The role of the rapporteur

So what does a rapporteur do? I preface my answer with the observation that in exercising any legal power or function under Australian law, one is constrained by some basic features of our legal system. We are a community that accepts the rule of law. Any exercise of power must find its authority in the law, and be carried out within the limits of the conferred power and in accordance with any conditions or requirements attached to it. A power or function is conferred for a particular purpose, which is either expressly stated in the law or inferred from the nature of the law, and it can’t be used for any other purpose. In exercising the power, all relevant factors, and no irrelevant factors, must be taken into account. Again, what factors are relevant may be expressly stated in the law, or inferred from its purpose.

A power to make a decision that may adversely affect someone’s interests must also be exercised in accordance with the principles of natural justice, unless legislation otherwise provides. This means particularly that the person exercising the power should not be biased, or reasonably open to the suspicion of bias, and should give a fair hearing to anyone whose rights may be affected.

The role of the rapporteur is thus a quasi-judicial one; he or she must be independent and give a fair hearing to all interests affected and report fairly to the Minister, not omitting anything that is relevant to be taken into account, or giving weight to anything that is not relevant. The functions of the Minister and the rapporteur are thus confined within a procedural mould and cannot be exercised arbitrarily.

As a rapporteur I had to subject both sides of the balance to scrutiny and evaluation. Scrutinising and evaluating Aboriginal beliefs is an invidious task, particularly for a non-Aboriginal person. It is not surprising that people—any people—would resent having what are essentially religious beliefs scrutinised, particularly by someone who does not share those beliefs, or even the cultural framework within which they exist. It is not surprising that women may be reluctant to have their beliefs, especially gender-restricted beliefs, evaluated by a man. And it is certainly to be expected that many Aboriginals may resent having their beliefs evaluated by members of the dominant community that dispossessed them. These conflicts were among issues considered by Elizabeth Evatt when she was appointed to review the Act in 1995, and she made recommendations designed to mitigate or eliminate them, which the present Government has not adopted.[7]

For my part, I simply had to live with these problems, and do what I could to minimise their effects. Over and above the resentment of intrusion on their privacy and the inner sanctum of belief that might be felt by anyone whose beliefs are subjected to scrutiny, I have observed three specific things causing hurt or anger to Aboriginal people in these applications. One is scepticism of their veracity or bona fides, another is the ridiculing of their beliefs (a deplorable feature of the Coronation Hill dispute), and a third is the presumption of arguing that a belief is in some sense ‘disproved’ by showing that people have flouted it without incurring adverse consequences. It must be particularly galling to Aboriginals that these hurts are so frequently offered by the most ignorant and bigoted of white Australians, who are secure in a sense of their own intellectual superiority that is not obvious to anyone but themselves.

In coming to grips with the Aboriginal claim, a rapporteur will usually have the benefit of at least one anthropological report as well as direct input from Aboriginal people themselves. Sometimes a report may be obtained by one or more interested parties and then offered adversarially to the rapporteur. In less contentious cases there may be agreement on retaining a particular anthropologist to report. Sometimes there is complaint that anthropologists should not be used, but competent anthropologists are of enormous value. Their professional knowledge enables them to provide a context for the claim, and to cast light on its plausibility and its significance. In addition their linguistic and fieldwork skills enable them to collate evidence from Aboriginals that would take an inordinate time for the rapporteur to collect, if indeed it were possible. Sometimes the anthropologist may have worked in the relevant community for a long time.