Abstract
COURTING POWER: Law, Democracy and the Public Interest in AustraliaIsabelle Reinecke; Monash University Press, 2023; 96 pages; $19.95 (paperback)
In November 2023, the High Court ruled in favour of a stateless Rohingya refugee who faced the prospect of life in detention. The man had been convicted of a serious criminal offence in Australia. Following the expiration of his sentence, the Australian government placed him in immigration detention to facilitate his deportation pursuant to the Migration Act. However, because no state would agree to resettle him, the government acknowledged the man would likely remain in detention for the rest of his life. The man argued that such detention is punitive and therefore may only be ordered by the judiciary, not the executive. The Court agreed. The government quickly released the man (and many others in a similar position) into the community.
The decision in NZYQ v Minister for Immigration is the sort of case with which Isabelle Reinecke’s Courting Power is concerned. It speaks to the critical role that our legal system plays in protecting the rights of the marginalised and supporting the institutions of our democratic system. It also highlights the way the court can be thrust into the middle of political contestation and the judiciary can become a lightning rod for attacks. In the aftermath of the decision, some conservative commentators attacked the entire idea of constitutional review, wondering why the Australian community allows convicted criminals to ‘profit from long and expensive trials’.
Courting Power offers a cogent response to comments like these. It details how both politicised attacks on courts and legislative efforts to inhibit public interest litigation undermine the judiciary and threaten the healthy functioning of democratic governance. As the founder of the Grata Fund, a not-for-profit strategic public interest litigation incubator and funder that has led important successes since 2017, Isabelle Reinecke is well placed to explore these issues. Courting Power is at its best when it centres on cases the Grata Fund has been involved in. Reinecke’s clear and simple explanation of the Ltyentye Apurte (Santa Teresa) community’s fight for decent housing and the Pabai and Kabai Torres Strait Islander climate justice case demonstrates the value of checks and balances that the legal system provides.
Reinecke is less clear, however, about how the judicial system can be defended against efforts to undermine and politicise it. In tracing the development of the ‘judicial activism’ barb, Reinecke gently suggests that the Mason and Brennan courts opened themselves up to (unfair) criticism by failing to articulate their significant decisions in the language of ‘legalism’. I am not persuaded that this would have helped. As Reinecke notes elsewhere, much of the criticism the court received in response to its far-reaching decisions on the implied freedom of political communication and Aboriginal rights in Mabo (No 2) and Wik appears outcomes-focused. In my view, the particular methodology adopted by the Court – be it legalism, textualism, or something else – matters little. The real concern that some vocal conservative commentators have with these decisions is that the Court recognised and protected the rights of some ‘other’, at the expense of ‘ordinary Australians’. Like the responses to NZYQ, the excessive and extreme complaints catalogued by Reinecke are simply attempts to clothe political argument in the language of methodology.
Where does this leave us? Towards the end of this book Reinecke concludes that it ‘is on us as a society’ to ‘create a cultural bulwark’ around the judicial system and the High Court to protect democracy. This is nebulous but true. Courting Power provides a simple and convincing argument for the value of an independent and politically impartial legal system. It is ultimately on all of us to make sure we can keep it that way.
APOLLO & THELMA: A true tall tale
Let me begin with a declaration of bias. For about 40 years, your reviewer and author Jon Faine were professional colleagues who became friends. Our paths first crossed in the 1970s when we were both legal members of the Social Security Appeals Tribunal. Years later, as Victoria’s Health Services Commissioner, I gave interviews on his 30+ years-ABC radio show and was often a co-host of the Conversation Hour where I learned, on the mic, how to be spontaneous on air and met some amazing people. I also learned that having a bias is okay just so long as you declare it. Being asked to write a review of a friend’s book, then, was daunting. What should I write if I didn’t like it? Never fear, I loved it!
Jon has skilfully and compassionately interwoven with his own career the story of the relationship he had with one of his first clients as a young lawyer – highlighting the many important reforms in the law that he helped to shape and which, in turn, shaped him and the country we live in. In 1981, strongman The Mighty Apollo (Paul Anderson) and his three teenaged sons, inherited Apollo’s sister Thelma’s wealth via an untidy, contested will. They sought legal advice from the law firm for whom a young Jon Faine was working. They were to become his favourite and most enduring clients.
While Apollo was a talented, vain showman, Thelma was an adventurous woman who at first worked in her brother’s strongman shows and later became the formidable publican of the pub in Top Springs, a remote corner of the Northern Territory. In trying to resolve the dispute over Thelma’s will, Jon travelled to the Territory, to Top Springs. The book takes us on that journey with him, through the rough and tumble of Territory life, meeting characters and hearing their yarns that reveal the unique quirkiness and toughness of frontier living in the Top End. The first time I visited there I was impressed by how different the Territory was to anywhere else I had ever been. It was rough, it was tough, and I remember the many dregs and ruins of broken dreams that hovered in the hot, windy dust in the form of failed businesses, deserted tourist ventures and empty motels. Thelma’s story is remarkable because she survived and thrived where so many others were ruined.
