Joanne Knight

January 26, 2009

Guantanamo to close

President Obama signed executive orders to close Guantanamo Bay and end the use of torture. This means an end to CIA secret detention centres around the world, an end to torture such as waterboarding, and an end to human rights abuse in the name of the “war on terror”.

The first 100 days of Mr Obama’s term in office is a unique opportunity for America to reclaim its role as a leader for human rights. In February Amnesty International will present a global petition to President Obama. It will urge the US Administration to establish an independent commission to investigate abuses committed by the US Government in its “war on terror”.

Your name will stand alongside thousands of others from around the globe. Please sign your name to the petition now – and call on the President to achieve positive and lasting change.

From Amnesty International

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January 21, 2009

President Obama: A new era of responsibility

Filed under: human rights — joanneknight @ 2:15 am
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Since his election Barack Obama has pledged to close Guantánamo Bay and rebuild “America’s moral stature in the world”. The next 100 days in office offers the opportunity to make a clean break with the past.

In his inauguration speech US President Obama promised a “new era of responsibility”:

Since the September 11, 2001 attacks on the US, America has committed grave human rights violations around the world under the banner of the ‘war on terror’.

Suspects have been abducted and covertly transported to secret US-run facilities or to other governments where they have faced torture and ill-treatment. Individuals have been victims of enforced disappearance and some still remain unaccounted for.

Hundreds of people have been unlawfully detained in conditions that have amounted to cruel, inhuman and degrading treatment at the Guantánamo Bay detention facility. US officials have admitted the use of torture and other ill-treatment and have reserved the right to do so again.

By closing Guantánamo, ending torture and setting up an independent investigation into US ‘war on terror’ abuses, President Obama can make concrete human rights reforms a reality.

We’re not expecting miracles, but we do expect President Obama to stand by his commitments.

We’ve produced a checklist if actions we’d like to see President Obama take in his first 100 days in office. These include:

  • Announcing a timeline for the closure of Guantánamo Bay
  • Issuing an executive order to ban torture and other ill-treatment
  • Ensuring an independent inquiry into the US’s detention and interrogation practices in its ‘war on terror’

You can help bring to an end the previous administration’s seven-year assault on human rights in the ‘war on terror’.

Please join Amnesty International members in calling on President Obama to uphold his promise to restore justice and accountability within his first 100 days in office.

Learn more

From Amnesty International

January 19, 2009

The Road to Child Neglect

Filed under: economic crisis — joanneknight @ 9:44 pm
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When I read George Orwell’s extraordinary essay on poverty The Road to Wigan Pier in 1982, the world it displayed seemed a sad remnant of the 19th century. However after 25 years of economic liberalisation as a global movement the infamous scenes of human degradation are reappearing. Shocking cases of child neglect demonstrate that the social fabric has become so threadbare under the strain of the subprime crisis that we can no longer hide the squalor in which some live.

Orwell’s essay recognises the structural nature of the degradation he describes. Our answer to neglect is not to ask why did this happen but to criminalize and gaol individuals. The woman arrested for neglect in Adelaide recently was living in a house with her sister and their numerous children. Having worked in the community housing sector, I have found her story is a common one. So many are evicted because they are unable to pay the rent due to the ridiculously low level of Centrelink benefit. Emergency housing is often unable to help due to the parlous state of their service delivery owing to chronic underfunding. They may have encouraged her to move to Adelaide to live with her sister. Unable to cope, with inadequate income, little social support, the family descends into the sort of poverty and deprivation not seen since the 19th century. She ends up being arrested for being unable to care for her children in a system which no longer cares for the weak.

These cases are the tip of the iceberg. Maree Faulkner from the National Association for the Prevention of Child Abuse and Neglect says, ‘There are enormous numbers of families that are just not coping and providing and caring for their children.’ With almost 310,000 notifications each year and 58,000 substantiated cases of abuse or neglect, Brian Babington from Families Australia says child protection workers are overwhelmed.

The Australian Institute of Health and Welfare’s ‘Child Protection Australia 2005-06’ reveals some serious trends. Over the last five years, the number of child protection notifications in Australia has almost doubled from 137,938 in 2001–02 to 266,745 in 2005–06. Between 30 June 2005 and 30 June 2006, the number of children in out-of-home care in Australia rose 7%. South Australian Families and Communities Minister Jay Weatherill is calling this a crisis which is worsening. With the rising costs of food, petrol and rent are we really surprised by growing figures of child neglect?

The institution of economic liberalization and its associated welfare reforms has played an important role in creating and criminalizing an underclass in Australia. Dr John Falzon, Chief Executive Officer of the St Vincent de Paul Society, draws a connection between the 25% increase in numbers in custody over last decade and the welfare reforms of the Howard years.

Economic liberalization has created a welfare system based on narrow notions of individualism and self-reliance. In the early 2000s Australia’s welfare system became centred around the concepts of ‘welfare dependency’ and ‘mutual obligation’. Dependence on welfare is constructed as an addiction like dependence on drugs or alcohol. Supporters of economic deregulation construct welfare recipients as fundamentally different from the rest of the community. The policy of mutual obligation relies on the 19th century distinction between the deserving and the undeserving poor. The deserving poor — those who have become briefly dependent on poverty relief through no fault of their own, and who with some assistance, could return to independence — are to be cared for. However, the undeserving poor whose poverty is the result of laziness or moral failure are to be disciplined and punished. Mutual obligation has been associated with a punitive approach to the unemployed, applied in withholding social security benefits and heavy fines. Income security is considered a privilege rather than a right.

