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A belated ‘Recognition’ and a ‘new policy’ (Part 2)

Part Ten of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini

There could be no better way to express the firm view that for the last 229 years the Indigenous Peoples and Australians – meaning by that all those who began to arrive with Captain Phillip in 1788 and thereafter – have been speaking different languages, irreconcilable to either group.

Australians have been using words such as Constitution, modern liberal democracy, equality, fairness, justice, law, elections, government, parliamentary democracy and indeed sovereign and sovereignty which hardly live together. They have – as good Englanders should – honoured the English writer Alexander Pope (1688–1744), responsible for quipping: “a little learning is a dangerous thing.” This would not matter much in a world of approximation, anti-intellectualism and broad indifference to good speaking which is the place where “She’ll be right, mate!”

Furthermore, there is a religious tone to the Timmy Djawa Burarrwanga’s statement which is not understandable to and could never be shared by Australians. The ‘whites’, acting in turn as ‘abandoned Britons’, ‘aspiring Englanders’ and ‘multicultural’ acquisitions and accretions – and all aspirants or practitioners of the fine arts which demand Anglo supercilious politeness and/or the ‘playing of the game’ which goes with it, are limited and define themselves by an otherwise impressive variety of food, flags and costumes ‘Australian multiculturalism’. This is the best, current form of monocultural boganism – and at that, a successful one.

But in this ‘race to assertion’ the Indigenous and Torres Straits Islanders Peoples have always come second – when they have survived.

To be sure, much use was made during Prime Minister Howard’s eleven-year period of the expression “black armband view of history.” That was the appeal of John Winston Howard, whose main achievement was a grand waste of time: he wanted to appear ordinary to an extraordinarily ordinary populace, when all he had to do was to be himself – by definition, ordinary. Almost at the end of a long period of Philistinism he spoke of ‘practical reconciliation’, while preparing to send in the Army to re-occupy Indigenous Lands. He was a grand consumer of words such as ‘freedom’, and ‘democracy’. Those virtues were alright for Australians, so long as they continued to vote for his Coalition. Anyway, those words ‘sound well.’ And with those words went other mantra-like mystical words: ‘the Westminster System’, ‘parliamentary democracy’, and of course ‘the Mother Country’ – from time to time subject to re-definition, but always subliminal – and the Monarchy. It was – and remains – a sclerotic world in which history would not really matter much, confined in the popular view to recall names and particulars of such and such match, player, race, horse, march – and The Queen, with Her dysfunctional but Royal Family and Her Royal Firm. A combination of all such dross has remained the ‘winning ticket’ in Australian race.

On 21 August 2017 Mr. Bill Shorten, who is in fact the present Leader of Her Majesty Opposition, on being asked by a relatively young member of the audience: “Mr. Shorten: You’ve said you’ll put the idea of an Australian Republic and Head of State to the people by way of a yes or no referendum. Why do it now?”  Mr. Shorten took time to reply: “After two hundred plus years we are ready to have an Australian as Head of State. … By the end of our first term we would put the question: ‘Do you want to have an Australian Head of State.’ And to re-assure the audience he added: “It does not mean we do not like the Queen. She is excellent.” (21 August 2017, Bill Shorten on Q&A).

Other platitudes followed, but the speaker forgot to reflect that there is at present litigation in the Federal Court of Australia to establish whether correspondence between  a puce dipsomaniac Governor-General Sir John Kerr and the Queen – as well as correspondence with Prince Charles – is of a private nature or belongs to the Australian people, hence should be released to establish beyond any doubt whether there was conspiracy against the Whitlam Government in the Ambush of November 1975. There is a lingering suspicion that this was so because of the indiscretions passed between Prince Charles and Kerr in September 1975, at Port Moresby, during the official ceremony for the declaration of Papua New Guinea independence. (Jenny Hocking, ‘The palace treats Australia as the colonial child not to be trusted with knowledge of its own history’, 7 September 2017; Jenny Hocking, “Secret ‘Palace letters’ not so secret after all and where is Malcolm ?”, 13 September 2017; Jenny Hocking, “A Royal Green Light”: The Palace, the Governor-General and the Dismissal of the Whitlam Government, 23 October 2017, Pearls and Irritations).

If Howard revived the pass-par-tout – in its French, literal inception of ‘passes everywhere’, perhaps more modernly ‘everything goes’ – the deception continued for many years. As already seen, the Australian Government appointed an Expert Panel in 2011 and a Parliamentary Joint Select Committee completed its work in 2015. It became institutionalised with the setting up of an expensive exercise which lasted from 1915 to the gathering at Uluru in May 2017. Perhaps it may continue as a symbol, or shell of governments’ velleity – a wish or inclination not strong enough to lead to action.

