Richardson, Seth --- "Reconciliation Fourteen times" [2009] IndigLawB 39; (2009) 7(14) Indigenous Law Bulletin 23

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Reconciliation Fourteen times

Seth Richardson

On 13 February 2008, Prime Minister Rudd rose in the national Parliament and made an apology to the Stolen Generations. It moved many to tears: in the gallery, amongst the thousands who had assembled outside parliament house in Canberra, and across Australia. It was a moment in which the nation paused and hoped. But what Prime Minister Rudd delivered was more than an apology; he offered the olive branch of constitutional recognition of Aboriginal and Torres Strait Islander people. To see this speech as merely an apology is to limit the possible future for Indigenous and non-Indigenous Australians.

In delivering the Apology, Prime Minister Rudd uttered a word that had become a political hot potato – ‘reconciliation’. Under the Howard Government, Australia had embarked on a campaign that supported ‘practical’ and rejected ‘symbolic’ reconciliation. Reconciliation seemingly came in two mutually exclusive forms. The formal process of reconciliation under the Reconciliation Council of Australia had ended in 2000 without an apology, without reparations, and seemingly without any actionable plan for the future. A decade long window on reconciliation had passed, never being opened far enough to make a difference. Winds of change were hampered or barred from entering the reconciliation dialogue.

Prime Minister Rudd, on the other hand, used the words ‘reconcile’ or ‘reconciliation’ 14 times throughout his address. The contrast in approach could not have been stronger. Given its timing, the speech was much more than an apology to the Stolen Generations: it created national expectations about pathways forward. It formed and informed a reinvigorated dialogue on national reconciliation.

Australia’s approach before the Apology had been an amalgam of commissions, reports, government policies, symbolic gestures, public participation and political debate. The Royal Commission into Aboriginal Deaths in Custody and the Bringing Them Home Report highlighted past and contemporary practices, revealing the racist policies that had impacted on Indigenous Australians’ socio-economic status and their disproportionate incarceration. Our history had been laid bare, our mistreatment of Indigenous people recorded in black and white. Prime Minister Rudd gave legitimacy to all that had come before and provided a change in direction for the future.

So it is disappointing that, even after the Apology, things seem no better. In many ways, the situation is worse. It is as though Aboriginal and Torres Strait Islander people occupy another Australia: one of overcrowding, imprisonment, unemployment and early death. Prime Minister Rudd derided the Howard years as offering only a ‘stony and stubborn and deafening silence’ on the past mistreatment of Indigenous people, and questioned how previous governments could ‘suspend our most basic instincts of what is right and what is wrong’. Yet, before being replaced in November 2007, Prime Minister Howard had implemented the Northern Territory Emergency Response (‘the Intervention’) and suspended the Racial Discrimination Act. These are measures to which the Rudd Government has given its ongoing support. Does this not also raise fundamental questions about what is right and wrong?

The discourse on how the Intervention plays out as part of the Rudd Government’s agenda on reconciliation is unclear. It is currently dealing with a complaint to the UN in relation to measures introduced in the Northern Territory. The Prescribed Areas People Alliance has brought a claim against Australia, alleging multiple breaches of the International Convention on the Elimination of all Forms of Racial Discrimination. The Intervention has been extensively criticised as a racist blight on Australia’s relationship with its Indigenous people – both domestically and abroad. In August, UN Special Rapporteur on Indigenous human rights, Professor James Anaya said that measures introduced under the Intervention ‘overtly discriminate against Aboriginal peoples, infringe their right of self-determination and stigmatise already stigmatised communities’. Yet the measures remain in place while, despite promises to reinstate it, the Racial Discrimination Act does not.

Somewhat incongruously, the Government also formally endorsed the Declaration on the Rights of Indigenous Peoples (‘DRIP’) in April this year. This was a step forward in the national challenge to bridge the sense of ‘otherness’ associated with Indigenous Australians. But the DRIP is not self-executing; in the absence of domestic legislation, it has no legal force. Formal state support for the DRIP is not enough; without substantive implementation – including reinstatement of existing protections – it can be nothing more than symbolism. Given the statutory silence on this front, it remains to be seen whether it will play any further role in the reconciliation process.

According to Prime Minister Rudd, inspirational words, if unaccompanied by concrete measures and improvements, are ‘little more than a clanging gong’. In recognition of the need for action, the Apology laid out two concrete goals: a bipartisan Joint Policy Commission and constitutional recognition of Indigenous Australians. The promise of constitutional recognition, said Prime Minister Rudd, was ‘consistent with the longstanding platform of my party and the pre-election promise of the Opposition’. It is clear from these words that what was being promised was a national referendum to amend the Constitution to provide express recognition of Indigenous people. This measure would be part of the ‘new approaches to enduring problems.’ Prime Minister Rudd was at pains to stress that the Apology was about moving forward, that

the time has come for the nation to turn a new page in Australia’s history by righting the wrongs of the past and so moving forward with confidence to the future.

Yet over 18 months later, both the Joint Policy Commission and constitutional reform remain more fiction than fact. Little has been said about either since February 2008 – it seems that questions of reconciliation have again been supplanted by louder conversations about ‘practical’ concerns, this time labelled ‘closing the gap’. As to the specific promises of reconciliation, once more, Aboriginal and Torres Strait Islander people suffer due to Government’s ‘stony, stubborn and deafening’ silence.’

Prime Minister Rudd promised to ‘open a new chapter in the history’ of Australia. It is too easy to dismiss this as political rhetoric, as purely soothing words. What needs to be acknowledged is that, in speaking to the future, he gave specific undertakings. Undertaking that must be honoured. If the Apology is to stand as a defining moment in relations between Indigenous and non-Indigenous Australians, it must be taken as a whole, not as a series of discrete constructs. Otherwise, it runs the real risk of operating as an end point: it will be the speech that broke through the ‘sorry’ impasse of the Howard years, and no more.

The challenge for Prime Minister Rudd and his Government is to deliver on these important promises. If we, the Australian people, are not presented with a referendum to formally recognise Aboriginal and Torres Strait Islander people in our national Constitution, he will have to say sorry again. Sorry for adopting a vocal, but ultimately hollow, approach to reconciliation. This time, though, Indigenous and non-Indigenous Australians may well stand and turn their backs.

Seth Richardson is the Program Manager for Governance at Tranby Aboriginal College (Glebe, NSW). He is also a casual lecturer at Nura Gili, University of New South Wales, where he teaches Indigenous Human Rights and Reconciliation International Experiences. Before these teaching positions Seth worked as a solicitor for Aboriginal Legal Services in the Northern Territory and taught law at Charles Darwin University (then Northern Territory University).