Aboriginal Law Bulletin
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by Christine Walton
The Northern Territory, like its southern counterparts, has over the last couple of years been engaged in a review of government expenditure. In 1991, as a result of the deliberations of the Estimates Review Committee (ERC) the NT Government announced significant cuts to all departments. The Government argued that these cuts were necessary because of reductions in funding from the Commonwealth Government. The impact of the ERC cuts was most severe in the areas of education, health, and community services - particularly significant areas for Aboriginal people already severely under-serviced.
As part of this cost-cutting exercise, Traeger Park School, in Alice Springs, was to be closed at the end of 1991. This school's enrolment was predominantly Aboriginal (98%) and it had developed a unique and successful program to cater for the needs of Aboriginal students. Parents argued that the school's program was successful as it allowed their children to succeed in mainstream-type programs, while also respecting, maintaining and building on their Aboriginal cultural identity. The program had a national and international reputation as leading the field in Aboriginal education. Further, the language program at the school had not only been a model for other schools in the NT and interstate, but also overseas (e.g. Thailand).
One might well ask what was the Aboriginal Education Consultative Group doing while the decision to close the school was being taken? Feppi, as the group is known in the NT, was actually in limbo at the time of the ERC cuts. The term of the past council expired in December 1990. In March 1991, the Minister announced a major re-structuring of Feppi. The new Feppi was not yet in place at the time of the ERC cuts so there was no formal Aboriginal group from which the Minister could seek advice. In a community where one quarter of the school population was Aboriginal this was a disgrace.
The closure of the school was vigorously opposed by the parents who had unsuccessfully sought negotiations with the NT Education Minister, Mr Shane Stone, to present their case. As a result, a group of 59 Aboriginal parents decided to lodge a complaint with the Human Rights Commission. They argued that the Minister had breached the Racial Discrimination Act 1975 (Cth) in dosing Traeger Park School because his decision was partly based on race. The Minister had stated publicly (ABC 7.30 Report'), and privately to the Principal of the school, that the idea of an all-Aboriginal school at Traeger Park was an 'educational heresy'.
Prior to hearing, the issue received a good deal of coverage in the media. Initially, the Minister gave a number of reasons for closing the school, including cost savings and declining enrolments. However, it became apparent that he had other underlying reasons which the parents concerned felt were racially discriminatory. The Minister made a number of statements on ABC Radio concerning the decision, including the following.
"Traeger Park was never part of the Aboriginal Education Program. Traeger Park is an urban school, where a very unsatisfactory situation had developed - where all children at the school, except four, were in fact Aboriginals. And I don't think that's in the long-term interests of Aboriginal children, who have to learn to take their place in the wider community - they have to learn to compete, and they are going to compete with white children and with white adults."[1]
The first sentence of this statement - that the school was not covered by the National Aboriginal and Torres Strait Islander Education Policy - is erroneous.[2] However, the crux of the issue was captured in the last section which revealed the real reason for dosing the school - it had turned into an urban Aboriginal school. Traeger had of course, been a school with a reputation for catering well for Aboriginal children for about a decade, so it is not surprising that it had attracted Aboriginal students. The changing demographic patterns of the community contributed to this trend as the non-Aboriginal population moved into new suburbs. The Minister's argument was that the students would be better off distributed around other schools in Alice Springs.
Once the decision to close the school was taken, expressions of interest for private sector use of the school buildings and grounds were made. As a result of this process the Catholic education system was granted the school premises at Traeger Park - at no cost! The wishes of the parents desiring a private church school were listened to by the NT Government, whilst the wishes of Aboriginal people were ignored. This is despite the fact that the Federal Minister for Employment, Education and Training even went so far as to offer the NT Minister a special grant of one year's funding to keep the school open as a public sector school. This offer was to enable negotiations with the Aboriginal community about the kind of school they wanted.
The Aboriginal parents argued their case - for keeping the school open - on a number of grounds. Firstly, it was in keeping with the rights of Aboriginal people to self-determination and culturally appropriate education. Secondly, they argued that dispersing the children into other local schools would dissipate the real gains being made by their children. The kind of 'mainstream education' being offered in other schools was in their view a version of the older 'assimilation' practices which had failed Aboriginal people in the past. As far as the parents were concerned, the goals of achieving academic, social and cultural outcomes were better achieved in an Aboriginal school with programs designed to meet their children' needs.[3]
Other prominent Aboriginal educators spoke publicly in support of the parents' case, either in the media or as expert witnesses at the hearing. For instance, Isaac Brown, Director of the Centre for Aboriginal and Islander Education (CATS) at NT University, in an interview on ABC TV, countered the mainstreaming argument with his own evidence of the success of many enclave groups. He argued that “when Aboriginal groups maintain esteem and ability to work in large groups of their own, they are better able to compete in mainstream Australia....”[4]
Peg Havnen, who is the Deputy Director of CATS and was involved in the negotiations for the implementation of the National Aboriginal and Torres Strait Islander Education Policy (AEP) in the NT, argued that the 'intent' of the AEP was being undermined by this decision[5]. Indeed, the first of the four main aims of the policy was:
"[t]o establish effective arrangements for the participation of Aboriginal parents and community members in decisions regarding the planning, delivery and evaluation of pre-school, primary and secondary education services for their children."[6]
It was clear that the decision to close the school was not in keeping with the aims of the AEP. The purposes of the AEP and the consequent NT Strategic Plan[7] were to improve the educational services and outcomes for Aboriginal students. The additional money provided by the Commonwealth was to allow for more generous provisions in the area of Aboriginal education. They were designed as affirmative action policies to turn around structural inequality.
