State Power, Intersectional Identity and the Lie of Equality Before the Law

Don’t ever try to tell me Indigenous Australians are treated as equals in this country. That claim is simply false.

~ Bakchos

I. PREFACE: THE WEIGHT OF TESTIMONY

There is a particular cruelty in being told, by the very institutions charged with your protection, that you are equal – when every lived experience instructs otherwise. For Indigenous Australians, equality before the law has long functioned not as a reality, but as a rhetorical performance: invoked in constitutional preambles and ministerial press releases, absent from police stations, courtrooms and the corridors of administrative power. The materials gathered here – drawn from the testimony of a United States human rights attorney, the personal statement of an Indigenous-Jewish Australian writer known as Bakchos (me), and the professional observations of a legal practitioner of five decades’ standing – are not exceptional. They are representative. They describe, with uncommon precision and from multiple independent vantage points, a pattern of institutional conduct that ought to disturb anyone who takes the rule of law seriously.

This essay does not traffic in unexamined allegation. It takes seriously the principle that allegations must be tested, that due process has value, and that institutional complexity is real. It does not ask for belief in lieu of evidence. What it does insist upon – and what the materials compel – is that credible allegations of discriminatory prosecution, evidence fabrication, and institutional concealment demand independent scrutiny, and that the refusal to provide such scrutiny is itself a form of institutional racism. Silence, in this context, is not neutrality. It is complicity.

The significance of this matter extends beyond Australia’s borders and beyond its domestic legal framework. Australia is a party to international human rights instruments that impose binding obligations on the conduct of its public institutions. When those institutions fail – and when domestic mechanisms prove inadequate to secure accountability – the international human rights system provides both a framework for analysis and a forum for remedy. It is in that spirit that this essay is offered: not merely as a contribution to Australian public discourse, but as part of a broader evidentiary record directed to the international legal arena.

II. THE PARTICULAR CASE OF BAKCHOS

At the centre of this account is me. I identify as Indigenous-Jewish: apart from my professional practice, I moonlight as a writer, commentator, and long-time contributor to the public record on race and governance in Australia. This dual identity – Indigenous and Jewish – is not incidental to the allegations raised. It is, on any fair reading of the materials, central to the character and motivation of the conduct alleged against me.

The core claims are as follows. Mark Mullins – described in these materials as the first and only Indigenous Commissioner for ACT Revenue (the Commissioner) – was dismissed from that position in circumstances that a credible insider source attributes to the deliberate orchestration of elements within the ACT Government’s Chief Minister, Treasury and Economic Development Directorate (CMTEDD). The dismissal was very obviously racially motivated. The official named as a key driver of that action, Mr Angel Marina, wrote a letter to the then Chief Executive of ACT Treasury, Mr Howard Ronaldson, on 9 May 2002. Mr Ronaldson has on multiple separate occasions acknowledged receiving this letter from Mr Marina. Mr Marina specifically asked that “… Mullins be dismissed from the ACT Public Service due to his unethical behaviour and the general disposition of Aborigines to lie and the criminal records of his family.” In the preceding paragraph of the same letter, Mr Marina stated “I believe that Mr Mullins is not qualified to act in the position of Director Revenue Management Branch. I have discussed Mr Mullins’ background with Ms Tanya Taylor, Recruitment Consultant of Ernst & Young who has confirmed my assessment that Aborigines are compulsive liars and criminals…”

Following a number of unrelated complaints about Mr Marina’s conduct from three female employees, none of whom identify as Indigenous, he subsequently resigned and moved to the Commonwealth Public Service. With that departure the Directorate is said to have considered its obligations discharged – a conclusion that speaks, less to institutional integrity than to institutional expediency.

What followed is more disturbing still. A Public Interest Disclosure lodged by the Commissioner in 2003 – raising serious allegations of racism against Mr Marina, and alleging serious misconduct, and corruption within ACT Labor and the Directorate – went entirely unaddressed by both the Directorate and the Australian Federal Police. The disclosure sits unacted upon for more than two decades: a document that, in a jurisdiction genuinely committed to accountability, would have prompted investigation. Its neglect is not a bureaucratic oversight. It is a statement about whose complaints are taken seriously and whose are not.

