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Protecting The Rights of Individuals

Protecting The Human Rights Of Individuals
Malcolm Fraser
Fifth Vincent Lingiari Memorial Lecture
August 2000
ABC Online Special
Fraser makes passionate plea for moral leadership

KERRY O'BRIEN: Former Liberal prime minister Malcolm Fraser is making news in Darwin tonight in a speech with an unprecedented attack on the Federal Government's record on Aboriginal affairs across a broad front.

Mr Fraser also says he no longer believes Australia's legal system adequately protects the human rights of individuals, and he calls for a bill of rights. In a lecture to honour the memory of Vincent Lingiari, the Northern Territory leader whose activism in the '60s paved the way for land rights, Mr Fraser challenges the findings in the recent stolen generations case in the Federal Court, and says he believes the Commonwealth Government failed in its duty of care to many children of the stolen generations. He systematically rejects the Howard Government's stance on a formal apology, on compensation for the stolen generations, on reconciliation, and on mandatory sentencing.

He calls on Mr Howard to show stronger moral leadership. I spoke with the former prime minister at his Melbourne office before he flew to Darwin.

KERRY O'BRIEN: Malcolm Fraser, in your speech you strongly disagree with one aspect of Judge O'Loughlin's finding in the recent stolen generations case, where he found that the Commonwealth Government did meet its duty of care with Gunner and Cabilo. On what basis do you disagree?

MALCOLM FRASER, PRIME MINISTER, 1975-1983: I disagree because I believe the duty of care should extend beyond the mere taking away of the child from the parent.

The purpose of taking the child away was to enable them to be brought up in western ways. We would disagree with all of this now, but the law, the ordinances of the time made it legal.

But the purpose of it was for the child to be given a good education in a decent environment and brought up in western ways. I believe that many of the institutions in which these mixed blood people were put were inadequate, the teachers did not have proper qualifications and that the basic objective was therefore not achieved in a great number of cases. I think the duty of care should have extended to make sure that the institutions were themselves run properly and teaching was of an appropriate standard.

KERRY O'BRIEN: So that, in your view, then becomes a part of the case of the stolen generation for some sort of reparation or compensation or acknowledgement by Government today, by the courts, of wrongs done to them?

MALCOLM FRASER: I'm not sure that the courts can fix this because the courts have to judge the cases on the basis of the law of the time. I've seen the ordinances, I've seen the powers they've given the protectors and the way those powers could be delegated down to a patrol officer level, and the powers were massive.

They, in a sense, could dispose of Aboriginals in a way that nobody else in the whole community would have tolerated for one instant. For example, certainly up to the late '40s, early 1950s there was a power to send, put it in inverted commas, "delinquent young Aboriginals" off to a place of detention without any trial, without any judgment, without any evidence, just if a policeman or a patrol officer says this man or woman is delinquent and needs to be put in a place of detention. That is an absolute power over somebody. No judicial restraint but the law apparently allowed it. The issue was tackled on a racial basis.

Leave the full bloods alone, stop the half-bloods, mixed bloods being brought up in an Aboriginal environment, bring them up in a white environment. The full bloods will ultimately disappear, the mixed bloods will be assimilated, will become more and more like white people, will know nothing of the history, language and culture of their Aboriginal background and thus the problem will be solved.

KERRY O'BRIEN: You say there will have to be a political settlement with the stolen generations, but the PM says that it's already settled the case, the Government has already settled the case with a $63 million package. What more do you want to see?

MALCOLM FRASER: Well, I think I want to see a good deal more, and if there is to be a real reconciliation there needs to be a recognition by Australia of injustices done.

Canada has made massive strides in the last 10 or 15 years.

I think we used to be ahead of Canada in handling these problems, but they now have gone far ahead in establishing agreements, they've made their apology, they established a healing fund of $350 million and they had, I think, 1.3, 1.4 million indigenous people.

In Canada they are prepared to use terms like "self-determination", "self-government" and Canada does not feel any the less of a nation as a consequence.

KERRY O'BRIEN: Without the fear of a separate nation, without the fear of some people claiming that it's akin to another form of apartheid.

MALCOLM FRASER: In Canada, nobody believes that the country is being broken up, nobody believes that the country is any the less one country as a consequence of it.

KERRY O'BRIEN: Mr Howard says the Parliament has passed an expression of regret, that he has made a personal -- that he has expressed his own personal sorrow for the past, but he says that he won't make a formal apology for the sins of our fathers, for the sins of past generations, and many Australians would agree with him.

MALCOLM FRASER: Well, they would because the Government has put it around that if there is an official apology it means today's Australians are guilty for the things that happened in the 1800s, in the early parts of the 1900s. But it doesn't mean that. Canadians don't feel guilty.

New Zealanders don't feel guilty when an expression of apology is made. All of the States have apologised. Many of the churches have apologised in Australia. Now, because the Premier of Victoria apologised does that make Victorians guilty?