On 7 December 2015 Prime Minister Malcolm Turnbull and the Leader of the Opposition, Mr Shorten, appointed a Referendum Council to consult widely throughout Australia and move towards achieving constitutional recognition of Indigenous People as ‘First Australians’.

In the view of the Department of the Prime Minister and Cabinet, the terms of reference were “to advise the Prime Minister and the Leader of the Opposition on progress and next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.” A discussion paper was made available for that purpose on ‘Constitutional recognition of Aboriginal and Torres Strait Islander Peoples’.

Throughout June and July 2016 the Referendum Council brought together Indigenous leaders from across the country in a series of meetings to discuss constitutional recognition and the process for consulting with Indigenous and Torres Strait Islander People.

Since its establishment, the Council led different forms of consultation on constitutional recognition in the Australian community. Twelve ‘First Nations’ Regional Dialogues were held across the country, in Hobart, Broome, Dubbo, Darwin, Perth, Sydney, Melbourne, Cairns, Ross River and Adelaide, Brisbane and the Torres Strait, culminating in the National Indigenous Constitutional Convention at Uluru on 24-26 May 2017.

The Council also held a digital consultation and invited all Australians to have their say on constitutional recognition. Submissions closed on 15 May 2017. (One can read about the process and options for reform on the Council website).

The purpose of the dialogues was to reach – in the government’s official view – “broad agreement on whether and, if so how, to ‘recognise’ Indigenous Australians in the Australian Constitution.” The dialogues were also to provide “an opportunity for participants to discuss the main options for recognition, understand what they mean, combine or modify existing options and rank options in order of priority.”

The priorities from each of the First Nations Dialogues were to be reported to a First Nations Convention at Uluru on 24 – 26 May 2017.

The Council met several times at Parliament House. Its consultations formed the basis of the Council’s Final Report to the Prime Minister and Leader of the Opposition on constitutional change, which was handed down on 30 June 2017. (The Final Report is available on the Referendum Council website).

There was a fundamentally underlying condition attached to this grand operation: the language to be spoken should be the current Australian. How difficult that would be one may very well see by returning to the complexities of Mr Timmy Djawa Burarrwanga’s statement. What happened to ngarra rom and mawul rom. And what consideration could be taken of the stentorian opening sentences: “It is really sad that non-Aboriginal people do not understand about our law. We cannot have traditions unless we know and respect ngarra rom and mawul rom. Ngarra rom is our law. Mawul rom is the law of peace-making. We hold ngarra rom in our identity. We have never changed our laws for thousands of years. It is like layers and layers of information about our country.”?

The answer to such question may not come from a very fortunate Indigenous person: Prof Ian Anderson, who in March 2017 was appointed as Deputy Secretary in Prime Minister and Cabinet. Prof Anderson was born in Tasmania and is an Indigenous person, but has spent the majority of his life in the Koori community in Victoria, where he has extensive family and community networks. A graduate in medicine, he worked for 25 years in Koori Health as general practitioner and a health educator. In his rapid career he went from Chief Executive Officer of the Victorian Aboriginal Health Service to becoming the Medical Adviser to the Office for Aboriginal and Torres Strait Islander Health in the Commonwealth Department of Health and Aged Care.

Prof Anderson has been active in the bureaucracy of Indigenous Heath for the past twenty years. He was also a council member (2003–2006) for the National Health and Medical Research Council and the Chair of its Aboriginal and Torres Strait Island Forum. Between 2006 and 2011 he was a board member of the Victorian Aboriginal Health Service and a member of the Australian Bureau of Statistics Advisory Group on Aboriginal and Torres Strait Islander Statistics.

Prof. Anderson went from being the Director of Research and Innovation at the Lowitja Institute, Australia’s National Institute for Aboriginal and Torres Strait Islander Health Research to being the chair of the Indigenous Studies Sub-Committee for the Academic Board at the University of Melbourne. There he was Foundation Chair of Indigenous Higher Education, Assistant Vice-Chancellor for Indigenous Higher Education Policy, and Director of the Murrup Barak Melbourne Institute of Indigenous Development.

One has the feeling of being in the presence of an extraordinarily able as well as fortunate high achiever. But it would be most un-envious to have the duty of establishing how much of Mr Timmy Djawa Burarrwanga’s urge is left in Prof Anderson’s bureaucratic preoccupations.

It may appear unfair to judge the gist of his speech at the Institute of Public Administration, dealing on 16 June 2017 with “Indigenous Affairs, Closing the Gap and Constitutional Recognition” from its conclusion, but here it is: “To conclude, I’d like to paint a picture of what the public administration of Indigenous Affairs will look like in this country when all the things I’ve been talking about come together.

Our operating model will be a collaborative partnership between the public sector and Indigenous Australia.

