By Dr George Venturini
Recognition. Of what? (continued)
People who rely on an unwritten tradition must be provided with a long memory. Indigenous people have a long history and a long memory.
The major part of the other 97.5 per cent can afford approximation, because in the general indifference the people of ‘unhistory’ can be made to believe anything, anytime – for a time, anyway.
What history is studied by that majority disregards all the mistakes, all the atrocious abuses of 228 years of occupation. That ‘history’ is surrounded by a continuous fog, and to top it all up, by way of short cut, the story of Australia seems to have begun at Gallipoli. That is, with the same rhetoric which triumphs at the celebration of Anzac Day. Forward now to April and more Anzackery!
Delivering his talk at the Festival of Dangerous Ideas at Sydney Opera House on 31 August 2014, John Pilger wondered: is there a danger of paternalism in a white, non-Indigenous man speaking on Indigenous people’s behalf?
“Well, you could ask [the well known and respected historian] Henry Reynolds that, or any of the other chroniclers or allies of Aboriginal people.” said Pilger. “I don’t speak on behalf of Aboriginal people. All my views have been well and truly discovered from the moment I – quote – ‘discovered’ Aboriginal people when Charlie Perkins [the late Indigenous activist] took me to the Northern Territory.
All of my views have been developed and honed by my association with Aboriginal people. I never speak on behalf of them, and I think if you ask any of those interviewed by me, they would say the same.”
Is ignorance or denial to blame for the ‘great Australian silence’ he identified ? “All those things.” he answered. “There may not be rights, there may not be good healthcare for Aboriginal people, there may not be land rights, but there sure are plenty of excuses. Australia is a land of excuses. It’s usually blaming the victim, and follows a colonial pattern.”
What Australia is missing, he said, is the celebration of its most enduring culture. “You find – and this is really puzzling to foreigners – almost a contemptuous view of Indigenous people.” Moments of optimism such as the 1967 referendum which granted Indigenous people citizenship in their own country, or the 2000 march for reconciliation, were both about ‘ticking a box’.
While the majority who walked across the Harbour Bridge [on 27 May 2000] were sincere, as were those running the Sorry campaign, Pilger called them “small-L liberal campaigns that assume goodwill on the part of the political leadership of Australia. There isn’t the goodwill.”
Mr. Pilger called for a treaty with Australia’s Indigenous People, not all of whom support what some see as an important first step: constitutional recognition. But if Australia can’t have the kind of conversations swirling round the war memorial, how will it find the words to write a treaty?
“A treaty could be the beginning” said Pilger, who believes that a majority would welcome what he likens to a bill of rights for Indigenous People – covering health, land rights, educational rights and the right to live securely. “All those questions that you raise could be dealt with in a treaty. It could be all-encompassing, not just a piece of paper.”
Pilger cited the Alyawarr, Arrernte and Anmatjerre elder and actor Rosalie Kunoth-Monks when he restated that Indigenous people never ceded ownership of Australia. “This would be an historic convention, long overdue. Some would say, a couple of hundred years overdue, between the original owners of the country, who have never ceded ownership, and the colonisers.”
All the advances of the latter 20th century – “Mabo, native title, Wik and so on” – have been distractions, he added. A treaty is the main game.
“Until that happens then Australia will be, even compared with other colonial states, quite primitive. Compared with New Zealand, the United States and Canada, where there are many problems, in Australia there isn’t even the will or the goodwill to recognise these problems. There’s an indifference that easily becomes cynicism.”
The matter of recognition has been around for some years. (Australian Human Rights Commission, ‘Constitutional reform: creating a nation for all of us’ (2011).
