University of New South Wales Law Journal

LARISSA BEHRENDT[*]

[1] The centenary of Federation is an appropriate time for reflection on how well the Australian Constitution (‘Constitution’) serves our society today. For Indigenous peoples, it provides an additional impetus to encourage non-Indigenous Australians to reflect upon the impact of colonisation on Indigenous communities and the extent to which Indigenous rights remain vulnerable today. In making this assessment, we can also consider how well the institutions of governance it has created have worked for the most socioeconomically disadvantaged cultural minority in Australia. It is thus a time for reflection upon both the way in which our modern system of government was established and the way in which it may or may not fulfil the needs and embody the values of our communities today.

[2] The statistics highlight the undeniable socioeconomic disparity between Indigenous people and all other Australians in every measurable service sector: access to medical treatment, education, employment and economic development.[1] The processes of dispossession and colonisation have placed Indigenous communities in a cycle of poverty: poor health, little education, high rates of unemployment, low incomes, and poor access to essential services.[2] Perhaps the greatest condemnation is that many of these disparities occur in areas that are considered to be unquestioned rights to all other Australians.

[3] There are two answers that are often proposed as the solution to these socioeconomic disparities:

[4] This paper will look at the tensions between the concept of ‘practical reconciliation’ and the development of a broad Indigenous rights framework. It seeks to address some of the concerns about a big picture approach to achieving a more equitable and just society through constitutional, legislative and jurisprudential change. It also argues that, while the link between economic issues and rights issues is not being made, the notion of ‘practical reconciliation’ is antagonistic to a broader rights framework. The paper discusses the need to take a new approach to the connection between broader legal reforms and economic development, one that moves away from a welfare mentality.

[5] Much is rightly made of the fact that the negotiations leading up to Federation did not include Indigenous representation or perspectives. Indigenous peoples were left out of the negotiation process and the deliberations leading up to the drafting of the document that sets out our modern governance structure. Much is also made of the assumptions that were pervasive in the minds of the drafters of the Constitution and in Australian society generally at the time. It was a period in which Indigenous peoples were viewed as a dying race and there was, whether malevolently or benevolently, an assumed racial superiority of white over black.

[6] The legitimacy of the formation of the Australian state is thus vulnerable to questioning about Indigenous inclusion and consent at the time of Federation. This vulnerability is compounded by the question mark left after Mabo v Queensland [No 2] (‘Mabo’).[3] Whilst overturning the doctrine of terra nullius and rejecting British claims to Australia on that basis, Brennan J found that Australia had been ‘settled’ and acknowledged that this status could only be challenged in an international court. The Indigenous perspective, that views this ‘settlement’ as an invasion, points to the unsuccessful resolution of that assertion of British sovereignty. It is this grey area that leaves the legitimacy of the Australian state open to question and it is compounded by Indigenous exclusion from the nation-building processes that led up to Federation. While Indigenous exclusion and assumptions about white racial superiority leave open the question of legitimate nation-building, they also give some insight into why the Constitution is seen as being a continuation of the colonisation process.

[7] An example of how those ideological legacies can still permeate our laws and institutions can be seen in Kartinyeri v The Commonwealth (‘Hindmarsh Island Bridge Case’).[4] In that case, the issue was raised whether the race power (s 51(xxvi) of the Constitution),which allows the federal government to make laws with regard to Indigenous people, could be used to deprive Indigenous people of their rights. The plaintiff had brought an action to prevent development on land she asserted was sacred to her. The Government sought to settle the matter by passing legislation, the Hindmarsh Island Bridge Act 1997 (Cth), designed to repeal the application of heritage protection laws to the plaintiff. She argued, inter alia, that when Australians voted in the 1967 referendum to extend the federal race power to include the power to make laws concerning Aboriginal people, it was with the understanding that the power would only be used to benefit Indigenous peoples.

[8] Although the Court did not directly answer this issue, finding that the Hindmarsh Island Bridge Act 1997 (Cth) merely repealed existing legislation, it is interesting to note the arguments of the defence. On behalf of the Federal Government, the Solicitor-General argued that there was nothing in s 51(xxvi) to prevent the government using the power to pass racially discriminatory laws, including Nazi-style laws.[5] As abhorrent as that idea is – and as much as it appears to be the antithesis of our contemporary social values – there is much, when using ordinary rules of constitutional interpretation, to support this conclusion. One need only look at the intention of the drafters to see why it remains this way.

[9] In fact, a non-discrimination clause was proposed in the Constitution through the Tasmanian Parliament when the instrument was being drafted. The proposed cl 110 was drafted to include the phrase: ‘nor shall a state deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws’.

