School of Historical and Philosophical Studies - Theses
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ItemCompensatory justice and land claims by Australian aborigines( 1998)In this thesis, I delineate the general structure of the theory of Compensatory Justice. The various issues addressed in this work are resolved via the reflective equilibrium technique so closely associated with the work of John Rawls, though I do not proceed by way of an original position story. The scope of Compensatory Justice is defined such that compensation is a response only to certain sorts of harms, where harm is defined in terms of setbacks to interests. Compensable harms are distinguished from non-compensable harms; and I establish when a person can rightly be held liable to provide another's compensation, and how proper compensation is be determined in any given instance. In the course of resolving these general issues, a number of further issues are brought to light and settled, e.g. what should be done when there is no-one on whom liability can rightly be imposed for another's compensation. Numerous cases are considered which extend and test the conclusions reached about the precepts of Compensatory Justice. Once the delineation of the general structure is complete, the conclusions reached are applied to the issue of Australian Aborigines' land claims. Since those claims are, in essence, claims about the suffering of harm, they also may be claims about the suffering of compensable harm. Although determinations of compensable harm must be made on a case by case basis, in the expectation that at least some land claims made by Aborigines will involve compensable harms I consider some general issues which will be relevant to the determination of proper compensation for them. The major conclusions reached are: that compensable harm is harm which is not in a person's interest (i.e. which affords them a net loss in well-being); that the person who intentionally or negligently causes a given compensable harm can rightly be held liable for the compensation due to the harmed person, and that a person should not be chosen at random to bear such liability; that proper compensation counterbalances a harm by providing the harmed person with a relevant good equivalent to the extent of the harm they have suffered; that the only relevant compensatory good for Aborigines who have suffered harms in respect of land to which they have ties based on Traditional Law or long association will be the land which was the original object of their set back interest; and that where Aborigines have a prima facie valid entitlement to a given area of land qua compensation and that land is currently the object of another's equally prima facie valid entitlement, neither entitlement should be allowed to predominate if the two can coexist (in the event that the two cannot coexist, I determine ways of resolving the question of which entitlement should prevail).
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ItemGood men and true: the Aboriginal police of the Port Phillip District 1837-1853( 1986)Good men and true is the phrase used by the Commandant of the 1842 Corps of Native Police in summing up for Superintendent LaTrobe the outcome of the first experimental expedition of the Corps to the Western District. It is the age-old Service accolade, bespeaking praise and affection and pride in the troops under the command. This is a history of those men. Since Stanner wrote over twenty years ago that the Aborigines had been left out of Australian history, much has been written about them. Perhaps impelled by emergent black nationalism, maybe running parallel with it, this generation of writing about the Australian past has been useful and necessary in raising Australian consciousness to the extent necessary to take seriously the Aboriginal part of our joint past. To a large extent though, it has been an ethnocentric discussion of white behaviour towards Aborigines producing the Aboriginal people as subjects who seem to stand stock still, as one reviewer has said, and allow things to happen to them. It has produced the cultural perception of past and dead Aboriginal people as mainly victims, or in a few exceptional cases as heroic figures of resistance. Broome's observation about one chapter in one book is capable of general extension - we have replaced an earlier historical falsehood of a non-violent frontier with a new stereotype of a violent one. It could be added - with clearly defined and allocated roles, and moral evaluation thrown in for good measure. There is much truth in these histories, but even taken together, they do not encompass truth: they do not take account of positive Aboriginal choices. Our models of explanation, Stanner wrote, have been based either on the dramatic secondary causes - violence, disease, neglect, prejudice, or on the structure of Aboriginal society or both, but they have not taken into account Aboriginal initiatives towards European society, their curiosity, their zest for living, their choices, their creations. This study concerns itself with one of their choices - it is a history of co-operation, an Aboriginal success story. Why it has not been told before is puzzling: a cursory glance at the secondary section of the Bibliography (which is select, noting only those works which specifically mention the Corps) is sufficient to demonstrate a widespread awareness in the past of the Native Police Corps of the Port Phillip District. Yet out of all those passing mentions, it could scarcely be said that our knowledge has been advanced; five attempts only have been made to constitute the Corps as a subject of knowledge, and none to understand the men. Spender's question must at least be asked here, though it cannot be answered - "Why do we know so little about ... blacks for example, and why is so much of what we do know about them false, negative or derogatory. Who has made this knowledge, on what basis, and for what reasons?” Shades of Foucault. The explanatory processes used by white historians (which black historians reject) still draw their inspiration from Elkin's work. The story of Aboriginal co-operation in policing resembles to some extent the adaptive response which Elkin has described as intelligent parasitism. It was more though than that. Parasitism, however intelligent might well be an accurate description of the actions of men who choose a way of life for what they can get out of it, and abandon it when they get a better offer; or simply abandon it when its attractions dim, but it does not come anywhere near explaining in this particular instance the evident bonds of affection and loyalty which developed between the men who joined and their European officers. In this story, feelings matter. The Government's initial aim in setting up a Native Police Corps in the Port Phillip District was two-fold: it wanted a policing force to deal with bushrangers, and at the same time, it hoped to "civilise" the men of the Corps. In this work, the civilising aim is ignored, except in so far as it was expressed in regulations for living, though it may be noted in passing that the Corps was described as the only success of all the Government's policy initiatives with regard to Aboriginal people. But success in European terms is not the issue. This enquiry is directed at the terms of existence for the men themselves; it seeks to tell the story of their choice, and to understand and explain it. The story and the explanation both turn around the dual consciousness of being Aboriginal and being a policeman.