Unrepresented, unjust and unconstitutional

Given the case demonstrated in the previous Consumer, Trader and Tenancy Tribunal issue what if the tenants were Indigenous Australians? Would this be a discriminatory action by the landlord and his agent? It would be hard to show that it was since if the tenants weren’t Indigenous then they also would be suffering the same injustice. However, just as you can show that maybe it isn’t racially motivated discrimination how can you show a court or a tribunal that it is if it was? The Racial Discrimination Act is quite clear about how the action or statement is a violation but how do you prove the intentions or how “clear” the actions are to a court or body? How do you demonstrate the internal workings of the landlords mind and consequently his actions towards the tenant to the court?

Look at his actions, yes they are negligent and criminal but are they racially motivated. Given that no landlord or agent in Australia would be stupid enough too actually state “oh you’re Aboriginal you’re used to substandard housing” or tell the agent “They’re Aboriginal they don’t need it” doesn’t mean that’s not what there thinking or why they are doing it. So how do you prove this? If the landlord had more than one property that they rent you could view the others to see whether they looked after their non-Indigenous tenant’s any better, but that still would not prove conclusively that the actions of the landlord where discriminatory towards a particular tenant even though they may well have been. But what if the landlord has only the one property? The task is even harder. What if the Tribunal member that this comes in front of is racist themselves and brought up in old-school Australian thought? How then is it dealt with in this form of institutionalised racism? These are the kinds of problems that for years now I have battled with the Anti-Discrimination boards and bodies over. They require proof absolute – but proof absolute is impossible – yet the violations go on day after day for thousands of Indigenous Australians. Even when you get the bodies to listen mediation is the best they have to offer they are powerless to respond in any real manner.

Recently Dr. Gary Johns from the Australian Catholic University suggested in the Australian over the Andrew Bolt case and the Behrendt twitter comments about Bess Price and the subsequent media barrage that “one Aborigine hating another in public doesn't cut it under the Racial Discrimination Act” well the truth Dr. Johns is they don’t and haven’t for some time. It’s hard enough to “prove” that non-Indigenous Australians are discriminatory towards Indigenous Australians without trying to prove that Aboriginal people are racist either to Torres Strait Islanders or vica versa or that other Aboriginal people are also discriminatory to those of another tribal group smaller or more distant to their own, but the truth is they can be and often are – Behrendt’s comments alone bear testament to that as do Prices comments in retaliation to it. How many of the “discussions” that erupted over the media and on social networks in regards to this issue were also “racist” or discriminatory in nature when read by Indigenous Australians? And again what gives non-Indigenous Australians the right to use this type of battle to speak on behalf of Indigenous Australians again and talk about what they don’t have to personally endure on a daily basis - again? None view the discrimination so severe as those who have been discriminated against!

Well from personal experience and having been a public victim of this battle and living daily with people that suffer from this battle I would like to see everyone - Behrendt, Johns, Australian Human Rights bodies, courts, tribunals and Government get real and start to deal with some of these issues that are clearly disadvantaging Indigenous Australians on the ground with more vigor. For too long this battle has gone on in silence while the educated upper echelon of our society, who supposedly know better turns a blind eye. If it takes a few redneck reporters to break the silence and get it aired and open all the better I say! Because, at the end of the day, it’s disadvantaging Indigenous Australians and increasing the gap in Indigenous Health, Housing, Economic and Educational outcomes on a daily basis. Only the minority in the minority groups really see the picture.

Dr. Johns also suggests that Indigenous Australians utilize the defamation laws available to them to apprehend this sort of behavior, on the face of it a reasonable idea academically/legally speaking, but as Dr. Johns points out whilst there has been plenty of research on Indigenous Australians and the Criminal system (and I don’t subscribe to his views on Indigenous Deaths in custody) there is little research and little writing about Indigenous Australians and the Civil system. Hence the object of this paper – a little practical experience and realism in a world of fantasy or put another way “try fighting on the ground for REAL Indigenous rights with what’s available”.