There is a long history of Indigenous and non-Indigenous people calling for ‘recognition’, including:
1938 – Aborigines Conference
1967 – Referendum and preceding campaigns
1988 – Barunga Statement
1988 – Constitution Commission’s Report
1995 – Social Justice Package submissions
1999 – Referendum on the preamble of the Constitution
2000 – Council for Aboriginal Reconciliation Report
2008 – 2020 Summit
2008 – Social Justice Report
2009 – Australian Human Rights Commission
Professor Megan Davis, who is the Director of the Indigenous Law Centre at the University of New South Wales, who had a prominent part in the preparation of the report submitted on 19 January 2012 to then Prime Minister Gillard, observed that there are a number of key possibilities for reform within the existing provisions of the Constitution, some of which have been proposed over the years including:
- inserting a new preamble recognising Aboriginal and Torres Strait Islander peoples – — amending the races power (sec. 51 (xxvi)) – either total repeal or amendment so that it can only be used for beneficial purposes
- the deletion of sec. 25, which contemplates electoral disqualification on the basis of race
- dedicated parliamentary seats for Indigenous people
- the entrenchment of a treaty or a treaty-making power
- the protection of Indigenous-specific rights, such as rights to lands and territories
- guarantees of equality and non-discrimination
- changes to how federalism impacts on Indigenous people
- the move to an Australian republic. [Emphasis added] (Megan Davis and Dylan Lino, ‘Constitutional Reform and Indigenous Peoples’ (2010) 7(19) Indigenous Law Bulletin 3, 3-4).
Such reform could be seen as the lynchpin of a new stage in the reconciliation process. It might open up the Australian political and legal system more actively to include Indigenous peoples. And this is reflected in the United Nations Declaration on the Rights of Indigenous Peoples negotiated over more than two decades between nations and Indigenous peoples. The Declaration was adopted by the United Nations General Assembly in 2007 by an overwhelming majority of 143 votes in favour and only four votes against, cast by Australia, Canada, New Zealand and the United States. Good company!
Professor Davis returned once again to the subject of recognition of the Indigenous People in the constitution and concluded that ‘Recognition alone won’t fix indigenous affairs’. She expressed her plain views in an essay titled ‘Gesture politics’ (The monthly, December 2015-January 2016,ttps://www.themonthly.com.au/).
“Despair” was her opening word, and she went on: “ … this is the universal sentiment of the Aboriginal and Torres Strait Islander leaders I have spoken to about the state of Aboriginal policy in Australia. The gentleman of Australian politics, former Aboriginal affairs minister Fred Chaney, put it this way when he spoke to the Australian before Malcolm Turnbull’s coup: “I’m despairing, quite honestly. In a way I think the war is lost, because I think politicians are so f . . king stupid.” Make no bones about it, deep funding cuts and uncertainty about government plans have created, as Aboriginal and Torres Strait Islander Social Justice Commissioner [at the Australian Human Rights Commission] Mick Gooda suggested, “one of the largest-scale ‘upheavals’ of Aboriginal and Torres Strait Islander affairs.”
The sources of that despair were many; and “A cursory glance at the papers wouldn’t suggest much is wrong. Cut-and-paste government press releases routinely masquerade as analysis; “bipartisanship” is the technical term for “move away, nothing to see here”; and a prime minister visiting an Aboriginal community for a few days – a seriously unremarkable thing for a prime minister in days gone by – is conflated with policy. There is a taxpayer-funded campaign to bestow settler recognition on Aboriginal and Torres Strait Islander peoples in the Constitution, while the purported subjects of that recognition are ambivalent, at best, because they are overwhelmed with what Marcia Langton has labelled “the most incompetent and damaging experiment in Indigenous Affairs in many decades.” [Emphasis added].
Since being elected [in 2013], the government has overhauled its policy approach to Aboriginal and Torres Strait Islander peoples’ affairs, creating the Indigenous Advancement Strategy. It’s a strategy that, according to Gooda, has a “lack of clarity” and is “causing widespread uncertainty and stress”. The “advancement” involves, among many things, the streamlining of some 150 programs into five streams. These five streams are not decided by Aboriginal people, mind you. [One “big cauldron”, as an Indigenous activist called it]. The funding for specialist agencies is now siloed in a single department. The first application process for funding was a circus. The selection procedure, as only the Australian newspaper uncovered, was defined by lack of transparency, no clear guidelines and no empirical evaluation of what works. Consequently, important grassroots community initiatives had their funding reduced or received nothing.” [Emphasis added].
Professor Davis offered several examples of government failure, with the result that “[w]hile Aboriginal children will bear the brunt of the cuts, that swelling cauldron became paydirt for not-for-profits and corporates with Reconciliation Action Plans, whose missionary zeal of “philanthrocapitalism” has replaced self-determination as the path to modernisation – and all on taxpayer coin. Noel Pearson refers to these beneficiaries as “parasitic”. He is rightly frustrated that, as he told the Australian, “most Australians have no idea that the greatest beneficiaries of investment of indigenous funds are non-indigenous organisations not based in the communities in whose name the expenditure has been justified by parliament.” [Emphasis added]
And professor Davis concluded bitterly: “Yet the narrative fed to the media was that those who were not funded were undeserving. If you were not funded, you were not effective. Simple.”
