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The Howard Government and indigenous rights: an imposed national unity?

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The Howard Government and Indigenous Rights: An imposed national unity?

Jane Robbins, School of Political and International Studies Flinders University

Abstract Under the Howard Coalition government numerous controversies have emerged in the Indigenous Affairs portfolio: the Wik issue, the question of a f ormal apology to the stolen generations, the failure to endorse the recommendations of the Council for Aboriginal Reconciliation, and, most recently, the abolition of ATSIC. Underpinning each of these cont ested policy developments is a common issue ‐ the question of the place of Indigenous peoples within the Australian nation.

The current government has consistently opposed any measure that gives recognition of Indigenous rights. The previous policy of self -determination was explicitly rejected on the grounds that it has ‘implications of separate nations or governments’ which a re unacceptable (OATSIA 2003). ATSIC was dismissed because it was deemed a failure, but also b ecause it was said to represent a form of separatism that divided the nation. ATSIC’s pursuit o f ‘symbolic reconciliation’ (such as a Treaty) was not only defined as a distraction from the achieveme nt of improved socio-economic outcomes for Indigenous people, but also as a threat to national u nity. The government dismissed ATSIC without consultation or negotiation with Indigenous representa tives, imposing a vision of national unity by unilateral decision.

This paper explores the assumptions implicit in the gove rnment’s rhetoric ‐ that recognition of Indigenous rights and self-determination are divisive and inherently at odds with nation cohesion and unity. The works of Canadian theorists Will Kymlicka (1 995) and James Tully (1995) provide a basis to suggest that other visions are possible ‐ that rath er than ignoring or suppressing the demands of Indigenous minorities for recognition, national unity is best served by political accommodation of the special status of such groups.

Introduction In the ten years since the Howard government first came to power the Indigenous Affairs portfolio has been restructured in ways tha t constitute a fundamental change in the political status of Australia’s Aboriginal and Torres Strait Islander population. The dismantling of the Aboriginal and Torres Strait Islander Commission (ATSIC) in 2005 ended a tradition of elected Indigenous repres entation that had antecedents dating back to the Whitlam era of the 1970s. 1 The Howard government has demonstrated its resolve to establish new approache s and new policy goals on a number of significant Indigenous issues, abandoning many of the established principles of former governments (Dodson and Pritchard 1998). In particular, the current government has renounced the concept of sel f-determination for Indigenous people, arguing that it has ‘implications of separa te nations or governments’ (OATSIA 2003a) that the government does not support. In its place it has developed a policy of ‘practical reconciliation’, characteris ed by an emphasis on tangible measures to improve outcomes in areas such as healt h, housing and employment (OATSIA 2003b).

A new approach to Indigenous policy In describing his vision of practical reconciliatio n, the Prime Minister, John Howard, has given some insights into his view of the place of Indigenous peoples in Australian

1 An account of the establishment of the National Abo riginal Consultative Committee (NACC) and the National Aboriginal Conference (NAC) can be found in Pratt (2003) or Robbins (1994).


society: it is a view that stresses the paramount i mportance of social unity and common political processes. His belief is that all Australians have equal rights to cultural tolerance and ‘individual self-fulfilment’ : ‘[w]e cannot share a common destiny if these rights are available to some Austr alians, but not all. Likewise, we cannot share a common destiny without an overriding and unifying commitment to Australian institutions’ (Howard 2000a, 90).

The Prime Minister also discounts arguments about r eparation for past injustice, rejecting what has become known as the ‘black armband’ view of Australian history.

Australians of this generation should not be requir ed to accept guilt and blame for past actions and policies over which they had no control. But we do have an obligation and responsibility to overcom e their legacies for our fellow Australians (Howard 2000a, 90).

On the question of reconciliation, he asserts a for ward looking, positive ideal of an integrated nation, expressing the hope that ‘we wil l focus on what unites us as Australians rather than what divides us; that we wi ll respect and appreciate our differences and not make demands on each other that cannot be realized; and that together we will build a future in which we can all share fairly as united Australians’ (2000, 96).

While the Prime Minister is not alone in expressing ideals of national unity in the context of setting goals for the Indigenous Affairs portfolio, 2 under the Coalition governments of the last decade the conceptualisatio n of national unity has taken a very particular form. It is one that interprets so cial unity as a form of equality based on identical treatment and uniform political proces ses, and defines demands for recognition of the special status of Indigenous peo ple as a destructive ‘symbolism’ that has drawn resources away from the more legitimate goals. In the preferred rhetoric of the Howard government, Indigenous people should be understood as one interest group amongst many within Australian socie ty. Their most pressing claim is the severe ongoing disadvantage they experience in key socio-economic indicators. The task for government is then understood as a pra ctical one ‐ to bring about the normalisation of Indigenous outcomes across a range of health, education and employment fields.

