In a majestic six part series, Dr George Venturini takes an in-depth look at the proposal to recognise Indigenous Australians in the Constitution, asking whether it will produce the positive effects on reconciliation hoped for.
In this fourth part, Dr Venturini looks at Indigenous Australians struggle for equality and fair treatment in the 20th century.
On Recognising Aboriginal and Torres Strait Islander Peoples in the Australian Constitution: a belated homage or yet another swindle (Part 4)
Australian discrimination in the 20th century
An Act to place certain restrictions on Immigration and to provide for the removal from the Commonwealth of prohibited Immigrants, briefly the Immigration Restriction Act of 1901, carried number 17 of the Commonwealth Acts for that year. That goes a long way in explaining the obsession of the early legislators.
Having introduced the Bill, and speaking in support of it, Prime Minister Edmund Barton declared:
“I do not think either that the doctrine of the equality of man was really ever intended to include racial equality. There is no racial equality. There is basic inequality. These races are, in comparison with white races – I think no one wants convincing of this fact – unequal and inferior. The doctrine of the equality of man was never intended to apply to the equality of the Englishman and the Chinaman. There is deep-set difference, and we see no prospect and no promise of its ever being effaced. Nothing in this world can put these two races upon an equality. Nothing we can do by cultivation, by refinement, or by anything else will make some races equal to others.”
On 12 September 1901, Alfred Deakin, the first federal attorney-general and three times prime minister between 1903 and 1910, raised the question of how the Commonwealth would define non-‘white’ aliens once the program of a ‘white Australia’ had been implemented:
“The programme of a ‘white Australia’ means not merely its preservation for the future – it means the consideration of those who cannot be classed within the category of whites, but who have found their way into our midst … That end … means the prohibition of all alien coloured immigration, and more, it means at the earliest time, by reasonable and just means, the deportation or reduction of the number of aliens now in our midst. The two things go hand in hand, and are the necessary complement of a single policy — the policy of securing a ‘white Australia’.”
Deakin devoted considerable time to explain the exclusion of Japanese. Here is what he said:
“I contend that the Japanese require to be excluded because of their high abilities. … the Japanese are the most dangerous because they most nearly approach us, and would therefore be our most formidable competitors. It is not the bad qualities, but the good qualities of these alien races that make them dangerous to us. It is their inexhaustible energy, their power of applying themselves to new tasks, their endurance, and low standard of living that make them such competitors.”
There was much condescension in Deakin’s view of the Indigenous Peoples:
“Little more than a hundred years ago Australia was a Dark Continent in every sense of the term. There was not a white man within its borders. In another century, the probability is that Australia will be a White Continent with not a black or even dark skin amongst its inhabitants. The aboriginal race has died out in the South and is dying fast in the North and West even where most gently treated. Other races are to be excluded by legislation if they are tinted to any degree.”
In 1919, Prime Minister William Morris Hughes hailed the ‘White Australia’ policy as “the greatest thing we have achieved.” Hughes was summing up all the asides of an Australian politician: he had travelled from the Australian Labor Party (1901-16) to National Labor (1916-17) to Nationalist (1917-30) to Australian (1930-31) to United Australia (1931-44) to Liberal (1944-52). None of these movements and parties really meant what they appear to be. Hughes was expelled from three parties, and represented four different electorates in two states. Hughes was a man of revolving, recyclable principles — and quite successful at that.
‘Protection’ of Indigenous Peoples would continue in a different form in the early 1930s, of course for the convenience of the ‘white’ society. Legislators found it necessary to widen the definition of ‘Aborigines’ in order to formalise control over an increasing population of mixed descent. A bewildering array of legal definitions led to inconsistent legal treatment and arbitrary, unpredictable and capricious administrative treatment.
The ‘policy’ pursued by each of the different states in the 1930s was plain ‘racial policy’.
Even from the Labor side, and from one of the most respectable prime ministers, would come a confirmation that Australia was racist. During the second world war, Prime Minister John Curtin would reinforce the policy, saying:
“This country shall remain forever the home of the descendants of those people who came here in peace in order to establish in the South Seas an outpost of the British race.”
The aspiring prime minister Menzies had gone even further, as everyone knows. Menzies was greatly impressed with much of what he saw when he and his wife toured Nazi Germany in 1938.
After the Munich Agreement of 29 September 1938, which began the dismembering of Czechoslovakia, Menzies returned to Australia. On 6 November 1938, he told a Presbyterian church audience that a government “founded on licence would destroy itself”, and went on to call for more “national powers” to help the development of a “national spirit.” A fortnight earlier, he had told a Melbourne audience that:
“There is a good deal of really spiritual quality in the willingness of young Germans to devote themselves to the service and well-being of the State.”
He went on to say that the enthusiasm for service to the State evident in Fascist Italy and Nazi Germany “could be well emulated in Australia.” Writing home, he would notice that “…, it must be said that this modern abandonment by the Germans of individual liberty and of the easy and pleasant things of life has something rather magnificent about it.” Even coming from a man owned and operated by the Bank of New South Wales, this was breathtaking! But, inspired by racism? Oh no! But, if doubt persists, ask the Irish. They well remember what he said about them.
