Download A Narrative of Exclusion: Indigenous rights in Australia

A Narrative of Exclusion: Indigenous rights in
Australia
Megan Davis
This article was originally printed in the HRD, Vol. 14, issue 3, 2005. It is followed by an update written for this
issue by Sean Brennan.
Indigenous peoples’ relationship with Australia’s public institutions – the executive, the parliament, the constitution, the
judiciary, the people - continues to reflect a narrative of exclusion. The abolition of the Aboriginal and Torres Strait
Islander Commission (ATSIC) and the recently announced proposals to privatise Aboriginal communal title and transform
the collective nature of Aboriginal culture, carry their dislocation from Australia’s public institutions into the twenty-first
century. The Racial Discrimination Act 1975 (Cth) (RDA) has been an important advocacy tool in the absence of a Bill of
Rights, a Treaty or any constitutional recognition of first peoples in domestic law. In addition, in the absence of adequate
domestic rights protections, Indigenous peoples have significantly utilised international law, and in particular the United
Nations, in their perennial battles with conservative federal and state governments. In light of such factors, this article is a
brief conspectus of Indigenous peoples rights in Australia.
Australia has no Bill of Rights prohibiting discrimination on the basis of race or protecting any fundamental human
rights and freedoms, no formal agreement with the Aboriginal and Torres Strait Islander peoples, and a Constitution that
may permit the Commonwealth to make laws to the detriment of Indigenous peoples on the basis of their race (Kartinyeri,
1998). The Constitutional Convention records clearly show that certain rights were specifically excluded from the
Constitution so that the states could discriminate on racial grounds. The debates about rights were imbued with racism. At
the 1897-98 Convention, Sir John Forrest, Premier of Western Australia stated:
It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia
against the introduction of coloured persons. It goes without saying that we do not like to talk
about it but still it is so. I do not want this clause to pass in a shape which would undo what is
about to be done in most of the colonies and what has already been done in Western Australia in
regard to that class of persons (4 Convention Debates, 1898: 666).
There was an attempt to include a provision for due process, known as clause 110, but that was watered down to a
provision protecting citizens from discrimination on the basis of state residence. In this compromise it was succinctly
noted that there was ‘no discrimination there based on residence or citizenship; it is simply based on colour and race’ (5
Convention Debates, 1898: 1801).
For Aboriginal people in Australia, the racist sentiments expressed in the Constitutional Conventions debates are
not simply an archaic consequence of the historical period, an explanation which continues to provide convenient solace
for relativist Australians. Rather, race has remained a dominant issue in the relationship between Aboriginal people and
the state and the Australian community. For decades, Aboriginal freedom to move, to work, to live and to continue to
practice traditions and customs were subject to the legislative control of Parliament (Reynolds, 1981). Aboriginal
people’s lives were controlled by legislative protection Acts. Apart from the emotional and social devastation of the
Stolen Generations, less commonly acknowledged historical wrongs such as the legacy of Stolen Wages and exclusion
from intestacy laws have contributed to the intergenerational poverty that consumes Indigenous communities today.
One of the most significant acts of inclusion by the Australian state and people, however, was the 1967 referendum
that removed the exclusion of the Commonwealth power to make laws with respect to Aboriginal people (amending
s51(xxvi)) and included Indigenous peoples in the census (repealing s127). The next significant act for Indigenous
inclusion was the enactment of the RDA, which implemented the International Convention on the Elimination of Racial
Discrimination (CERD). Another significant inclusive act was Prime Minister Paul Keating’s famous Redfern speech in
1991, to celebrate the beginning of the United Nations International Decade of the World’s Indigenous Peoples (Keating,
1991). It was one of the first and only times the office of the Prime Minister has officially acknowledged on behalf of the
nation the important place that Aboriginal and Torres Strait Islanders have in the Australian state:
Imagine if ours was the oldest culture in the world and we were told that it was worthless. Imagine
if we had resisted this settlement, suffered and died in the defence of our land, and then were told
in history books that we had given up without a fight. Imagine if non-Aboriginal Australians had
served their country in peace and war and were then ignored in history books. Imagine if our feats
on sporting fields had inspired admiration and patriotism and yet did nothing to diminish prejudice.
Imagine if our spiritual life was denied and ridiculed. Imagine if we had suffered the injustice and
then were blamed for it. It seems to me that if we can imagine the injustice then we can imagine
its opposite.
The globalisation of human rights discourse and the influence of the United Nations human rights system have
contributed much to the development of human rights in Australia but it is often overlooked that they have been integral to
acts of inclusion for Indigenous peoples and the state.
A recent example of the value of the United Nations human rights system to Indigenous Australians can be seen in
the actions taken pursuant to a view formed by Indigenous leaders that the Australian Government’s conduct during
consultations on amendments to the
Human Rights Defender : 16 A Narrative of Exclusion
Native Title Act 1993 (Cth) were in breach of Australia’s obligations under CERD. In particular, the Government’s intention
to suspend the operation of the RDA in respect to certain provisions of the amending act was seen as evidence of a
breach of its international obligations to protect and uphold human rights in Australia.
