By Dr George Venturini
Recognition. Of what?
The latest pressing adventure seems to be the “Recognition of Indigenous People in the Constitution.”
Hardly anybody has cared to explain the miserable content of that merchant-use document, where the only seriously debated issue flows from sec. 92 on interstate trade. The other sections are expressions and tools – some of them quite noxious – in the hands of ‘recognised powers’ or for use of ‘reserve powers’, by which is meant the Crown or the monarch in London, whoever s/he may happen to be.
The rest is stale, passé, conversation of the kind which goes with the discredited qualification of ‘academic’. So, now come the Liberals – well, most but not all of them, the Nationals – probably countable on one mutilated hand, and the Laborites, with some silent voice and some illustrious opposing, to declare their agreement to ‘recognising’.
The matter has been around for some years. And let us be clear.
For about 140 years ‘Frontier wars’ raged across the continent. Historians generally regard the wars to have ended in 1928 with the killing of 31 Warlpiri people by a police punitive party at Coniston in the Northern Territory. They were studied and documented by distinguished historian professor Henry Reynolds in Forgotten war (Sydney 2013).
Several Australian historians, and recently Henry Reynolds, have proposed that the Australia War Museum remember the Frontier wars, by erecting a memorial to the Indigenous Frontier war dead alongside existing sculptures commemorating Australian war dead which line Anzac Avenue in Canberra leading to the War Memorial. But the Museum has steadfastly refused to consider the matter. The War Memorial Council has insisted that frontier conflict falls outside its charter – a claim which is disputed by historians and military academics.
War memorials honour the fallen in battle and celebrate sacrifice and valour in war. They are central to a country’s national identity. Australians should commemorate Indigenous People – more than 20,000 of them – who fell fighting the invaders on their lands.
This is a fundamental issue; it is incumbent on non-Indigenous Australians to own their past and accept that the invaders and successive generations perpetrated wrongs against Australia’s Indigenous Peoples.
After the second world war, Indigenous People even in the remotest areas of the central-western Australian desert, of the Kimberley and of the Arnhem Land were no longer massacred. Throughout the long, soporific Menzies’ conservative government – 1950-1966 – they continued to be segregated as far as possible in reserves and on ‘mission’ stations, and ignored. Most had no vote to trouble politicians and no rights, except special rights of the kind reserved to ‘protected’ people, such as the right – and the corresponding duty – of not drinking alcohol. ‘Fringed-dwelling’ Aborigines continued to exist in ghettos on the outskirts of most country towns. They were prevented by custom and terror from using public facilities on the same terms as ‘white’ Australians.
The ‘great Australian silence’ continued until anthropologist William E.H. Stanner delivered his 1968 Boyer lecture: ‘After the dreaming’, black and white Australians – an anthropologist’s view.
By the end of the year 1972 things began to change. The Whitlam Government recognised Aboriginal land rights on federal lands. Since then, state governments have legislated to permit – albeit very, very slowly – such claims on un-alienated land within their boundaries.
Three years later came the Royal coup.
In 1988 then Prime Minister Bob Hawke, while visiting a Northern Territory Aboriginal community, promised Australia would enter into a treaty with Indigenous Australians by 1990. Words, just words: the treaty never eventuated.
The most graphic and significant event for land rights followed the long legal fight waged by the indomitable Torres Strait Islander Eddie Mabo. Mr. Mabo had been appalled to find out that his ancestral garden on Murray Island was not protected by his law – it belonged to the Crown. He fought his case all the way to the High Court. On 21 January 1992 Mr. Mabo died. Five months later, on 3 June 1992, the High Court announced its historic decision, overturning the doctrine of terra nullius. (Mabo v. Queensland (No.2), (1992 175 C.L.R. 1,  H.C.A. 23).
The High Court went beyond Mabo’s garden: it recognised that the whole of Australia, had belonged to Indigenous People and Torres Strait Islanders all along. It declared that though it might be legally unviable for Indigenous People to claim all privately owned land, they had a right to un-alienated land and were the traditional owners of all of Australia.
The Court stated a principle, but there were bigger problems to be solved – and most have remained there.
Five years later, in 1997, the Bringing them home report, concerning stolen generations of kidnapped and de-tribalised Indigenous children, was tabled in Parliament. There followed much debate, but demand for adequate remedies and compensation fell on deaf ears during the eleven years of the morally deaf Howard Government.
Nineteen years after, Indigenous deaths in custody continue. Indigenous life expectancy is still almost twenty years behind that of non-Indigenous people. As at January 2016 Indigenous People, still 2.5 per cent of the population, accounted for nearly 28 per cent of gaol inmates and 20 per cent of the deaths in custody. Aboriginal imprisonment has increased 57 per cent during the past 15 years, although some sources put the rate of increase at 88 per cent in the past 10 years. Most alarming are the figures for women and juveniles. Since 2000 the imprisonment rate for Indigenous women increased nearly 60 per cent, compared with 35 per cent for men. Indigenous youth are now 31 times more likely to be in detention than non-Indigenous juveniles, despite the overall decrease in crime throughout Australia over the past 20 years. In the State of New South Wales, by the time Indigenous People have reached the age of 23, more than 75 per cent have been cautioned by police, referred to a youth justice conference or convicted in a criminal court. The corresponding figure for the non-Indigenous population is 16.9 per cent. Western Australia has its own special problems: accounting for 3 per cent of the State’s population, Indigenous People make up 40 per cent of its prison population. And – something which should attract the attention of the ‘average Australian’, ‘white’ of course – the State of Western Australia is spending about $ 250 million a year to imprison Aboriginal adults. In 2015 it cost $300,000 a year to keep a minor in detention. For children who have the greatest number of ‘contacts’ with the Western Australian criminal justice system, based on auditor-general figures, that is running at about $ 500,000 a child.