Ten years later, Menzies would begin the longest prime ministership in the history of Australia, infused with hatred for the ‘yellow race, which was supposed to come down and invade the continent. He poisoned an ignorant and indifferent populace with the disease of the most yobbish anti-Communism — which translated into anti-unionism. Because of his own insufficiency, he regaled the country with a slavish monarchism, which was expressed in the most servile and demeaning forms. A lawyer of some fame and a pretentious cultivator of civility – of the ‘British’ style, of course – he told the Australians and the world that apartheid in South Africa was an ‘internal matter’, therefore should be of no interest to Australia. Menzies attempted effectively to interfere with the invasion of Egypt to retain the Suez Canal in ‘the proper hands’ — which obviously meant the hands of the Franco-English company. Before retiring, he involved Australian boys in a war in Indochina predicated on a lie, which could never be disproved because the alleged ‘invitation’ was never found.
For mental laziness, emotional dependence and sheer reaction Menzies – the Lord Warden of the Cinque Ports, five port towns on the southeast coast of England, which last had strategic importance in Roman times! – offered Australians the comfort of living in some kind of kingdom of nothingness. In December 1949 – as Professor Manning Clark wrote – when one was witnessing “one third of the population of the world … marching forwards, [Australians] choose to stand still.” Clark found it even more depressing that, at the shafting of the Whitlam redemption, Australians
“…in December 1975 showed the world that [they] did not mind if someone turned the clock back. We were still a nation of petty-bourgeois property owners, who thought it was prudent to prefer men with the values and skills of receivers to visionaries and reformers to govern our country. We had the values of the counting house; we were interest rate men; we thought quality of life men should pull their head in.”
In that renewed state of ‘white’ imbecile beatitude, the Indigenous and Torres Strait Islander Peoples were more than ‘evanescent’ — they simply did not exist.
The ‘White Australia’ policy was gradually, ever so slowly, pavidly, dismantled after Immigration Minister Harold Holt’s decision in 1949 to allow 800 non-European refugees to stay and Japanese war-brides to be admitted to Australia. There followed a modest easing of restrictions on the migration of non-Europeans — read: ‘non-whites’. In March 1966 came the announcement by Immigration Minister Hubert Opperman, after a review of the ‘white’ policy, that
“…applications for migration would be accepted from well-qualified people on the basis of their suitability as settlers, their ability to integrate readily and their possession of qualifications positively useful to Australia.”
Over subsequent years Australian governments gradually enfeebled the policy.
The final obstacles were to be removed by the Whitlam Government in 1973.
* * *
In a life devoted to the ‘rediscovery’ of real Australian history, and in more than ten learned studies, Professor Henry Reynolds has dispelled the myth of the Indigenous Peoples’ “pathetically helpless” reaction to English invasion.
This is not the place to review such monumental and scholarly effort. Suffice to say, Reynolds has turned Australian history not only upside down but also inside out. Of course, those who do not wish to hear, or read, or understand still believe that Reynolds’ approach represents a ‘black armband view’ of Australian history. Others, who are profusely paid for their opinion, have provided a sanitised view of the frontier battles that went on for some 200 years, and continue as an academic disagreement with more peaceful, but still offensive, terms.
Indigenous Peoples have seen too much of the dark underside of ‘white Australia’ to believe nothing but that Australians are hypocrites, or wilfully ignorant, who simply brush aside over 200 years of infamy by calling it ‘all that’ and wanting it to be forgotten.
This is the painful reality that attaches to the ‘Aboriginal Embassy’, standing in front of the Old Parliament House in Canberra since January 1972, exactly for the purpose of demanding that memory be kept alive and that ‘sovereignty’ – however that may be defined – remain as an unbridgeable abyss between two ways of life.
Professor William E.H. Stanner collected the quip from an old tribesman:
“You are very clever people, very hard people, plenty humbug.”
Humbug can be both a verb and a noun. As a noun, it describes a person who seeks to impose deceitfully upon others — to cheat, to trick, to swindle.
The old man was right.
This year, on the occasion of ‘Australia Day’, which has been conveniently arranged for 26 January as the presumed day of the arrival of Captain Arthur Phillip, Indigenous Peoples took offence at the rumour surrounding comments about the Embassy by the Leader of the Opposition, Tony Abbott. Some of them decided to vent their anger outside a gathering in a restaurant about 200 metres from the Embassy encampment of a celebratory occasion arranged by the Government and attended by Prime Minister Gillard and Mr Abbott. The demonstration was ‘robust’ and ‘theatrics’ were arranged by the bodyguards to the Prime Minister which culminated in the usual scandalising and scurrilous reporting by the mainstream press – which is private, and by most of the other media – which also are private.
Mr Bob Carr, the former Labor Premier of New South Wales and now Minister for Foreign Affairs, although then not yet called to that position, took the occasion to comment:
“I agree with [the Leader of the Opposition] and think his remarks entirely sensible. The tent embassy in Canberra says nothing to anyone and should have been quietly packed up years ago. 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.”
On 1 March 2012, Prime Minister Gillard appointed Mr Carr Minister for Foreign Affairs. In one of his first public utterances, the new Minister spoke of Australia becoming a human rights leader in the Asia-Pacific region. As the old tribesman said…
The following month, on 25 April 2012, which is ‘Anzac Day’, the Governor-General was overseas extolling the sacrifice of the youth of Australia in foreign wars, beginning with the invasion of Turkey ninety seven years ago; the Prime Minister was doing her customary rhetorical exercise at the known point of that invasion – Gelibolu, Gallipoli – and none at home was giving any sense to the often repeated “Lest we forget”, which is emblazoned on monuments throughout the land to remember the fallen in those foreign wars.
Not a word has ever been said about the Indigenous Peoples who died really defending their own home.
Of course there was resistance to the invasion! But, one should add, there was deception every time the invading society has attempted some form of ‘reconciliation’ with the Indigenous Peoples. This topic deserves separate serious treatment.
