Shortlisted for the Stanner Award 2004.
Larissa Behrendt attacks the chasm which has grown between Indigenous lives and aspirations in Australia, and the psychological terra nullius which continues, despite Mabo, to pervade so much of Australia’s mythology and policy.
She proposes longer term, aspirational initiatives leading to institutional change that will facilitate greater rights protection and the exercise of self-determination, including:
- a preamble to the Constitution
- a treaty
- the national self-image
- economic redistribution
- alternative institutional forms
- regional framework agreements
- a more energised politics
- Constitutional protection.
Behrendt provides perhaps the clearest articulation we have of what Indigenous Australians want and need – and how it might be achieved. This book will be debated, dissected, applauded and disagreed with in the years to come, and certainly quoted alongside the work of the most influential legal and social commentators in the field. For the moment, it is compulsory reading for anyone working or interested in Indigenous law and policy. ...
Most of the critical contemporary issues in Indigenous law and policy in Australia are discussed in the book ... most of the significant contributions to the debate are interpreted and responded to.
Behrendt writes with an honesty and clarity that is sometimes lost in the Indigenous law and policy debate, and offers constructive proposals. - Simon Young, QUT Law Journal, Vol 4 No 1, 2004, 124
Draws indigenous issues into the wider discourse about Australia’s moral future. ... Behrendt argues that the protection offered to Indigenous Australians by legal and political institutions is too fragile when one government can extend rights and protections, and another can swiftly relinquish them. She argues for a series of symbolic and substantive solutions based on rights and pressing needs like healthcare. The legal political, economic and cultural institutions in this country need to be stirred into a different way of being, one that truly incorporates Indigenous peoples and their voices. Behrendt advocates recognition of Indigenous sovereignty as the first practical step in this process.
Achieving Social Justice is another important element of social justice discourse. - Eureka Street, Vol 14(3), April 2004
The book traverses fundamental issues from the Indigenous rights agenda ... Behrendt is particularly effective in negotiating some of the apparent polarities that underpin Indigenous policy debate such as symbolic recognition versus practical reconciliation (‘rights vs responsibilities’), short-term versus long-term aspirations (the ‘immediate problems’ vs ‘underlying causes’ debate), individual versus communal conceptions of identity, and difference-blind liberalism versus multicultural liberalism. ... the book makes one of the most interesting interventions to debates on national identity. ...
The value of Achieving Social Justice is to clarify the basic principles and pretexts for action and to project a visionary framework for substantial policy reform. An additional pleasure of reading this book is Behrendt’s effortlessly lucid prose style, the readiness with which she makes the complex straightforward. - Eleanor Hogan, Dialogue, Vol 22, March 2003
Larissa Behrendt is intelligent, insightful and articulate. ... She is one of the rising young stars of the next generation of Australian indigenous leaders ... she deserves to be listened to. ... her book is so good that it demands to be read.
Larissa Behrendt slashes through the attempts to divide Indigenous views into hostile and inconsistent camps. She presents an analysis of Indigenous inequality that requires attention to issues both of rights and of wellbeing. She argues forcefully and convincingly that there can be no rights without wellbeing and no wellbeing without rights. ...
She brings the two competing views of equality into a practical synthesis to advance both rights and wellbeing for Indigenous people. She cuts through traditional dichotomies to present and advocate a more integrated aproach. For her many of the old divisions and debates are just that, old, and so of little further contemporary use. The focus of her book is the way ahead. - Law Society Journal (NSW), October 2003
Behrendt’s second book takes the reader on a journey starting with British settlement of Australia and the doctrine of terra nullius travelling through major events that have impacted significantly on indigenous Australians including the Stolen Generation and Mabo and Wik decisions and finishing with some practical suggestions towards recognising and protecting indigenous rights in Australia.
What is perhaps most persuasive about this book is that the author (who among other achievements, was the first indigenous Australian to obtain a doctorate from the Harvard Law School) does not suggest that the indigenous rights that should be recognised and protected are anything more than those which other Australians already have. Such rights include health, education and employment. The book concludes that Australian institutions cannot be considered sufficiently democratic if they do not recognise and protect the rights of indigenous people who now make up just over 2 per cent of its population.
