IN THE BUILD-UP to the last election campaign, a small news item got largely lost in the melee. Since the Rudd victory, however, the reported topic has assumed a new importance in the Australian political agenda.
On September 13, 2007, the United Nations’ General Assembly adopted its Declaration on the Rights of Indigenous Peoples. The assembly recorded 143 votes in favour of the declaration, eleven abstentions and four votes against. The last were cast by Australia, New Zealand, Canada and the United States. The UN news release announcing the decision summarised the objections made by the Australian delegation:
Australia’s representative said his Government had long expressed its dissatisfaction with the references to self-determination in the text. Selfdetermination applied to situations of decolonization and the break-up of States into smaller states with clearly defined population groups. It also applied where a particular group with a defined territory was disenfranchised and was denied political or civil rights. Australia supported and encouraged the full engagement of indigenous peoples in the democratic decisionmaking process, but did not support a concept that could be construed as encouraging action that would impair, even in part, the territorial and political integrity of a State with a system of democratic representative Government.
In other words, the then Howard government saw this declaration as supporting the creation of separate indigenous states. The declaration itself makes it clear that this is, indeed, its aim:
Indigenous peoples have the right of selfdetermination. By virtue of that right they freely determine their political status and they freely pursue their economic, social and cultural development.
Indigenous peoples, in exercising their right to selfdetermination, have the right to autonomy or selfgovernment in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
The declaration was strongly influenced by input by Australian Aboriginal activists. For several years, the Aboriginal and Torres Strait Islander Commission maintained a permanent office in Geneva, where it lobbied members of the UN Human Rights Council and helped them draw up the declaration. This office was not closed until 2003, when ATSIC itself was on notice from the government that its days were numbered. The Australian most involved was Mick Dodson, co-author with Ronald Wilson of the 1997 Bringing Them Home report on the “stolen generations” that accused Australia of genocide. Although now based in Australia, Dodson is still engaged with the UN, serving as a member of its Permanent Forum on Indigenous Issues, a body which records his role as follows:
Mick has for over a decade participated in the crafting of the text of the Draft Declaration on the Rights of Indigenous Peoples in the United Nations Working Group on Indigenous Populations and in its more recent considerations by the Working Group of the United Nations Commission on Human Rights.
As well as the old ATSIC campaign for a black state, the declaration endorses other policies long demanded by radical Aboriginal activists. It supports the establishment of a body very much like ATSIC itself, that is, the revival of a separate indigenous “parliament”:
Indigenous peoples have the right to participate in decision-making matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
In the face of the manifest failure of the separate Aboriginal school curriculum which made the learning of English optional—an experiment now notorious for leaving the current generation of Aboriginal adolescents and young adults functionally illiterate—the UN declaration nonetheless demands more of the same:
Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.
States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.
The declaration also endorses customary law and wants indigenous tribunals to determine breaches and punishments, with the sole constraint that they remain consistent with concepts of international human rights. Apart from the fact that indigenous people remain entitled to all the host nation’s welfare and citizenship benefits, the latter’s legal system does not rate a mention:
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in cases where they exist, juridical systems or customs, in accordance with international human rights standards.
The UN also supports the principle that indigenous people themselves should determine who qualifies as indigenous:
Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.
All this should be enshrined in treaties and agreements between the state and those who define themselves this way:
Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.
IN SHORT, THE UNITED NATIONS has endorsed a program which, if introduced in Australia, would revive the entire separatist agenda of Aboriginal politics of the Hawke–Keating era, an agenda which, apart from lucrative positions here and abroad for a select class of tertiary-educated activists, has had no positive outcomes for Aboriginal people to speak of, and whose awful failings are reproduced with depressing frequency in the reports of one commission of inquiry after another.
The most recent of these inquiries, by former Supreme Court judge Ted Mullighan into South Australian desert communities, yet again found the most appalling living conditions, widespread substance abuse and sexual abuse of children. In the preface to his report Mullighan pointedly contrasted Aboriginal life in the period when the communities were run by missionaries and in the subsequent period of self-determination:
Prior to the mid-1970s, life for the Angangu on the (Pitjantjatjara) lands was generally healthy, peaceful, safe and content. There was an effective system of social order, law and governance, and mutual responsibility. During the ’80s and ’90s, life changed drastically for the people, and sadly for the people. By the turn of the century, communities were dysfunctional and abusive. There was widespread violence and alcohol and drug abuse … It is clear the scourge of child sexual abuse is widespread, devastating and a national disgrace. That little children can continue to be damaged physically, sexually and psychologically is devastating.