In this way ‘practical reconciliation’ has been por trayed as in opposition to ‘symbolic’ reconciliation’, rendering any concern with a right s agenda as, at best, a wasteful distraction and, at worst, a threat to the concept of the nation. By representing a unified political system as an ideal, the Prime Min ister’s vision of national collectivism has paved the way for the removal of A TSIC and the introduction of ‘mainstreaming’ of Indigenous programs.

The adoption of this framework for policy has led t o a series of controversies in the Indigenous Affairs portfolio, as previous policy ob jectives of self-determination 3 have been discarded, with little or no consultation with Indigenous groups. In these

2 Indeed, as Gunstone (2005) points out, this was a str ong feature of many of the publications of the Council for Aboriginal Reconciliation. 3

It should be acknowledged that the definition of sel f-determination has always been controversial and few would claim that it had actually been achieved.


circumstances, it remains to be seen whether the na tional cohesion desired by the current government will be enhanced or diminished by the approach it has chosen to take. The concept of an imposed national unity is rather paradoxical.

In the following sections some significant policy i ssues are considered in order to explore the impact of the Howard’s governments’ approach in this portfolio. In the final section, some alternative conceptions of nati onal unity, more sympathetic to the recognition of Indigenous rights, are discussed to provide a basis for a critique of current policy.

Native Title When the Howard government first came to power in March 1996, native title was already established as a high profile issue. The d ecision of the High Court in the 1992 Mabo case had established a legal entitlement for I ndigenous people to assert their rights to traditional land, where this did not conf lict with other legal forms of land use. In response, the previous Keating Labor gover nment introduced the Native Title Act in 1993, establishing a process for native titl e claims. This was the culmination of a highly contested political struggle as pastora lists and mining groups mobilised to oppose the recognition of Indigenous native title a nd to limit any impact on existing land use arrangements. The Native Title Act, as a result, has to be understood as a delicate political compromise brokered by government (Farley 2003). One of the notable features of the negotiations that led to th e passing of the legislation was the direct involvement of representatives from the sect ors involved, including an Indigenous negotiating team (Tickner 2001).

The Coalition parties were far from happy with thes e developments and campaigned for the March 1996 election with an agenda for amendment of the native title legislation. Shortly after winning office the new Howard government was faced with a further intensification of the controversy when t he High Court released its Wik judgment in December 1996. The important aspect of this decision was that, contrary to the expectation of both sides of the Parliament, the High Court determined that pastoral leases did not automatically extinguish al l native title rights. Rather, native title rights could co-exist with the rights of the leaseholder, except where they were

incompatible, in which case those of the leaseholde r were upheld (Bartlett 2000, 51).

The issue that came to dominate the debate was the question of ‘certainty’ for pastoralists ‐ how individual leaseholders could kn ow whether they were affected and in what way. The government’s proposed answer to this problem was laid out in what became known as the ‘ten point plan’. The key ingr edients were confirmation of pastoral leases granted since the enactment of the Native Title Act 1993 irrespective of native title claims, restriction of the rights o f native title claimants to negotiate in relation to exploration and mining, and raising the requirements of the ‘registration test’ to be eligible for the right to negotiate (AT SISJC 1997, 15). In other words, ‘certainty’ for pastoralists was to be achieved at the expense of the Indigenous rights confirmed by the High Court. A further measure was proposed to enhance the security of pastoralists ‐ an ‘upgrade’ of their le gitimate activities on pastoral lease property to those allowed in the definition of ‘pri mary production’ by the Tax Office. This was described by one academic lawyer as ‘land grab’ and ‘a breathtakingly audacious increase in pastoralists’ property rights without payment of a single cent’ (Keon-Cohen 1997, 521). Throughout this heated controversy, the government


refused to negotiate with Indigenous representative s, unlike the previous Keating Labor regime.

In many of the media presentations made by the Prime Minister, it was made clear that his perception of the role of government on th is issue was to adjudicate between competing interest groups and to act in the nationa l interest (Howard 1997a, 1997b, 1997c, Robbins 1998). On several occasions he used the metaphor of a ‘swinging pendulum’ to indicate the balance of interests betw een rural and Indigenous communities, and stated that he understood ‘the res entment of so many people in rural Australia that the pendulum has swung too far in th e direction of the Aboriginal community (Howard 1997b). He explained that the Native Title Act amendments were intended to assuage the resentment of the rura l sector and ‘bring the pendulum back to the centre’ (Howard 1997b).