The prosecution of me, that followed my attempts to secure a copy of the Commissioner’s Public Interest Disclosure from CMTEDD, raises additional questions of the gravest kind. According to legal practitioners familiar with the case materials, the ACT Solicitor-General, Peter Garrisson, provided an affidavit to the Australian Federal Police that has been described, on any fair reading of the available materials, as a forgery. The first person who can be shown to have had possession of that affidavit was Ms Sue Hall of CMTEDD. Neither Garrisson nor Hall has, to the knowledge of those who have reviewed this matter, faced either investigation or charges for producing and using a false instrument. The AFP continued to prosecute me without first establishing the authenticity of the document upon which the prosecution rested. That the prosecution proceeded at all – and that the individuals responsible for allegedly fabricating its evidentiary foundation remain unaccountable – is, as one senior practitioner observed, something that in any other jurisdiction would have compelled the Chief Justice to act.

III. JUSTICE MOSSOP AND THE LIMITS OF JUDICIAL ACCOUNTABILITY

The conduct of Justice David Mossop during my 2017 hearing has attracted specific professional criticism. A legal practitioner of fifty years’ experience, who obtained a copy of the transcript through a New York-based colleague, states plainly that Mossop’s conduct, had it occurred in any other jurisdiction, would have compelled disciplinary action by the relevant Chief Justice. In the ACT, no such action was taken. The barrister acting for me during my trial noted of Justice Mossop’s handling of my case, “This judge isn’t interested in giving you a fair trial, he’s only interested in not getting appealed.”

This observation is important not merely for what it says about Justice Mossop, but for what it reveals about the ACT’s accountability architecture. Judicial conduct – particularly in matters involving parties from marginalised backgrounds – is an area where external scrutiny is especially necessary and where institutional insularity is especially dangerous. If a senior judge can behave in ways that practitioners regard as professionally unacceptable, and if no remedial action follows, the message transmitted to the community is unambiguous: the protections of the law are not equally available to all.

The ACT presents, in many respects, the face of progressive governance. It was the first Australian jurisdiction to introduce Human Rights Legislation in 2004, and it retains a reputation for social liberalism. Yet the materials gathered here suggest that reputation conceals a persistent failure to hold its own institutions to account – a failure that falls, with predictable weight, on Indigenous people and others from marginalised communities. The gap between a jurisdiction’s self-image and its institutional practice is not a minor inconsistency; it is precisely the gap within which discrimination is permitted to flourish, shielded by the complacency that progressive credentials tend to generate.

IV. AUSTRALIA’S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

The conduct described in these materials does not occur in a legal vacuum. Australia has ratified a suite of international human rights instruments that impose binding obligations on its government and its public institutions. The International Covenant on Civil and Political Rights (ICCPR), to which Australia acceded in 1980, guarantees in Article 26 equality before the law and the equal protection of the law without discrimination, including on the grounds of race and religion. Article 2 requires that Australia ensure effective remedies for violations of Covenant rights. Article 14 guarantees the right to a fair trial, and Article 17 protects against arbitrary interference with the person.

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified by Australia in 1975, goes further still. Under Article 2, states who are parties undertake to pursue a policy of eliminating racial discrimination in all its forms and to ensure that all public authorities and public institutions, national and local, act in conformity with this obligation. Article 6 requires that states provide effective protection and remedies through competent national tribunals against any acts of racial discrimination. The Human Rights Committee and the Committee on the Elimination of Racial Discrimination – the treaty bodies charged with monitoring compliance – have both observed, in their periodic reviews of Australia, that Indigenous Australians continue to face systemic discrimination in the criminal justice system and that accountability mechanisms remain inadequate to the scale of the problem.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Australia endorsed in 2009 after initially voting against it, provides additional normative force. Articles 7 and 8 affirm the right of Indigenous peoples to live in freedom from any act of violence or discrimination, and to maintain and develop their distinct identities. Article 40 affirms the right of Indigenous peoples to access just and fair procedures for the resolution of conflicts and disputes, including fair, independent, impartial, open, and transparent processes. These are not aspirational statements. They are commitments against which Australia’s institutional conduct is properly measured.