Supporters of economic liberalisation are hostile to state-guaranteed income security and have had a consistent preoccupation with returning the provision of welfare to families, private charities and churches, some of which emphasise the moral rather than the structural causes of poverty. Consequently, the Howard government placed charities at the centre of a number of government projects including the Job Network. These measures demonstrate opposition to reducing poverty or promoting greater equity. Social expenditure has been channeled into the Family Tax Benefits system, the Maternity Payment, and the Childcare Benefit: much of which ends up in the pockets of middle and upper income earners.

Not only is the individual demonisation of welfare recipients having a detrimental impact on child welfare, it is well recognised that factors associated with poverty and social inequality, such as a sense of powerlessness, lack of money and other resources, parental stress caused by unemployment and financial problems, in themselves, increase the likelihood of child abuse and neglect. Parents under stress can transfer their feelings of frustration onto their children. The stress can also affect their judgment and decision making as a parent. Political and economic decisions which increase poverty and worsen its effects, particularly in times of economic difficulty, have a significant impact on child welfare.

The presence of protective factors may reduce the risk of abuse and neglect. One of the best recognised strategies is to provide community support for children in socially isolated families and to weave a protective social fabric around them. Such measures include income support and supplement, access to information, advice and support from a wide range of health, education and community services, child care and respite care, and accessible public transport. Repressive welfare measures undermine social programs by isolating and shaming people and driving them to despair. People are extremely reluctant to beg from the charities. Instead, they will hock their furnishings, their personal possession and turn to loan sharks and payday lenders: entre the subprime crisis.

Repressive welfare measures also compound the impact of the subprime crisis. The Consumer Price Index hit 4.2 per cent for the year to March, but wages rose only an average 3.2 per cent in a comparable period. ACOSS estimates that two million people live in poverty today – one in ten Australians – (based on a poverty line of 50% of average disposable income, as used in UK &Europe). NATSEM research about the poorest 20% of families in Australia indicates most of these families are jobless and rely on social security payments as their main source of income.

Fuel price rises come amid estimates that almost 25 per cent of homebuyers are under mortgage stress, contributing more than 30 per cent of their income to repayments. Last year, the Institute for Social Research at Swinburne University of Technology reported that there are 1,186,000 or 15% of Australians in housing stress, defined by the bottom 40% of income earners paying more than 30% of their income in housing. Of these, 52% are renters and most of these are on Centrelink payments. To cope people are forced to sell or pawn possessions, forgo adequate dental or health care and have sometimes gone without meals. 120,000 homeless people in Australia. In 2006, the UN declared Australia in a state of housing crisis.

People teetering on the brink are now plunging over into degradation and squalor. Having overcommitted ourselves on mortgages and credit, the impact of rising interest rates is being felt, even among the aspirationals. Families in new development areas such as Kellyville Ridge, Rouse Hill and Bella Vista in NSW are increasingly accessing emergency community resources such as food packages, clothing and cash hand-outs. Jennifer Tisdell, executive officer of The Hills Community Aid and Information Service, said 16 per cent of her clients since the beginning of 2008 had come from such new estates. The NSW government has been required to provide emergency funding to community services which is used to provide vouchers for food, transport, medical prescriptions and assistance with rent/accommodation, and part-payment of utility bills. With the sudden spike in the cost of living there is a substantial shortfall for families.

The severe erosion of community services, health care and education in Australia under the mantra of fiscal responsibility and economic liberalization is having a devastating impact on families. Without policies to redistribute wealth, increased economic growth has a very limited capacity to alleviate poverty and social problems. The market will not help a family who cannot afford to pay for child care and even food for their children. In the language of the market, the poor are silenced. We can blame the parents and boggle at the carelessness and irresponsibility of ‘some people’ but we are all to blame for this situation. We elected the leaders who refuse to maintain adequate funding to our communities. It is time to make a real investment in our communities again and it is well beyond time to increase welfare payments, dump Centrelink breaching policies and improve services.

January 17, 2009

Hearing Aboriginal Voices

Filed under: native title — joanneknight @ 6:50 am
Tags: , , ,

Written March 2007

The Noongar people in Western Australia celebrated their successful native title claim over Perth by hanging a banner at the WA Parliament. Now they prepare for the appeal to the Full Federal Court. The response by the WA and Federal governments is to assert that native title cannot exist in areas of high non-Aboriginal development such as Perth. They claim that native title law now lacks certainty and that the principle established by the Yorta Yorta case has been called into question. The Yorta Yorta Native Title claim was rejected on the basis that the Aboriginal community had lost its ‘traditional’ character because of the genocidal actions of the Australian Government. To allow genocide to continue by denying Native Title rights to Aboriginal people leaves Australia stuck in our dark past, failing to acknowledge the human rights violated and to offer any amelioration. It is only by listening to Aboriginal voices and acknowledging their truth that we may achieve justice in this country.

The judgment in The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors[1] (‘the Yorta Yorta case’) focuses on the acts of dispossession perpetrated by the Australian government and settlers on the Yorta Yorta people in the nineteenth and early twentieth centuries and concludes that Native Title was extinguished as a result of these acts. In contrast, in Bennell v State of Western Australia[2] (‘the Bennell case’), a thorough examination of the anthropological and historical evidence is conducted and it is concluded that in spite of acts of dispossession, Native Title has continued among the Noongar people from the establishment of the colony in Perth to the present day.