In November, the Prime Minister took the unusual st ep of making a direct Speech to the Nation broadcast on television, to explain his position o n Wik and native title (1997d). The language he chose to express his view s is indicative of his broader conceptualization of the place of Indigenous people within the nation. He began by talking about ‘striking a fair and decent balance’. He acknowledged that Indigenous people had been ‘very badly treated in the past’ an d reiterated a commitment to improving their health, housing, employment and educational opportunities. However he also enumerated the many difficulties faces by t he rural sector: ‘[t]hey often endure the heart-break of drought, the disappointment of bad international prices after a hard worked season’. Australia’s farmers, he said, ‘have always occupied a very special place in our heart’. He reminded viewers ‘how important the rural and mining industries are to the future of our country. Betwe en then they contribute 63 per cent of Australia’s export income and that helps generat e a lot of wealth which in turn enables us to help the less fortunate within our co mmunity.’

According to the Prime Minister the factor that had tipped the pendulum too far in favour of Indigenous interests was the Wik decision , as it had not been anticipated that pastoral leases could be subject to native tit le claims when the Native Title Act was passed in 1993. The ten point plan was offered as a fair and balanced solution to this stand off, a compromise that resisted calls fo r blanket extinguishment of native title rights. Instead, they would be considerably restricted.

In this context he concluded:

When I was sworn in as your Prime Minister I took a very solemn oath. The first words of that oath were that I would well and truly serve the people of Australia and that meant all of the Australian peop le. In a very difficult situation I believe that I and my Government have d one that. We have delivered a plan that produces fairness, justice an d certainty (1997d).

Needless to say, there were many opponents of this viewpoint and the ten point plan solution. Nettheim condemned what he called the ‘h ysterical’ political response to the Wik decision, pointing out that the High Court decision explicitly confirmed that

‘any native title rights and interests would have t o fit around the edges of the pastoralist’s rights’ (1997, 497). Keon-Cohen took the point further, arguing that the real problem was that pastoralists had become used to exceeding the terms of their


leases, retorting that ‘[c]oexisting native title does threaten those unlawful non-pastoral activities which exceed the terms of their leases ‐ and why not? If this creates uncertainty for pastoralists, why should Ab original people suffer?’ (1997, 520).

The question at issue here is what constitutes fair ness? The answer clearly depends upon what concept of equality is invoked. The Howard government was at pains to promote its policy as one that treated Australians identically . In other words, native title rights were seen as a form of inequality beca use they could only be claimed by one group in society.

When the amendments to the Native Title Act were before Parliament John Howard made another broadcast, this time to country based Prime Television viewers. In this speech he commented, ‘[a]t long last a solution has been found to this very difficult

issue which will treat all Australians equally’ and ‘Now that the so-called right to negotiate has been removed, and both Aborigines and farmers will be treated equally before State tribunals, it’s possible for me to say we have found a way through the

difficulty on the basis of all Australians being gi ven equality of treatment’ (1998).

Nettheim (1997, 498) argues that this is not really a consistent position in relation to land titles: ‘[c]onsistency would require that othe r forms of underlying title also be extinguished, for example, the title of freehold ow ners who have leased their land to others, and the land of freehold or leasehold lands over which the Crown has granted mining leases’.

In his 1996-7 Native Title Report , Mick Dodson, the Aboriginal and Torres Strait Islander Social Justice Commissioner (ATSISJC) strongly attacked the government’s ‘use of concepts borrowed from equality and non-dis crimination law to justify the extinguishment and impairment of Indigenous peoples’ property rights’ (ATSISJC 1997, 147). He disputed the validity of such inter pretations, citing the International Convention on the Elimination of All Forms of Racia l Discrimination (CERD) and other instruments of international law as providing a different basis for understanding Indigenous and minority group rights.

One feature of the principle of non-discrimination is that it does not suppose all groups and individuals in society to have ident ical interests but requires that different interests be accorded full respect a nd equality before the law (ATSISJC 1997, 154-5).

