basis of race, thereby raising serious human rights concerns.

As Anti Discrimination Commissioner, Tony also took the view that the Intervention was a flawed process that breached basic human rights and diminished substantially the capacity of Indigenous people to seek redress against discrimination that was available to non Indigenous Territorians.

Five years on, and the intervention for many Aboriginal Territorians still hangs like a veil of exclusion from the same rights and privileges’ available to every other citizen of this country.

The proposed Stronger Futures Legislation, which is currently being debated in the Senate, would see the intervention extended for another 10 years.

Yet again, without adequate consultation it seems, the Federal Government seeks to impose a set of measures that would punish rather than encourage and assist Aboriginal people to find meaningful, long term solutions to issues.

There is no doubt there are social problems in Aboriginal communities. Aboriginal people, like other Australians, want their families, their children and their communities to be healthy, safe and free from violence, crime, alcohol abuse and social dysfunction.

However, many would also say, and indeed are saying, we do not want to be subject to discriminatory, coercive measures and legislative regimes that would see us return to the days of native welfare protectors.

Liberation from disadvantage and welfare dependency should not be at the expense of people’s basic rights, nor should this be at the expense of one’s culture and identity.

The gloomy reality is that our people continue to remain dependent, disempowered, and disengaged by programs authored for and about us, but hardly ever by the community members for whom they are targeted.

Yet the possibility that Indigenous people should be engaged in setting the social and cultural benchmarks for their well-being and development, and be encouraged at the local level to work towards achieving these – is something that is still not contemplated by Governments.

We are now in the second decade of the 21st Century and we seem incapable of resetting the relationship with Aboriginal people, beyond some form of assimilation. The consequence of this policy paralysis is more iteration of philosophically compromised policies – of which the NT intervention is a case in point.

Those who are preparing the proposed Federal “Stronger Futures” legislation would perhaps do well to consider and implement the 9 recommendations that Tony and the Anti Discrimination Commission made in their submission to the Intervention Review and return the Aboriginal people of the Northern Territory to their proper status as citizens with equal standing and quality of life with all other Australians.

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Tony arrived in the NT in 1978 to work for the Aboriginal Legal Service.

This was a time when the push for land rights was gaining momentum, when the effects of the 1967 referendum were just catching up to the NT, and when Aboriginal people were overtly discriminated against and treated as second class citizens before the law.

I do not know if Tony Fitzgerald came to the Northern Territory from New South Wales to fight for truth and justice or whether he thought it might be a good place to demonstrate his football skills.

I don’t understand much about either League or Union but I’m told that Tony was a formidable front rower!

Tony was one in a long line of young and enthusiastic lawyers who came to the Northern Territory during the 1970’s and 80’s.

I am not sure what brought these young lawyers to the North. I dare say some were in search of adventure and challenge. Others were seeking to rebalance the scales of justice in a part of Australia where justice for some in the society, in particular Aboriginal people, bore no resemblance to the system of justice available to most other Australians at that time.

They came to work in Aboriginal legal services and community legal centres, for Land Councils and to help Traditional Owners come to terms with the complexities of the Northern Territory Land Rights Act.

For the first time prosecutors and police in the Territory found themselves across the tables in courts in the regional towns and distant communities facing defence lawyers. Aboriginal people, many for the first time, understood there was such a concept as making a plea and pleading “not guilty” in the courts of the dominant society.

Gaol was not a guaranteed nor pre determined outcome.

The judiciary also had to hone up on the law or it could find a senior at the Court of Petty Sessions arguing law as well as facts.

Skilled and informed legal advice and advocacy became available to Aboriginal people as a matter of course and the judicial system in the Northern Territory finally began to come into some form of balance.

This rebalancing of the judicial scales did not come without consequences. Some people, who in other days had asserted authority and power in many aspects of Northern Territory life, found the challenge presented by these “troublemakers from the south” was not something to be countenanced and sought to make life difficult for these young jurists who had wanted to ensure legal representation and support were available to all Territorians.

In those early days many young advocates were socially excluded from the institutions of the settler society. They were abused and insulted on occasion and they often had the tools of the gate-keeping bureaucrat used against them very effectively.

