Pritchard, Sarah --- "Indigneous Policy (Not) and the Australian Federal Election" [1996] HRightsDef 8; (1996) Human Rights Defender

Indigenous Policy (Not) & the Australian Federal Election

Sarah Pritchard*

Where, in the Federal election campaign just past, was the serious debate of indigenous policy issues? During Australian election campaigns, indigenous policy, it appears is a no-go zone. The conspicuous absence of indigenous policy initiatives contrasted starkly with debate around the environment, family health rebates, primary industry, national competition, national rail upgrades, tax breaks for veterans, waterfront reform, youth unemployment etc. Despite high-sounding rhetoric of reconciliation, indigenous constituents continue to be regarded as marginal and of little importance in national political affairs.

The Coalition's early strategy in the campaign was to hold back on detail for as long as possible. Later on, it sought to overcome a wide-spread perception of itself as a policy-free zone. On 14 February, the Coalition announced its Aboriginal and Torres Strait Islander Affairs Policy. This policy fuelled suspicion that the Coalition was not on top of the issues or preferred to conceal its intentions.

In the area of native title rights, the Coalition's responses have always been at best ambiguous. In December 1993, Dr Hewson, then Leader of the Opposition, referred to the passage of the Native Title Act as a day of shame. Former Liberal Leader Alexander Downer promised Premier Court that he would repeal it. Upon becoming Leader of the Opposition, John Howard did little to dispel uncertainty surrounding the Coalition's position with respect to the applicability of the Mabo decision to mainland Australia. Like his predecessor Mr Downer, Mr Howard supported WA's legislative attempt to circumvent the Commonwealth's native title regime. Speaking in the House of Representatives on 25 November 1993, John Howard described it as a fair and reasonable Bill. In March 1995, the High Court struck down the legislation as unconstitutional and racially discriminatory. Despite the High Court's unequivocal affirmation of the application of the Mabo principles to the whole of Australia, in a subsequent Headland Statement Mr Howard noted only that the High Court's decision seemed entirely appropriate to the circumstances of the Mer people in the Murray Islands.

On 5 January 1996, The Australian reported a commitment by then Opposition Leader Mr Howard to WA Premier Richard Court that a Federal Coalition Government would legislatively extinguish native title over pastoral leases. Howard's subsequent comments on Court's reference to a deal lent weight to fears about how a Coalition Government might make the Native Title Act more workable. During the election campaign, the Coalition's Aboriginal and Torres Strait Islander Affairs Policy compounded such fears by reserving to a Coalition government the right to amend the Act to ensure its workability and undertaking to seek early resolution of these uncertainties. Confidence in the Coalition's position on native title rights was not assisted by Premier Court's suggestion that the WA Government could be liable for ambit claims to large parts of the Perth metropolitan area, including backyards and front verges. Such assertions fly in the face of the view, now generally accepted except apparently by Richard Court, that Mabo and the Native Title Act establish beyond doubt that freehold land is not subject to native title.

Earlier this year, then Shadow Spokesperson for Aboriginal and Torres Strait Islander Affairs Chris Gallus created further uncertainty about Coalition indigenous affairs policy by refusing to rule out cuts in the funding of programs aimed at redressing indigenous disadvantage, despite an agreement by Federal and State Governments to maintain funding levels. Ms Gallus' comments drew the response from former Aboriginal and Torres Strait Islander Commission (ATSIC) Deputy Chairperson Charlie Perkins that annual funding of $900 million was insuff-icient to provide basic inf-rastructure to indigenous Australians. Ms Gallus' approach to the funding of indigenous programs contrasted with that of Australian Medical Association President David Wheeldon, who rejected as a myth the redneck view that the previous Federal Government was spending a fortune on indigenous health and called for greater funding for indig-enous health services. Whilst the Coalition recognises that indigenous ill-health is preventable and can be blamed on the poor state of public health infrastructure - water quality, housing and sewerage, its Aboriginal and Torres Strait Islander Affairs Policy rules out the possibil-ity of additional funding for housing and infrastructure programs.