The government’s intervention to counteract the Hig h Court’s determinations on the Mabo and Wik cases was done in order to promote the interests of the rural sector against those of Indigenous people. This was despi te the conservative nature of the High Court’s rulings, which specifically protected all existing valid land use, making native title rights secondary. In terms of the benc hmarks referred to by the Social Justice Commissioner, the government’s action was discriminatory. The United Nations Committee on the Elimination of Racial Discrimination agreed. After the passage of the Native Title amendment Act of 1998, it recorded censures against the Australian government, finding that it had failed t o meet its obligations under the international convention (Brennan et al. 2005, 64).


The policy decisions made by the Howard government on this issue were strongly influenced by a concept of national identity that d iscounts the different history and cultural entitlements of Indigenous people. In the view of Larissa Behrendt this has led to a failure to protect the rights of some of t he most vulnerable citizens of the country. She writes, ‘[r]ather than mere historica l imagery, nationalistic images can be manipulated in ways that profoundly affect the w ay that rights are seen and protected (or not)’ and leads her to conclude that ‘formal equality does not work for Indigenous Australians’ (2003, 55).

Reconciliation The Howard government inherited from its Labor predecessors an established process devoted to exploring the options for reconciliation between Indigenous and non-Indigenous Australians. The focal point of this ac tivity was the Council for Aboriginal Reconciliation (CAR), set up by the Hawke Labor government in 1991 and given a lifespan of a decade. Grattan describe s the creation of CAR as a ‘fall-back’ which ‘arose out of a failure to agree on gra nder gestures’ (2000, 7). This is a reference to previous unsuccessful efforts by Indig enous leaders and the National Aboriginal Conference (NAC), an elected Indigenous advisory body, to secure a commitment from government to negotiate a treaty or formal agreement of understanding with Indigenous people.

The CAR’s functions were to stimulate public intere st in a concept of reconciliation and to promote better understanding of the history and culture of Indigenous people, as well as awareness of the extent of their disadva ntage in Australian society. Its task was to embark on a lengthy community consultation at the end of which it was to make recommendations to government on the benefit of negotiating ‘a formal document or documents of reconciliation’ (Tickner 1 991). Great care was taken to avoid specifying a treaty as the necessary outcome. Membership of the Council included prominent people of both Indigenous and non-Indigenous background and its initial chair was Patrick Dodson, at that time best known for his work on the Royal Commission into Aboriginal Deaths in Custody. For Dodson, this was an opportunity to set in train a ‘peoples’ movement’ that would en gage the attention of a broad spectrum of ordinary people (Dodson 1993).

In 1992 the Labor Prime Minister, Paul Keating made an arresting and emotional speech in Redfern Park in which he described the CAR’s mission as ‘to forge a new partnership built on justice and equity and an appr eciation of the heritage of Australia’s indigenous people’ (Keating 1995, 379). He spoke of the need for an ‘act

of recognition’:

Recognition that it was we who did the dispossessin g. We took the traditional lands and smashed the traditional way of life. We brought the disasters. The alcohol. We committed the murders. We took the children from their mothers. We practiced discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these th ings being done to us (1992, 378-9).

Keating defined the achievement of a better relatio nship with Aboriginal and Torres Strait Islander people as ‘a fundamental test of ou r social goals and our national will:


our ability to say to ourselves and the rest of the world that Australia is a first rate social democracy’ (1992, 377).

This was stirring rhetoric and might have been take n as an indication of a commitment to a radical agenda. However, as Gunstone (2005, 4) notes, the agenda emphasised by the Labor governments was ‘symbolic reconciliation’, that is, public rallies in support of reconciliation and other demo nstrations of goodwill, rather than a more hard-edged emphasis on rights or political iss ues. CAR chairman, Patrick Dodson, retained a hope that harder edged reforms w ere possible, and that Aboriginal property rights, customary law and political rights could be negotiated to address Indigenous ‘yearning to escape the powerlessness of exclusion and dispossession’ (Dodson 1999, 333)

At the time the Howard government came to power in 1996, the CAR had established a significant public profile and had gone some cons iderable distance in achieving the mass movement Dodson had envisaged. It had done this through its promotion of a

wide range of activities and information, which inc luded a magazine, many pamphlets and publications. At its peak the CAR publication Walking Together had a circulation of 75,000 (Gunstone 2005, 6). Perhaps even more re markable was CAR’s success in establishing wide community involvement through its promotion of the Study Circles project and its development of the Australians for Reconciliation program which encouraged community activities. Signing ‘Sorry Books’ and displaying the ‘Sea of Hands’ became popular events around the country (Gunstone 2005, 2). Perhaps the most outstanding evidence of its impact was to be t he spectacular popularity of the symbolic ‘bridge walks’ in the year 2000, when over a million people were estimated to have taken part in a gesture of support for reco nciliation (Reconciliation Australia 2004).