Jon writes that Apollo craved and achieved fame while Thelma went after the money. That The Mighty Apollo survived so many self-inflicted assaults on his body, to prove he was the strongest man in the world, and that Thelma survived at all, in a place that was not kind to tough men let alone beautiful women such as Thelma, is testimony to the strength of them both in their own ways. Apollo pulled trams by his teeth and endured an elephant standing on his body while Thelma’s survival was assisted by possible fraud, arson (of the insure and burn type), her gun, her wits and some would add, meanness. The author’s fascination with, and respect for, them both is obvious and, while he portrays them with some bemusement, his critical prowess is apparent throughout the book as he unravels their strangeness and allure.
Apollo’s and Thelma’s stories provide the author with a means of unravelling, and perhaps reconciling, their life experiences with his own. It is full of strange coincidences and connections and reveals not only some of the subjects’ secrets but a few of the author’s as well. He learns a great deal from Apollo and Thelma, and the sons of Apollo, and a woman the boys refer to as ‘The Incubator’. They inform his analysis of his life in the law and the way the legal profession treats the people it charges a lot of money to serve.
Jon has been closely involved in so many aspects of legal reform. His book reminds us of the important legal reforms and reformers who re-shaped the way law is practised, including the move to community-based legal services designed to provide more accessible legal advice to people who were desperately in need. He was a founding member and editorial assistant of the Legal Service Collective which published the Legal Service Bulletin that later became the Alternative Law Journal – which you, dear reader, are currently enjoying and that turns 50 this year! So many hours of agonising consultation meetings were endured before we came up with that name change but that’s another story. It is a joy to know that the AltLJ is still publishing learned articles about aspects of the legal system that lawyers in pin-striped suits and academics preferred not to notice. Jon was also involved with The Law Handbook, originally published by the Fitzroy Legal Service and produced initially to be a layperson’s DIY law manual but that was quickly relied on by a large number of practising lawyers. It is highly likely that those stuffy old professors had sneak reads of the Alternative Law Journal as well.
Apollo & Thelma will be available in audio format in 2024.
KILLING FOR COUNTRY: A family story David Marr; Black Inc, 2023; 432 pages; $39.99 (paperback)
David Marr’s book is a slow burn about the theft of country, the mass murder of Aboriginal people, and the corruption and lack of accountability that typified the Australian colonial enterprise, right through to the early 1900s. He writes about the activities of his ancestors, the Uhrs, with candour and tenacity. It is a shocking tale. It is a history, and a family history, and it provides insights into the political economy of the colony. It is a book about power, corruption, criminality, cruelty and a fundamental lack of accountability.
Marr describes the land theft. Prior to 1851, millions of acres were alienated for a £10 licence fee. Explorers like Mitchell, banks and charities, businesses which thrived on tea and opium, barristers and judges, the clergy and missionaries, all played various roles. Governors came and went, routinely driven out if they challenged squatters’ interests. Power was arbitrary and its exercise unaccountable. Bloodletting started early. Before we even enter Queensland, maps of river systems like the Hunter, Namoi, and Mooki, and Gwydir, Slaughterhouse and Myall creeks show the extent of the killing.
The Uhrs – linked to Fenn Kemp, one of the Rum Corps swindlers – benefitted from driving people off country. Tent Hill, a Uhr property became a ‘killing ground’: a gang of 150 whites, including the Uhrs, killed an undisclosed number of people at One Tree Hill. To provide context, Marr extracts from the newspapers and other sources reports of ‘hunts’ lasting all day and involving tens of horsemen. The death of John Uhr provided the excuse for murder, dispersals and selective prosecutions for years.
The killing was seriously organised once the Queensland Native Police (QNP) was created. Reg and D’Arcy Uhr – nephews of John Uhr and the sons of the magistrate Edmund Uhr – were appointed to the ranks in 1861 and 1865.
They would have understood their role, including their commitment to the ‘omerta’ which Marr describes.
Under the supervision of the drunk, Frederick Walker, ‘police’ action was speedy and brutal. In 1851 Fraser Island became the scene of a well-known massacre which is still talked about by Aboriginal people. The Aboriginal attack on Hornet Bank in 1857 resulted in waves of arbitrary retribution. John O’Connell Bligh coordinated the mass murder that unfolded in the town of Maryborough in February 1860. He was publicly commended. In 1861 a QNP killing spree unfolded at Manumbar station. Cullin La Ringo station was attacked by Aboriginal people in 1861 and 19 whites were killed. At least 400 Aboriginal people were arbitrarily run down and summarily executed. The QNP coordinated and also rode with civilians in many of these actions.
In 1861 Reg Uhr, then aged 19, ‘cleared’ the Biri, Yangga, Miyan and Yilba people from the hinterland of Bowen over three years. He was promoted. He murdered 25 people at the Hermitage on the Suttor in 1864. Aboriginal people recall people being shot. At Euri Creek he ‘dispersed’ 200 people.
Darcy Uhr – ‘a liar, uncontrollable and cruel’ – was involved in mass killings and individual murders at Horse Steak creek, and at Cloncurry, Urilla and Chinese Garden. Children and women were ‘harvested’ after massacres.