As the mild mannered Patrick Dodson told The Australian, “How do we expect to see growth, development and independence in the Aboriginal community if they are not part of how resources are being expended?” Davis, of course, agreed.
“Meanwhile, oblivious to the greatest upheaval in decades, earnest folk retweet support for recognition while the manifestations of the ancient culture that such an act would reify face obliteration around the country” commented Davis. And the evidence?
“Sydneysiders routinely cycle and stroll across rock engravings because the protection framework is unenforced and underfunded, and vandalism – yes, vandalism – has become a threat to Aboriginal cultural sites nationwide. Amendments to the Western Australian Aboriginal Heritage Act threaten ancient rock art, and the decision to protect or not lies in a narrow definition of “sacred” – devoted to a religious use but not subject to mythological belief.
Given that heritage is mostly the responsibility of states and territories, how does recognition of indigenous culture in the Constitution lead to its protection? Through the vibe?” wondered the writer. And she specified: “Herein lie two problems of the recognition project. First, what is the problem the nation is trying to fix? And second, how is the upbeat and hyperbolic narrative of “recognition” related to the chaotic public policy and the facts on the ground?
[T]he present phase is also distinguished by “bipartisanship”. Bipartisanship has been essential for the Council of Australian Governments’ closing-the-gap agenda. Intuitively, bipartisanship makes sense – it promotes coherency and continuity. But it does not always sit well in a parliamentary liberal democracy, where institutions function on the mediation of disagreement. Bipartisanship has limited, and on occasions excluded, Aboriginal and Torres Strait Islander participation in policy development.
A handpicked group of indigenous and especially non-indigenous advisers cannot be a proxy for that input.”
Recognition, as presently conceived, is not that narrative, although it could be, according to Davis. “But in the absence of an attendant framework providing for participation in and scrutiny of decision-making between ballot boxes, it is all gesture politics.”
Professor Davis went on to examine various suggestions, put forward by Tony McAvoy SC, the Empowered Communities, Marion Scrymgour and Noel Pearson amongst others, and the media reaction to them. The respectful press was just reeking hypocrisy: the proposals were too complex, too difficult.
Here is Davis again: “The despair and voicelessness are being channelled into clever and thoughtful law reform ideas, which the state has not been prepared to countenance. June Oscar nailed it in regard to funding: “While we are expected to meet every compliance requirement, how do we ensure equal accountability on the part of this government?” And this is it in a nutshell. This is the kind of meaty, hard-headed, sophisticated debate the Aboriginal community wants directly with the Australian community.”
Professor Davis spelt it out clearly: “We are not seeking recognition. We are seeking more. We are seeking formal, institutionalised safeguards and the right to be consulted, and to participate actively in decision-making. [Emphasis added].
Instead, in the place of serious law and policy debates, the polity has adopted contrived rituals of forced attention: a low-hanging hook to sling its hat on. Recognition risks becoming this. Some recognition is better than no recognition, [Emphasis in original] we are told. Or worse, that symbolism is substantive reform, or that any change to the Constitution is more than symbolic; as if the natives aren’t well attuned to settler semantics. When we push back, saying we are seeking reform, not non-reform, something transformative, not decorative, we are described as ambitious; [Emphasis added] the blacks are taking a hard line. [Emphasis in original] They, on the other hand, routinely and unselfconsciously describe themselves as modest, considered, conservative.[Emphasis in original] The presupposition in the mainstream recognition conversation, that this was only ever about symbolism, is erroneous. It is restraining any sophisticated public debate.”
Reaching a point of exasperation, professor Davis wrote: “Most of the mob are waiting on a model before they can say which way they would vote. In fairness, this is a position any reasonable person would take before forming an opinion. The uncertainty alone distinguishes this process from the unanimity of 1967. There are a number of camps: a principled-resistance camp, a resistance-to-anything camp, a wait-and-see-camp, a not-yet camp. It is certain that the no-referendum option will also be on the table. [Emphasis added].