Indigenous advocates at the time included the National Indigenous Working Group, ATSIC and the Acting Aboriginal
and Torres Strait Islander Social Justice Commissioner who submitted complaints to the CERD Committee. On 11
August 1998, the Committee listed Australia under its urgent action/early warning mechanisms. The Committee
requested that the state party provide the Committee with information about its native title policy. This was the first time a
Western nation had been listed using these mechanisms.
The ultimate decision by the Committee was to condemn the Australian Government for its failure to consult
meaningfully with Aboriginal people. The Committee also noted the lack of entrenched basic human rights in the
Australian legal system. This lack of entrenched rights means that the Parliament can override any statutory rights such
as those contained in the RDA as it sees necessary, often depending on the political tenor of the day. This is consistent
with the principle of parliamentary sovereignty. It effectively enables the Government to legislate against Indigenous
interests on the basis of race, a capacity arguably supported by the races power in the Australian constitution (Kartinyeri,
1998, especially Gummow and Hayne JJ).
The political backlash against the Committee from the Australian Government was severe (Kinley and Martin, 2002;
Collings, 2000). It entailed threats of withdrawing from the human rights system (Downer, August 2000; Downer, May
2000) as well as accusations of violations of Australian state sovereignty (Marks, 2001). For Indigenous peoples in
Australia and around the world it stands as an example of the symbolic power of the human rights treaty system. While
the United Nations treaty bodies cannot force states to change domestic law or policy, the process was important for
Indigenous Australians. It confirmed that the amendments violated Australia’s human rights obligations under international
law. It confirmed to Indigenous Australians, as recently as 1998, their suspicions that the Australian Government doesn’t
have its best interests at heart. It confirmed to Indigenous Australians that their connection to land and relationship to the
Australian nation is not as important as the economic connection to land of pastoralists and farmers bolstered by
mythologies of the romantic bush and the frontier. And it confirmed the value of international human rights law in the
absence of adequate rights protections within a domestic legal system. International human rights instruments such as
CERD or the United Nations Draft Declaration on the Rights of Indigenous Peoples provide standards to states as to how
its citizens should be treated and consulted. As Larissa Behrendt has observed:
In the absence of rights protection in the constitution, it is the reporting and monitoring mechanisms under
international law that have created the most effective method of monitoring human rights in Australia.
Moreover broader international law has been significant to the advocacy campaign for Indigenous rights in
Australia. Mick Dodson has remarked that:
the Racial Discrimination Act 1975 (Cth), the Aboriginal Land Rights
(Northern Territory) Act 1976 (Cth), the High Court’s 1992 decision
on native title – all of them were firmly grounded in, if not derived
from, international law (Dodson, 1998).
This is not to provide a romanticised or naïve view of international law. As the experience of the Native Title
Amendment Act 1998 (Cth) showed, nothing can protect Indigenous rights in the event of a Government willingly
legislating against a group on the basis of race. Parliamentary sovereignty and the rhetoric of state sovereignty are
powerful political principles in the Australian community. Given that the Native Title amendments, for example, occurred
barely seven years ago, nothing has changed in the Australian polity to indicate that the need for Indigenous Australians
to rely on supra-national institutions will lessen in the near future. Indeed in October 2005, the United Nations Committee
on the Rights of the Child during its 40th session handed down its concluding observations on Australia’s second and third
periodic report. The Committee held that it ‘remains concerned about the overall situation of Indigenous Australians,
especially as to their health, education, housing, employment and standard of living’ and questioned whether the abolition
of ATSIC and the new arrangements were in the best interests of the child (Committee on Rights of the Child, 2005).
In 2005 Australians continue to laud themselves as fair minded and egalitarian people while Indigenous peoples
remain the perennial footnote to Australia’s record as a civil and humane liberal democracy. The continued lack of legal or
political status within the state fuels Indigenous dislocation from Australia’s public institutions, though it is fashionable
today to attribute this exclusion to Indigenous peoples own misgivings and personal failings. Equally fashionable is to
exclude racism as a contributor to Indigenous peoples situation today, because such a charge is considered the bastion of
the weak, of victimhood or the province of the morally vain, as Noel Pearson has recently noted (Pearson, 2005). That is
why Indigenous peoples take great solace in human rights internationally and the United Nations system. The United
Nations is an institution in which racism is recognised as having had a serious and insidious impact upon the lives of
Indigenous peoples globally. It recognises that racism remains a significant contributor to intergenerational poverty and
dysfunction in communities – poverty and dysfunction of which the contemporary culture in Australia charges Indigenous
peoples as being the architects.
Megan Davis is a Senior Lecturer at the Faculty of Law, University of NSW, and the Director of the Indigenous Law
Centre. She was a United Nations Indigenous Fellow with the Office of the High Commissioner for Human Rights,
Geneva. Megan was formerly a Senior Research Fellow, Jumbunna Indigenous House of Learning, UTS.