The specific allegations before us – discriminatory dismissal from public office, fabrication of evidence, failure to investigate a Public Interest Disclosure over two decades, and conduct by a senior judge that would attract disciplinary consequences in comparable jurisdictions – each engage these international obligations. The failure of domestic mechanisms to address them does not extinguish Australia’s international accountability; it triggers it. Where a state party fails to provide effective domestic remedy for violations of Covenant rights, the Human Rights Committee’s individual communications procedure under the Optional Protocol to the ICCPR provides an avenue for international scrutiny. Australia has recognised the competence of the Human Rights Committee to receive and consider individual communications since 1991.

V. INTERSECTIONAL IDENTITY AS A SITE OF VULNERABILITY

One of the most significant features of this case is the intersection of my Indigenous and Jewish identities. The human rights framework, as articulated in the attorney’s letter of advice, sent to me, is attentive to this dimension: intersecting identities expose individuals to distinctive forms of discrimination that mono-dimensional analysis consistently misses. A person who is both Indigenous and Jewish occupies a social position that is doubly marginalised and doubly subject to the particular hostilities directed at each group – hostilities that, when they coincide, do not merely add together but compound.

International human rights law has progressively developed tools for engaging with intersectional discrimination. The Committee on the Elimination of Discrimination Against Women’s General Recommendation No. 28 recognised that discrimination based on sex and gender is inextricably linked with other factors affecting women, and the principle has been extended across treaty body jurisprudence to encompass the compounding effects of race, religion, and other protected characteristics. The Special Rapporteur on the Rights of Indigenous Peoples has consistently emphasised that Indigenous individuals who sit at the intersection of multiple marginalised identities face heightened exposure to state-sanctioned harm, and has called on states to develop culturally competent accountability mechanisms capable of recognising and responding to that heightened exposure.

The implications for institutional conduct are significant. Policing and prosecutorial agencies that have not developed culturally competent approaches to intersectional identity – agencies that treat race, religion, and heritage as peripheral variables rather than central determinants of vulnerability – will, systematically and predictably, inflict greater harm on those who sit at the intersection of multiple marginalisations. There is no evidence in the materials before us that the ACT’s relevant institutions possess or have sought to develop such competence. The record suggests the opposite: that intersectional identity, in this instance, rendered me more vulnerable to discriminatory conduct, not less.

VI. THE PUBLIC INTEREST DISCLOSURE: A SILENCE THAT SPEAKS

The fate of the 2003 Public Interest Disclosure lodged by the Commissioner deserves extended consideration. Public Interest Disclosure regimes exist for a specific purpose: to provide a mechanism by which individuals with knowledge of wrongdoing within public institutions can bring that knowledge to light without facing retaliation or having their concerns buried by the very entities they concern. The integrity of such regimes depends entirely on whether disclosures are taken seriously and investigated impartially.

A disclosure that raises allegations of racism, misconduct, and corruption within ACT Labor and the Directorate, lodged more than twenty years ago, and unacted upon by either the Directorate or the Australian Federal Police, is not merely a procedural failure; it is a paradigm case of institutional racism in operation. The question I’ve posed time and time again is the right one: if the dismissed Commissioner had been white, would there have been the same silence? The answer, on the available evidence, admits no confident rebuttal.

The failure to act on the Commissioner’s disclosure also has compounding effects. When an individual’s attempt to invoke accountability mechanisms is ignored, the subsequent exercise of state power against that same individual – power wielded, on the allegations before us, through fabricated evidence and discriminatory prosecution – takes on a more sinister character. It suggests not institutional failure alone, but institutional purpose: the use of the machinery of the state to suppress legitimate complaint and to punish those who make it. Under Article 19 of the ICCPR and the jurisprudence of the Human Rights Committee, such conduct engages the right to seek effective remedy and the prohibition on reprisals against those who exercise their right to be heard by public authorities.