Even though the Rudd government has not officially declared its hand, it has already made it sufficiently clear that action is only a matter of time. It not only endorses the UN agenda in principle but will specifically affirm its support for the declaration to the General Assembly itself.
In the immediate aftermath of the favourable media response to the “stolen generations” apology in February, Foreign Affairs Minister Stephen Smith confirmed that the government was preparing to ratify the declaration. He said on Network Ten that he was consulting with “stakeholders” about reversing Australia’s opposition:
We are of course positively disposed to the declaration. But once we’ve finalised those consultations and we’ve come to a conclusion, we will simply let our view be known [in the UN General Assembly].
At the 2020 Summit in Canberra in April, the forum on the future of indigenous Australia was dominated by calls for the revival of an ATSIC-type representative body, by special constitutional recognition, and for a treaty. The government’s appointee as co-chair of the sessions, Jackie Huggins, said she was very pleased these issues were back on the political agenda. She told ABC Radio:
We know that the treaty—to be on par, to have parity with other Australians, to close the gap in all areas—is very fundamental to where we want to head in the future. Those old ideas are the ideas, still, that haven’t been addressed. We’ll keep putting them up, and up again, because that is what, at the moment, Aboriginal and Torres Strait Island people want in this country. I think it has been very healthy to have them back on the agenda, and back in vogue.
The published report of the summit, Australia 2020, listed its first priority theme as “increased formal recognition of Australia’s indigenous peoples”. The first “Top Idea” from this forum was:
The establishment of a new philosophical framework through which we negotiate a new definition of our relationship and how we might define it in the Constitution or Treaty or settlement is necessary.
The first of the “Low Cost Ideas” endorsed by the same session was: “Support the UN Declaration on Rights of Indigenous Peoples”.
Prime Minister Rudd has powerful positive reasons of his own to go down this track. One of the pillars of foreign policy he has publicly endorsed is support for multilateral organisations, especially the UN. That is why Foreign Minister Smith was the first in cabinet to signal the government’s intentions. To give the impression of being wedded to a minority group of rich, white dissenting countries is not how Rudd wants to be seen by the UN community.
He also wants to be free to critique the human rights records of other countries without having Australia’s failure to support the indigenous declaration thrown back at him. For instance, in July 2006 when Australian officials in Canberra were discussing human rights issues with their Chinese counterparts, especially the persecution of the Falun Gong movement, China’s Assistant Foreign Minister, Cui Tiankai, raised the issue of Australia’s position on the UN declaration. At a subsequent news conference, Australia’s Foreign Affairs deputy secretary was asked by a Chinese journalist why the government had failed to endorse the document. If Rudd reverses Australia’s stand then, at one stroke, such embarrassments would be removed.
The recommendations from the 2020 Summit were passed on to a parliamentary committee for what has been labelled simply as “further discussion”, but which is obviously intended to mould them more to fit the government’s own political agenda. In early May, the discussions over constitutional change raised the issue of a preamble to the Constitution to give special recognition to Aboriginal people. At the moment there is bipartisan support for this, with Opposition Leader Brendan Nelson publicly supporting the notion and even John Howard, in the dying days of the 2007 election campaign, coming out in favour.
When Melbourne legal academic Cheryl Saunders appeared before this committee she raised the stakes on this issue in a way that is likely to be attractive to the government. Saunders argued that a pro-Aboriginal preamble would create inconsistencies with the existing body of the Constitution. She said Section 25 could currently be interpreted as allowing the states to deny Aboriginal people the vote. To tack a new, aspirational preamble onto an old constitution containing provisions that might actually be in conflict with it, she said, would be “bizarre”:
Now to have a preamble that says this is all to do with reconciliation with the indigenous people, and to leave section 25 there saying they might not be able to vote in some states, is just bizarre, absolutely absurd. This is a debate about if we’re going to go down the path of having a preamble, and that could be a great national moment, let’s be sure that it is really part of the document and that will require us to look at the body of the constitution as well.
In short, not only is a constitutional preamble back on the agenda but so is constitutional change.