[10] This clause was rejected for two reasons: first, it was believed that entrenched rights provisions were unnecessary; and second, it was considered desirable to ensure that the Australian States would have the power to continue to enact laws that discriminated against people on the basis of their race.

[11] If one is aware of the intentions and the attitudes held by the drafters of the Constitution, then it comes as no surprise that it is a document that offers no protection against racial discrimination today. It was never intended to do so and the 1967 referendum in no way addressed or challenged those fundamental principles that remain entrenched within its text. Even if it did, it is difficult to see how such an intention in one sub-section of the Constitution would be enough to counter the ideologies that are imbued in the document as a whole.

[12] Many would point to the 1967 referendum as a symbolic point at which the exclusion of Indigenous peoples from Australian nation-building was to some extent rectified. And it is true to assert that the ideologies that permeated the drafting process and document 100 years ago are not as dominant in our society today. Indeed, the decade of reconciliation would point to a more tolerant and inclusive attitude of Australians towards Indigenous peoples.[6] However, these social movements and symbols have not created an end to the socioeconomic disparity between Indigenous and non-Indigenous communities.

[13] Nor has this system of governance turned into a legal regime that recognises and protects the rights of Indigenous peoples. One can track the frustrating struggle for the recognition of Indigenous property rights, including Milirrpum v Nabalco Pty Ltd (‘Gove Land Rights Case’),[7] Mabo, and the passing of the Native Title Amendment Act 1998 (Cth) to appreciate the precarious place of Indigenous rights.

[14] Another example of this lack of rights protection is the case of Kruger v Commonwealth (‘Kruger’),[8] the first ‘Stolen Generations’ case to be heard in the High Court of Australia (‘High Court’). The plaintiffs had brought their case on the grounds of the violation of various rights by the effects of the Northern Territory ordinance that allowed for the removal of Indigenous children from their families. The plaintiffs had claimed violations of the implied rights to due process before the law, equality before the law, freedom of movement and freedom of religion as per s 116 of the Constitution. They were unsuccessful on each count, a result that highlighted the general lack of rights protection in our system of governance and the ways in which, through policies like child removal, there was a disproportionately high impact on Indigenous people as a result of those silences.

[15] Today, over 35 years after the 1967 Constitutional Amendment, Indigenous people are still the most socioeconomically disadvantaged within Australian society and are still vulnerable to systemic discriminatory practices. At the same time momentum gathered for the 1967 referendum, Aboriginal and Torres Strait Islander people began to push even harder for the recognition of their traditional property rights, and for the recognition of their assertion of sovereignty. This protest culminated in the establishment of an Aboriginal tent embassy on the lawn of Parliament House. There were two strains of political strategy being used by Indigenous people at the tent embassy that were integral to Indigenous people’s aspirations:

[16] These competing political aims reveal the intricate relationship between claims of equal protection and special protection. They understand the false promise of formal equality and demand something more.

[17] With the benefit of hindsight, we can read these socioeconomic disparities and conclude that formal equality has allowed socioeconomic disadvantage to continue and has done nothing to stop the erosion of Indigenous rights, especially property interests. It is becoming increasingly evident that the formal structures and institutions within Australia are not addressing Indigenous peoples enough to equalise – let alone reverse – the socioeconomic impact of colonisation and past government policies and practices.

[18] At the hand-over of the Final Report by the Council for Aboriginal Reconciliation, Prime Minister John Howard announced that his Government rejected the recommendation of a treaty with Indigenous peoples, preferring instead to concentrate on the concept of ‘practical reconciliation’. This ‘practical reconciliation’ describes a policy of government funding in targeted areas that go to the core of socioeconomic disadvantage; namely, employment, education, housing and health:

[19] Howard targets, only through policy, the main socioeconomic areas. To this end, he pointed to the money he had spent on ‘Indigenous-specific programs’:

[20] What Howard did not detail is that part of that $2.3 billion went towards defending the ‘Stolen Generations’ case brought by Peter Gunner and Lorna Cabillo in the Northern Territory[11] and also towards the various areas of the government arm that were actively trying to defeat native title claims. That is, included in the money allocated for specific policy areas is money spent preventing the recognition and protection of Indigenous rights. It is an image of practical reconciliation that many would want to avoid.

[21] This response, encapsulated in the concept of ‘practical reconciliation’, signifies an approach to the resolution of the legacies of colonisation that focuses on socioeconomic disparity. In his Menzies Lecture, delivered on 13 December 2000, just a few days after receiving the Final Report from the Council for Aboriginal Reconciliation, Howard stated:

[22] Under this view, current socioeconomic disparity is the result of past cultural conflict and unsympathetic policy making. The approach to policy making has compounded this socioeconomic disparity and has been instrumental in establishing a welfare mentality in Indigenous communities.