VII. THE SYSTEMIC PICTURE: CORRUPTION, RACISM AND THE ACT

The legal practitioner whose observations anchor this account does not shy from strong language. The conclusion that the entire ACT Government is corrupt and racist to its very core is a claim of great gravity, and one that demands engagement rather than dismissal. It emerges not from mere sentiment, but from decades of professional engagement with the materials and with the institutions involved.

The claim is not that every individual within ACT Government institutions is corrupt or racist. It is a structural claim: that the culture, practices, and accountability architecture of those institutions are such that discriminatory conduct can occur, can be concealed, and can go unremedied – and that this state of affairs is not accidental but systemic. That is a different and more serious allegation than misconduct by particular individuals, because it speaks to the conditions that enable and perpetuate individual misconduct.

The ACT is not unique in this respect. Across Australia, the relationship between Indigenous people and policing and prosecutorial institutions is marked by documented patterns of over-criminalisation, under-protection, and accountability failure. The Royal Commission into Aboriginal Deaths in Custody, reporting in 1991, identified systemic failures that remain, in most jurisdictions, inadequately addressed. Subsequent inquiries – the Little Children are Sacred report in the Northern Territory, the various reviews of the criminal justice system’s treatment of Indigenous women, the ongoing documentation of youth detention conditions – have told variations of the same story. The particulars of my case are specific to the ACT; the pattern they instantiate is national. And it is a pattern that Australia’s treaty body reviewers have repeatedly flagged, most recently in the Human Rights Committee’s 2017 concluding observations, which expressed concern about the disproportionate incarceration of Indigenous Australians and the adequacy of oversight of police conduct in Indigenous communities.

VIII. WHAT ACCOUNTABILITY DEMANDS

The prescriptions advanced by my New York attorney are sound, and they are worth restating in terms that make clear both their necessity and their urgency – and their relationship to Australia’s international obligations.

An independent public inquiry is essential. This cannot be an internal review conducted by the agencies whose conduct is in question. It must be independent in constitution, transparent in process, and coercive in power – able to compel documents and testimony, to examine prosecutorial decisions and evidentiary records, and to publish its findings without editorial interference from the institutions it examines. It should include experts with relevant international human rights and criminal prosecutorial experience. Its terms of reference should extend to the systemic conditions that enabled the conduct alleged, not merely to the conduct of named individuals. Australia’s obligations under ICERD Article 6 to provide effective remedies through competent national tribunals require, at minimum, that such an inquiry be constituted with genuine independence and adequate powers.

Immediate remedial steps must run concurrently with inquiry. The integrity of relevant evidence must be assured. The legal rights of those affected must be safeguarded. Where misconduct is substantiated, appropriate disciplinary or criminal measures must follow – and must be seen to be followed. Where wrongful prosecution or other harms are found, remedial measures must be proportionate and genuine: compensation where warranted, public acknowledgment where due, and restorative processes where the affected parties wish for them. The Human Rights Committee has consistently held that Article 2(3) of the ICCPR requires states parties to provide reparation to individuals whose Covenant rights have been violated, including compensation, rehabilitation, and guarantees of non-repetition.

Oversight mechanisms must be strengthened. The existing architecture of accountability in Australian jurisdictions – inspectorates, ombudsmen, integrity commissions – has demonstrated, in this and many comparable cases, that it is insufficient to the task of holding powerful institutions to account for discriminatory conduct. These bodies must be empowered with real investigatory and sanctioning authority. They must be adequately resourced, structurally independent of the agencies they oversee, and accountable not merely to government but to the communities most affected by the failures they are charged with preventing. International oversight – including engagement with the UN Special Rapporteur on the Rights of Indigenous Peoples and the UN Special Rapporteur on Contemporary Forms of Racism – provides a parallel and complementary avenue that should be actively pursued.