Nevertheless, mention should be made of the encounters between the two societies which were intended to be peaceful, after some 20,000 had been killed up to federation, and some more – perhaps 10,000 – after that and to the 1930s.
But the ‘white man’ proceeded on his own terms. He may now be up to yet another swindle.
Attempts to amend the Constitution go back at least one hundred years.
In 1910, the Australian Board of Missions called on
“…Federal and State Governments to agree on a scheme by which all responsibility for safeguarding the human and civil rights of the aborigines should be undertaken by the Federal Government.”
In 1913, the Australian Association for the Advancement of Science made a similar proposal.
In 1928, the Association for the Protection of Native Races submitted to the Royal Commission on the Constitution that “the Constitution be amended so as to give the Federal Government the supreme control of all Aborigines.”
In 1929, a majority of the Royal Commission on the Constitution referred to the testimony of ‘a great number of witnesses’ about the need to give increased attention to Aboriginal people — the language of the time. The majority recognised that the effect of the treatment of Aboriginal people on the reputation of Australia furnished a powerful argument for the transfer of power to the Commonwealth, but recommended against amending section 51(xxvi)
“…mainly on the ground that the States were still better equipped than the Commonwealth to attend to the special needs of the aborigines within their territories.”
The minority did not dissent from that view, but observed that the financial burden of making special provision for Aboriginal people should not fall wholly on the States in which they were most numerous. This could be accommodated by the making of conditional federal grants to Queensland and Western Australia, where the largest number of so-called ‘full-bloods’ outside the Northern Territory were to be found. The Royal Commission made no recommendation in relation to Section 127.
It is fair to say that none thought of asking the Indigenous Peoples what they wanted. ‘White man’ knew better.
During the years between 1933 and 1936, the Melbourne Indigenous community began gathering support for a petition to King George VI, seeking direct representation in Parliament, enfranchisement and land rights.
On 12 November 1937, Mr William Cooper, who was a leading figure in the movement, called for a ‘Day of mourning’ to be held simultaneously with the celebrations on 26 January 1938, the agreed day of the 150th anniversary of the arrival of the First Fleet.
On that ‘Day of mourning’, the recently established Australian Aborigines League met and passed a resolution “to raise our people to full citizen status and equality within the community” and published a pamphlet calling for land rights.
Twenty some years after, in 1959, a Joint Parliamentary Committee on Constitutional Review unanimously recommended the repeal of Section 127, but did not reach agreement on the grant of legislative power with respect to Aboriginal people.
The Committee also recommended the repeal of Section 25.
In 1961, the Federal Conference of the Australian Labor Party resolved that Section 127 be repealed and the exclusion of Aboriginal people under Section 51(xxvi) be removed.
In 1963, the Yirrkala Elders of the Yolngu people presented a bark petition to the Commonwealth Parliament in the English and Gumatji languages. The petition protested the Commonwealth Government’s decision to grant mining rights in the Arnhem Land reserve and called for recognition of Yolngu land rights and a parliamentary inquiry. In response to that petition, a seven-member select committee from the House of Representatives was set up to investigate the grievances of the Yolngu people. The committee recommended payment of compensation to the Yolngu people, protection of sacred sites, and acknowledgment of the moral right of the Yolngu people to the land. The meaning of the words ‘moral right’ might have easily been lost in translation.
In 1964, the Leader of the Labor Opposition, Arthur Calwell, introduced the Constitution Alteration (Aborigines) Bill to remove the exclusionary words ‘other than the aboriginal race in any State’ from Section 51(xxvi) and to delete Section 127. Calwell called attention to possible United Nations criticism that the Constitution was ‘discriminating against’ the Aboriginal people.
Then, the Labor Party was sensitive to possible criticism from the United Nations. Now it is totally unconcerned that many international treaties and conventions and their protocols – duly ratified by Australia – are routinely violated.
Robert Menzies’ Attorney-General, Billy Snedden, affirmed that all parliamentarians felt that “there should be no discrimination against aboriginal natives of Australia.” He warned that the proposed change to Section 51(xxvi) created the potential for “discrimination … whether for or against the aborigines.” The Bill lapsed when Parliament was dissolved.
In 1965, Prime Minister Menzies introduced the Constitution Alteration (Repeal of Section 127) Bill, for a referendum for the removal of Section 127. Menzies opposed the amendments to Section 51(xxvi) on the ground that to include Aborigines in the race power “would … not be in the best interests of the Aboriginal people”, although he was sympathetic to the notion of repealing that section altogether. The Bill passed both Houses, but it was not put to referendum.
This confirmed a ‘protective’, merely wishful, nature of such fanciful manoeuvres.
In March 1966, William Wentworth, the Liberal Member for Mackellar and later Australia’s first Minister for Aboriginal Affairs, introduced a Private Member’s Bill to repeal Section 51(xxvi), and instead to confer on the Commonwealth Parliament power to make laws ‘for the advancement of the Aboriginal natives of the Commonwealth of Australia’. Wentworth also proposed a new
‘section 117A prohibiting any law, State or Commonwealth, which subjected any person born or naturalised in Australia ‘to any discrimination or disability within the Commonwealth by reason of his racial origin.’
Interestingly, the present Leader of the Opposition seems to have a problem with the proposal by the Expert Panel of a similar Section 116A!
