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Indigenous affairs takes a sad turn

Date published: Wednesday 7 March 2018

Category(ies): Feature


"In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future."

This is how the Uluru Statement from the Heart concludes, articulating the culmination of the Referendum Council's exhaustive consultation with Indigenous and other Australians to provide advice on how to best recognise our First Nations in the Australian Constitution.

Sadly, the hopeful aspirations expressed so clearly in the Uluru Statement from the Heart have not been realised. In fact, relations between Indigenous communities and the Australian Government have taken a turn for the worse over the last year.

After Tony Abbott's commitment to work with Indigenous communities and seek solutions in partnership with them, there is now deep distrust among Indigenous people towards the Government and Prime Minister Malcolm Turnbull.

Symbolism and good faith count

Symbolism and convincing demonstrations of good faith are extremely important in creating the foundations for a constructive relationship between the Government and Indigenous communities. The fact that relations between the Government and Indigenous communities are worse now than under Tony Abbott is compelling evidence of that.

Mr Abbott was able to create a number of important symbolic opportunities to engage with the indigenous community, naming himself Prime Minister for Indigenous Affairs, and moving responsibility for indigenous affairs into his own portfolio. His long-standing annual practice of spending a week living with a remote Indigenous community and attending the annual Garma Festival also demonstrated his commitment.

These symbolic engagements created a level of goodwill and understanding which allowed a measure of progress in the delivery of some Indigenous programs. There was also plenty of criticism of the effectiveness of coordination of Indigenous programs and hidden funding cuts after the hasty restructure of Indigenous programs within the Prime Minister's Department after the 2013 election. His Government's lack of progress in 'Closing the Gap' indicators and indigenous constitutional recognition were also criticised.

Closing the Gap

Kevin Rudd's apology to the stolen generations was the first significant act of his incoming Government after the 2007 election. It established the basis for constructive engagement for the remainder of the Rudd-Gillard-Rudd Government. However, progress on concrete measures such as Closing the Gap was painfully slow under the Labor Government.

Conversely, progress on some Closing the Gap targets under the Turnbull Government and the Prime Minister's quick response (36 hours) in calling a Royal Commission into Northern Territory juvenile justice after the July 2016 ABC Four Corners program on Don Dale detention centre were insufficient to overcome the ill-will and distrust generated by the Prime Minister's mishandling of the Government's response to the tortuous consultations on indigenous recognition.

Arguably the Government could claim progress on "practical reconciliation" with the 2018 Closing the Gap report showing the Government was on track to achieve three of the seven Closing the Gap targets, compared to only one the previous year. Those on track in 2018 were:

  • Child mortality rates: To halve the gap in mortality rates for Indigenous children under five within a decade (by 2018)
  • Early education: 95 per cent of all Indigenous four-year-olds enrolled in early childhood education by 2025
  • Year 12 attainment: Halve the gap in Year 12 attainment by 2020.

Only the Year 12 attainment was on target the previous year.

Constitutional recognition

Malcolm Turnbull never established the same personal rapport with Indigenous people as Abbott, but his initial actions as prime minister established goodwill with the indigenous community with an emotional interview on National Indigenous TV about the importance of maintaining Aboriginal and Torres Strait Islander culture. He promised to stick with the agreed timeframe of 2017 for a referendum on the recognition of Indigenous people in the Australian constitution - but only if it could be established jointly (with Labor leader Bill Shorten). Together they established the Referendum Council within months of Turnbull becoming Prime Minister. Turnbull also appointed the first Indigenous minister, Ken Wyatt, after the 2016 election.

But the Government's mishandling of constitutional recognition of Indigenous people has clouded relations and created a well of distrust. Many Indigenous leaders felt the Government bungled consultation on the matter, failed to clearly outline a process of how it would determine an outcome, and what form and when Indigenous recognition would occur.

Here is an outline of how movement towards a decision on Indigenous recognition progressed under recent governments.

January 2012The Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, appointed by Prime Minister Julia Gillard and jointly chaired by Patrick Dodson and Mark Leibler , recommended the Government hold a referendum to drop the 'race powers (Ss 25 and 51(xxvi)) from the Constitution and replace them with a new provision recognising prior occupation by Indigenous Australians

September 2014 The Aboriginal and Torres Strait Islander Peoples Act of Recognition Review Panel recommended the establishment of a Referendum Council to progress the form of words to amend the Constitution

June 2015 The Parliamentary Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples recommended that a referendum be held on the matter of recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution, and that it be held at a time when it has the highest chance of success.

December 2015 The Referendum Council was jointly appointed by the Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten to "build" on the work of the Expert Panel, the Review Panel and the Joint Select Committee. Its job was to advise the Prime Minister and the Leader of the Opposition on progress and next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.

May 2017After six months national consultation a meeting of several hundred Indigenous representatives issued the Uluru Statement from the Heart which called for:

  • a 'First Nations Voice' to be enshrined in the constitution, and
  • a 'Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history'.