In 1997 CAR staged a Reconciliation Convention and the Prime Minister was invited to speak, along with other prominent Australians an d the deputy chairperson of the South African Truth and Reconciliation Commission. Approximately 1800 delegates attended, filling the Melbourne Convention centre t o capacity. The Convention was timed to mark the 30 th anniversary of the referendum that changed the Con stitution to remove discriminatory clauses relating to Aborigine s and also gave the Commonwealth government powers to make policy on Indigenous issues. It proved to be a memorable event.

It was not an auspicious moment for John Howard: the Wik decision was constantly in the news and Pauline Hanson’s One Nation party had been polarising public opinions on race issues. Many Aboriginal leaders w ere believed to be ‘close to abandoning the notion of constructive engagement with the Federal Government and regard[ed] themselves as an embattled, oppositional force’ (Rothwell 1997). An issue that had been simmering for some time was an Inquiry by the Human Rights and Equal Opportunity Commission (HREOC) into past policies that had forcibly removed Aboriginal children removed from their families (Jopson 1997, 15). The government had not yet released the report, but it was understood to conclude that these policies amounted to a form of genocide and r ecommended that compensation should be made, including a formal apology by government (Steketee 1997, 22).


On the eve of the Convention, the chairman of CAR, Patrick Dodson, called for the Prime Minister to apologise for the removal of Abor iginal children. He also criticised the government’s ten point plan for amending the Native Title Act (Davis 1997). In

his address to the Reconciliation Convention the ne xt day, the Prime Minister repudiated Patrick Dodson’s remarks. He also affir med his commitment to reconciliation, but qualified this with the remark that ‘it must not lead to different

systems of accountability and law on the basis of r ace’ (Kelly 1997, 1). Although he made a personal apology to the people affected by t he child removal policies, he drew the line at making a formal apology. The Prime Min ister became noticeably angry as individuals in the audience began to heckle and an increasing number stood and turned their backs upon him (Forbes 1997, 1).

With the official release of HREOC’s Bringing Them Home report (HREOC 1997), commonly referred to as the ‘Stolen Generation Report’, the question of the need for government to say ‘sorry’ became a national debate. The government’s steadfast opposition to any formal apology became a stumbling block to any lingering prospect of the negotiation of a treaty. Patrick Dodson was not reappointed to the Chair of the CAR for its final term.

In 2000 the Australian government was once more criticised by the UN Committee on the Elimination of Racial Discrimination, this time for its ‘refusal to apologise, lack of leadership on Reconciliation, mandatory sentencing and native title issues’ ( ATSIC News , June 2000, 4). As the CAR’s term drew to a close , the Prime Minister announced that the deadline for its recommendations was not important, and that the timeline for ‘real reconciliation is still years of f’ ( The Australian 28/2/00, 1). Despite this lack of encouragement, the CAR hosted Coroboree 2000 in May 2000 at which its documents were presented to the government: The Australian Declaration Towards Reconciliation and the Roadmap for Reconciliation. Around the country huge numbers of people made symbolic bridge walks in support of reconciliation and in Sydney it took over five hours for the crowd to cross the Harbour Bridge ( ATSIC News , June 2000, 4).

The CAR’s reconciliation documents were far from radical and were largely concerned with aspirational expressions of reconcil iation. They contained strategies to advance ‘Indigenous economic independence, overcoming disadvantage, recognising rights and sustaining the reconciliatio n process’ (Brennan et al. 2005, 20).

The Prime Minister’s press release commented that although there was ‘significant agreement’ between the government and the CAR, it was not possible to give full support to the documents. (Howard 2000b) He took the step of releasing his own preferred version of the Declaration Towards Reconciliation with revised wording. One of the offending statements in the CAR’s document was: ‘[w]e desire a future where all Australians enjoy their rights, accept th eir responsibilities, and have the opportunity to achieve their full potential.’ The Prime Minister’s version used the phrase, ‘[w]e desire a future where all Australians enjoy equal rights, live under the same laws and share opportunities and responsibilit ies according to their aspirations’ (Howard 2000b). Other changes related to a referenc e in the CAR document to Indigenous ‘self-determination within the life of t he nation’. This was deleted and replaced with a commitment to ‘respect the right of Aboriginal and Torres Strait


Islander peoples, along with all Australians to det ermine their own identity’ (Howard 2000b).

In other words the government was restating its com mitment to a uniform national system of government with no concession to differen tiated cultural rights or political arrangements.