Fewer than one in 10 urban Indigenous persons achieves a university degree, and fewer than 3 per cent in remote areas.
Indigenous People and Torres Straits Islanders had to wait until February 2008 for Prime Minister Rudd to offer a broad apology to all of them and to the Stolen Generations for their “profound grief, suffering and loss” in a carefully worded statement which was greeted by a standing ovation. Incidentally, Peter Dutton, who has the mind of a 1920s Queensland constabulary, and is at present Minister for Immigration and Border Protection in the Malcolm Turnbull Government, when simply an Opposition front bencher refused to participate and abstained from the apology.
Thousands gathered in Canberra to watch the historic apology, which was televised around the nation and shown at special outdoor settings in remote Indigenous communities. Many of those watching had personal experience of the forcible removal of people, and there were emotional scenes as the apology was delivered. The emotion was overwhelming, the rhetoric was high, but there was no mention of compensation which ordinarily, under the law of civilised countries, follows the admission of tortuous behaviour.
Anger and resentment may not be justifiable, perhaps – but people practiced in the business of deception should understand the feeling of the victims and their cynical view that the ‘white man’ is a con.
Nine years ago began what was even more insensitively called ‘the intervention’ in Indigenous communities in the Northern Territory. That was prompted by another report, this time by the almost self-anointing title Little children are sacred which dealt with child abuse in some ‘re-settlements’ in the Territory. It was done in the heavy way, which almost symbolises an ‘Australian way’ of facing social problems: the sudden arrival of troops and police contingents – clearly seen as ‘re-occupation’, and an insufficient number of health workers.
Introduced by the Howard Government during the lead-up to the November 2007 federal election, The Northern Territory National Emergency Response was a combination of changes to welfare provisions, law enforcement, land tenure and other measures, most of them in violation of international treaties and obligations, and allegedly to meet claims of rampant child sexual abuse and neglect.
In the end, the Australian government’s ‘response’ implemented only two out of ninety-seven of the report’s recommendations. The ‘response’ was harshly criticised by the then Labor Opposition, but received bipartisan parliamentary support. The Rudd/Gillard/Rudd governments did make some adjustments to its implementation. The government of Prime Minister Gillard continued to support certain aspects of the ‘response’. It was simply another move: from paternalism to maternalism.
The 97.5 per cent majority stood by while governments suspended the right of people in Indigenous communities to be free from racial discrimination, so that the government could send troops into Aboriginal communities without their consent, reclaim land and implement paternalistic policies such as welfare quarantining.
United Nations expert on racism panels have complained for years that the Northern Territory ‘intervention’ continues to discriminate on the basis of race and restricts Indigenous People’s rights to land, property, social security, adequate standards of living, cultural development, work and legal remedies. One is certainly not confident as to what impression young new-comers from Africa or from mainland Asia – Indian students, for instance – should have in view of a continuous experiencing of racial targeting, harassment and slurs.
It is early in the piece to predict what will happen to the latest report: Recognising Aboriginal and Torres Straits Islander Peoples in the Constitution. But the chances are not the best.
On 8 November 2010 Prime Minister Gillard announced the establishment of an expert panel for the purpose. The panel was given terms of reference on 23 December. The panel delivered its report to the Prime Minister on 19 January 2012.
Punctually, on 27 January 2012, the former ‘Labor’ New South Wales Premier and at the time the Foreign Minister in the Gillard Government, Robert John ‘Bob’ Carr, commented: “Suddenly we are presented with a demand for ‘Aboriginal sovereignty’ – which can only mean separatism – which nobody has defined and which, on principle, 99 per cent of Australians would oppose and a majority of Aborigines oppose.”
The main recommendations are for the repeal of sec. 25 of the Constitution, which carries Provisions as to races disqualified from voting, for the amendment of sec. 26 (xxvi) concerning the legislative powers of the Commonwealth Parliament in relation to The people of any race, for whom it is deemed necessary to make special laws; and the insertion of new sec. 51A on recognition in the Constitution; sec. 116A on prohibition of racial discrimination; and sec. 127A on recognition of languages.
Then Leader of the Opposition, Mr. Abbott referred to these reforms in a ‘statement of clarification’. This may give the impression that there was firm ‘bipartisan’ commitment to put forward a recommendation for a referendum. But the matter had already been trivialised and abused by irresponsible commentators and the many voices of Murdochracy had already claimed that succeeding events may frustrate any success of a referendum. In any event, the Gillard Government, so solicitous in proposing the new study, did not seen fit to set down a date for the referendum – firm or approximate. Nor did the shortly succeeding Rudd government, the former Abbott government, or the present Turnbull government. The issue of constitutional recognition is now likely to be pushed beyond the date for an election, its future dependent upon the present government being willing to restart the process – maybe.
It is quite on the cards that the Indigenous and Torres Straits Islander Peoples could be taken once more from one enticement to another, and another, and another and one final swindling.
To be continued . . . Tomorrow: Recognition. Of What? (continued)
Dr. Venturino Giorgio Venturini – ‘George’ devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975, invited by Attorney-General Lionel Keith Murphy, Q.C., he left a law chair in Chicago to join the Trade Practices Commission in Canberra – to serve the Whitlam Government. In time he witnessed the administration of a law of prohibition as a law of abuse, and documented it in Malpractice, antitrust as an Australian poshlost (Sydney 1980). He may be reached at George.Venturini@bigpond.com.
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