Rather than fulfilling Tony Abbott’s hope that recognition would make the Constitution complete and the nation whole, this latest proposal would perpetuate Aboriginal claims to a point that would render most of the continent largely ungovernable
We call for the establishment of the First Nations Voice enshrined in the Constitution. Makarrata is a culmination of our agenda—the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination. We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
—Uluru Statement from the Heart, May 26
Noel Pearson got all he hoped for from the Uluru constitutional convention for indigenous people held from May 24 to 26. The “Uluru Statement from the Heart” is an abridged version of an article he wrote two years ago in the Australian (July 4–5, 2015) where he said that Aboriginal leaders wanted and deserved more than symbolic recognition from the constitutional change mooted by the Gillard government and subsequently supported by Prime Minister Tony Abbott.
The Constitution, Pearson said, is fundamentally about the distribution of power. Pearson stakes his case on the claim that power is the great deprivation from which Aboriginal people suffer in this country. At the constitutional conventions of 1891 and 1897-98 that preceded Federation, he said, Aborigines were not asked to take part in any negotiations of how power would be distributed and order maintained. So they were left powerless and voiceless. The solution he sought in 2015, and which the Uluru convention now endorses, is for a “Makarrata Commission”, which Pearson says will be “a formal, independent umpire”, to sit between the government and Aboriginal groups to supervise the making of what he calls “agreements”, but which most activists in the lead-up to Uluru called “treaties”.
Pearson has also brought into this debate the concept of “First Nations”, a term borrowed from North American activists and once no more than a piece of leftist political argot. Thanks to its repetition throughout the Uluru Statement, the notion has now been implanted in the national political dialogue. This is a clever move by Pearson because, if his proposal ever gets up, it will mean the Commonwealth government would be constitutionally obliged to negotiate with each group claiming First Nation status whenever the government proposed legislation that had any impact on Aboriginal interests.
Since native title holders now claim no less than 60 per cent of the Australian continent, such a proposal would mean that not only would any future Commonwealth government have to continue to negotiate legislation through a recalcitrant Senate full of minority parties, but Aboriginal interests would constitute a second even more impenetrable gauntlet for it to run.
In short, rather than fulfilling Tony Abbott’s hope that recognition would make the Constitution complete and the nation whole, this latest proposal would perpetuate Aboriginal claims to a point that would render most of the continent largely ungovernable.
This column appears in the July, 2017, edition of Quadrant, now on sale.
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The Uluru Statement’s call for a “truthful relationship with the people of Australia” and “truth-telling about our history” should start with the shameless claims made by Pearson himself about the political status of Aboriginal people in his lifetime. In his most recent essay in the Australian (May 27–28), Pearson describes his status when born in 1965:
My first two years of life, I was like a refugee child in detention, stateless and unpossessed of citizenship. The supreme law of the home where I was born provided that our people should not be counted in the national census, and that the Commonwealth parliament should not hold any responsibility for us.
He repeated this claim on the ABC’s Q&A on May 29. However, his own childhood bore no resemblance to that of a stateless refugee child in detention. He grew up with both his parents on the Hope Vale Mission on Cape York. It was then run by dedicated Lutheran missionaries who gave him a good primary school education and sent him to an elite boarding school, St Peter’s Lutheran College, Brisbane, from where he matriculated to Arts and Law degrees at the University of Sydney.
His reference to the Australian Constitution as the supreme law that denied Aborigines like him being counted in the national census is just as bogus. Even though this was commonly claimed by activists before the 1967 referendum, most students of the legal literature at the time knew that in a celebrated paper in 1966 the ANU’s Geoffrey Sawer had exposed it as a myth. And while it is true the Commonwealth could not make laws for Aborigines until the 1967 referendum was passed, that provision had no role in rendering Aborigines stateless or denying them citizenship. Responsibility for Aboriginal education, housing, welfare and labour conditions remained with the Queensland government which, at the time, was accused by most activists not of neglect or desertion but of paternalism and over-protection.
A more truthful relationship with the Australian people would also call for more honesty about claims by Aboriginal groups for nation status. Aboriginal clans, hordes and tribes, which in most cases were no more than large extended families, never attained nationhood either before 1788 or any time after. This was confirmed in 1836 in the seminal judgment of William Burton in the New South Wales Supreme Court and has been repeated several times since by Australian judges, including the High Court’s Harry Gibbs in 1979:
it is not possible to say … that the aboriginal people of Australia are organised as a “distinct political society separated from others”, or that they have been uniformly treated as a state … They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
The Uluru Statement also calls for a better future for Aboriginal children through the policy of self-determination. However, there is nothing new about this. Self-determination has been in place and accepted by almost all Australian governments, state and federal, since the 1970s. Since then, governments have withdrawn their meagre funding from the old missions in remote communities and replaced them with far more expensive regimes run by committees of local indigenous people.
It is no secret that this forty-year experiment has been a terrible failure, and that some of the loudest voices calling for more self-government have been those in charge of the communities during their worst periods of decline.
Noel Pearson is well qualified to speak on this topic because in the past decade he has been responsible for one of the most expensive and one of the most notorious of the failures.
Aurukun (population 1300) is one of four communities in Cape York (including Pearson’s home town of Hope Vale) he targeted in a joint corporate/state/Commonwealth welfare reform program backed by $200 million of government funding between 2007 and 2015. Yet in 2013, an investigation for the Queensland government found the settlement was suffering an epidemic of violence and child sexual abuse. More than 200 children under sixteen years old, including twenty-nine under ten years old, were being treated for sexually transmitted diseases, some fifty-six times the rate of infection among the wider Queensland population.
In May 2016, all twenty-five members of the Aurukun teaching staff had to be evacuated from the settlement after a mob of 100 Aboriginal youths, some wielding axes and machetes, attacked the homes of several teachers and car-jacked the principal and his wife from their vehicle. These youths did not attend school, were unemployed, and their anarchic, lawless lifestyle had caused years of unrest.
In 2012, another surge of incidents against employees of community service agencies led to four of the agencies fleeing Aurukun. Employees targeted included nurses, building contractors, probation officers and even the head of the community “safe house”. A former school teacher said this level of violence had been going on for ten years.
Yet when Noel Pearson responded to public criticisms of the situation, he attributed no blame to his programs. He ascribed the violence to sly-grog running, illegal gambling and drug dealing, and blamed the Queensland government for not responding to his appeals for more police.
In short, like most self-governed remote communities today, Aurukun fails the most elementary test of what it takes to be a well-ordered society. It cannot provide its own security against a gang of teenage hoodlums. Yet Pearson not only wants the Australian nation to grant this community equal status, he also wants us to perpetuate it through a constitutional guarantee. While he struts across the national political stage, his own people are lurching into bedlam.
Rather than allow this shameful farce to be subject to a constitutional referendum, the Turnbull government should drop the curtain on it now.
For more debate over constitutional recognition see the proceedings of the Quadrant Constitutional Convention, held on May 24, in this issue.