The final report of the CAR contained its final rec ommendations for future processes of reconciliation. These included the insertion of a reference to Aborigines and Torres Strait Islanders as ‘first peoples’ in the Australi an Constitution, the endorsement of motions of support by local, State and Federal gove rnments for the Documents of Reconciliation , and legislation to establish a process to develop an agreement or treaty ‘through which unresolved issues of reconciliation could be resolved’ (SLCRC 2003, 6).

The federal government has shown little interest in pursuing the recommendations, and in 2003 a Senate Committee concluded that there was ‘a failure of national leadership on this, one of the most critical issues in the definition of the nation’ (SLCRC 2003, v). The one area in which a recommendation of the CAR has been embraced, is in the establishment of a national rep orting framework to provide benchmarks for the measurement of Indigenous disadvantage. Under the auspices of the Productivity Commission (SCRGSP 2003), this has been set in place and the first

report, Overcoming Indigenous Disadvantage: Key Indicators , was released in 2003. This information has become a foundation for the de velopment of the government’s practical reconciliation policies.

The Aboriginal and Torres Strait Islander Commission One of the most dramatic policy decisions of the Ho ward government was the abolition of the Aboriginal and Torres Strait Islan der Commission (ATSIC), an Indigenous representative body that had been in exi stence since 1990. This took place in a number of steps, but concluded at the end of J uly 2005 ( ATSIC News , June 2004a). A less visible, but equally significant, ch ange was introduced in July 2004 when ATSIC programs were devolved to a range of other Commonwealth government departments and agencies ( ATSIC News , June 2004b). This ‘mainstreaming’ initiative was widely denounced by Indigenous leaders and many described it a ‘step back into a distant and discre dited past’ ( ATSIC News , June 2004b).

Although the announcement of ATSIC’s demise was a surprise to those who had come to see the Indigenous representative body as a n established institution of the Australian political system, it was consistent with the government’s agenda of a unitary national system and its rejection of the co ncept of self determination. It was also a reflection of long-standing hostility to ATS IC by the Prime Minister.

In 1989, the year the ATSIC legislation was passed by the Labor government, John Howard, then leader of the Opposition, made a state ment in the House of Representatives (Howard 1989):

If there is one thing, above everything else, that we in this Parliament should regard as our sacred and absolute duty, it is the p reservation of the unity of the


Australian people. The ATSIC legislation strikes a t the heart of the unity of the Australian people.

In the same speech he argued,

The only way to bring about a proper accord between Aboriginal and non-Aboriginal Australians is to embrace Aborigines ful ly within the Australian community; to treat their deprivation and their dis advantage ‐ which I do not dispute ‐ as a manifest responsibility of the entir e Australian community. The Government will not lift up Aborigines, embrace the m, and right their wrongs by signing treaties or creating black parliaments. It will bring upon them more distrust, more hostility and more misunderstanding.

Fifteen years later, it would appear that John Howa rd had not changed his mind at all.

ATSIC was a bold initiative, which gave Indigenous representatives control over a billion dollar budget in Indigenous Affairs. It op erated at both national and regional levels, and utilised a process of regional planning as the basis for its allocation of funding to community based organizations. A factor contributing to the perception that ATSIC was failing was a series of personal con troversies surrounding some of its national board, particularly its chairman, Geof Cla rk. In January 2004 the minister, Senator Amanda Vanstone, took action to suspended him on the basis of charges of obstructing police brought against him in the Magis trates Court (Vanstone 2004).

ATSIC was reviewed shortly before it was dismissed and the report of the Review Team suggested that it was in urgent need of reform to make it more effective. The most important aspect of its critique was that the role of the ATSIC Regional Councils should be made more flexible and able to evolve, ar guing that this would strengthen the voice and efficacy of Regional Councils and est ablish the necessary framework for integrated service and program delivery’ (ATSIC Review 2003, 5). This proposal was ignored.

The trigger for the decision to abolish ATSIC came from an unexpected source: it was a comment by Mark Latham, the Labor Opposition leader, in March 2004, that he believed ATSIC had lost community support and was no longer effective in addressing the problems of Indigenous communities (The Australian 31/3/04). It should be noted, though, that Latham advocated a ne w Indigenous representative body to replace ATSIC ( Sydney Morning Herald 31/3/04). The Prime Minister took the opportunity to push a plan through Parliament t o dismantle ATSIC, stating that ‘the experiment in separate representation, elected representation, for indigenous people has been a failure’ ( The Courier-Mail 16/4/04, 1). Unlike the Labor party, the Coalition government has no plans to initiate a new representative body, instead setting up a National Indigenous Council (NIC), an advisory body of appointed Indigenous people (OIPC 2005, 12).

