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Justice and indigenous affairs

by Simon Longstaff

Listen to the likes of Pauline Hanson and you will hear a simple message: "In the name of equality and fairness, all Australians must be treated the same".

The logic of this position helps to explain the consistency with which Ms Hanson returns to the issue of the 'unequal' and 'unfair' benefits made available to Aboriginal Australians. To be fair, Ms Hanson is not saying that Aborigines should be treated less favourably than other citizens – only that they be treated the same.

On one level, this is clever politics. After all, the power of this message lies into its ability to tap into one of the more enduring myths about Australian society – that it is the home of equality where everyone gets a fair go. At another level, it seems that Ms Hanson is sincere in her views. Indeed, she probably believes that she occupies the moral high-ground and that her position is just.

However, has she ever stopped to wonder about her starting position? Has it ever occurred to her that treating people equally can, on occasions, be unjust. In other words, does she realise that 'equality' and 'fairness' may require mutually exclusive outcomes?

To understand how this can be the case, it is necessary to examine three different versions of ‘justice’. In the first version, 'justice' is taken to require strict equality. This is the position adopted by Ms Hanson. According to this view, all people should be treated exactly the same, in all circumstances and despite any differences between them.

The second equates 'justice' with procedural fairness. As such, the outcome of any decision is not considered relevant – just so long as the rules for deciding the outcome have been followed. The third version of 'justice' looks to a fair outcome. This approach allows (or requires) that relevant differences be taken into account.

The different approaches can be illustrated by a simple example. Imagine that it is late at night when two bedraggled figures emerge from the rain to ask you for assistance. One is a homeless person who needs ten dollars to buy something to eat. The other is an acquaintance who, having misplaced her wallet, needs ten dollars to pay for a cab. She would normally walk, but the late hour and the rain are a disincentive.

Now, assume that you are happy, in principle, to assist either person. However, you only have two five-dollar notes in your wallet. Strict equality would require you to give one five-dollar note to each person. If the normal rule is 'first come first served', then procedural justice would have you give all of the money to the first person who asks. Justice, as fairness, would require you to consider relevant differences. As such, you would probably conclude that the homeless person has the greater need and on that basis, give him the ten dollars. Given these options, it should be clear that preaching a message of 'equality and fairness' is not as simple a matter as it seems.

Take another example from real life. War veterans are entitled to apply for a pension. For the majority, their entitlement will be subject to means-testing.

Those disabled because of injuries sustained during the war, receive compensation irrespective of their means. In neither case, are these benefits available to all Australians on an equal basis. However, who would condemn the provision of these benefits as being unfair?

For Pauline Hanson to be consistent, she should have to mount a campaign against this group of pensioners. But, I bet she won't. Apart from anything else, Ms Hanson is bound to recognise that it would be unfair to deny support to people who have suffered for the sake of their country. However, in reaching this position, she will have conceded the vital point that there is at least one instance when fairness trumps equality and when 'relevant differences' – such as injury in war – must be taken into account. From then on the real question becomes, "Who else deserves some measure of special treatment?"

This is not the place to develop a comprehensive answer to that question. However, given the amount of attention paid to Aboriginal people, it is important to make a few points about the nature of their particular circumstances. First, it should be noted that Aboriginal people do not base their claim for special consideration on the issue of their race. Rather, they start from two separate but related points – specific need and their tragic recent history.

In relation to the first point, it is enough to note that many Aboriginal people continue to live in atrocious conditions defined by; inadequate housing, poor health, high mortality rates and so on. Anybody living in these conditions would have a sound basis for claiming assistance – whatever their race. Many of the present needs of indigenous people are the product of past injustice. The things done to Aborigines may have been well-intentioned, they may have involved the best solutions known at the time. However, there can be little argument that the results, for most, have been disastrous.

It is the common experience of some people that allows them to be treated differently as a group. Aboriginal people have special needs because of their common experience – and not because of their race. In this, they are just like other groups whose experience singles them out for particular attention – veterans, farmers in drought-affected areas and so on. In each case, a measure of unequal treatment is fair.

Justice is a complex concept unable to be reduced to a set of simple platitudes. If we take its demands seriously, then we will find ourselves having to wrestle with the particular circumstances giving rise to each person's claim for a fair go.

Treating everybody as if the same is, in many cases, the ultimate form of marginalisation and disrespect. It treats a person as if an object, it reduces them to a standard unit in which their difference and hence, their humanity, is denied.

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