For a start take the issue that there are no Torres Strait Islander specific policies, regulations or authorities in any of the States or Territories other than Queensland. Yet Torres Strait Islanders reside in all of the States and Territories and in fact there are as many Torres Strait Islanders residing in NSW as there are residing in all of the Torres Strait Islands themselves. Furthermore, we have Aboriginal legal and health services in all of the States and Territories but where are the Torres Strait Island health and legal services? Take the fact that money federally allocated for “Indigenous (both Aboriginal and Torres Strait Islander) issues” gets bundled together and distributed to organizations that have little or no Torres Strait input, advice or control and that moreover, do not divide or separate the funds between Aboriginal and Torres Island spending appropriately - if at all. Some would call this division I would call it equality – depends on your perspective.

Take the aforementioned case – that has been removed from the CTTT NSW under s.65 of the CTTT Act 2001 (NSW) on grounds of procedural unfairness to the Supreme Court of NSW – not only a rare move for a residential lease but an education on what Indigenous Australians and low socio economic Australians are facing in the civil system in an attempt to get issues addressed. I raise the following issues:

  1. There is no Indigenous funding or legal assistance for Indigenous Civil cases;
  2. The Aboriginal Legal services and Legal aid will not assist civil matters, especially in regards to appeals;
  3. The minimum sum any “decent” or reputable lawyer will require before representation is $15,000 often considerably more for defamation cases;
  4. Very few lawyers are culturally appropriate and even fewer have livid experience and understanding of Indigenous issues;
  5. There are NO policies or guidelines in any of the civil courts that advises or guides cultural appropriateness or language utilization;
  6. There are NO translators available and you will have to also fund this even if it is to give the court the understanding of the evidence you present to them;
  7. There are NO guidelines enforcing the use of Interpreters as there are in the Criminal system;
  8. There is no real understanding or cultural appropriateness by the courts and no acknowledgment that Indigenous Australians are often living under two laws;
  9. The court scene is an alien, aggressive and harsh environment that speaks another language to the majority of Indigenous Australians and is often institutional in its discrimination and outlook; and
  10. Because of 1) – 4) you are forced to either a) to drop it and not fight the issue or b) represent yourself; and
  11. Because of 5) – 9) your chances of enduring the distance or getting a “fair” hearing are pretty minimal.

Of course there are always pro-bono lawyers – who will also “evaluate” the scenario based on their understanding from their narrow world views and advise you incorrectly the best way to “get out” of the situation with minimal cost and damage. There is much work to be done before we see any Indigenous Australians winning anywhere near the amount of cases in the civil system that we should be seeing. With discrimination alone the statistical outcomes of the Discrimination bodies nationally clearly shows that whilst Racial Discrimination cases are being won by Australian Africans, Australian Indians, Australian Chinese and even Australian Jewish people there are few if any being won by Indigenous Australians. My own personal experience can vouch for the fact that discrimination occurs on a daily basis, if not multiple times a day, for Indigenous Australians - as I am sure many of you will agree – so if it happens why then is there no action? When are the discrimination bodies going to stand up and criticize or fine the Australian media and government for perpetuating Indigenous discrimination and stereotypes? When are we going to see major wins in the civil courts? When are we going to see appropriate justice through the legal system in Australia that will set a precedent and act as a warning to those who think it is alright to discriminate against others? Australia is a multi cultural democratic society that is supposed to understand and stand up for the rights and views of others – not turn a blind eye and bury their heads in the sand because the problems are to hard or to extensive to overcome.

For one minute imagine being an Indigenous Australian being kicked out of a house on your ancestors land because you couldn’t pay the rent to a foreign owner who stole your land and had the cheek to charge you rent for the house he stuck on your Uncle Billy’s land without anyone’s permission and without any respect for the environment or ancient cultural rites whilst doing so? How would you feel? What civil actions are open to you in court? And what would you think of Julia Gillard’s inappropriate comment to “pay the rent”? Who should first? Well if we can’t pay the rent maybe we should have an obligation as Australians to fix this problem the right way, and for once fairly, and put right some wrong’s not just speak it in words such as “sorry” but enact it through legislation and policy that is real, practical and effective.


Simon Charles Dorante-Day BA, BEng, MRGC
(c) Discrimination Watchgroup 2011