Native Title Law

Under general principles of Native Title law, the more developed or urbanised an area is, the less likely it is that Native Title rights will be found to exist. However, Native Title may exist in metropolitan areas, for example in areas of vacant crown land. In addition, if there is any inconsistency between Native Title rights and non-Native Title rights, then the non-Native Title rights prevail to the extent of any inconsistency.

In the Bennell case, Justice Wilcox determined that in 1829, at the time of European settlement in Western Australia, there was a Noongar community whose laws and customs governed the land throughout the claim area. The traditional laws and customs observed by the present day Noongar community are based on a recognizable adaptation of the traditional laws and customs existing as at 1829. Native Title continues to exist within an area in and around Perth that was the subject of the prior ‘Combined Metro claim’. This area is part of a larger area included in the Single Noongar Claim, but was determined separately by the Federal Court at the request of the Commonwealth and State Government in order to obtain certainty about whether Native Title exists in the Perth area. A determination about whether Native Title exists in relation to the rest of the Claim area is yet to be made.

On 18 December 1998, Justice Olney determined that Native Title does not exist in relation to the claimed land and waters. Of the determined area 720 sq km falls within New South Wales and 1,140 sq km falls within Victoria. He concluded that before the end of the 19th century the Yorta Yorta People’s ancestors had ceased to occupy their traditional lands in accordance with their traditional laws and customs. He stated: ‘The tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs’. The decision was appealed to the Full Federal Court.

The majority judgment found, among other things, that Justice Olney’s finding that there was a period of time during which the Yorta Yorta community had lost its character as a traditional Aboriginal community was consistent with the law. The appeal was dismissed. In a separate dissenting judgment, Chief Justice Black concluded that Justice Olney was in error, having applied too restrictive an approach to the concept of what is ‘traditional’ and having failed to deal with various aspects of the evidence. Chief Justice Black would have allowed the appeal and referred the matter back to Justice Olney for further consideration. In 2002, the High Court found that Aboriginal groups must show ‘substantially uninterrupted’ traditional links to their country to prove Native Title.

For a claim to Native Title to succeed it is necessary to prove that the claimants are descendants of the Aboriginal people who occupied the claimed area prior to the assertion of Crown sovereignty; and that the claimants have substantially maintained the traditional laws and customs in connection with the land of their ancestors since sovereignty.

Silencing Aboriginal Voices

Justice Olney’s approach to this issue involved emphasizing the non-Aboriginal history of a small part of the claim area where the ancestors of the Yorta Yorta claimants resided after 1788. This is in contrast to Justice Wilcox’s approach. He examined in detail the evidence of the claimants and anthropologists as to their traditional laws and customs.

Justice Olney focuses on the land comprising the Maloga mission which later became known as Cummeragunja. In the 1880s the Aboriginal population of the claim area was relocated from their traditional lands, which had been claimed by settlers, to missions and reserves. The claimants’ ancestors resided at the Maloga mission. The history of the mission is little different to that of other missions and reserves in Australia. The practice of traditional laws, customs and language Aboriginal culture was violently oppressed with starvation, beatings and even expulsion. As early as the 1860s children were removed from their communities and sent to stations. In 1909, the Aborigines Protection Act (NSW) was passed, enabling the removal of ‘any Aboriginal person who … in the opinion of the Board, should be earning a living away from the reserve’. Much of the land itself was subsequently leased to a neighbouring white farmer[3].

In the 1930s, funding for the reserve was cut back. Aboriginal people living on reserves were not eligible for State unemployment relief. Nor were able bodied Aboriginal people eligible for rations. Many people moved to camps in Victoria where State relief and pensions were more readily available. In the mid 1930s at least forty people were already living in bag humpies at Barmah on the Victorian side of the river. Aboriginal children living on reserves were not legally allowed to enrol in public primary or secondary schools in New South Wales at that time. In February, 1939 all but four of the remaining families at Cummeragunja crossed over the river and set up camp near Barmah in Victoria, where those who had been expelled in earlier years had lived[4].

The history which Justice Olney constructs is a heart rending one for the Yorta Yorta people. It is one of paternalism, violence, forced removal and neglect. If these actions amount to genocide, as some writers have argued, then to deny people Native Title on the basis that their traditional society was destroyed, may amount to an act of genocide itself.

In Article II of the Genocide Convention genocide is defined as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group by causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part or forcibly transferring children of the group to another group.

Genocide Denied

Writers have argued that the policies of ‘protection’ and ‘assimilation’ by ‘smoothing the pillow’ of a race near extinction, fulfilled the prophecy by acting to ensure that Aboriginal people were dying out and makes out the case for intent to destroy[5]. The isolation of Aboriginal people would keep whites out and Aboriginal people in, to encourage or coerce people away from settled areas and to allow ‘Christianising’ and ‘civilizing’ processes away from temptations[6]. As we can seen from Justice Olney’s description and works such as the ‘Bringing Them Home – Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families’, these ‘civilizing processes’ were often applied brutally: beatings, starvation, restriction of movement. It has been argued that such treatment amounts to physical and mental harm under the Genocide Convention.