[23] The main issues are dependency, victimhood and poverty, which can be redressed, according to the proponents of ‘practical reconciliation’, by a more benevolent legislature.

[24] It is absolutely true that past government policies, such as child removal, have contributed to the socioeconomic inequality and systemic racism experienced in Indigenous communities and families today. However, as Kruger illustrated, this has been compounded by the absence of a rights framework to offer protection from unfair and racist policy making.

[25] For a Government that claimed that Indigenous problems should not just have money thrown at them, the focus on funding will confine Indigenous empowerment to the policy making area. Further, it will do so in a manner that seeks Indigenous input at only a cursory level. It fails to delegate to the communities who are receiving these measures decision-making powers as to how the money for these programs will be allocated within the communities.

[26] This approach to ‘practical reconciliation’ does not attack the systemic and institutionalised aspects of the impediments to socioeconomic development. While claiming that ‘more handouts’ are not going to make a difference, it fails to address the issues and put strategies in place that go to the heart of historical and institutional racism. ‘Practical reconciliation’ also fails to understand that there need to be real outcomes and protection of rights, and that these include economic rights and property rights. The recognition and protection of these rights would put land under people’s feet, allow access to natural and economic resources and work towards ensuring that Indigenous communities are economically self-sufficient.

[27] Without a rights framework that works, there is no opportunity to create and protect the rights necessary for economic self-sufficiency, leaving Indigenous peoples, families and communities dependant on welfare. Even worse, they will remain dependant upon the benevolence of the government. As can be seen by the contents of the Native Title Amendment Act 1998 (Cth), the days of governments actively truncating and extinguishing Indigenous rights are far from over. These reasons give some indications as to why the rights framework remains an attractive pathway towards breaking the legacies of colonisation.

[28] In recent times, there has been an emerging voice starting to question the emphasis on the rights framework, with particular frustration expressed at the slowness of the process. It is a compelling claim too, that esoteric talk of constitutional change does not put food on the table or end high levels of violence in the community. It is easy, when placed in that light, to dismiss the focus on the rights agenda as the privilege of the elite.

[29] Granted, structural change, particularly constitutional change, is a long-term goal. However, there are several things that the rights agenda offers Indigenous people even in the short-term.

[30] Firstly, it provides a language with which to communicate about harms suffered and political aspirations held. As Kruger highlighted, the existence of an agreed standard of rights creates a medium through which to communicate harms suffered. The plaintiffs in Kruger were able to articulate the harms suffered by those affected by the child removal policy and, in particular, were able to show that these are rights that others take for granted, such as freedom of movement and due process before the law.

[31] In a more positive way, the language of rights can provide a means of communicating political aspirations. The principle of the right to self-determination has become a powerful description of the notion of deciding our own future. Indeed, the content of that notion is also expressed in the language of rights: the right to hunt and fish, the right to native title, the right to work, the right to provide for our families, the right to education and the right to adequate health services.

[32] Secondly, the international rights framework already provides minimum standards against which we can hold the federal government accountable, and therefore provides the basis for objective assessment of performance in relation to the recognition and protection of Indigenous rights. Such an objective assessment was particularly evident in the 2000 report by the United Nations Committee on the Elimination of Racial Discrimination, critical of Australia’s record.[14] It found that our country, and our government, had failed to meet certain obligations that we, as a nation, have agreed to uphold under the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).[15] The CERD Committee’s report expressed concern about the absence of any entrenched law guaranteeing against racial discrimination, provisions of the Native Title Amendment Act 1998 (Cth), the government’s the failure to apologise for the ‘Stolen Generations’ and its refusal to interfere to change mandatory sentencing laws. The need for these objective standards is particularly strong while we are without stronger domestic remedies for rights protection.

[33] The rights framework also offers long-term benefits that should not be dismissed because of the long time-frame necessary for their implementation. It offers the ability to provide renewed protection of Indigenous rights and to substantially change the status quo between Indigenous peoples and the Australian state. Such institutional change needs to be targeted at the Constitution since it is the document that establishes government and, not insignificantly, symbolises our coming together to consent to nationhood.

[34] There are several ways in which the Constitution could better protect Indigenous rights:

[35] Some of these steps to improve the Australian rights framework for Indigenous people – a constitutional preamble, a Bill of Rights – would have benefits for all Australians. This reinforces the point that comes out of the litigation in Kruger; namely, that many of the rights of Indigenous people that are infringed are not ‘special rights’ but rights held by all people. On the flip side, measures that protect the rights of all Australians will have particular relevance and utility for Indigenous people.