The hearings were held in Alice Springs from 11-13 December 1991 before Commissioner William Carter and were, I believe, the first in Australia involving a public provider of education being accused of racial discrimination. The Minister's case was argued along the lines that the decision to close the school was based solely on economic arguments and that, anyway, the students would be better off competing with non-Aboriginal children in other schools in Alice Springs.
According to the Commissioner's determination, in terms of the provisions of the Racial Discrimination Act 1975 (Cth) it was necessary to prove that:
“firstly, there must be an act which involves a distinction, exclusion, restriction or preference which is based on race, colour, etc. and secondly, which act has the purpose or effect of nullifying or impairing recognition, enjoyment or exercise on an equal footing of any human right such as ‘the right to education and training.’”[8]
In relation to the first part, the Commissioner found that the decision was, in fact, "one 'based on race."'[9] However, he also determined that the Minister's "subjective purpose ...[was for]... the maintenance of educational opportunities and services for those children...."[10] So we have a decision which seems to take the intent of the Minister at face value.
In relation to the second part, the Commissioner was asking whether the Minister's decision to close the school and send the students to other schools, was made with the 'purpose or effect of nullifying or impairing recognition, enjoyment or exercise on an equal footing of any human right' such as 'the right to education and training'. The Commissioner determined that the Minister's decision was based on the view that mainstreaming the students would be in their longer term interests.[11]
The students' rights to education were, in the Commissioner's interpretation of the Act, sufficiently protected so long as they had access to some form of education. Their rights did not seem to extend to the form that that education took.[12]
The students' rights to education apparently were not threatened because they would be catered for just like other children in mainstream schools. In the context of human rights, affirmative action, and disadvantaged groups in our community, shouldn't our legislation work to affirm the need to take into account the specific needs of particular social and cultural groups? The Commissioner's interpretation of the legislation seems counter-productive to the purposes of affirming the rights of parents to demand education for children which takes account of their particular needs. The parents had argued that the type of education available at Traeger Park was culturally appropriate, affirmed their Aboriginal identity and provided the students with a sound academic education. They argued that the move to other schools would disadvantage their children and represented a step backwards to the old assimilation days. Despite all of the evidence provided to the Commissioner regarding the success of Traeger Park and despite all of the international evidence suggesting minority group students have particular needs, this decision seems to imply that any kind of education is OK.
Not being a lawyer, I am not overly familiar with the details of the Racial Discrimination Act 1975, however, I do question whether it is sufficient for its purpose? If we were to compare this decision with some of the outcomes in the U.S. courts we might find some cause for concern. The landmark decisions in he U.S. included Lau v Nichols [1974] USSC 14; (1974) 94 S Ct 786- Civil R 9, where it was held that:
'There is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum..."[13]
This case and others in the U.S. used the Civil Rights Act 1964 to uphold the rights of, and to the advantage of, minority group students who were being ignored in mainstream classes. In the U.S., court cases have been won by parents on the argument that their children were being disadvantaged by 'sink-or-swim' approaches to education. Yet in Australia, our legislation does not seem to affirm those rights. To ignore the specific needs of Aboriginal students in the name of treating all people 'equally' is a very good example of hidden or covert discrimination. This position ensures that the inadequate provision of Aboriginal education is maintained and that the few existing exemplary programs are threatened.
When the Commissioner's determination was made public, the lawyer acting for the parents was reported to have evidence that up to 35 Traeger Park students had not enrolled in any school this year.[14] Against all the evidence to the contrary[15], the rest of the students are presumably enjoying their right to 'sink or swim' in the mainstream. The parents have decided not to pursue the case further.
The Minister's arguments seemed to depend upon a fundamental misreading of affirmative action. Affirmative action is designed to improve options, whilst apartheid restricts options. Affirmative action has strong community involvement and support, while apartheid has little support from the community being segregated.
Affirmative action practices in education are designed to maximise control by the minority group over the education of their children. Apartheid places control firmly in the hands of the dominant group. Affirmative action is designed to achieve better educational outcomes for the minority group.
Apartheid is designed to 'keep people in their place'. The same practice, in different locations or sites, may be construed as affirmative action or apartheid, depending upon the specific contextual features of the practice. So for example, in the educational context, having an all-Aboriginal school in the urban centre - if it is the wish of the Aboriginal community, affirms Aboriginal identity, and teaches their children well - is an instance of affirmative action.