Forced assimilation also meant the forcible removal of children from parents and families and ‘relocation’ to white foster homes or to special ‘half-caste’ or assimilation homes. The forcible transferring of children from one group to another is another aspect of genocide[7]. For the Federal Court of Australia to use these potential acts of genocide to deny people Native Title over land is surely a continuation and compounding of genocide in Australia.

These actions have never been recognized legally in Australia as genocide. Thus no Aboriginal Australian has yet been able to claim damages by challenging the lawfulness of his or her removal from his or her family as a child. In Kruger v Commonwealth[8], the applicants argued that their Constitutionally implied right to freedom from genocide was infringed. The High Court held that there was no right to freedom from genocide. The Genocide Convention, to which Australia is a party, had never formed part of Australian domestic law. Further, even if there were such a right, it nevertheless had not been infringed as there was no intent, as required by the Convention, to destroy the Aboriginal Australian people or their culture[9]. This failure to acknowledge and attempt to redress the wrongs of the past means that as a nation we cannot heal and move forward.

While the government of Australia acknowledges that people were hurt by policies of removal, they do not acknowledge that it may amount to genocide. At the time of the release of the Bringing Them Home report, Senator John Herron, the then Minister for Aboriginal Affairs, went so far as to argue (nonsensically) that the Stolen Generation did not exist because the numbers of people affected were not sufficient to amount to a generation[10]. These responses trivialize the great hurt and abuse inherent in these actions and the devastating consequences for Aboriginal people.

In his Opening Ceremony Speech on 26th May 1997 to the Australian Reconciliation Convention, the Prime Minister, John Howard, denied that there is a history of imperialism, exploitation and racism. He claims that this history is a ‘gross distortion’ and will be ‘repudiated by the overwhelming majority of Australians’. These responses ensure that the Australian government’s policies remain woefully inadequate to the needs of Aboriginal people. Just as the voices of the Yorta Yorta people are excluded from the judgment of the Yorta Yorta case, so they have been excluded from the formulation of Aboriginal policy in Australia under the Howard Government.

Denial of the existence of genocide in Australian history is not confined to the Federal Government. Keith Windschuttle’s book ‘The Fabrication of Aboriginal History Volume One: Van Diemen’s Land 1803-1847’[11] argues that the colonial settlers of Australia did not commit widespread massacres against Aboriginal Australians, and that there was not a campaign of guerrilla warfare against British settlement, as claimed by Henry Reynolds and Lyndall Ryan. The Federal Court has contributed to the silencing of an alternative history of Australia: one which acknowledges the horrors of our past and seeks to redress them.

The Federal Court’s treatment in Yorta Yorta of the anthropological and historical evidence also seeks to silence any alternative voice. Justice Olney’s conclusions on the anthropological evidence are damning to the professionals who presented it. He calls into question their professional ethics and abilities to be expert witnesses in the area of traditional Aboriginal laws and customs. He states that the anthropologists’ evidence suffers from ‘partisanship’, lack of experience and over-reliance on the evidence of the Aboriginal witnesses. As for the Aboriginal witnesses their evidence seems to have been largely dismissed for ‘lying’ (‘on minor matters’), ‘embellishing’ and for outbursts of ‘righteous indignation’. Justice Olney was criticized by Chief Justice Black in the appeal to the Full Federal Court for his approach to the historical and anthropological evidence.

Hearing Aboriginal Voices: A Way Forward

In contrast, Justice Wilcox makes a thorough analysis of the evidence presented by the anthropologists in regard to language, kinship and traditional laws and customs. Justice Wilcox and Justice Olney approach the significance of language in contrasting ways. Justice Wilcox states:

‘In his anthropological report, Dr Palmer discussed the significance of language in identifying a society. At para 2.10, he said: ‘Anthropologists generally accept that language is one of the unifying cultural traits that can be understood as forming commonalities between groups and so result in their members being considered as a part of one society.’[12] (original italics)

Justice Olney’s approach correlates little significance in the existence of a system of laws and customs connected by language. ‘There is no evidence to support the proposition that because two or more Aboriginal tribes or groups spoke the same or similar languages that they thereby necessarily enjoyed Native Title rights and interests in relation to all of the lands occupied by the separate groups.’[13] The anthropological evidence of the Noongar case seems to contradict this statement.

Justice Wilcox’s opinion regarding the connections between laws and customs and language indicates that the existence of a single group speaking one language contributes to the evidence that a single system of traditional laws and customs existed among the claimant group. Establishing that a system existed at the creation of the colony in Western Australia is essential to determine whether the system of laws and customs has survived settlement and thus whether Native Title has survived.

Justice Wilcox gives due consideration to the evidence presented by the Crown anthropologist, Dr Brunton, but disagrees with his conclusions. He questions an assumption by Dr Brunton that travel limitations would automatically bring about separate communities and discusses contradictory historical evidence by Daisy Bates about differences in systems of kinship descent. He also takes into consideration the evidence of Noongar witnesses while practicing due caution.

‘Moreover, the witnesses who gave evidence in these cases were all aware that the Single Noongar application depends upon a finding that there was, in 1829, and is, today, a single community occupying the whole of the claim area, which community is usually called ‘Noongar’. So it is appropriate to treat with caution the evidence of the Aboriginal witnesses about their group identity.’[14]

However he does not dismiss the evidence of witnesses wholesale as Justice Olney does.