It will be founded on robust, accountable, and professional working relationships between each sector. Relationships in which shared decision making and mutual accountability are embedded as core operating principles.

And its strength and effectiveness will depend on the degree to which these relationships can be nurtured and matured across the breadth of interactions between sectors and at all levels of leadership – from the top, right on down to local community leaders and local program managers and coordinators.

What I’m really talking about is extending the joined-up way of working beyond the boundaries of the public sector and out into Aboriginal Australia.

At the same time, higher quality and more transparent data platforms will give us better tools for understanding the problems of communities and cohorts, measuring our successes and failures, and keeping ourselves accountable.

And on these foundations and the new capabilities and insight they give us, we will build an Indigenous policy system that is much more dynamic, much more responsive to diversity and innovation, and much better able to negotiate place-based contexts and create solutions with authority and buy-in.

Looking ahead, there’s a lot of work to do and a lot of challenges to overcome. There is also a huge opportunity to move Indigenous Affairs forward and make the deep, cumulative and long-term changes we all want to see.”

It is hardly risky to conclude that Prof Anderson has been completely ‘absorbed’ by the language of the Englanders, possibly under the preoccupation condemned by Freire: “At a certain point in their existential experience, the oppressed feel an irresistible attraction toward the oppressor and his way of life. Sharing this way of life becomes an overpowering aspiration.” Freire expanded on the point by writing: “It is not systematic education which somehow molds society, but, on the contrary, society which, according to its particular structure, shapes education in relation to the ends and interests of those who control the power in that society.” (P. Freire, Pedagogy of the Oppressed, Continuum, New York, 1970).

Prof Anderson was one of the government bureaucrats to be ‘institutionally embraced’ on the occasion of the fiftieth anniversary of the ‘Yes’ Referendum by which Indigenous People would be counted. The events would also mark the fiftieth years since the Commonwealth had gained a national role in the administration of Indigenous affairs, and established the of office Commonwealth public administration in Indigenous Affairs.

What really matters is that the Australian Constitution did not – and still does not – make adequate provision for Australia’s First Peoples. Instead, it expressly discriminated against Indigenous and Torres Strait Islander Peoples.

The Australian Constitution has failed to protect Indigenous and Torres Strait Islander rights as the first peoples of the country. Former Chief Justice of the High Court of Australia, Sir Anthony Mason, has referred to this as a ‘glaring omission’. (Sir A Mason, ‘The Australian Constitution in retrospect and prospect’ in The Mason Papers: Selected Articles and Speeches, G. Lindell ed., Federation Press, Sydney 2007, 144 at 148).

For example, the Racial Discrimination Act 1975 has been compromised on three occasions: each time it has involved Indigenous and Torres Strait Islander issues. Most recently, the Constitution did not prevent the suspension of the Act for the Northern Territory Emergency Response, ‘the Intervention’. Hence, it was ineffective in protecting the First Peoples from the most fundamental of all freedoms, the freedom from discrimination.

The Australian Government of the time went some way to lifting the suspension of the Racial Discrimination Act with the passage of the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010. Race Discrimination Commissioner Graeme Innes and Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda welcomed this as a ‘first step’. (Australian Human Rights Commission, ‘Passage of NTER Amendments a step in the right direction’, Media Release, 22 June 2010).

Indigenous and Torres Strait Islander Peoples have consistently fought to have their rights recognised and acknowledged by the Australian Government. Throughout Australia’s history, many Australians have supported Indigenous and Torres Strait Islander Peoples in these struggles. It is upon this historical foundation that Australians should be realising the need for constitutional change. At the federal level, bipartisan support to address the lack of recognition and exclusion of Indigenous and Torres Strait Islander Peoples and for amending the Constitution in this regard has been maintained since 2007. In his 2007 pre-election commitments former Prime Minister John Howard committed to a referendum to recognise Indigenous and Torres Strait Islander peoples. (The Hon J Howard MP, Prime Minister, ‘The Right Time: Constitutional Recognition for Indigenous Australians (Speech delivered at the Sydney Institute, Sydney, 11 October 2007). His successor Kevin Rudd referred to the need to work on constitutional recognition in the National Apology. (Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 172 (The Hon Kevin Rudd MP, Prime Minister). This position was further affirmed at the Community Cabinet meeting in Yirrkala, July 2008. (L Murdoch, ‘Place for Aborigines in the constitution’, The Sydney Morning Herald, 24 July 2008).

In favour of recognition much is made of the fact that Canada, New Zealand and the United States – to remain confined to Anglophone countries – have made some moves to recognise their ‘natives’ in their respective constitutional systems. The United States for instance has some 350 ‘treaties’ with native Americans. This is quite beyond the purpose of the present essay, and for a series of reasons is not quite accurate or comparable to the situation in Australia. Here political representatives of the major parties, the Laborites and the Liberals, seemed determined not to go beyond symbolic gestures, while most Indigenous People want a treaty instead.