References
Collings, Neva, (2000), ‘Australian Government exposes itself before
the UN’ 30 Indigenous Law Bulletin vol 5 no 4; 11-15.
Committee on the Rights of the Child (2005), Concluding
Observations, http://www.ohchr.org/english/bodies/crc/docs/co/CRC.
C.15.Add.268.pdf.
Dodson, Mick, (1998), ‘Linking international standards with
contemporary concerns’ in Sarah Pritchard (ed), Indigenous peoples,
The United Nations and Human Rights (Leichardt: Federation Press).
Downer, Alexander (Minister for Foreign Affairs), Williams, A (Attorney
General), and Ruddock P (Minister for Immigration and Multicultural
Affairs), (2000), ‘Improving the effectiveness of united nations
committees’, Press Release, 29 August.
Downer, Alexander (Minister for Foreign Affairs), (2000), ‘Government
to review UN treaty committees’, Press Release, 30 March .
Keating, Paul (2001), ‘Redfern Park speech ‘cited in Indigenous Law
Bulletin (2001) 57 vol 5 no 11; 9-11.
Kinley, David and Martin, Penny (2002) ‘International human rights law
at home: addressing the politics of denial’ 24 Melbourne University
Law Review vol 26 no 2; 466-477.
Marks, Gregory (2000), ‘Sovereign states vs peoples: Indigenous
rights and origins of international law’ 5(2) Australian Indigenous Law
Reporter 1.
Pengelley, Nicholas (1998) ‘The Hindmarsh Island Bridge Act. Must
laws based on the race power be for the “Benefit” of Aborigines and
Torres Strait Islanders? And what has bridge building got to do with
the race power anyway?’ 20 Sydney Law Review vol 20 no 1 144-157.
Reynolds, Henry (1981) The Other Side of the Frontier (Townsville:
James Cook University).
Kartinyeri v Commonwealth (1998) 152 ALR 540.
Convention Debates (1898), vol 4, Melbourne.
Convention Debates (1898), vol 5, Melbourne.
Update
Little has happened since 2005 to overcome the institutional exclusion of which Megan
Davis wrote. Governments show little interest in supporting representative organisations
that give Indigenous people a political voice at a national and regional level. Post-ATSIC,
the Commonwealth proclaimed a ‘quiet revolution’ in Indigenous affairs, but its new
1
bureaucratic arrangements have not fared well in early evaluations.
The decision whether to prosecute a police officer for the death of Mulrunji Doomadgee on Palm Island was
mishandled by Queensland Premier Beattie. It reinforced the perception that Aboriginal people still don’t get a fair go in
the criminal justice system, 15 years after the Royal Commission into Deaths in Custody.
2
In native title, a legal system set up to ‘recognise and protect native title’ rejected the claim by Larrakia people, a mob
well recognised as the traditional people for Darwin. The answer to Wongatha claimants was also ‘no’. It arrived with 1000
3
pages of explanation and the suggestion that starting again with a different approach might work. The recognition of the
4
Noongar as native title holders for the Perth metropolitan area was a positive development.
5
Changes to the Northern Territory Land Rights Act confirmed that even long-established Aboriginal institutions like
the NT Land Councils will be ignored when a Commonwealth Government has its own agenda and a Senate majority.
Progress has occurred on stolen wages – money belonging to Aboriginal people, but never repaid from government
6
trust accounts . A Senate inquiry gave the issue national prominence and recommended Commonwealth and State
action. Echoing Megan’s theme, it was the non-discrimination principle from international law, expressed domestically in
the Racial Discrimination Act 1975 (Cth), that supplied Aboriginal people with a remedy in a case about underpayment of
7
8
wages on former Queensland missions.
The 40th anniversary of the 1967 referendum – and its theme of inclusion – is celebrated this year. So much yet to
be done.
Sean Brennan is a lecturer in the Faculty of Law at UNSW and Director of the Indigenous Rights, Land and Governance Project at the
Gilbert + Tobin Centre of Public Law. He convenes and teaches the UNSW course Native Title Law, Policy and Practice and, together
with George Williams, Larissa Behrendt and Lisa Strelein, is co-author of the book Treaty (Federation Press, 2005).
Endnotes
1
See, for example, two evaluations commissioned by the federal Government and authored by Morgan Disney & Associates:
Synopsis Review of the COAG Trial Evaluations (2006); A Red Tape Evaluation of Selected Indigenous Communities (2006).
2
Risk v Northern Territory [2006] FCA 404.
3
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31.
4
Bennell v Western Australia [2006] FCA 1243.
5
Aboriginal Land Rights (Northern Territory) Amendment Act 2006 (Cth).
6
In NSW a repayment system began operation. See <www.atfrs. nsw.gov.au> at 15 March 2007.
7
See <www.aph.gov.au/senate/committee/legcon_ctte/stolen_ wages/index.htm> at 15 March 2007.
8
Baird v Queensland [2006] FCAFC 162.