Justice delayed for Indigenous Australians

Australia is the only country in the world, according to Linda Burney, not to have granted First Nation peoples recognition in their Constitution.

She also pointed out that the recent failed attempt of the bipartisan Referendum Council established in 2015 to resolve recognition issues was just the latest of many attempts by Aboriginal groups for recognition and a say in their own affairs. The first person to significantly agitate for change was William Cooper in the early 1930s. At 72, from his home in Footscray, he and the Australian Aborigines’ League he established, obtained 2000 signatures for a petition to King George VI. In 1938 this was formally presented to PM Joseph Lyons who declined on the part of the Australian government, to pass it onto the King.

Linda Burney, of course, is a well known and respected career politician who after 13 years in NSW State politics, as their first Aboriginal member, (becoming indeed for a time Deputy Premier) was elected in 2016 to the federal seat of Barton, as the first Aboriginal woman to be elected to the House of Representatives. She has a Diploma in Teaching from the Mitchell College of Advanced Education, now part of Charles Sturt University, and over 30 years of active involvement in Indigenous Affairs with multiple organizations. Now 62, she is of mixed descent, Scottish and the Wiradjuri people of Central NSW. She brings wide experience, great sensitivity, and a moderate voice to parliament on the thorny question of Constitutional Recognition of Indigenous Australia, discussed in the Q & A, ABC program of Monday 19 August 2019.

The distinguished panelists were:

Linda Burney, Labor Member for the NSW seat of Barton, and the first Aboriginal woman to be elected to Federal Parliament.

Julian Leeser, Liberal Member for Berowra and Co-Chair of the Parliamentary Joint Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples.

Patricia Turner, CEO of ATSIC 1994-8, academic and public servant on numerous aboriginal welfare organizations including Closing the Gap.

Jacinta Price, musician and conservative CLP candidate for the NT seat of Lingiari at the 2019 election.

Sally Scales, Uluru Statement delegate, Deputy Chair of the APY Lands Executive Council.

It was particularly disappointing that Aboriginal Affairs Minister Ken Wyatt was not one of the panelists since at a National Press Club Luncheon on the occasion of NAIDOC (National Aborigines and Islanders Day Observance Committee) week, he had reignited debate on Constitutional Recognition of Indigenous Australians by suggesting that over the present term of parliament, the government would consider an adjustment of the constitution that might be acceptable to Australians at a future referendum. After the Garma traditional festival August 2-5 attended by Minister Ken Wyatt, the government announced an important qualification to dampen Indigenous expectations. Any referendum would be limited to putting to the vote a clause recognizing the pre-existence of native races prior to settlement, but the government would not support any change in the Constitution which would embed in it an Indigenous political voice.

Justice delayed is Justice Denied

Undoubtedly, aboriginal elder Bill Rammage spoke for most Australian Indigenous and Torres Strait Islanders in asking why, despite multiple inquiries, consultations and reports, it seemed that nothing ever came of them. He stressed that what they wanted was not token changes, nor symbolic acts, but a say that would be listened to on big-ticket items that impinge on their rights as the original, and therefore equally legitimate, residents of Australia. It is only just over 50 years since Indigenous statistics were included in Australia’s census data! More importantly, until the Mabo High Court decision of 1992, they had absolutely no legal ownership rights to inhabitant the lands on which they lived,

They have been virtually in a constitutional limbo since white settlement 231 years ago, surely a national disgrace, and a continuing denial of Justice. Is it too hard to remedy this situation? It should not be, given Australia’s admirable record in bringing Papua-New Guinea to nationhood, but that milestone was achieved without the need to accommodate an overwhelming majority of white settlers claiming total sovereignty over the native peoples.

Australia had had an involvement in the Administration of Papua-New Guinea since the end of the first world war leading up to Independence in September 1975. Its people, similar to Australia’s Torres Strait Islanders, were heavily dependent on Australians to run their country when in 1972 the newly elected Prime Minister of Australia, Gough Whitlam, announced a program for transition to Independence. It seemed at the time an impossibility but the country had an educated elite, valuable natural resources, and the time had come to end what might be considered as colonial occupation. It was not an end to support but a re-deployment of aid.

Political machinations that have bedeviled the progress of Constitutional Recognition

Aboriginal affairs is usually, but not always, approached in a bipartisan way. Unfortunately with changes in government come differences in direction, and the intrusion of purely political considerations into the formulation of indigenous policy.

Labor Prime Minister from 1983 until 1991, Bob Hawke, had a sincere concern for the welfare of Aborigines, and was responsible for the establishment of the Aboriginal and Torres Strait Islander Commission Act (ATSIC) of 1989. It functioned from 1990 up until 2004 and was not just a forum, but a representative body with executive power for the delivery of some Indigenous programs.

In 1992, when Paul Keating was Prime Minister, the Mabo High Court decision on the validity of native title resulted in large areas of the Northern Territory in particular, being set aside for specific indigenous control, to the consternation of many white Australians who thought the concessions were unnecessarily generous. It was a legal, not a constitutional decision, and individual judgements could presumably be challenged in the courts, including questions of royalties and compensation. It was probably inevitable that there would be a conservative backlash, and it certainly came when John Howard came to office.