[36] Not all the answers to the problem of breaking the legacies of colonisation lie in the blind implementation of a rights framework. In ensuring that rights mechanisms can be used to counter socioeconomic inequality, the Canadian experience holds many lessons. Canada has several mechanisms in place that work towards greater rights protection, including a constitutionally entrenched Bill of Rights and a clause in its constitution that gives specific protection to Aboriginal and treaty rights. However, except in the areas of health, the socioeconomic statistics are fairly comparable between the Indigenous communities in Canada and Australia. This raises a serious challenge for advocates of the rights framework: if it looks so good on paper, why isn’t it working in practice?

[37] Four suggestions can be offered as to why this is so:

[38] The Canadian experience highlights two points of relevance for the Australian context. Firstly, there is a need for a holistic approach to counter 200 years of colonisation. With the persuasive and concerted effort to dispossess Indigenous people and to colonise Australia, it is simplistic to assume that one approach or one strategy is going to effectively address the systemic legacies left by the plethora of legal, political, cultural and social practices that have impacted on Indigenous people, families and communities.

[39] Secondly, there is a link between economic status and the ability to access rights frameworks, indicating a relationship that requires further examination. It would appear that our understanding of the connection between the rights framework and socioeconomic position has, to date, been unsophisticated. There have been two areas where there has been a particularly apparent failure to draw the links between the rights framework and economic development and sustainability:

[40] The situation of Indigenous people in Australia demands a resolution that considers the desirability of socioeconomic equality, the importance of inclusion and the demands of political and cultural recognition. The challenge of improving rights protection needs to be approached with broader strategies than piecemeal court wins and ‘band-aid’ welfare measures. Finding a better approach to the protection of Indigenous rights is a multifaceted process that must include the following:

[41] These steps lead back to the formula of recognition of past wrongs backed up by concrete legal enforcement. At a minimum this involves:

[42] Central to the recognition of Indigenous rights is the need to recognise past injustices and past discrimination. Though this may seem tokenistic, such recognition has four consequences that could have profound effects on the relationship that Aboriginal people have with the rest of Australia:

[43] Australia’s apparently neutral property laws operate in such a way as to produce a result where the rights of one group of Australians are valued less than the rights of all others. It is not enough that laws appear to be equal on their face; their application must generate equality. Equality needs to be measured not by the mere existence of a rights framework, but by assessing the end results of that framework. The focus needs to be on what happens after the institutions and ideals are incorporated into the legal and social fabric, not on how it looks in the abstract. Equality needs to be substantive and must be judged on its results.

[44] There needs to be a negotiated agreement between Indigenous peoples and the Australian state to define the principles and terms of the relationship between the two. Such a framework agreement must allow for further detailed agreement making at the regional and local levels. This process would have two benefits:

[45] To counter the impacts and legacies of colonisation, there needs to be a holistic approach to the protection of Indigenous rights. This means that the ‘either/or’ tension that has developed between ‘practical reconciliation’ and the rights framework needs to be rejected and replaced by strategies, initiatives and policies that seek to develop a better understanding about the relationship between economics and rights. Just as Indigenous political responses have focused both on inclusion and special recognition, viewing them as complementary rather than antagonistic, the approach to the tension between rights and economic development needs to be undertaken in the same holistic manner.

[46] ‘Practical reconciliation’ fails to understand the institutional barriers to substantive equality and it fails to understand that policy changes affecting how money will be spent cannot effect structural changes that will allow communities to break from a welfare dependency.

[47] At the same time, advocates of the rights framework need to focus more intently on the economic rights that can and should be promoted within such a framework. Better links need to be formed between the rhetoric, substance and form of rights protection, on the one hand, and the placing of food on the table, better health, clean water, suitable housing and access to educational and employment opportunities, on the other.

[48] Lessons must also be learnt from the Canadian experience, where rights protection has been improved through the introduction of specific legal mechanisms. Advocates of the rights framework must also concentrate on ensuring that recognition of rights that appear on paper are given tangible effect in Indigenous communities. Ensuring that such transmission occurs will ease emerging scepticism about the rights framework as a workable, practical and useful solution.

[49] Until the relevance of the rights framework becomes clear to those who need its protection the most, the changes needed will not gain the support required to implement them. Without that support, we will be unable to implement the changes that will go to the heart of overturning the psychological terra nullius still pervasive in our Constitution, laws and policies.