Clause 3 of the Wentworth proposal contained a proviso that the section should not operate ‘so as to preclude the making of laws for the special benefit of the aboriginal natives of the Commonwealth of Australia’. Wentworth cited a concern that the deletion of the exclusion of people of the Aboriginal race from Section 51(xxvi) could leave them open to “discrimination … adverse or favourable.” He suggested that the “power for favourable discrimination” was needed, but that there should not be a “power for unfavourable discrimination.” While the Bill passed both Houses of Parliament, it ultimately lapsed and did not go to referendum.
In August 1966, Vincent Lingiari led a walk-off of 200 Gurindji, Ngarinman, Bilinara, Warlpiri and Mudbara stockmen from a cattle station at Wave Hill in the Northern Territory in protest at their pay and living conditions.
The walk-off generated support within many sectors of the Australian population. The Gurindji walk-off was about equal pay, but also became a symbol of the struggle for equal citizenship rights and recognition of distinct rights relating to culture, land and self-determination.
On 1 March 1967, Prime Minister Harold Holt introduced the Constitution Alteration (Aboriginals) Bill, which proposed the deletion of words ‘other than the Aboriginal race in any State’ from Section 51(xxvi), as well as the deletion of Section 127. The amendment would give Parliament power to make special laws for Aboriginal people which, with cooperation with the States, would ‘secure the widest measure of agreement with respect to Aboriginal advancement’. The Leader of the Opposition, Gough Whitlam, supported the Bill, and it passed both Houses of Parliament without a single dissenting voice. The Leader of the Opposition in the Senate, Senator Murphy, said:
“The simple fact is that they are different from other persons and that they do need special laws. They themselves believe that they need special laws. In this proposed law there is no suggestion of any intended discrimination in respect of Aboriginals except a discrimination in their favour.”
The referendum was put on 27 May 1967. In addition to gaining majority support in every State, the proposal received 90.8 per cent of valid votes nationally. This remains the largest majority for any referendum ever held in Australia, more than 10 per cent higher than for any other referendum before or since.
The referendum brought minimal improvements. On one hand, the repeal of the overtly discriminatory provision in Section 127 meant the removal of the prohibition on counting Aboriginal people in the population statistics.
On the other, the specific exclusion in Section 51(xxvi) of power to make laws with respect to the ‘people of the aboriginal race in any State’ was removed. Aboriginal and Torres Strait Islander peoples ceased to be mentioned at all in the Constitution. Of particular significance among the post-1967 legislation enacted by the Commonwealth Parliament is the Aboriginal Land Rights (Northern Territory) Act 1976.
During 1973-74, the Woodward Royal Commission into Aboriginal land rights in the Northern Territory, instituted by the Whitlam Government, led to the introduction in 1975 of a Bill into Parliament by Prime Minister Whitlam. After the Royal Ambush of November 1975, Prime Minister Malcolm Fraser reintroduced a Bill and steered it through Parliament in 1976. The Act provides for the strongest form of land rights in the country. As a result, almost half of the Northern Territory has been returned to the Indigenous People.
In 1966, Professor Sawer warned presciently that, having regard to
“the dubious origins of [Section 51(xxvi)] and the dangerous potentialities of adverse discriminatory treatment which it contains, the complete repeal of the section would be preferable to any amendments intended to extend its possible benefits to the Aborigines.”
In relation to Section 127, Sawer noted that by 1966 all Aboriginal people had the federal vote, and were likely soon to have the vote in all States. While it was difficult to see any case against the repeal of Section 127, Sawer cautioned that its repeal would make “little difference to anything that matters, and least difference of all to the Aborigines.”
Several important acts have been enacted by the Commonwealth Parliament after the 1967 referendum, in reliance upon several federal powers, including those of Section 51 (xxvi).
Some of them are:
- the World Heritage Properties Conservation Act 1983, Sections 8 and 10 of which confer protection on sites of cultural significance to Indigenous People;
- the Aboriginal and Torres Strait Islander Heritage Protection Act 1984;
- the Native Title Act 1993; and
- the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
In 1985, a commission was established yet again to review the Australian Constitution. In its final report in 1988 the Constitutional Commission made a number of recommendations in relation to the provisions of the Constitution bearing upon the question of race and the position of Aboriginal and Torres Strait Islander Peoples.
The Constitutional Commission recommended the repeal of Section 25 of the Constitution “because it is no longer appropriate to include in the Constitution a provision which contemplates the disqualification of members of a race from voting.”
In relation to Section 51(xxvi), the Commission noted that until 1967, Parliament could “pass special and discriminating laws” relating to the people of any race. The Commission referred to a number of decisions in recent years in which judges had observed that laws made under Section 51(xxvi) ‘may validly discriminate against, as well as in favour of, the people of a particular race’. The Constitutional Commission concluded:
“It is inappropriate to retain section 51(xxvi) because the purposes for which, historically, it was inserted no longer apply in this country. Australia has joined the many nations which have rejected race as a legitimate criterion on which legislation can be based. The attitudes now officially adopted to discrimination on the basis of race are in striking contrast to those which motivated the Framers of the Constitution. It is appropriate that the change in attitude be reflected in the omission of section 51(xxvi).”
The Commission considered it unnecessary to retain Section 51(xxvi) “for the purposes of regulating such things as the entry and activities of aliens in Australia or the confinement of people who might reasonably be suspected of acting contrary to Australia’s interests.” Other legislative powers provided ample support for any laws directed at protecting Australians from any activities or groups which were not in the national interest.
Together with the recommendation for the omission of Section 51(xxvi), the Commission recommended the insertion of a new paragraph (xxvi) which would give the Commonwealth Parliament express power to make laws with respect to ‘Aborigines and Torres Strait Islanders’. The recommendation was made for two reasons:
1) because the nation as a whole has a responsibility for Aborigines and Torres Strait Islanders; and
2) because the new power would avoid some of the uncertainty arising from, and concern about, the wording of the existing power.