Agents of change and justice are not always welcome in societies that have existed for a century with a very defined and rigid pecking order. In the Territory – this was in many cases determined by your racial standing.

I’m sure that for some here tonight this has been a part of your own personal journey and you will have your own stories to tell about those times.

Certainly the alumni from that vanguard period, has provided the Australian Legal system with many of its finest judges and advocates, and I’m sure the experiences they had in the Northern Territory greatly informed their future careers and judgements.

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The legal activism in the Northern Territory that was a central part of the development of human and legal rights for Aboriginal people in the latter part of the last century and was greatly reflected in the achievements of people like Tony Fitzgerald appears to have waned in more recent years.

Many of the activists from that era have gone on to other outstanding careers. Some have become part of the legal institutions they played such a critical role in reforming – to give us the sound legal institutions we now take for granted in the Northern Territory.

There are not many jurisdictions of comparable size in the world that can boast such a range of legal minds and advocates as there are in the Territory from criminal lawyers, outstanding refugee advocates, heads of Commissions and administrative lawyers. The people of the Northern Territory should feel well served.

But in this contentment lies the potential seeds of our demise.

The law and the institutions which produce the legislation and the practitioners’ who hold responsibility for maintaining the balance of justice in our society must never become complacent and allow our own sense of contentment and well being to blind us to the threats that lurk on the fringes of our society.

We must be prepared to critically examine our system and the laws that are enacted under it when that system fails or discriminates.

We must all ask whether what we are doing is effective when we have a system that has seen the incarceration rate of Aboriginal people double over the past 20 years.

Indigenous Australians now constitute 26 percent of the national prison population, which for a people who comprise less than two and half percent of the Australian population is appalling.

In the NT, ABS statistics indicate that Indigenous people make up 82 percent of the Territory’s prison population.

Research shows that Indigenous children are also over represented in juvenile detention centres, and our children are also much more likely to be the subject of child protection orders.

On the basis of these statistics, it seems at least 25% of our young people will have an encounter with the criminal justice system at some point in their young life.

The statistics are indicative of the disadvantage experienced by many Aboriginal people, but they are also telling us that the response to addressing disadvantage has not been so effective, despite the efforts made to date.

The situation is certainly not aided by policies and administrative responses that disempower and punish Aboriginal people, rather than engage them in devising solutions to the problems that confront them.

We must be vigilant that we do not make lazy judgements on the merits of the rights of any group of people that seek redress from our legal system and ensure the quantum of justice does not become dependent upon our perceived ability to pay for the delivery of justice.

My old friend the Melbourne lawyer Ron Castan once described the law as “a very civilizing pursuit.”

For Tony Fitzgerald it was also about courage and justice at whatever end of the spectrum you might reside.

It is a little known fact of history that when Tony was the Anti Discrimination Commissioner in 2007 he was asked to provide an exemption under the Northern Territory Anti Discrimination Act to a subsidiary of the multinational arms company Raytheon Australia Pty Ltd on the basis that “a failure to grant the exemption would substantially undermine Australia’s defence capability”.

Raytheon were proposing to undertake substantial contracts in the Top End with the potential for jobs and manufacturing opportunities. The NT Government must have smelt the roses.

The Commissioner considered the application and declined to provide the exemption on the basis that simply asserting that position was not enough and that “the important subject of national security deserves a rigorous analysis” and that Raytheon had put forward their application “without making any attempt to convince me of the accuracy of the assertion”

You can bet there were some people at high levels of the NT and Federal Government who blanched when they were advised of that judgement.

But similarly at the outset of his term as Anti Discrimination Commissioner Tony fought for the resources for offices to be established in regional centres so that all people in Territory society might avail themselves of their rights under the Act and for education programmes to be resourced so that people might better understand how the Act works and how they could seek redress when confronted with discrimination based on the colour of the skin.

Tony believed that Justice had to be for all Territorians no matter where they lived or their circumstances. He was a remarkable man and his life and the values he asserted should continue to be recognised and considered.

Kulia