In 1866 at Bowen, Reg Uhr rode out and killed ‘8 or 10’ – the numbers of those butchered were inconsequential. The 1868 massacres by D’Arcy Uhr are legendary. At various places 30, 14, nine, and eight people were reported shot.
After conducting so many raids, dispersals and killings, Reg Uhr was appointed police magistrate at St George, Taroom, Hughenden, Springsure, Blackall and Cloncurry to administratively ‘supervise’ the activities of others. He died in 1888.
In 1869 Darcy, finding himself routinely being charged with public order offences, resigned from the QNP. He crossed into the Northern Territory in 1872, killing as he went at the Cox, McArthur and Waeryn rivers along the gulf route. He was also implicated in the mass murder at Florida Station in Yolngu country in 1885 and the mass murder of Aboriginal people at Wallaby Rocks north of Coolgardie in the early 1900s.
This is a tough book to read. It tells us what it was like for Aboriginal people to survive another day in the colony. It describes the sanctioned murder and mayhem on the frontier. It provides insights into how it was that no one was ever held accountable.
Marr’s book is gruelling and it should be standard reading for any Australia intent on truthtelling (and even – more particularly – for those who aren’t).
THERE’S GLORY FOR YOU: A history of Redfern Legal Centre Frances Gibson; Lamingtone Publications, 2023; 298 pages; $50.95 (paperback)
Gibson’s There’s Glory for you: A history of Redfern Legal Centre, is the latest contribution to the growing literature about the origins of the Australian Community Legal Centre movement that started in Victoria in 1971. It is most welcome. It builds on earlier published histories such as those for Fitzroy (Chesterman, 1992), Springvale (Greenwood, 1994) and Kingsford (Nichols, 2006). It is appropriate that there is now one about Redfern, the first Centre in New South Wales (NSW) which started in 1977. Gibson brings to the story her 30 years of lived experience having worked at Redfern and Kingsford. She also brings academic rigor as the book grew out of her PhD. In her foreword Gibson observes that Legal Centres are not good at recording their past given the unrelenting work demands, stretched resources and staff shortages. She quotes pioneering volunteer Gerard (Crash) Craddock opining, ‘We weren’t recording history, we were making it’. Nonetheless, her view was that it was important to record the history before it was lost forever. It would enable reflection on experiences and honour past workers. Worthy objectives, indeed.
Gibson takes a broadly chronological approach built upon extensive oral interviews with the founders, early staff and volunteers. In itself, it’s a valuable historical archive. Like Springvale and Fitzroy in Melbourne, for Redfern there was local government support and a strong engagement with university staff and students at the beginning. The rise and impact of radical baby boomers stirred by the Vietnam War conflict, reflects the Victorian experience. At Redfern, most came from UNSW. Many would go on to high judicial office such as Virginia Bell (High Court), John Basten (NSW Court of Appeal) and Andy Haesler (NSW District Court). The book particularly celebrates pioneering staff like John Terry – ‘an inspiring and a great advocate’ who died too young – and the charismatic Clare Petre, the first employee who was a social worker to boot.
Gibson chronicles the early excitement of the ‘start up’, what seems like constant parties and the commitment to community participation in management. The latter would eventually fail, and a restructure saw the Board assume control. There’s clearly a story there but it is not fully explained. This hints at protection of continuing raw sensibilities. Similarly, there are other matters that are teased out but not fully explored. One is why Redfern did not commence until five years after Victorian Legal Centres. The explanation offered by Clare Petre is that activist lawyers were occupied in setting up the Aboriginal Legal Service (1970) and existing demand for legal advice was already provided by Chamber Magistrates and the Public Solicitor. Not, for me, an entirely convincing explanation. Another thread, touched on but not fully developed, is the role of Redfern in CLC politics within NSW and on the wider Australian scene. More of an ‘outside in’ perspective might have disclosed rivalries, even jealousies among the younger less well-resourced Centres starved of profile by the dominance of Redfern. Similarly, what of the early interstate rivalries between highly organised Victoria and the more anarchic NSW? Here an early metaphor was the location of the first national conference (1979) arranged by Victoria. Channelling the early founders of the Constitution who located the national capital equidistant between the states, the conference was held in the Snowy Mountains.
The Redfern story is very much a Sydney one. Gibson rightly celebrates the role that the Centre played during the HIV/AIDS crisis and in pioneering community legal education through the establishment of Redfern Publishing. Here the publication initiatives of the Lawyers Practice Manual and Law Handbook are standouts. Then there is the role of the Centre in auspicing specialist and innovative Centres such as the Prisoners Legal Service, Intellectual Disability Rights Service, Women’s Domestic Violence Court Advocacy Services, a Welfare Rights Centre and a Seniors Rights Service. All this while continuing to provide ‘kraft cheese’ advice and assistance through weekly contact sessions.
A strength of the book is the generous inclusion of images. Many capture the youthful enthusiasm and sense of fun of the early staff and volunteers as well as the progression of test cases and media attention. The pictorial record is important. One small nitpick, if I may – the lack of a comprehensive index is an oversight although the names of many in the Redfern diaspora are tabulated. They will be pleased.
For those who were there, and those who weren’t, this is a terrific read. It is recommended.