30 June 2017 The Referendum Council handed down its report to the Prime Minister and Leader of the Opposition. It recommended a referendum for a representative body giving Aboriginal and Torres Strait Islander First Nations a voice to the Commonwealth parliament be included in the constitution. "The proposed Voice would not interfere with parliamentary supremacy, it would not be justiciable, and the details of its structure and functions would be established by Parliament through legislation that could be altered by Parliament," the report said.

Four months later, the Prime Minister, Attorney-General George Brandis and Indigenous Affairs Minister Nigel Scullion issued a joint media release saying, "The Government does not believe such (the Referendum Council's call a "Voice to Parliament") is either desirable or capable of winning acceptance in a referendum."

Pat Anderson, the co-chairwoman of the Referendum Council said Mr Turnbull's decision was patronising.

"It's been a kick in the guts for us all. And of course now, the Prime Minister has turned himself into the latest mission manager," she said. "He knows what's best for us and also he's omniscient because he knows what the Australian public are going to — how they're going to vote at a referendum."

Indigenous leader and Referendum Council member Noel Pearson described the decision as devastating for the Indigenous community.

"I think Malcolm Turnbull has broken the First Nations hearts of this country, expressed in the Uluru Statement from the Heart."

Shadow assistant minister Pat Dodson said, "That's a real kick in the guts for the Referendum Council and certainly a slap in the face of those proponents."

On 5 November 2017 Mr Turnbull said the Referendum Council's recommendation was "contrary to the principles of equality of citizenship in Australia. It's contrary to that and it would inevitably be seen as a third chamber. Now I know that is contested. But it would inevitably be seen as a third chamber of Parliament. Moreover it would have, in our judgement, no prospect at all of being successful in a referendum. So, we believe it is important to focus on, to deliver recognition, to focus on things that are achievable."

Since the Government's Indigenous recognition decision the level of distrust has been so high that even what otherwise might be small slights swept under the carpet have been the cause of significant offence to the Indigenous community.

The Prime Minister's failure to deliver a scheduled speech to a parliamentary breakfast with Indigenous representatives for the tenth anniversary of the National Apology to the Stolen Generations attracted widespread publicity and vigorous criticism. The Prime Minister's speech was delivered by Indigenous Affairs Minister Nigel Scullion and Mr Turnbull turned up for a photo opportunity with attendees outside the breakfast.

Florence Onus, chairwoman of the Stolen Generations Reference Group, said she was "very disappointed the Prime Minister couldn't be here to speak and spend time with Stolen Generations survivors. The goodwill that was happening 10 years ago was fantastic, but the momentum of the action from government has been too slow for our people," she said.

Indigenous Health minister Ken Wyatt said, "I have had a number [of Stolen Generations members] express to me their disappointment, and I'll convey that to the Prime Minister."

In February in answer to a question on recognition from Opposition Leader Bill Shorten, Mr Turnbull triggered a new round of recriminations. He told Parliament that he had warned the Referendum Council that "a representative body available only to Indigenous Australians" was "inconsistent with a fundamental principle of our democracy".

In response Noel Pearson said the Prime Minister "belled his own cat" with his answer, "exposing his duplicity in relation to his dealing with Indigenous constitutional recognition" by misrepresenting what he told the Referendum Council at a November 2016 meeting.

Mr Pearson said that the Council had questioned Mr Turnbull whether he was ruling out a referendum and in response Mr Turnbull and Mr Shorten had sent the Council a joint letter on December 7, 2016, which explicitly said all models should be explored. "We reaffirm the message we provided to the full Referendum Council on 25 November 2016: that the regional dialogues should proceed as planned, without delay, and that all models should be equally tested with the community," the letter said.

Mr Pearson told the ABC it was "on this basis that the Referendum Council proceeded with the dialogues that produced the Uluru Statement that recommended the voice to Parliament. "He had signed a letter making commitments that he did not believe. His answer in Question Time yesterday proves that."

And that is where relations between the Government and the indigenous community stand, with the ill-will and distrust generated by the dispute over Indigenous recognition colouring all other indigenous affairs. The Federal Government has said it remains committed to finding an alternative idea to recognise Indigenous people in the constitution, but how that will progress in the absence of goodwill is unclear.

An Indigenous voice?

Mr Shorten has offered a more positive way forward although it is not absolutely clear what he is proposing. In response to the Government's Closing the Gap statement in February Mr Shorten said Labor would begin work on legislating an Indigenous voice to parliament without government support, saying that bipartisanship on issues of constitutional change "cannot mean agreement to do nothing".

He said, "I ask the government to reconsider their rejection of the statement from the heart. But, if we cannot work on this together, the next Labor government will, instead, as a first step, look to legislate the voice to parliament. I say to the Prime Minister and the government—we will work with you, but we will not wait for you. We will begin the detailed design work in opposition, work with Uluru delegates and many other first-nations people who've led the thinking on this issue.

"And, if we form a government, we will sensibly move to finalise legislation which establishes the voice and includes a clear pathway to constitutional change, enshrining that basic principle that you don't make decisions about people without talking to them. In fact, I think it will be easier for a referendum to succeed and harder for a scare campaign to be run, if we already have lived legislative experience of such a body," Mr Shorten concluded.