Consistent with such an approach, the Commission recommended the insertion of a new ‘section 124G’, which would give everyone the right to freedom from discrimination on the ground of race. In relation to rights to equality, the Commission recommended that the Constitution be altered to provide:
“124G (1) Everyone has the right to freedom from discrimination on the ground of race, colour, ethnic or national origin, sex, marital status, or political, religious or ethical belief. (2) Sub-section (1) is not infringed by measures taken to overcome disadvantages arising from race, colour, ethnic or national origin, sex, marital status, or political, religious or ethical belief.”
The Commission also considered a proposal for constitutional support for an agreement between the Commonwealth of Australia and representatives of Aborigines and Torres Strait Islanders. The Commission noted that the history of the gradual occupation of Australia was filled with examples of disregard for the interests of Aboriginal people dispossessed from their land, and that in recent years attempts had been made formally to recognise the fact that Australia was occupied before the arrival of the First Fleet and that invasion had had adverse effects on the Indigenous Peoples. The Commission also referred to the recommendation in 1983 of the Senate Standing Committee on Constitutional and Legal Affairs for the insertion in the Constitution of a provision, along the lines of section 105A, conferring a broad power on the Commonwealth to enter into a compact with representatives of the Aboriginal people.
The Commission agreed that a constitutional alteration to provide the framework for an agreement provided “an imaginative and attractive approach” but concluded that any alteration should not be made until an agreement had been negotiated.
Section 105A, on which a possible referendum might be modelled, was approved at a referendum in 1928 after the Financial Agreement of 1927 had been entered into between the Commonwealth and the States. The electors were therefore in a position to know precisely what was being approved. The 1988 referendum was held on 3 September. It contained four questions. None took up the recommendations of the Commission in relation to provisions relating to Aboriginal and Torres Strait Islander people and the Constitution’s race provisions. None of the four questions passed.
The experience for Aboriginal and Torres Strait Islander Peoples in the 1970s and 1980s was mixed.
In January 1972, Prime Minister William McMahon publicly acknowledged some of the concern in the community about the policy of ‘assimilation’. But he did nothing about it. Following the election of the Whitlam Labor Government in December 1972, the policy of ‘assimilation’ was abandoned and a new policy of ‘self-determination’ was introduced. Much of a new policy of humane consideration of the ‘white’ problem vis-à-vis the Indigenous People was abandoned with the Royal Ambush of November 1975.
The beneficiary of that authentic coup d’état was Malcolm Fraser, whose election in 1975 brought some initiatives, including the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976, the establishment of the Aboriginal Development Commission, and consideration of the feasibility of a compact or Makarrata between the Commonwealth and Indigenous People. The mention of such pact by the federal Government was one more hoodwinking manoeuvre.
Since 1983, Bob Hawke had been the Labor Prime Minister. The rhetoric would become more sophisticated; the failure really to face the ‘white’ problem more obvious.
This was the time when the Aboriginal and Torres Strait Islander Commission (1990-2005) was established, ostensibly as the body through which Indigenous and Torres Strait Islander Peoples were more or less formally involved in the processes of government affecting their lives. A number of Indigenous programmes and organisations fell under the overall umbrella of the Commission.
In April 1991, the Constitutional Centenary Conference held in Sydney presented to the prime minister, State and Territory premiers and chief ministers, and opposition leaders a statement which recommended among other items for action that the reconciliation process should
“…seek to identify what rights the Aboriginal and Torres Strait Islander peoples have, and should have, as the indigenous peoples of Australia, and how best to secure those rights including through constitutional changes.”
In 1991, the Council for Aboriginal Reconciliation was organised, in 1992 the Office of Aboriginal and Torres Strait Islander Social Justice Commissioner was opened within the Human Rights and Equal Opportunity Commission, and in 1994 the Torres Strait Regional Authority was set up.
Twenty years ago, in the case of Mabo v. Queensland (No. 2) (1992) 175 C.L.R. 1, the High Court of Australia held that the common law of Australia recognised native title. The term ‘native title’ was used by the High Court to recognise that Aboriginal peoples and Torres Strait Islanders may have existing rights and interests in land and waters according to traditional laws and customs and that these rights are capable of recognition by the common law.
Specifically, the Court recognised a claim by Eddie Mabo and others on behalf of the Meriam people of the Island of Mer in the Murray Islands in the Torres Strait, that the Meriam people owned the land at common law because they were the traditional owners of their country under Islander law and custom.
The Queensland Government had earlier tried to extinguish the Meriam people’s property rights under the Queensland Coast Islands Declaratory Act 1985. However, the High Court ruled in 1988, in Mabo v. the State of Queensland (No. 1), that the Queensland law breached the Commonwealth’s Racial Discrimination Act 1975 (Cth).
The Mabo judgment dealt with some of the basic premises of the Australian legal system and society. In particular, the decision repudiated the notion of terra nullius – a land belonging to no one – on which the invaders’ whole land tenure system had been conveniently based. The High Court recognised that the rights of Aboriginal people and Torres Strait Islanders to native title may survive in certain areas and that their native title must be treated fairly before the law with other titles.
On 10 December 1992, the anniversary of the Universal Declaration of Human Rights, during the Year of the World’s Indigenous People, Prime Minister Paul Keating travelled to one of the poorest ‘ghettoes’ of Indigenous People in Sydney to deliver one of his most moving speeches.