The issue of changes to traditional laws and customs since the relevant date goes to the question of extinguishment of Native Title. Justice Wilcox’s approach, supported by the High Court in the Yorta Yorta case, is that ‘one should look for continuity of the society, rather than require unchanged laws and customs’. He continues:

‘No doubt changes in laws and customs can be an indication of lack of continuity in the society; they may show that the current normative system is ‘rooted in some other, different, society’.’[15]

However he goes on to say that while there have been changes in the system of descent, the changes are ‘not inconsistent with the maintenance of the presettlement community.’

‘changes to them [the descent rules] must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices.’ Based on the evidence of Aboriginal witnesses, Justice Wilcox concludes that even though people were removed from their traditional lands and children were not born on them, the laws regarding rights over country adapted to accommodate this. If a person was willing to commit to living upon their country for a substantial period and learning about it, they could maintain their entitlements to that land.[16]

Justice Olney’s approach to the question of the continuity of laws and customs has been criticized Dr Lisa Strelein, Research Fellow and Manager of the Australian Institute of Aboriginal and Torres Strait Islander Studies’ Native Title Research Unit. Strelein argues that Justice Olney gives excessive consideration to one document: an application by the Yorta Yorta to have the land of the Maloga mission granted to them by the New South Wales government[17]. Justice Olney claims that this document is significant evidence that the Yorta Yorta claimants had abandoned their traditional laws and customs and he dismisses evidence by the claimants themselves to the contrary.

Dr Strelein also comments that Justice Olney dismisses evidence of protection of sacred sites, gathering, fishing and hunting activities and the reburial of returned Aboriginal remains as having no connection to the traditional laws and customs of 1788[18]. Justice Olney gives preeminence to the writings of a nineteenth century squatter[19]. He mentions earlier the mounds of evidence presented by Yorta Yorta witnesses. Such evidence however becomes easily dismissed in a few paragraphs. The significance of the Yorta Yorta people’s struggle to maintain their connection with their traditional laws and customs in spite of beatings, starvation and forced removal is lost in this approach the evidence.

The contrasting approaches of Justice Olney and Justice Wilcox represent two avenues of non-indigenous relations with Aboriginal people. One perpetuates the injustices of the past by failing to allow redress of genocidal actions of the past. The other seriously considers the point of view of Aboriginal people and listens carefully to their stories and history. We can only hope (though it seems forlorn) that the High Court will concede this history of genocide in Australia and choose a new direction by upholding the Noongar’s Native Title rights in Perth. Until non-Aboriginal Australians acknowledge this history, it will not be possible to come to terms with the genocidal actions of past governments. All non-Aboriginal Australians benefit from them and all Aboriginal Australians continue to suffer from those actions.


[1] [1998] FCA 1606

[2] [2006] FCA 1243

[3] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] FCA 1606 at para 37-42

[4] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] FCA 1606 at para 43-47

[5] Chalk, F., ‘Redefining Genocide’ in Andreopolous, C.J.(ed) Genocide: Conceptual and Historical Dimensions, University of Pennsylvania Press, Philadelphia, 1997

[6] Tatz, C. With Intent to Destroy, Verso, London 2003

[7] ibid

[8] [1997] HCA 27

[9] ibid; The Hon Justice Roslyn Atkinson,Denial And Loss: The Removal Of Indigenous Australian Children From Their Families And Culture’ [2005] QUTLJJ 4; Strelein, L. Compromised Jurisprudence, Aboriginal Studies Press, Canberra, 2006

[10] Federal Government Submission, Senate Legal and Constitutional References Committee Inquiry into the Stolen Generation, March 2000, p6

[11] Windschuttle, K. The Fabrication of Aboriginal History, Volume One: Van Diemen’s Land 1803-1847, Macleay Press, Paddington, NSW, 2002

[12] Bennell v State of Western Australia [2006] FCA 1243 at para 253

[13] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors [1998] FCA 1606 at para 61

[14] Bennell v State of Western Australia [2006] FCA 1243 at para 449

[15] Bennell v State of Western Australia [2006] FCA 1243 at para 776

[16] Bennell v State of Western Australia [2006] FCA 1243 at para 777-778

[17] Strelein, L. ‘Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December 2002): Comment, Native Title Research Unit AIATSIS

[18] ibid

[19] ibid; Atkinsinon, W. ‘Not One Iota of Land Justice: Reflections on the Yorta Yorta Native Title Claim, 1994-2001’, [2001] Indigenous Law Bulletin 12

January 14, 2009

Super Big Bang

Filed under: economic crisis — joanneknight @ 10:57 pm
Tags: , ,

Written on 18 November 2008

Believing in an ever-expanding economic and financial system is like believing in a perpetual motion machine which will keep going forever. But this idea is central to Australia’s superannuation scheme. The current market reversal is like slamming a car at full throttle into reverse. The financial system and retirement savings have buckled under the strain of the market slalom causing considerable losses to retirees.

With the current economic crisis, returns on superannuation have fallen more than 6 percent. People who have worked all their lives now see their retirement savings disappearing and some are worried about a future of hardship like that experienced by their parents. This is not welfare dependency as some would claim but a system of dependence on extremely unreliable financial markets. It’s like betting your life savings at the race track.

Falls in the share price index of around 14 per cent have battered share value and superannuation. The market slump has carved an estimated 20 per cent from the average savings of self-funded retirees since August last year. For the 2006-7 financial year, the number of retirees receiving pensions increased. Government benefits, primarily the age pension or veterans’ payments, remain the principal source of income for three-quarters of Australians aged 65 and above. Only 10 per cent are able to rely on superannuation. The Hobsons Bay City Council revealed that 80 per cent of its residents aged 65 and above are reliant on the age pension.