Throughout its lifetime ATSIC was frequently controversial. Criticism was often polarized between two conflicting points of view: t hose who believed ATSIC was a divisive force in the identity of the nation, and t hose who believed it was not autonomous enough from the accountability of mainstream processes (Robbins 2004, 6). Ironically, many people thought ATSIC was a fa ilure because it was not a true


vehicle for self-determination, but a tool of gover nment (Rowse 1996, 43). However, ATSIC’s advocacy of what the Coalition government labelled “symbolic’ issues ‐ a treaty, Constitutional recognition and an apology ‐ put it severely at odds with the government’s preferred approach of responding to th e practical dimensions of health, employment and education. In labelling ATSIC a ‘failure’ John Howard referred to the lack of progress in improving Indigenous socio- economic indicators, or ‘real

outcomes’ ( Financial Review 16/4/04), despite the fact that responsibility for most of these policy areas was with mainstream government departments. To the government, ATSIC was the embodiment of an undesirable form of self-determination.

In the wake of ATSIC, the government has announced a new approach to Indigenous service delivery. This is based on a co-operative whole of government approach, drawing State and local governments into partnershi ps with Indigenous communities

(OIPC 2005). A contentious feature of these arrang ements is the introduction of Shared Responsibility Agreements (SRAs), in which individual Indigenous communities or families negotiate an agreement with government for a desired service or resources. As government documents explain, ‘groups will need to offer commitments and undertake changes that benefit the community in return for government funding’ (OIPC 2005, 18). This concept of ‘conditional entitlements’ has attracted considerable comment (McCausland 2005, Arabena 2005) and raises questions about the equality of Indigenous citizens hip, especially in the context of such severe social disadvantage (Robbins 2005, Stan hope 2006, 24)

The abandonment of ATSIC and the incorporation of Indigenous people into a ‘mutual obligation’ SRA regime is a consequence of the government’s strong aversion to the principle of self-determination, wh ich it asserts is in conflict with the

achievement of goals of national cohesion.

Arguments for the recognition of Indigenous Rights Political decisions that touch on matters affecting the needs and choices of Indigenous people can present a severe challenge to contempora ry governments, in Australia and elsewhere, because their status as a dispossessed m inority raises questions about the morality and legitimacy of the State itself. This is a policy area that raises complex questions about the fabric of the nation. From a go vernment perspective it can seem difficult to reconcile liberal-democratic values of individualism, freedom and equal treatment with Indigenous claims that emphasize col lective rights, cultural identity and special status (Weaver 1985, 142). It is easy t o portray demands for self-determination as a dangerous separatism that threat ens national unity or as unreasonable claims for special treatment. However, a growing body of scholarly work makes the argument that Indigenous claims for recognition of a special status are not only just, but are in keeping with basic te nets of liberal philosophy.

The Canadian philosopher Will Kymlicka has put forward a defence of both cultural rights and ‘national minority’ rights to rectify wh at he sees as a blindspot in traditional liberal theory: its insensitivity to th e ethnic and cultural composition of states (1995a, 3). Kymlicka points out that unlike other cultural groups in multi-ethnic societies such as Canada or Australia, Indigenous p eoples were involuntarily incorporated into a new society in which they were numerically overwhelmed, becoming a small ‘minority group’ in their own country. It is this fact that sets


Indigenous peoples apart from other ethnic groups a nd justifies special measures to accommodate self-determination, to enable them to protect their distinct cultural traditions (Kymlicka 1995b, 117). In addition, Kym licka sees cultural diversity as a virtue, something to be encouraged by the majority because it expands the range of life choices available to the individual (1995b, 12 1). It is not a primary justification for Indigenous rights, but is an additional benefit . This is an argument for a ‘differentiated citizenship’ (1995b,174). Kymlicka concedes that when differentiated citizenship leads to demands for self-government or self determination, it poses a risk to national integration. But he also suggests that attempts to subordinate such groups to a common identity have frequently backfired and have led to ‘even greater indifference or resentment’ (1995b, 185). Kymlicka sees nationalism as one of ‘most powerful forces of the modern world’ (1998, 127) an d believes it is unlikely that groups such as Indigenous people would ever give up their claims. His solution is the creation of a form of federalism that can accommodate the political aspirations of the minority group (1998, 129). In Australia this might be achieved through a treaty that specified Indigenous rights, together with some for m of self-determination.