At one point, he said:
“And, as I say, the starting point might be to recognise that the problem starts with us
It begins, I think, with that act of recognition.
Recognition that it was we who did the dispossessing.
We took the traditional lands and smashed the traditional way of life.
We brought the diseases. The alcohol.
We committed the murders.
We took the children from their mothers.
We practised discrimination and exclusion.
It was our ignorance and our prejudice.
And our failure to imagine these things being done to us.
With some noble exceptions, we failed to make the most basic human response
and enter into their hearts and minds.
We failed to ask – how would I feel if this were done to me?”
And coming to the end Mr Keating also said:
“We cannot imagine that the descendants of people whose genius and resilience maintained a culture here through fifty thousand years or more, through cataclysmic changes to the climate and environment, and who then survived two centuries of dispossession and abuse, will be denied their place in the modern Australian nation.”
There was in that speech the spark for an entire programme; the only word missing was’ reparation’ in the sole terms that a mercantile society would understand.
Alas, the Keating Government was the same which had introduced mandatory detention legislation in May 1992. Under the legislation, still enforced, asylum seekers arriving in Australia without prior authorisation are to be detained for unspecified and prolonged periods of time, causing untold psychological damage to children, women and men. As at 30 April 2012, 463 children were in detention. Of the 5,967 persons in immigration detention as at 30 April 2012, about 34 per cent had been detained for three months or less and 75 per cent had been detained for 12 months or less. Such figures are not so rosy: Australia’s longest-serving detainee Peter Qasim was detained for more than 7 years before being released in 2005.
In response to the Mabo judgment, the Federal Parliament, by the initiative of the Keating Government, enacted the Native Title Act 1993. In addition, the Government established an Indigenous Land Fund and promoted the delivery of a ‘social justice package’. The Act established the National Native Title Tribunal to make native title determinations in the first instance, appealable to the Federal Court of Australia, and thereafter to the High Court.
In March 1995, following community consultation – which always represented a form of ‘co-optation’ of ‘moderate’ Indigenous persons, mostly ‘respectable’ blacks who have been singled out for white favour and interest – each of the Aboriginal and Torres Strait Islander Commission, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner provided a report on the social justice package to the prime minister. Each of these reports raised the need for constitutional reform.
Recommendations coming from these three organs were quite similar and amounted to a demand for constitutional recognition of special status and cultural identity of Indigenous Peoples, through a redefinition of Indigenous Peoples “as a nation in a way that would promote meaningful reconciliation”;, “effective educational and public awareness for both the Indigenous and non-Indigenous communities and to ensure ongoing indigenous involvement in broader processes which could lead to constitutional reform”; that an “appropriate new preamble to the Constitution be prepared for submission to referendum with such preamble to acknowledge the prior occupation and ownership, and continuing dispossession of Aboriginal and Torres Strait Islander peoples”; that a referendum question be put
“…to repeal the race-related provisions of Section 25 of the Constitution, an opportunity would arise to pose a positive question to entrench in the Constitution a new clause which would explicitly prohibit the making of laws which discriminate on the grounds of race (save where such a provision was for the specific benefit of the race involved) and providing that the Commonwealth has the power to legislate to outlaw all forms of discrimination on the grounds of race.”
The social justice package proposals were not advanced by the incoming conservative government following the 1996 federal election.
In its final report to the prime minister and the Commonwealth Parliament in December 2000, the Council for Aboriginal Reconciliation made, among others, the following recommendation in relation to the manner of giving effect to its reconciliation documents:
“3. The Commonwealth Parliament prepare legislation for a referendum which seeks to 1) recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia in a new preamble to the Constitution; and 2) remove section 25 of the Constitution and introduce a new section making it unlawful to adversely discriminate against any people on the grounds of race.”
Following the case of Wik Peoples v. Queensland (1996), (1996) 187 C.L.R. 1 Parliament amended the Native Title Act in 1988. The Wik decision revolved on the point whether statutory leases extinguish native title rights. The Court found that the statutory pastoral leases under consideration did not bestow rights of exclusive possession on the leaseholder. As a result, native title rights could co-exist depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would extinguish the remaining native title rights.
The decision provoked a lengthy debate in Australian politics. It led to intense discussions on the validity of land holdings in Australia. Some political leaders criticised the Court for being out of touch and for introducing uncertainty into Australian life. The Howard Government, which had succeeded the Keating Government in 1996, formulated a “10 point plan” to bring certainty to land ownership in Australia.
The new ‘conservative’ government succeeded in having the original act amended to the disadvantage of Indigenous Peoples.
The Royal Commission into Aboriginal Deaths in Custody operated between 1987 and 1991. It studied and reported on the high level of deaths of Indigenous Peoples whilst in custody after being arrested or convicted of committing crimes. The Commission Report emphasised medical conditions and injuries caused by police, the death from natural causes and the high rate of suicides.
The Report showed that Indigenous Peoples were keen to grasp the opportunity for self-determination, but were not equipped for the tasks suddenly presented. The inadequacies of the education system and the domination, lack of self-esteem and debilitation produced under the period of ‘assimilation’ meant that there would be many failures. According to the Report, Indigenous People were not really being offered self-determination — “just the tantalising hint of it.” They were bequeathed “the administrative mess which non-Aboriginal people left” and told to fix it: “It was their mess now.”
In 1995, an Inquiry was established by the Keating Labor Government in response to efforts made by key Indigenous agencies and communities concerned that the general public’s ignorance of the history of kidnapping and State-organised, forcible, removal was hindering the recognition of the needs of its victims and their families and the provision of services. The Inquiry concluded with a large and well documented report which was tabled in Federal Parliament in May 1997. It carried the high-sounding title of: Bringing them home. The Report marked a pivotal moment in the controversy which has come to be known as the ‘Stolen generations’.