Ms Gallus argued that the Federal Labor Government has thrown money at problems in Aboriginal affairs with little achievement. She made the obvious claim that action is needed to reverse disastrous trends in Aboriginal health, employment, incarceration, substance abuse and domestic violence. Yet the Coalition's policy document was scarce on details of how better outcomes might be secured in areas in which major policy initiatives have been undertaken.

Whilst the Coalition may have failed to reveal detailed policy during the campaign, the Federal Labor Government was also reluctant to address many of the most pressing issues in indigenous affairs. From Labor, as well, clear policy was needed and was not forthcoming. For example, calls for a major initiat-ive to overcome the infrastructure deficit in indigenous communities, referred to in ATSIC's 1995 Recognition, Rights and Reform report as a national disgrace, continued to receive short shrift. In 1995, Aboriginal and Torres Strait Islander Affairs Minister Robert Tickner failed to get a proposal for a $1.5 billion Centenary Infrastructure Package through Cabinet. The scheme was to provide Aboriginal communities with the same standards of housing, roads, water and sanitation, and other essential services as non-Aboriginal comm-unities by 2001.

Problems with aspects of the operation of the native title legisl-ation also demanded a response. In his second Native Title Report, Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson identified a growing gap between the intention of Parliament in enacting the Native Title Act and the Act's operation. The Social Justice Commissioner noted that a lack of good will on the part of State and Territory Governments has resulted in the native title process becoming mired in confusion and mistrust. Mick Dodson also expressed concern that governments and developers have been shaping the agenda and have fostered a legalistic approach towards the mediation and negot-iation processes which are part of the native title regime. Dodson's report raises questions about the capacity of these processes to be used effectively by Aboriginal and Torres Strait Islander peoples and to provide just and enduring resolutions of claims.

Labor's ability to gain mileage out of Premier Court's supposed secret deal with John Howard was hindered by the fact that the Federal Labor Government, too, would have preferred pastoral leases unencumbered by native title. As part of a deal to get the native title regime in place, Aboriginal people were promised a day in court to determine this issue. At the time of the Mabo debate, this was seen as a major achievement for indigenous negotiators. At the end of the day, however, in light of the Commonwealth's legal advice that native title did not survive the grant of pastoral leases, Labor's promise of a day in court was a little fatuous.

With respect to pastoral leases, the intention of Labor and the Coalition was essentially the same, except that Labor calculated that the courts would deliver the result for which Mr Court looks to the new Prime Minister, Mr Howard. The Federal Labor Government was not willing to argue that pastoral leases which made reservations for Aboriginal rights of access, forage and traditional activities should be interpreted as recognising continuing rights in Aborigines. By leaving the matter to the courts, the Labor Government hoped to avoid the moral odium of wiping out indigenous rights and jeopardising reconciliation. In a number of proceedings, the Commonwealth submitted that pastoral leases extinguish native title. In its recent Waanyi decision, the High Court ordered the National Native Title Tribunal to accept the native title claim of the Waanyi people of north-west Queensland. A preliminary stage in the native title process, acceptance creates a right on the part of claimants to negotiate. Arguments put by the Commonwealth, as well as the States, sought to deprive the Waanyi of their statutory right to negotiate. Justice McHugh was provoked to observe that he found it difficult to control [his] anger that these points are put forward.

The Federal Labor Government must also have been mindful of the likel-ihood that blanket legislation extinguishing native title on pastoral leases might conflict with the Commonwealth's Racial Discrimination Act and Australia's international human rights oblig-ations. Attempts to extinguish native title rights might also amount to acquisition of property and oblige the Commonwealth, by virtue of the Constitution, to provide compen-sation on just terms.