You know, it's a nonsense.

It's an attitude of mind, it's an incapacity to understand the reality of what happened and, as I understand Aboriginal leaders -- and I'm sure in many ways my understanding is very imperfect -- a large part of healing, matters of the spirit, matters of the heart involves a recognition by the highest authorities in Australia that there were some terrible things done and we wish with all our heart, with all our strength that they had not been done and that an official apology on the part of the nation.

I know the Parliament passed a resolution, but, clearly, in terms of other things that have happened, that's not regarded as adequate. KERRY O'BRIEN: All your public life, you've believed that our system of law derived from Britain was perfectly adequate in protecting individual human rights, but in this speech you're now calling for an Australian bill of rights.

That's a big step.


MALCOLM FRASER: I'm saying it should be revisited.

KERRY O'BRIEN: So why a bill of rights?

MALCOLM FRASER: Well, these people were not protected by the common law system. It failed them, so that's one point, one reason.

And also I believe that, in this day and age where racism, ethnic rivalries, religious rivalries continue, they occur in many different parts of the world, and with my responsibilities with CARE Australia and with CARE International, we work in many of the places where the most terrible consequences of racism still exist, whether it's in Africa, whether it's in the Balkans or whether it's in East Timor -- it's racism in its rawest form.

We like to think that Australia is apart from all of this. We like to think that Australia is above all of this and better than all of this.

KERRY O'BRIEN: What would you want a bill of rights to enshrine?

MALCOLM FRASER: To protect individual rights of people. That's the most important thing, because I really believe that this is a battle that is never going to be completely and absolutely won. Each generation is going to have to fight the battle over again in one form, in one way or another, and the greater the protection that law can provide, the better the system will be.

KERRY O'BRIEN: In your speech, you describe the Federal Government's attacks on the UN human rights committees that have criticized our treatment of Aboriginals as a step into the past which "puts jingoistic nationalism over and above the concept and ideal of human rights". You also strongly oppose mandatory sentencing and say this is a clear case where the foreign affairs power should have been used to abolish it. Aboriginal rights seems to have become something of a road to Damascus for you, in a way.

MALCOLM FRASER: Well, I don't know that it has. There's been a certain logic and inevitability, I suppose, in some of the things that I've been involved in. I don't think I've changed.

The agenda of the time has changed and I don't have the restraints of office or the restraints of Government.

KERRY O'BRIEN: John Howard and his ministers do and John Howard has argued in the past that he has to be conscious of the pendulum on Aboriginal issues, that he thought that pendulum once might have been too far the other way, but has now shifted too far onto the side of Aboriginals. He talks about having to keep the country united, not wanting to divide the country.

You would acknowledge, I would imagine, that it would be an extraordinarily difficult thing for him as leader to adopt the approach that you've taken on issues like mandatory sentencing, stolen generations, reconciliation, treaty and so on?

MALCOLM FRASER: Well, on some of these issues I'm not sure. I didn't use the word 'treaty' specifically. I said let's stick to the word 'agreement'. It is pre-eminently an issue where authority has to lead. Who has the history of the past?

Where are the records?

They're all in Government files or in the archives. Now, if somebody is going to try and say to Australians, "Look, what we were taught at school, what we understood of the past is not true, it was a different kind of past."

Now, if a PM is prepared to say that and prepared to say, "Therefore, we must do this and this," that has enormous moral authority and I really believe that a PM who acted in that way in relation to this issue would strengthen his moral authority immeasurably.

KERRY O'BRIEN: You disagree with the current Government on the issue of an apology, on compensation, or a form of compensation for the stolen generations, on mandatory sentencing, on the Government's criticism of the United Nations, on a treaty or agreement in place of a treaty. That does represent a yawning gulf between you and your conservative colleagues in government. Has it cost you friendships?

MALCOLM FRASER: Not so far. It also makes some friendships and makes some friendships in the Liberal Party because people say that we're glad that a Liberal is saying these liberal things. I mean, Menzies always emphasised that the Liberal Party was a liberal party. He specifically rejected conservatism as a force within the Liberal Party. Now, reading those particular Menzies speeches today, conservatism seems to be -- well, the whole political spectrum has moved to the right.

KERRY O'BRIEN: Too narrow?

MALCOLM FRASER: Well, it's moved to the right and I think social issues, human issues have become subsidiary to economic and financial issues.

KERRY O'BRIEN: In your speech, you're challenging everyone who marched in the reconciliation marches around Australia to basically convert one other person, but can you claim any converts?

MALCOLM FRASER: Yes -- Obviously no names and no pack drill but I've had people saying to me, "I didn't realize that was the reality, I didn't realize that that was happening -- I'm glad you told me."

KERRY O'BRIEN: Malcolm Fraser, thanks for talking with us. MALCOLM FRASER: Thank you.

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