In a serious country, a civilised country, the victims could have expected to receive reparations, which are an important and internationally accepted way of acknowledging wrongs and guaranteeing that such wrongs will not happen again.
How naïve and wrong were those victims! As the old man had said… There were not even the customary ‘statements of intention’.
The 1996 federal election would put an end to 13 years of Labor Government under Bob Hawke and Paul Keating. The Liberal Party leader, John Howard, had resumed the leadership of his party in January 1995.
The election in 1996 of the Howard Government – a reactionary more than a conservative government – saw an emphasis on ‘practical reconciliation’, the concept of ‘shared responsibility’, and a verbal commitment to address the profound economic and social disadvantage of many Indigenous Peoples. Howard’s view found considerable approval amongst ‘escapist’ Australians. They joined in the ‘Howard defence’: “I did not have anything to do with the past and, therefore, there is no need for me to come to terms with it.” No one asked Howard to accept guilt, of course. No one would be so stupid, blind, deaf. But he was deaf — profoundly morally deaf, and could not even express embarrassment, or a sense of collective shame. Cowardly, he was unable to embrace what was belatedly good for, and long overdue by, the country.
‘Practical reconciliation’ was a way of ignoring, even denying, that there existed a ‘white’ problem in Australia. The ‘Liberals’ are against ‘symbolism’. They apply that word to everything that cannot be translated into money, and that includes that “mushy, misguided multiculturalism” that Howard’s pusillanimous deputy so loudly abhorred. While on one hand there was some song-and-dance and passing appreciation of ‘diversity’ – purely for electoral purposes and to gain the ‘ethnic’ vote – on the other there was the demonising of the cultural identity and ridiculing of the traumatic history by ‘Liberal’ leaders who, in the privacy of their clubs, still label what they call ‘the Indigenous rights agenda’ as a meaningless symbolism which has no ‘positive, practical outcomes’. This hypocrisy went a long way towards quietly encouraging and later tolerating the entry into the Parliament of an ignorant, racist member from Queensland — Pauline Hanson. She had been the endorsed Liberal Party candidate until she made ‘controversial statements about Aborigines’. On that ground, she had been disendorsed. So she stood as an Independent and gained the seat.
Her ‘platform’ was basically a running complaint on behalf of ‘mainstream Australians’ against
“…those who promote political correctness and those who control the various taxpayer funded ‘industries’ that flourish in our society servicing Aboriginals, multiculturalists and a host of other minority groups.”
This theme continued with the assertion that
“…present governments are encouraging separatism in Australia by providing opportunities, land, moneys and facilities available only to Aboriginals.”
She believed, as she said in her first speech in Parliament, that Australians
“…are in danger of being swamped by Asians. Between 1984 and 1995, 40 per cent of all migrants coming into this country were of Asian origin. They have their own culture and religion, form ghettos and do not assimilate.”
In the Howard Government’s silence, she ‘was on a roll.’ Parliament passed a resolution condemning her views on immigration and multiculturalism. Prime Minister John Howard refused to censure such a far-right nativist, as misinformed, uneducated and racist. He never spoke critically about her, acknowledging – rather, on the pretext – that her views were shared by many Australians. True — almost one million Queenslanders would vote for her. Howard confined himself to comment that he saw the expression of such views as evidence that – as he said – the “pall of political correctness” had been lifted in Australia.
In 1998, the party of that ‘Independent-from-thought’ gained 9 per cent of the nationwide vote. For many in Australia and/or all Indigenous Peoples, that prime-ministerial silence was to be the sign of the time — and of things to come.
At the 1999 referendum, electors were asked to vote on a proposal for alteration to the Constitution to insert a preamble designed, among other things, for the purpose of
“…honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country.”
The proposal was rejected by a majority of Australian voters and by a majority of voters in a majority of States. In 2005, the Aboriginal and Torres Strait Islander Commission would be disbanded, with the collusion of the parties of ‘The System’ and Commonwealth bureaucrats resumed the responsibilities previously undertaken by that Commission.
Meanwhile, the Howard Government was preoccupied with ‘other others’.
In August 2001, the Howard Government refused permission for the Norwegian freighter Tampa, carrying 438 rescued Afghans from a distressed fishing vessel in international waters, to enter Australian waters. Everywhere else in the world, the view is held, and very strongly, that survivors of a shipwreck are to be taken to the closest suitable port for medical treatment. The nearest Indonesian port was twelve hours away; Christmas Island – which is Australian – was six or seven hours closer. But that is the view of civilised countries. And in Australia?
When the ship’ captain requested the Australian Government’s permission to land the asylum seekers at Christmas Island, arguing that the ship was not designed for 438 people, only its 27 crew; and there were no lifeboats or other safety equipment available for the asylum seekers in the case of an emergency, the Howard Government refused permission for the ship to enter Australia’s territorial waters and threatened to prosecute Captain Rinnan as a ‘people smuggler’ if it did so.
When the Tampa, bound by the ‘law of the sea’, entered Australian waters, the Prime Minister ordered the ship be boarded by Australian special forces. This brought censure from the Norwegian Government , which complained at the United Nations that the Australian Government failed to meet obligations to distressed mariners under international law. Within a few days, the Howard Government introduced the Border Protection Bill into the House of Representatives saying it would confirm Australian sovereignty. Close to a federal election, Howard was showing how tough he was on so-called ‘illegal migrants’. The Liberal Party campaigned vigorously on the issue, with Howard’s statement
“We will decide who comes into this country and the circumstances in which they come.”