Cultural competency reform must be substantive. Training programmes that tick compliance boxes without changing institutional cultures have been a feature of Australian public administration for decades, and they have not produced the changes that advocates and communities have sought. Reform must be anchored in genuine community engagement, in the diversification of decision-making bodies, in the development of complaint mechanisms that function in practice rather than merely in theory, and in accountability structures that attach real consequences to the perpetuation of discriminatory conduct.

IX. THE OBLIGATION OF CIVIC AND INTERNATIONAL ENGAGEMENT

The case before us is not merely a legal matter. It is a test of what Australian democratic culture is prepared to tolerate, and of whether the international human rights system can be mobilised to hold a prosperous, treaty-bound liberal democracy to the standards it has formally accepted. The claim that Indigenous Australians are equal before the law is one of the foundational fictions of the Australian state: a fiction that, repeated often enough in formal settings, acquires the force of accepted truth. The materials gathered here are a challenge to that fiction – mounted by people with direct knowledge of the relevant facts, by practitioners with decades of professional experience, and by a person who has experienced the consequences of institutional discrimination in his own life.

The appropriate response to such a challenge is not defensive dismissal or institutional silence. It is the kind of sustained civic engagement that democracies require of their citizens and that the rule of law requires of those who profess to value it. That means demanding independent investigation, supporting those who speak out at personal cost, holding elected representatives to account, and refusing to accept that the gap between the law’s formal promises and its lived reality is either inevitable or acceptable.

It means, too, a willingness to engage the international human rights system as the resource it was designed to be. The Optional Protocol to the ICCPR, the individual complaints mechanism under ICERD Article 14, and the reporting cycles of the Universal Periodic Review are not merely academic constructs. They are instruments of accountability available to individuals and communities whose domestic remedies have been exhausted or are demonstrably inadequate. The international community of human rights practitioners, treaty bodies, and special procedures rapporteurs constitutes an audience and a forum that Australia’s domestic institutions cannot simply ignore. Their observations carry normative weight; their findings, while not directly enforceable, shape international reputation and contribute to the evolving standards by which state conduct is judged.

X. CONCLUSION: TRUTH, ACCOUNTABILITY, AND THE LONG WORK

The human rights attorney whose letter opens this account closes with a call to defend democratic principles. That is the right framing. What is at stake in the case of Bakchos is not only the fate of one person – though his fate matters, and the harm he has experienced is real and serious. What is at stake is the credibility of Australia’s commitment to equal justice: a commitment that cannot be sustained by rhetoric alone but must be demonstrated, repeatedly and at cost, through independent investigation, meaningful accountability, and structural reform.

The conversation that these materials represent – between an American human rights attorney, an Indigenous-Jewish Australian writer, and a veteran legal practitioner – is the kind of conversation that democratic societies need and too rarely permit. It is direct. It names specific individuals and specific failures. It demands specific remedies. It does not ask for uncritical belief; it asks for impartial investigation and procedural fairness. That is not a radical demand. It is the minimum that the rule of law requires, and the minimum that Australia’s international obligations compel.

The long work of justice – in Australia, as everywhere – is not accomplished by a single inquiry or a single reform. It requires sustained attention, institutional commitment, and the willingness of citizens and of the international community to insist, year after year, that a state live up to its stated values and its treaty commitments. The communities most affected by the failures described here – Indigenous Australians, Jewish Australians, those who live at the intersection of both identities – have borne the costs of that failure for too long. The obligation to act falls not only on domestic institutions, but on all those who have accepted the architecture of international human rights law as binding on the conduct of states.

The law’s promise of equality is not self-executing. It requires people willing to insist on it – and institutions, domestic and international, with the integrity to deliver it. On the evidence gathered here, that integrity has been found wanting within Australia’s own structures. The work of restoration begins with acknowledgement, and acknowledgement begins with the willingness to hear what those who have been harmed are saying. They are saying: we are not equal before the law, and we have the evidence to prove it. The only question is whether anyone with the power to change that – in Canberra, in Geneva, or before the treaty bodies to which Australia has made its commitments – is prepared to listen.

— Bakchos · Blak and Black —