All major parties were called on to confirm that the much vaunted Social Justice Package is still on the agenda. The Coalition's Aboriginal and Torres Strait Islander Affairs Policy contained no commitment to deliver a Social Justice Package. Neither did Paul Keating's speech as Prime Minister at the ALP campaign launch on 14 February. Labor's Policies for Aboriginal and Torres Strait Islander People, released on 25 February, just one week prior to the election, committed a reelected Labor Government to the introduction of a social justice package. The High Court's decision on native title issued a challenge to Australian governments to reevaluate policies of paternalism and neglect and to recognise the special status of indigenous peoples in the Australian nation. The Native Title Act and the Indigenous Land Fund constituted the first two stages of the Federal Government's response to the Mabo decision. As the third stage of the Government's response, indigenous organisations were invited to make submissions on measures to advance social justice for Aboriginal and Torres Strait Islander peoples. In March and April 1995, after wide-ranging consult-ations, the Council for Reconciliation, ATSIC and the Aboriginal and Torres Strait Islander Social Justice Commissioner - three indigenous controlled national bodies with an appreciation of, and access to, national political and policy processes - produced detailed recommendations on social justice measures.

Both Labor and the Coalition must endorse the national policy agenda set by indigenous organisations in their social justice package recommendations. If the commitment to social justice is serious, all political parties must embrace the measures identified by indigenous Australians as essential to address outstanding grievances and to achieve progress in indigenous affairs. Otherwise, indigenous individuals and organ-isations who have sought to partic-ipate in policy reform will lose the faith of indigenous constituencies and support will grow for those voices which proclaim the futility of such exercises.

The Commonwealth, and not just the States and Territories, should be expected to respond to the spiralling incidence of Aboriginal deaths in custody and the failure of State and Territory Governments to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody. At the Federal level, the Coalition and Labor must address the grotesque over-representation of Aboriginal children and youth in the juvenile justice system. The Coalition's indigenous affairs policy contains not a single reference to juvenile justice issues. Indigenous leaders and policy-makers continue to await a response to the recommendations contained in the Australian Law Reform Commission's 1986 report on The Recognition of Aboriginal Customary Laws. The Federal Labor Government's lack of action in this connection was in disregard of a commitment in the 1994 ALP Platform to legislate to recognise aspects of traditional law in light of the recommendations of the Australian Law Reform Commission.

One no longer needs to speculate as to the reasons for the cavalier treatment of indigenous aspirations in the election campaign. The electoral successes of Bob Burgess, Graham Campbell, Pauline Hanson and Bob Katter confirm the recent observation of Robert French, President of the National Native Title Tribunal, that, cynicism, denial and self-serving ignorance about indigenous peoples are still rife among many in Australia. According to a Bulletin Morgan poll of 13 February 1996, only 2% of voters identified Aborigines as an important issue for Australia. The campaign strategists, on both sides of the political fence, appear to have been well aware of how far non-indigenous Australians are from an understanding of, let alone sympathy towards the aspirations of Aboriginal Australians.

In 2001, five years from now, Australia plans to celebrate the Centenary of Federation. With the unanimous support of Federal Parliament, 2001 has also been designated as the year for achieving reconciliation between indigenous and non-indigenous Australia. Informing these events is a desire to reexamine our national identity and purpose as we enter a new millennium. Increasingly, aspirations for redefining nationhood have placed reliance upon Australia's unique indigenous cultures.

Many recent developments in indigenous policy setting - from the Kimberley region to Cape York Peninsula - have been driven by indigenous organisations with a high level of political clout. In the process of setting an indigenous policy agenda, Australia's indigenous peoples are strengthened by a growing web of international standards and developments in indigenous policy world-wide. As a prelude to the Centenary of Federation, the 2000 Sydney Olympics will focus international interest on Australia. It would be surprising if indigenous organisations failed to capitalise on such an opportunity to draw the world's attention to the progress of Australian governments in recognising indigenous rights and securing substantive gains for indigenous Australians. Without authentic, inclusive processes of institutional renewal and policy reform, it is questionable whether any rapprochement, let alone reconciliation will be possible by 2001. It is a pity that in the campaign just past neither Labor nor the Coalition had the stomach to debate how, outside the realm of rhetoric, Federal Australian Governments might act to forge new relationships with Aboriginal and Torres Strait Islander peoples. A bipartisan approach is certainly needed, but not a negative one.

*Sarah Pritchard is an Australian Research Council post-doctoral research fellow in the Faculty of Law at the University of New South Wales and a member of the editorial panel of the Australian Indigenous Law Reporter.

**Thanks to the Office of Public Affairs of the Aboriginal and Torres Strait Islander Commission for permission to reproduce the above photograph.n