The meeting of 40 Aboriginal and Torres Strait Islander leaders at Kirribilli House [in July 2015] reflected what is arguably the indigenous middle ground; what symbolism and minimalism constitute. A model that provides only preambular recognition, deletes section 25 (provision for disqualification of races from voting) and moderates the race power does not go far enough, and would not be acceptable to Aboriginal and Torres Strait Islander peoples.
A fourth deliberative process in five years is lined up. The recognised are reduced to the stakeholder position, feeding their routinely unheard aspirations through another entity outsourced with the task of deciding that which the parliament should really resolve. The downside of retrofitting recognition in the world’s most rigid constitution is, after all, the unavoidable sign-off by the masses rather than a negotiated settlement with the Crown.
In 2011, I was part of a group that undertook comprehensive consultations across the continent, the likes of which will not be taken again. Australians told us that they did not want tokenism. Australians wanted something that would change people’s lives. I still fervently believe this sentiment exists. It may be transmuted by the time the next process is concluded, as Australians’ instinct for no bullshit and intuition for structural reform is tamed by the simple, the modest, the conservative.”
Against the pervasive cynicism: “No change dressed up as change. The design of this recognition process became incongruent long ago, probably at the moment leaders became committed to being committed. The process has reduced the Australian people in all their colour and texture to a one-dimensional portrait, based on eight referendum successes, the last being almost 40 years ago, in 1977. We are much more than this. Unless something radical is done to reverse the beige path we are treading down, the process will come to a completely unsatisfying conclusion. Still, there is renewed hope among the community that Prime Minister Turnbull, a lawyer, a referendum veteran and a big-picture leader, will exercise leadership and make it more about the reform and less about the sell. At the moment the question of meaningful reconciliation “is being treated as a numbers game and, as the numbers men have been saying, you do not need the Aboriginal vote to win a referendum. That, my friends, is no basis for reconciliation.” [Emphasis added].
Similar – if not more radical – views were expressed in May 2015 by Ms. Celeste Liddle, a proud Arrernte woman whose traditional lands are in and around Alice Springs, and the current National Indigenous Organiser for the National Tertiary Education Union, while speaking at the Australian Council of Trade Unions Congress.
The N.T.E.U. has been one of the few unions to maintain a broadly questioning view on the idea of constitutional recognition. The union membership views have been vast, ranging from members who support constitutional recognition, or at least believe it could be a good thing, all the way to a sizeable number indicating complete opposition to the concept – usually on the basis of sovereignty.
On the subject the union “has maintained a questioning stance. One reason is that the referendum questions themselves have not been finalised and without knowing what it is that we are being asked to endorse, there is no good reason to endorse it.”
Clarity informed the speech:
” … Australians are the beneficiaries of stolen lands which were never ceded by the original owners is an “unfinished business” and the impacts of this colonisation continue to affect our lives today. Yet despite community indicating that the issue of our sovereignty is incredibly important – 88% of National Congress of Australia’s First Peoples according to the expert panel report on constitutional recognition – it is not an issue that gets prioritised by the governments.” [Emphasis added].
And again: “There is a definitely view among opposing Aboriginal and Torres Strait Islander people that to agree to recognition within the Australian Constitution is for us to submit to the rule of the crown while there is nothing in place to protect our rights as sovereign peoples. The constitution was a document written with our purposeful exclusion and imposed upon our lands without our consent. The act, therefore, of righting this wrong by simply writing us into the document is interpreted by some Indigenous people to be a mere act of assimilation which would not address the fundamental issues with the document.” [Emphasis added].
Ms. Liddle continued: “My views are in line with those who state that a treaty first between First Peoples and Australia is crucial. I believe that our rights need to be enshrined first.” [Emphasis added].
As things stand, the speaker said: “ …we remain powerless in the system as it currently exists. The system therefore needs to change. [Emphasis added].
At this juncture, it is important to note the findings of the expert panel on constitutional recognition on the question of sovereignty, for the detail contained here is crucial at gauging where Australia sits currently in relation to its first peoples. Within the conclusion of this section it states, and I quote: Any proposal relating to constitutional recognition of the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly contested by many Australians, and likely to jeopardise broad public support for the panel’s recommendations. Such a proposal would not therefore satisfy at least two of the panels principles for assessment of proposals, namely ‘contribute to a more unified and reconciled nation’ and ‘be capable of being supported by an overwhelming majority of Australians from across the social and political spectrum.’ ”
And there is the rub.