The Australian superannuation fund is the largest in Asia and the fourth largest in the world after that of the US, Luxembourg and France. Between 2000 and 2004, superannuation fund assets doubled from US$342 billion to US$635 billion. This figure is expected to top US$1 billion by 2010. If we are to avoid the budget blow out of thousands of baby boomer retirees on the pension, it is crucial that superannuation funds are protected.

The 2002 and 2003 negative industry fund returns of up to minus 17 per cent should have been seen as a warning sign. Our system of superannuation is dependent on a cycle where more mandatory savings entering capital markets cause asset price rises. This asset price bubble, based on speculation and excessive debt, has now burst due to the subprime crisis in the US and the guarantee of adequate retirement income is threatened. The theoretical faith that capital markets serve to create wealth and hence provide in principle the foundations of self-funded retirement has been shown to be fantasy.

Battlers and veterans expecting a comfortable retirement based on super contributions are watching it being eaten up due to bad financial advice. Financial planners and accountants have been unable to resist lucrative commissions offered by retail funds and consistently recommended them, even though, as a class, they are underperforming. The wealthy also benefit more under this system receiving generous government assistance to build up their superannuation savings. This is a real cost to ordinary working people and a real cost to the nation’s total savings pool.

This faith in the capacity of capital markets to deliver perpetual asset growth to fund retirement (the magical powers of compound interest) is attacked in studies into the exposure of ‘multi-sector’ superannuation funds. These funds make up the biggest number of superannuation funds (38% of the total number of funds) with investments in equities, bonds, and properties in domestic and foreign markets. Their portfolios can be highly exposed to the movements of domestic and international equity and bond markets.

Due to poor management skills, superannuation fund returns are most exposed to US equity markets when the markets are down and when returns are lowest, but least exposed when returns are highest. Maybe fund managers lack market timing skills. A successful timing strategy would be to reduce exposure during down market condition and increase exposure during up market condition. Regulation also plays a role with the Australian Prudential Regulation Authority (APRA) suggested asset allocation benchmark of about 50% into equities and 25% in bonds. A greater weighting of equities in fund portfolios means that the funds are more influenced by the equity market than bond market movements.

The myth that private savings would be invested in the capital market and, given effective and prudent management, they would accumulate over time and savings sacrifice now would be working for you, and compound into a tidy retirement package has been exploded. So-called market discipline and efficient management has been exposed as simply a rich few benefiting at the expense of everyone else.

The Globalised President

Filed under: international relations — joanneknight @ 10:51 pm
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In a globalised world the United States has enormous influence through international agencies. The United States has used and abused its power at the expense of other countries, particularly developing countries, and a change of President will do little to alter that without the political will. Born in Hawaii to Kenyan/ American parents, and educated in Indonesia, Hawaii and the United States, President-elect Barack Obama is being called an internationalist. The unprecedented attention this election has attracted reinforces the idea of a globalised world. Despite the global reach of this Presidential power, this position is chosen by less than 5% of the world’s population.

Fredrik Erixon, director of the European Centre for International Political Economy, believes that the Obama will cooperate with international institutions in contrast to the Bush regime, but there are influences within the United States which will still assert that the interests of the United States takes primacy over all others. For example Obama must deliver new markets to United States businesses if he wants Republican support in Congress.

In developing countries like those in Africa there is hope of a change of policy. ‘The current administration has had a high level of aggression and resistance to fundamental concerns from developing countries,’ said South African deputy Trade Minister Rob Davies.

With the growing influence of international organizations, like the World Bank, the International Monetary Fund, and the World Trade Organisation, countries and transnational organisations (including corporations) compete with each other under increasingly complex regulatory regimes. Winton Higgins, Research Fellow at University of Technology Sydney, argues that the United States so overshadows this new system that, to a large extent, the new regulation amounts to Americanisation. ‘The institutional forces, the fundamental rules of the game of the rulemaking process in our world also reflect undeniably the power of American actors, groups, networks, and cultural blueprints,’ he argues.

The United States has misused its power on various international bodies such as the IMF to forward its own trade agenda at the expense of other countries, particularly developing countries. The United States has effective veto power on the IMF and World Bank. Voting rights on the IMF are apportioned according to the size of each country’s economy and contribution to the fund’s capital stock. The United States has the largest vote on the board of 17%. Fifteen percent of the vote is needed to block any proposal. In the 1990s, under pressure from United States and other major shareholders, the IMF aggressively pushed developing countries to eliminate capital controls and de-regulate their financial sectors.

While the United States has recently abrogated its right to choose the President of the World Bank, it effectively has a veto on some decisions with just over 16% of the shares in the bank; moreover, decisions can only be passed with votes from countries whose shares total more than 85% of the bank’s shares. The United States is the only country which requires Congressional approval of the three-yearly pledges to International Development Association which gives powerful interest groups, such as cotton farmers and baby formula manufacturers, ample opportunities to impose conditions on the United State’s contribution to IDA and thereby on the Bank as a whole. The large majority of Bank economists have a post-graduate qualification from a North American university, whatever their nationality.