Starting from a different perspective James Tully r eaches a very similar conclusion to Kymlicka. He describes the struggles of the Aborig inal peoples of the world for cultural survival and recognition as the ‘strange m ultiplicity’ of cultural diversity (1995, 3), which he believes can be managed through ‘constitutionalism’. He argues

that ‘[a] just form of constitution must begin with the full mutual recognition of the different cultures of its citizens’ (1995, 8). It s hould be negotiated ‘in a dialogue governed by the conventions of mutual recognition, continuity and consent’ (1995, 209). Through such dialogue a sense of allegiance and unity can be forged and each group can ‘see their own cultural ways publicly ack nowledged and affirmed in the basic institutions of their society’ (1995, 197-8). This offers the potential of a just and peaceful accommodation of diverse cultural traditio ns.

The work of these and other theorists suggest that there are many reasons to believe that national identity is not necessarily threatened by diverse political arrangements or differentiated rights, especially where these have been negotiated in a cooperative fashion. Rather, they suggest that consensual negot iated political arrangements (such as forms of federalism or constitutional arrangemen ts) can strengthen social cohesion

and provide a sound basis for nation-building. A gr owing body of international law also supports the recognition of rights to self-det ermination, of racial and cultural toleration and political freedoms. It is interesti ng to speculate why, despite a broad acceptance in Australia of the general precepts of self-determination since the 1970s, the current government has turned away from it, in favour of a narrow view of national unity.

Bill Jonas, former Aboriginal and Torres Strait Isl ander Social Justice Commissioner suggests four possible answers (ATSISJC 2003, 10-11). First, self-determination in Australia has never been properly articulated and i s still largely understood in its historical context as an alternative to assimilatio n and government control. It has

been characterised as a simplistic form of communit y control with poor accountability, effectiveness and efficiency. Seco nd, the Australian approach to self-determination has emphasized the incorporation of I ndigenous communities for the purpose of service delivery. This has resulted in ‘a plethora of separate organisations,

each established to meet [] just one particular nee d of the community’ (10), resulting


in poor coordination and limited capacity to manage the process effectively. Third, while this form of self-determination has seen an e xtensive expansion of the Indigenous community sector, it has remained heavil y dependent on government, which exercises control. This is ‘a largely rhetor ical version of self-determination which has maintained existing power balances’ (10). Fourth, the implementation of key commitments to policies of self-determination h as been largely illusory and rhetorical rather than genuine. He concludes that ‘real self-determination has never been tried’ (10). However, this historical experie nce has allowed the concept of self-determination to be dismissed as a failed experimen t that needs to be rectified by an insistence on the inclusion of Indigenous identity within the mainstream, for their own good.

Conclusion Over the last ten years the Howard government has moved the policy agenda in Indigenous Affairs from a poorly conceptualised and implemented goal of self-determination, to a strong emphasis on formal equal ity, uniform processes and national cohesion. As a consequence, the Indigenou s Affairs portfolio has experienced ongoing controversies, tensions and poo r relationships between ministers and the Indigenous community (Sanders 2005, 166). In achieving this policy shift its has used the rhetoric of identical rights as the on ly acceptable basis for equality and citizenship, and national security as an argument a gainst the accommodation of cultural difference. In its dismissal of ATSIC it has removed the primary means by which Indigenous Australians participated in the po litical system, and it did so without consultation or agreement.

In the international community, such ideas are beco ming less acceptable than they once were, as a growing body of philosophical and l egal works attest. Australia has already been drawn to the attention of the United N ations Committee on the Elimination of Racial Discrimination as a country t hat has failed to meet its obligations under international law in the treatmen t of its indigenous minority. If the government continues to impose such inflexible and intolerant attitudes in the formulation of Indigenous policy, it is very likely that Australia’s reputation on human rights will suffer considerable damage.

In Australia, arguments about Indigenous rights hav e emerged in the context of some high profile policy debates ‐ issues such as land r ights and native title rights, reconciliation and the matter of a formal apology f or past policies of child removal.

In Australia Indigenous leaders have put forward ar guments which echo these ideas. Behrendt (2003, 179).suggests that recognition of I ndigenous rights would enhance, rather than diminish Australia’s institutional fram ework: ‘[p]athways towards enhanced Indigenous rights protections will provide results that will transform Australia’s legal and political institutions in way s that will offer improved rights protections, opportunities and inclusion to the who le community’.


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