By the way, if we were to take the argument against having all-Aboriginal schools in the NT to its logical conclusion we might need to close about 80 schools in Aboriginal communities. Are we going to put all of the students in boarding schools away from home so we can save them from the perils of an all-Aboriginal environment? Does this sound familiar?
According to Cowlishaw, racism does not depend upon 'expressed hostility' but rather can be determined from ‘consequences of actions and beliefs.’[16] Institutional racism exists within apparently liberal progressive practices. It can exist in classrooms with teachers who declare they like children of difference. It can exist in government policies and practices even when spokespersons declare their position is in the best interests of the children of difference.
In the Traeger Park situation we have a minister who declared he was treating everybody the same and therefore fairly. He maintained the cuts to education were "not hurting Territory Aborigines any more than the rest of the community."[17] In reviewing education expenditure across the board, he found no need to comply with the intent of the AEP; that is, he found no need to consult with Aboriginal parents or advisory bodies. Underlying the decision-making practices of treating everybody the same was the assumption that there was a level playing field to begin with. This deliberately ignored the findings of just about every report on Aboriginal education in the last decade[18] and in particular, it undermined the intent of the AEP to turn around outcomes by working with Aboriginal parents.
Assuming there was a level playing field in the wake of the last decade's worth of reports is an example of intentional but covert institutional racism. On the one hand we have a government that goes through the negotiation process with the Federal Government in order to attract AEP funds while concurrently slashing education spending in the Aboriginal sector.
There has been a long history in the minority education literature of trying to make the point that equitable education does not necessarily mean providing the same education. The more recent approaches to minority education and the issues of gender as well, have made the point that affirmative action is needed to overcome structural inequality.
Since Traeger Park had turned into a mostly Aboriginal school, it might have been more appropriate to give it special consideration and support so that it could have continued to provide the educational community with a model of how to teach Aboriginal children. Instead, the NT Government is limiting the choices available to Aboriginal parents and students. At Traeger they had the option of academic success alongside of respect for their language and culture; all in the context of a predominantly Aboriginal school.
The action to dose Traeger Park is a further more recent example of the Minister's refusal to come to terms with Aboriginal self-determination and continued aspirations for a better deal educationally for their children. There are only a handful of primary programs around Australia that could be said to be making a real difference for Aboriginal students. For this reason, Traeger had become a model for many other schools around Australia. The confidence of students, staff and parents had grown with the school's success. The closure poses a serious challenge to that trust and confidence; so hard won and rare.
Public education generally, and Aboriginal education specifically, were marginalised by the ERC decisions. It seems particularly ironic that in the period when there have been real gains in Aboriginal education policy at the federal level, in the form of the AEP, the NT Government seems determined to undermine the policy's impact. The outcome of the ERC cuts seems to be abrogation of responsibility for Aboriginal education in the NT. The purpose seems to be to hand over as much of Aboriginal education as possible to the Commonwealth - a purpose transparent to both the Aboriginal community and the Commonwealth.
'Adapted with permission from three State Reports for the Journal, Education Australia, issues 14,16 & 17, 1991-1992.
[1] ABC Radio, (8DDD, 28-7-91).
[2] Commonwealth of Australia, National Aboriginal and Torres Strait Islander Education Policy: Joint Policy Statement, DEET, Canberra, 1989.
[3] See Merv Franey (Parent spokesperson) interviewed ABC Radio, 8DDD, 10.10.91.
[4] ABC TV 'News' & 730 Report, 3.8.91.
[5] See ABC TV, 7:30 Report, 30.7.91.
[6] Commonwealth of Australia, National Aboriginal and Torres Strait Islander Education Policy: Summary, DEET, Canberra, 1989, p2.
[7] Northern Territory Department of Education, The Northern Territory Strategic Plan: National Aboriginal and Torres Strait Islander Education Policy, Darwin, 1990.
[8] Carter, W.J., Human Rights and Equal Opportunity Commission, Racial Discrimination Act 1975, No H 91/53, Between Aboriginal Students’ Support and Parent Awareness Committee and Minister for Education, Northern Territory of Australia, Determination, February, 1992, p.12.
[9] Ibid., p29.
[10] Ibid., p.40.
[11] Ibid., pp26-27.
[12] Ibid., p.32.
[13] Quoted in Ovando, C., and Collier, V., Bilingual and ESL Classrooms: Teaching in Multicultural Contexts, McGraw-Hill, New York, 1987, p.34.
[14] Sunday Territorian, 8.3.92, p3.
[15] Department of Employment, Education and Training, Report of the Aboriginal Education Policy Task Force, ('The Hughes Report), DEET, Canberra, 1988.
[16] Cowlishaw, C., Black, White or Brindle: Race in Rural Australia, Cambridge University Press, Cambridge, 1988, p.6.
[17] ABC Radio, 8DDD, 28.7.91.
[18] See for example, DEEP, op. cit, 1988.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1992/38.html