With the spread of democracy around the world from Southern Europe to South Asia since the mid-1970s, most countries have the institutional facilities to participate in a world election. The other option is for countries to take advantage of the current United States weakness to force it to relinquish some of its power on international bodies. China may in fact be taking such a line, pressuring the United States to give up its control over the IMF in return for help in the economic crisis. The Chinese Prime Minister, Mr Wen Jiabao, said that developing countries should have a stronger say in the financial system.

Globalisation has placed us in the position where the activities of one nation can affect intentionally or unintentionally every other nation on earth. The decisions of one powerful man can have a global impact. It seems we all have a stake in who controls this power. Let us hope that Obama’s dream of equality extends to the whole world.

Environmental Frankensteins

Filed under: environment — joanneknight @ 10:39 pm
Tags: , , ,

Written on 8 Jul 2008

. . . the moon gazed on my midnight labours, while, with unrelaxed and breathless eagerness, I pursued nature to her hiding-places. Mary Shelley, Frankenstein, 1818

By ignoring two key features of the Garnaut Report (exempting petrol from the carbon trading scheme and compensating electricity generators), it is clear that the Federal Government, under the thrall of free market economics, is incapable of divesting itself of corporate control. The Frankenstein-list of solutions proposed by corporations to global warming include nuclear power and genetically-modified food. These are simply the same commodity-focussed, profit-driven solutions that have led the global economy (and now the environment) to the brink of collapse, having increased poverty and the wealth gap.

In May, the National Australia Bank cut its 2008-09 winter crop forecast by 5% to 37 million tonnes. A large proportion of Australia’s grain growing areas failed to achieve average spring rain. The market answer to a bad harvest: drive up the price so rich speculators can make more money on futures contracts. Meanwhile farmers cannot make a living and agribusiness descends to take over the farm.

After 30 years of market-driven poverty alleviation programs, developing countries are a social and environmental disaster. The Gross Domestic Product of the 41 Heavily Indebted Poor Countries (567 million people) is less than the wealth of the world’s seven richest people combined. Almost 1 billion people suffer from hunger, yet 1.2 billion suffer from obesity.

The market answer to the food crisis and climate change is Genetically Modified Food. Biotech companies are asserting that farmers cannot prevail against climate change without genetic engineering. The world’s largest seed and agrochemical corporations, Monsanto, BASF, DuPont, Syngenta, Bayer, and Dow, along with biotech partners such as Mendel, Ceres, and Evogene, have acquired patents and patent applications for climate-proof genetic traits, especially related to drought and extreme temperatures. Globally, the top 10 seed corporations already control 57% of commercial seed sales. It is a proprietary approach that seeks to expand an industrial model of agriculture, one which will concentrate corporate control, further undermine the rights of farmers to save and exchange seeds and divert resources from affordable, farmer-based strategies for climate change adaptation.

Sales strategy disguised as philanthropy is spreading this technology to developing countries. Monsanto and BASF are working with national agricultural research programs in Kenya, Uganda, Tanzania, and South Africa to develop drought-tolerant corn, which will open African markets for high-tech seeds accompanied by intellectual property laws, seed regulations, and other products and practices amenable to agribusiness. Governments in developing countries are so desperate to earn foreign exchange that they are selling their countries’ agricultural productivity to corporations.

In a genuinely democratic system, the needs of the poor would never be excluded. However, corporations constantly maneuver to avoid the consequences of democratic demands. The reaction by corporations to calls to clean up polluting industries is to move them to developing countries while still producing for profit for developed countries. Researchers found that US imports of goods from China cause a greater production of carbon dioxide than if the goods were made in the US. Factories in developing nations tend to use more energy than in the West. Thus in order for rich countries to ‘reduce’ their green house gas emissions they move the emissions to another country.

Corporate-controlled institutions, such as the WTO, fail to understand or respond to democratic processes. The decision-making processes of such bodies have led to the exclusion of the interests of most of the Earth’s people. Trade negotiations are structured in such a way to obstruct genuine participation by citizens and organisations acting on their behalf. Any mechanisms for participation reproduce the WTO logic that only groups with a ‘legitimate’ interest in the organisation’s work, defined as having a ‘direct interest in issues of production, distribution and consumption’, are entitled to a say. It seems that even when corporations attempt to institute inclusive processes they fail. At heart there is no motivation and no understanding. Corporations are blind to the legitimate demands of ordinary people.

Unless there is a move towards including the valid concerns of developing countries and ordinary citizens, our capacity to deal with climate change will be extremely limited. Tom Athanasiou, director of EcoEquity, a green think tank, argues that the only way developing countries are going to make significant reductions in emissions, without compromising their development prospects, is if the wealthy countries provide them with the technology and development assistance necessary to do so.

Under the influence of corporate globalization, the decision-making structures of democratic countries have been reduced to technocratic management of large, unresponsive, bureaucratic, and unaccountable institutions. The demands of the people are dismissed as ‘populism’ but populism began as a farmer’s movement demanding rights to land. Now it is typically associated with ‘the pathologies of the masses’: nationalism, xenophobia and calls for moral and racial purity.


René Cuperus of the Wiardi Beckman Foundation, think tank of the Dutch Labor Party, argues that the rise of populism could be a legitimate warning against technocratic policy making, against new inequalities, and the failures of representative democracy. In this sense of the word, populism must never be demonized and underestimated. He suggest that it may be an alarm indicating a crisis of representation or a communication breakdown between elites and ordinary people resulting in popular revolts, such as the recent food riots in Haiti.