“A glance at the constitution reveals the deep stain of racism and discrimination,” wrote journalist Jeff McMullen. “It is one of the few constitutions in the world today with negative race powers allowing government to make laws and policy that pointedly trample the rights of Aboriginal and Torres Strait Islander people.” (‘A new democracy’, Jeff McMullen, The tracker, March 2013).

In that article McMullen also wrote: “A retired Judge I hugely respect, former High Court Justice Michael Kirby, has summed up the situation we are now facing, understanding the record and noting the importance of recognising the rights of Indigenous and Torres Strait Islander People: “Constitutionally speaking, we are still basically White Australia, however much we boast that we have changed.” (Id.)

A survey released in May 2015 by the government-funded Recognise organisation found that that 87 per cent of Indigenous People would vote “yes” to be recognised within the Constitution. But in June 2015 another survey by IndigenousX, a social media platform across Twitter and Facebook, found that only 25 per cent of Indigenous People supported the Recognise campaign, with 58 per cent opposed. (Constitutional Recognition Survey, Indigenous X).

It would make some difference if Indigenous People were recognised in the preamble or the body of the Constitution. The preamble is not part of the constitution, and any change to it would have no legal consequences.

Alternatively, inserting a statement of Indigenous recognition into the constitution itself, could be open to interpretation by the courts, with the potential for outcomes at odds with today’s understandings of the statement’s purpose. (‘Should we alter our constitution to recognise indigenous Australians?‘, The Sydney Morning Herald, 4 December 2010, ‘Lack of Aboriginal language interpreters can cost lives‘, Creative Spirits, 13 August 2016).

Indigenous film-maker Ms Rachel Perkins, an Arrernte woman, believes that constitutional recognition could “lift the historical burden that sits like a heavy skin across our nation”, causing resentment among Indigenous People. She observed: “There is a deep subterranean feeling of burning resentment, carried within my people, that has been handed down from parent to child across six generations since 1788… This is the inheritance passed on to me. I do not want to resent my own country any longer.” (‘Rachel Perkins speaks out on the need to stand up for Aboriginal Australians’, The Sydney Morning Herald, 13 December 2014).

As things stand at the present, Australia’s Constitution does not recognise Indigenous or Torres Strait Islander Peoples’ prior occupation and custodianship of their land.

Actually, section 51(xxvi) allows special laws to be passed to the disadvantage of Aboriginal people, and section 25 enables state laws to disqualify people of a particular race from voting at state elections.

An expert panel recommended to remove sections 25 and 51(xxvi) and adopt new sections:

1) Add Section 51 (A) to recognise Aboriginal peoples’ occupation of the land and continuing relationship with lands and water. The section would also pay respect to culture, language and heritage, and state that the government can only make laws to the benefit of Indigenous People.

2) Add Section 116A specifically to prohibit racial discrimination for all Australians. It would forbid any government from discriminating against a person based on race, colour, ethnicity or national origin.

3) Add Section 127 (A) for recognition of languages and to acknowledge and protect the role that languages have in Aboriginal communities.

Continued Friday with: A belated ‘Recognition’ and a ‘new policy’ (Part 3)

Previous instalment: A belated ‘Recognition’ and a ‘new policy’ (Part 1)

Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.

 

 


2 comments

  1. David Bruce

    Excellent report Dr George and very timely. For the past two years I have been located in the Kingdom of Tonga, working with indigenous Tongans in both the public and private sector. As a constitutional monarchy now moving to a parliamentary democracy, Tonga is embracing the full western influence. If China has it’s way in Tonga, that will be a long slow process.
    Your references to the different laws and lawful policies, as opposed to legal issues and policies, made me reflect on the current situation in Tonga. Our legal system here and in most western countries is based on Admiralty Law of the Sea and Waterways. I am beginning to think we have to reconcile the different systems of law, perhaps gain a better understanding of the indigenous system of laws. Now I am listening to the endless list of regulations, recently amended by the Australian Government, for domestic and international air travelers. I doubt the current mob of Australian politicians have the will to improve the future of the indigenous population; instead of lifting the indigenous population out of the swamp, what are the chances of the entire population of Australia becoming a wage slave nation?

  2. Zorba le Greecian

    Great research George. The crux is: “Australia’s Constitution does not recognise Indigenous or Torres Strait Islander Peoples’ prior occupation and custodianship of their land.”

    Reconciliation is on hold until the day we get some adults in Parliament. MSM will ignore or at least muddy the waters on any kind of intelligent debate until enough momentum of goodwill from a wider public makes both MSM and their handlers irrelevant. I would like to see that in time but maybe that day is still decades away.

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