Vol 11, Issue 7
The judge make time. You know that, right? The judge make time, so it ain’t shit.
- Kendrick Lamar, “i” (To Pimp A Butterfly, 2015)
So: changes to 18C have failed - as predicted - at the hands of a hostile Senate two weeks ago.
But the past, as we know, is never truly past.
A ghost yet haunts us. The knowledge that, as a country, Australia still lacks adequate legal protection of human rights.
While we vie doggedly for a seat on the UN Human Rights Council, debates over the sort of country we want to be when it comes to protecting rights and educating people about their rights play out across the nation.
Let’s take a look at two of them.
Two weeks ago, Bentleigh Secondary College told two students, who were born in South Sudan, that their cornrows, worn since birth, were contrary to the school’s dress code. The Age reported the school as defending the policy on the basis that “white students who have returned from holidays in Bali have also been asked to remove their braids or cornrows", apparently failing to see the difference between tourist accoutrement and the reality of black hair.
In addition, having attended the school since Year 7, it was the first time the girls (now 16) had been informed their hair was an issue. Of course, that’s the nature of being a guest – if the goal posts aren’t always being moved and your position isn’t kept fragile, then, God forbid, you might actually become aware of your rights and start trying to enforce them.
To top it all off, the girls “are diligent students, who have aspirations. Tahbisa wants to be a political scientist when she grows up and Grace is interested in psychology. Over the weekend, as the twins juggled VCE assignments, they re-read their school's policies, which are printed at the front of their diaries."
Damn, I thought, attempting to see things from the principal’s perspective. What on earth are you girls doing? What are you reading our school policies for? Haven't you got VCE assignments to finish or something?
Here I think we can see three issues that are integral to rights protection:
1. Genuine rights protection is about recognising difference and promoting substantive equality, not sweeping it under the carpet with policies of uniformity masquerading as equality. When I was in education, one of the most common cartoons illustrating this was a picture of a teacher saying to a group of animals: “For a fair selection everybody has to take the same exam: please climb that tree.” Before him stand a penguin, elephant, monkey, fish, walrus and a dog. Thus a seemingly neutral or blanket rule that applies to everyone can disproportionately discriminate against particular groups.
2. Ensure the goal post is stable. As Lon Fuller said, one should be accorded stable rights and obligations, rather than having to discover that they are constantly under review and subject to change.
3. Increase people’s awareness of their rights through education and necessary life amenities, rather than keeping them so busy, or poor, or beaten, or hungry, that they never get the time to even think about it.
I am not suggesting the school had any conscious intention of doing any of these things specifically. But I do believe that its curiously unreflective attitude toward the effect of its own policies reflects a bigger problem: Australia’s generally laissez-faire attitude toward rights education and protection.
Is this reluctance not rather hypocritical? After all, Australia already has many instruments and pieces of legislation that encode rights and obligations.
For example, we know that when Parliament really wants something, they don’t talk about it: like Nike, they just do it.
Take Indigenous land rights and investment in land.
When John Koowarta won a legal and moral victory for the Wik people of Cape York, with the High Court finding the Bjelke-Petersen Government was in breach of the Racial Discrimination Act 1975 (Cth), the Queensland government got creative, declaring the Archer River a national park. When his widow, Martha Koowarta, battled Queensland’s Wild Rivers environmental legislation in court and won, Parliament again leapt into action, re-enacting its Wild Rivers prohibitions under legislation of a different name.
Tied up in expensive country battles, winning them, and then being blocked by new swathes of discriminatory legislation, is it any wonder that Aboriginal and Torres Strait Islander peoples should feel fiercely invested in questions of rights and parliamentary representation? That rights protection is vital? Particularly in instances such as in agreements between traditional owners and private developers that can protect investment in land assets and work with Indigenous corporations in ways that build intergenerational wealth. Sure, we may have the Racial Discrimination Act to help challenge state law, but how easy is that going to be when the money comes from the Commonwealth? Considering the Act has been suspended three times in recent decades - each time in relation to Aboriginal and Torres Strait Islander peoples?
It is our own institutions and structures of power that we are studying when we study the law. And it is these questions about how we engage with the law and what we do with our knowledge of its structures that render debates about 18C, or how children wear their hair, or the realisation of Indigenous self-determination, not mere rhetorical or semantic debates, but material and immanent questions concerning the very basis and nature of our society.
Of course, enshrining rights without more is mere words on paper - they still need to be translated into reality. The law is but one tool among many that we can use to achieve this.
For those who experience the law as something used upon them, rather than by them, that is already understood.
As a great writer, Kendrick Lamar, once said:
The judge make time.
You know that, right?
The judge make time, so it ain’t shit.
Declan Fry is a third-year JD student
You can follow him on Twitter @DeclanFry1
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