The author argues why formal equality (ie legal neutrality) does not work when the laws are being applied to a vulnerable minority. Chapter 2 of the book examines how the mandatory sentencing scheme has had a disproportionate impact on indigenous Australians, how the Constitution has been interpreted and discriminately applied against indigenous Australians, and how property laws have been enacted against a background of colonial ideology. Against this, the author concludes that social reform should be shaped by outcome focused liberalism which treats all persons equally yet encourages effective participation to recognise differences.
The practical solutions that are suggested in this book recognise that the Australian legal framework cannot change overnight and hence some short term solutions should be implemented (for example the protection of cultural practice and the recognition of customary law) and longer term solutions should be worked towards (for example a treaty and preamble to the Constitution).
Overall, this book is extremely readable. - Ethos (Law Society of ACT Newsletter), No 189, September 2003
Larissa Behrendt’s Achieving Social Justice is invaluable for the clear and lucid way that it manages to outline the case for constitutional reform (including a treaty and a new preamble) as well as wider institutional change in Aboriginal communities.
As an indigenous Australian, she brings a unique perspective to constitutional law. Her resolve to “achieve change through the law” is a good example of how the sovereignty of Crown (and the common law that accompanied it) has been both the agent of oppression and the agent of redemption for Aboriginal people.
More than many recent works on contemporary indigenous politics, she explains the importance of history in forming Aboriginal perspectives on native title, a treaty and indigenous rights. She brings a new understanding to demands for indigenous “sovereignty”, explaining why it is not an attempt to create a separate nation but one that seeks a different relationship between Aboriginal people and the state, one that encourages the autonomy of Aboriginal people. She also explains how important symbolic constitutional change can be in achieving practical reform on the ground in Aboriginal communities. Contrary to the current political fashion, the two agendas are not mutually exclusive. Nor has the rights agenda been seen to fail – it has simply not been implemented. - The Bulletin, 2 September 2003
A startling back-to-basics appraisal of what it all means and where it may all be going. ... Although [Behrendt’s] suggestions are not new, the value of her contribution is the identification in one place, one book, of the most important and pressing concerns for the realisation of a mature Aboriginal and non-aboriginal relationship into the future. ...
This book will have a special place on the bookshelves of school libraries and in the thinking of young people. - Civil Liberty, September 2003
A magnificent synthesis of Indigenous history and insights ... Based in profound scholarship yet highly readable and accessible, it deserves the widest possible readership. - Dr William Jonas AM
[A] remarkably lucid and readable book. - Prof Ann Curthoys
This is a very good book. It should be read by everyone. - Prof Henry Reynolds
... a clear and unambiguous statement of what is wrong with the status quo from an Aboriginal perspective. It helps to define the unfinished business of reconciliation. - Fred Chaney
Table of Contents
Dedication List of key organisations and people
Why Question the Rules?
Australians and the first Australians
Practical reconciliation or the rights agenda?
A belief in substantive equality
More than a ’noisy minority’
The concept of democracy
New approaches to Indigenous rights protection
The Myth of Law’s Neutrality: Why Formal Equality Doesn’t Work
Different conceptions of justice
Different conceptions of property
Different conceptions of equality
Nationalism and Identity: Why ’Western’ Institutions Don’t Work for Everyone
The Australian self-image
Challenging the Australian self-image
Why recognition matters
Indigenous Aspirations: The Starting Point for Rights Protection
What ’Indigenous sovereignty’ and ’self-determination’ might mean
Deciphering the content of Indigenous sovereignty and self-determination
The parameters of Indigenous claims
New Strategies, Improved Rights Protection
A program for institutional change
Indigenous rights and aspirations
Some underlying principles
Towards Improved Rights Protection: Some First Steps and Some Alternative Futures
Towards a new national self-image
Towards Constitutional change
Towards regional autonomy