It is quite obvious “ … that Constitutional Recognition is a conservative goal by its reference to the fact that any proposal needs to be capable of being supported broadly by Australians therefore not centralising Indigenous needs and stating that including provisions on sovereignty would be divisive and lead to electoral failure. There is, therefore, currently no space for our sovereignty to be acknowledged within the Australian constitution. It also frames “reconciliation” as something that is not possible at this point in time if an acknowledgement of Indigenous sovereignty is included – a point which reinforces to me that reconciliation is still seen as Aboriginal and Torres Strait Islander people assimilating into mainstream Australia, not the country transforming.” [Emphasis added].
The speaker mentioned, as an aside, that it had been pointed out to her “that writing us into the constitution as “Aboriginal and Torres Strait Islander peoples” homogenises our identities rather than recognises our own sovereign nationhoods and identities. The terms “Aboriginal” and “Torres Strait Islander” are not our terms but rather ones which have been imposed upon us. It was therefore argued that to recognise these terms in the constitution is reductive and could have serious consequences for our claims as a diverse people in the future. [Emphasis added].
Additionally, at this point in time we have state-based examples of how including Aboriginal and Torres Strait Islander people in these constitutions has not led to an increase in our rights and the esteem in which we are held by society. Here in Victoria, for example, an amendment to the state constitution was passed in 2004 acknowledging our “unique status as the descendants of Australia’s first people”. Despite this, our infant mortality rates in this state are still double those of other Australians and Welcome to Country ceremonies at government events were referred to by previous Premier Bailieau as “unnecessary”. When you think about the other states which have recognition contained within their constitutions – NSW, QLD and SA – and you reflect upon the status of Aboriginal and Torres Strait Islander peoples, can you honestly say that this acknowledgement has improved things ?” [Emphasis added].
There is a large chance – said Ms. Liddle – that a repetition of the Howard government attitude to Indigenous People could bring about the only possible reform: non-reform.
Finally – said Ms. Liddle – “I do feel that going to referendum in the first place has the ability to jeopardise aspirations for a treaty and the resolution of Indigenous sovereignty. Why? It has taken us almost 50 years since the referendum recognising us as citizens to get around to the point of addressing whether we also have a special status as First Peoples. My concern here is straight-forward: regardless of the outcome of the referendum, will we be waiting another 50 years before we see moves toward a resolution of our sovereignty. If the referendum is successful, will we get responses similar to what followed the Apology claiming that Indigenous people are never satisfied when we push for the resolution of sovereignty? If it’s unsuccessful, will that mean our recognition, in any form, is seen as a non-issue for this country, never to be visited again? I believe these are real concerns held by a lot of Indigenous people, for and against the proposal, and with good historical reason.” (Celeste Liddle, ‘Sovereignty and the constitutional recognition debate’, Australian options, winter 2015, No. 81,August 2015, 7-9).
All these arguments seem not to disturb Aboriginal leader Noel Pearson, who came up with another suggestion in December 2015. Speaking on 28 December 2015 at the Woodford Folk Festival, he urged Australians to embrace the nation’s Indigenous history through constitutional recognition.
Mr. Pearson was a member of the expert panel which recommended that the constitution be altered to remove racist sections, but in September 2015 he told the Australian Broadcasting Corporation that that position might not win enough voter support. As he told the Woodford audience “it’s not enough to get 51 per cent of Australians to put their hands up, you’ve actually got to get states like Western Australia, Tasmania and indeed our own state of Queensland.”
“There is still a lack of consensus on the best model for change” he said. And he proposed a new representative body for empowering Indigenous Australians to be recognised in the Constitution.
He again called for all Australians to embrace the Indigenous heritage of their country.
“It should be the duty, and it should be the privilege, of all Australians to own this heritage” he said. “In order for us to do that, we must formalise that recognition in our constitutional arrangements.” (‘Woodford Folk Festival: Noel Pearson calls for Indigenous constitutional recognition in Australia’, by Kathy McLeish, 28 December 2015).
To be continued . . . Tomorrow: From military encampment to republic?
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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