The key is bipartisan support. In 1967 one of Australia’s very few referendums to change the Constitution was successful. It was not, as commonly believed, to make Aborigines citizens and give them the vote, which were rights they already enjoyed, but to allow the Commonwealth to pass national laws affecting Aborigines and to count Aborigines in the national census, two provisions that had previously been the responsibility of the states alone. This was an initiative of the Holt Liberal government and was supported by the Whitlam Labor opposition. It gained a Yes vote of no less than 91 per cent.
It is likely that if a pro-Aboriginal preamble were put today, full of vague but worthy sentiments with which only a few hard-hearts could disagree, it too could gain bipartisan support and win a similar referendum ballot.
Even without a formal constitutional amendment, a preamble alone still has potential for dramatic political consequences. Constitutional lawyer and Australian Catholic University Vice-Chancellor Greg Craven told the parliamentary committee that mentioning Aborigines in the constitutional preamble could be “a part reparation for the wrongs that have been done to them over the centuries”. However, he warned that if the preamble mentioned aspirations or rights, it could be used in unintended ways by activist judges. In other words, if a bipartisan referendum on the preamble was successful, Australians could wake up one morning to find the judiciary had discovered a whole range of previously unimagined Aboriginal rights were inherent in it.
IF THE JUDICIARY DECLINED to offer support of the Mabo kind, a constitutional preamble that supported separate rights for those who identified as Aborigines, coupled with a government announcement to the UN accepting its declaration, would still have a dramatic effect on the political landscape. Instead of practical reconciliation and government intervention in remote communities at the grass roots level we would be back with the same old agenda that has failed for the past thirty years: self-determination, land rights, and a separate Aboriginal parliament.
Once the latter was in place, of course, the next steps would be a treaty and demands for Aboriginal sovereignty. It is worth observing that although some prominent Aboriginal leaders—notably Warren Mundine, Wesley Aird and, lately, Marcia Langton—are critical of those who rate grand political reforms higher than practical measures to provide proper protection and education for Aboriginal children, the advocates of the old agenda never went away. Indeed, at the same time as Howard was abolishing ATSIC, Aboriginal academics and their supporters regarded this as only a temporary setback and pressed on with what at the time seemed like utopian demands for a treaty and sovereignty.
In 2005, for example, Larissa Behrendt of the University of Technology Sydney, supported by George Williams and Sean Brennan of the law school at the University of New South Wales, published a book entitled Treaty, arguing the political advantages of the idea and how to go about securing it. Behrendt was one of the original members of the secessionist organisation the Aboriginal Provisional Government, run by former ATSIC chairman Geoff Clark and the Tasmanian activist Michael Mansell.
Behrendt’s book makes it clear that the aim of a treaty is far from some amicable social compact which will further reconciliation. Instead, the principal rationale for a treaty is to establish Aboriginal sovereignty. The argument is that Australian courts have recognised that traditional Aboriginal society was governed by its own laws. The existence of a legal system, the book argues, logically entails the existence of Aboriginal sovereignty, which was never extinguished by the Crown’s own declaration of sovereignty. The problem for the activists is that the issue of sovereignty is not justiciable in any Australian court. Nor can an ethnic minority group like the Aborigines bring such a case before an international court, since only states can normally do that. But if a treaty recognises Aboriginal people as a group distinct from the Commonwealth—in Henry Reynolds’ words, a nation within the state—then there may be room for the latter kind of legal manoeuvre, especially if accompanied by Australian endorsement of the UN’s declaration on indigenous rights.
That is the reason the activists at the 2020 Summit were so intent on endorsing the UN declaration, and why the Howard government instructed its representatives at the UN last September to vote it down: it threatened the territorial integrity of the Australian state. It would encourage a secessionist movement that aimed to establish the Aborigines as a politically separate race of people who were entitled to a state of their own, either within or outside the Commonwealth.
Given the new policy agenda in Canberra, this demand is no longer as fanciful as it appeared even a few months ago. Indeed, if the Liberal Opposition can be persuaded—or more likely wedged—into supporting something as apparently innocent as a bipartisan approach to a new constitutional preamble, then a major step will be taken towards its realisation.
Meanwhile, of course, the obscene contrast between the lives of most Aboriginal people and the Aboriginal political elite will remain unaffected. The losers will be the women and children in those dysfunctional communities that produce some of the world’s highest rates of murder, violence and sexual abuse. The winners will be the activists who are no doubt already booking their first-class air tickets and hotel suites in Geneva and New York for the upcoming rounds of meetings and conferences.