Immediately thereafter, the Howard Government introduced the so-called ‘Pacific solution’, whereby the asylum seekers were taken to Nauru where their refugee status was considered, rather than in Australia.
The Tampa crisis had an enormous effect. Domestically, the Howard Government’s line attracted strong support, especially in the aftermath of the 11 September 2001 attacks. The Australian Government’s popularity rating rose throughout the crisis. In the federal election following the arrival of the Tampa, many viewed the asylum seekers as ‘queue-jumpers’, falsely claiming to be refugees in order to gain illegal entry into the country. There were concerns of a security risk, involving a ‘floodgates’ situation where ‘people smugglers’ would deliberately aim at Australia as a perceived ‘soft target’. Australia appeared, once again, as the frightened country. The issue also divided the Labor Party internally, with the minority Left faction of the party arguing strongly in favour of a ‘softer’ approach, including the abolition of mandatory detention.
The Howard Government was once again showing the world how virile Australians are. Internationally, things were rather different: Australia was criticised by many countries, particularly Norway, which accused it of evading its human rights responsibilities.
Howard was responsible, although not alone because he was masterful in reaching the darkest corner of the Australian psyche; for the resurgence of ‘views’ not suppressed but controlled for a short time, which seemed to be competing with each other to show belligerence and hostility on the issue of immigration and ‘integration’. Out of this miasmatic atmosphere came the more revealing manifestations of what the ‘conservatives’ are all about.
Such animus was, for the time being, directed mostly against Muslims. In August 2005, Ms Bronwyn Bishop – a former senator for the New South Wales Liberal Party, who after the Liberals’ defeat at the 1993 election began to be seen as a possible leadership candidate and for that purpose had moved to the House of Representatives – called for Muslim headscarves to be banned from public schools — an opinion also expressed by another prominent Liberal, now Shadow Minister, Sophie Mirabella. Prime Minister Howard, said that he did not agree with this view, on the ground that “as a ban would be impractical.” “Impractical” — see!
In November 2005, Ms Bishop expressed the view that “she is opposed to the wearing of the Muslim headscarf, where it does not form part of the school uniform.” This is because “in most cases the headscarf is being worn as a sign of defiance and difference between non-Muslim and Muslim students” and then went on to say that she “does not believe that a ban on the Jewish skull cap is necessary, because people of the Jewish faith have not used the skull cap as a way of campaigning against the Australian culture, laws and way of life.”
Ms Bishop, cosseted on and representing a leafy northern suburb of Sydney, demanded the ban of headscarves in schools because they made women subservient; then, when confronted with the fact that many headscarved women felt perfectly free, she said they were like Nazis who felt free in Nazi Germany.
Such deep-seated, light-headed, blind anti-Semitism would turn absolutely orgasmic at the opportunity to display her ‘Queen’s English’. Her main concern has always been the ‘correct elocution’ — and never minds what is being said. When she was a young girl, she aimed at speaking like her worshiped monarch. So, in 1952, at the time of ‘The Ascension to the Throne’, Ms Bishop, having lost the rightful hat of her uniform, would have made an effort to say: “I’ve lorst thet bleck het.” As with a view on the headscarf or on the skull cap, Ms Bishop has not moved one centimetre — pardon me, one inch. Today, those o’s and a’s would not sound more rounded. In the same way —while “orf” was left behind and “off” ushered in, “veddy” became “very”, and a y sound no longer followed the s in such words as super — ‘conservative’ sounds would still flow from Ms Bishop’s lips. She will continue to speak the ‘Queen’s English’ that even the Queen no longer speaks — such ‘principles’ being foremost.
Just about the same time as Ms Bishop was orating, Dr. Brendan Nelson – a truly ‘versatile’ politician, former Labor Party member, former Leader of the Liberal Opposition, former Howard Minister for Education, Science and Training, later Minister for Defence, and later still Rudd-appointed Ambassador to the European Union, Belgium and Luxembourg, as well as Australia’s Special Representative at the World Health Organisation and N.A.T.O – would tell Muslims who did not know the story of Simpson and his donkey to “clear off.” ‘Simpson’ was a stretcher bearer with the Australian and New Zealand Army Corps during the glorious defeat at Gallipoli in the first world war. He obtained a donkey and began carrying wounded soldiers from the frontline to the beach, for evacuation. Simpson and his donkey are a key part of the ‘Anzac legend’.
Now, there is the still young Liberal Senator for South Australia Cory Bernardi. Having publicly questioned global warming as caused by human activities, he went on to advocating a ban of the wearing of the burqa in public and said that: “Islam itself is the problem — it’s not Muslims”, and that multiculturalism had failed. Under pressure from his leader, he subsequently clarified his remarks by stating: “When I say I’m against Islam, I mean that the fundamentalist Islamic approach of changing laws and values does not have my support.” He could not help associating with far-right Dutch politician Geert Wilders who shares anti-Islamic views. Bernardi has been offering to assist Wilders in a visit to Australia.
And what should one say about the Liberal Party Representative for the seat of Menzies, now Shadow Minister for Families, Housing and Human Services, with his pledge, while Howard’s Minister for Immigration and Citizenship, to cut the immigration intake from Africa in 2007 because “Africans fail to integrate.”? This was, it seems, in response to the murder of a young Sudanese refugee by young white men; an impressive victim-blaming manoeuvre!
As the saying warns: prejudice will not grow old but will live forever!
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