Dr Janette Hartz-Karp, Associate Professor at the Institute of Sustainability and Technology Policy (ISTP) Murdoch University, argues that to deal with the complexity of climate change and oil dependency, much of the adaptation needed will take place at a local level. However, local level adaptation can run into problems from individualistic attitudes and behaviours, such as the ‘not in my backyard’ (‘NIMBY’) syndrome; the tragedy of the commons (‘I don’t want a new freeway outside my house either but I’m still going to buy a second car that will contribute to the need for more freeways’); and the difficulty of reducing ‘ecological footprints’ when the full impact of that footprint is not felt locally (when environmental impacts such as waste are shifted large distances into someone else’s ‘backyard’). These attitudes work against the common good.

Dr Hartz-Karp pioneered a system of deliberative democracy. Deliberative Democracy envisions that a representative group of ordinary citizens selected by random sampling (as opposed to the 2020 Summit), comes together to deliberate on issues important to society. Disparate people have the opportunity to engage in egalitarian discourse on a public issue. The hope is that through respectful, informed dialogue, participants will solve problems creatively and find common ground that reflects the universal good. This system requires a reversion back to democratic basics, heeding the informed will of the people, in an environment that seeks to discover aggregate, communitarian viewpoints.

The need for urgent action on climate change has prompted calls for an oligarchy of scientists and technocrats to take over and declarations that democracy has failed. These calls come in response to the domination and failure by corporations and free market fundamentalists. A system of true democracy would involve people in meaningful decision-making and would ensure that all voices are attended to as we tackle climate change.

Tibet’s Flame

Filed under: human rights — joanneknight @ 10:33 pm
Tags: , ,

Written 23 April 2008

It began with monks with rainbow banners peacefully marching to Lhasa to mark the anniversary of the invasion of Tibet in 1950 and ended with soldiers firing upon a crowd. The contrast of the bright purple and red robes of Tibetan monks against the Chinese military grey seemed to personify the desire for freedom against oppression. Ghostly figures stumble through a pall of smoke that hangs over a street in Lhasa littered with twisted bicycles and cars, as tanks and troop carriers roll through the coutryside of Tibet, gathering violence around them. Tibet is indeed an occupied country.

The appalling images of Chinese violence against peaceful protesters in Tibet compliment pictures of pro-Tibet supporters being assaulted by security forces in Canberra, Paris and London. Western countries including Australia have criticised China on their human rights record in Tibet but Australian government policy is to recognise China’s annexation of a sovereign state. This is a fine distinction given that Tibet’s basic right to self determination has been continuously violated by China for the last 58 years.

On the first day of his China trip, Kevin Rudd said ‘Australia, like most other countries, recognises China sovereignty over Tibet but we also believe it is necessary to recognise there are significant human rights problems in Tibet,’ Mr Rudd said. ‘We recognise the need for all parties to avoid violence and find a solution through dialogue.’ Mr Rudd seemed to forget that it was the Chinese who violently oppressed a peaceful protest by Buddhist monks.
The Rudd Government has advanced a foreign policy position of being more active in global affairs and offering stronger support for the United Nations. In an address to the East Asia Forum, Rudd said Australia must become more engaged to meet economic, security and environmental challenges posed to all nations.
‘Australia’s voice has been too quiet for too long across the various councils of the world,’ Rudd said in the speech. ‘That is why during the course of the next three years, the world will see an increasingly activist Australian international policy in areas where we believe we can make a difference.” International Herald Tribune March 27, 2008
As part of its aim to build and maintain the conditions in which nation states can peacefully pursue their own prosperity, Stephen Smith Minister For Foreign Affairs in a speech to the Australian Strategic Policy Institute advocated ‘a global and regional order based on principles, norms and rules which regulate relations between nation states.’ However it seems the international principles of self determination and territorial integrity will take a back seat.

There has long been international recognition that China’s invasion of Tibet in 1950 violate fundamental human rights and freedoms. The United Nations General Assembly passed a resolution in 1961 that:
‘these events violate fundamental human rights and freedoms set out in the Charter of the United Nations and the Universal Declaration of Human Rights, including the principle of self-determination of peoples and nations, and have the deplorable effect of increasing international tension and embittering relations between peoples.’ Resolution 1723 (XVI)
The right to self determination has a principle place as Article I in the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’
China’s occupation of Tibet is the source of their human rights violations. Ongoing use of excessive military force to stifle dissent has resulted in arbitrary arrests, political imprisonment, torture and execution. Human rights groups have documented at least 60 deaths of peaceful demonstrators since 1987 and have confirmed, by name, over 700 Tibetan political prisoners in Tibet, although there are likely to be hundreds more whose names are not confirmed. Many are detained without charge or trial for up to four years through administrative regulations entitled “re-education through labor”. International Campaign for Tibet
The re-education camps are particularly integral to the Chinese occupation. In these classes, the Tibetans read and recite from texts that denounce the Dalai Lama as a ‘political reactionary’ and a ‘betrayer of the Motherland’. Torturing people so that they forget their unique sovereign heritage and submit to occupation clearly illustrates why there cannot be benevolent occupation.
Given the UN General Assembly has recognised the right of Tibet to self determination and the Australian Government’s much touted wish to take a strong position on human rights and in the international arena, it seems Rudd should strengthen his position. The Charter of the United Nations states that its purposes are to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. If Australia seriously seeks to take its place on the world stage, we need to make sure we support these principles.

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