He was elected in 1996, and his anti-indigenous bias soon became evident. When pressed to formally apologize to Indigenous peoples over past injustices, he adamantly refused. He would express no regret, even for symbolic reasons, for what happened centuries ago and had nothing to do with the present administration. To do so would be admitting liability, and would risk litigation for compensation. It wasn’t until after his time that Kevin Rudd did precisely this and proved that Howard’s excuse was just that – a convincing excuse.

During his tenure as Prime Minister John Howard had reasons to find fault with the operations of ATSIC. There were disputes involving key personnel, accusations that funds had been misappropriated, and instances in which expenditure had exceeded budgetary provisions without authorization. Most thought such irregularities teething problems, able to be rectified, rather than punishable offences.

At any rate, by 2004 Howard had completely dismantled not only its executive powers, but also its consultative role, terminating entirely the provisions of the 1989 ATSIC act. It had been a promising initiative for Indigenous participation, and its passing left a void in dialogue that all attempts thus far have failed to fill. Why did John Howard act in such a punitive way? He reputedly has explained it by saying that he did not want an indigenous organization dictating what his government could or shouldn’t do. It was a bitter setback to cooperative Aboriginal and Torres Strait involvement, and is why they now seek a say in their own affairs written into the Constitution for permanency.

The Australian Institute of Family Studies in September 2003 published a comprehensive research paper titled “Child Neglect and Abuse in Indigenous Australian Communities”, written by Janet Stanley, Adam M Tomison and Julian Pocock. It was an academic review of the literature and anecdotal accounts, by three non-indigenous authors, and not based on original field studies.

However these allegations of widespread serious sexual abuse in Aboriginal Communities prompted the Northern Territory to commission a research Inquiry in August 2006 to find better ways to protect Aboriginal Children. It was a Territory wide study which conducted more than 260 meetings in 45 communities, and received 65 written submissions. The results were released 15th June 2007 and suggested that education was the key to management:

“School is the way to keep future generations of Aboriginal children safe. Getting children to school every day is essential because: children are safe when they are at school; school is a venue for educating children about child sexual abuse and protective behaviours; education provides opportunity, empowerment and achievement; it offers a way to overcome the social and economic problems which contribute to violence; children can confide in their teachers”.

“The Inquiry urged the government to improve Aboriginal education systems, including local language development, to make education more effective for Aboriginal children”.


John Howard notified the Chief Minister of the Northern Territory, Clare Martin, of his intention to intervene, but declined to meet with her and discuss the findings. Within two weeks, he was dramatically implementing, the “Northern Territory Emergency Response” (NTER).

The report manifestly did not accord with what the Prime Minister wished to hear. Pig-pigheadedly, he launched his Intervention anyway. It had the effect of impugning the morality of all Aborigines;, and punishing them, regardless of fault. Sending in the Army, Police and Medical teams, for a cost in excess of $1 billion, to some 73 NT remote communities has been described by Pat Turner as “a complete violation of the human rights of Aboriginal people in the Northern Territory”.


The Referendum Council’s exploratory work during Malcolm Turnbull‘s three years in office ended abruptly after many conservatives both inside and outside of parliament, stridently vetoed any constitutional change for an Indigenous political Voice, as requested in the Uluru Statement. In the face of such fierce and determined opposition, that a referendum would have been doomed to fail, Malcolm Turnbull capitulated. Virtually the victim of a “gotcha” situation, he was then roundly castigated by the right for lacking leadership on the issue .

Which way will Scott Morrison take the nation on Constitutional Recognition?

The intellectual interest for me in this Q & A episode has been to form a personal perspective, based on the comments of the panelists, as to the present status of the Indigenous Affairs policies of both the government and opposition parties. How genuine is the Morrison government after appointing Ken Wyatt to be Indigenous Affairs Minister, in wanting to advance Constitutional Recognition?

Questioner Michael Doyle pointedly asked where the Prime Minister stood on the issue. This was a critical question to ask, since it is most unlikely that there will be any progress without decisive leadership. Is it not time therefore, for him to stand up, express his views, and declare what he will or will not do? More precisely how does he propose to co-design with the Indigenous peoples an acceptable proposition for an Indigenous Voice? Or is it his intention to regally sit back, wait for others to come up with suggestions to be mauled, and declared unworkable? And has he not, by already ruling out any constitutional change as requested, curtailed negotiations, and excluded meaningful outcomes?

Julian Leeser, the co-Chair of the Parliamentary Joint Committee on Constitutional Recognition, was the official Liberal spokes-person on the panel. He down-played Scott Morrison’s role in the process, and argued that the reasoning for not supporting the call to establish an entity with an indigenous political voice in any Constitutional change, was simply because of the difficulty of meeting the Referendum requirements for a successful vote. Certainly if the Coalition does not back the proposal, the chance of a positive Referendum result would be zero. Is this position his own, or indicative of his ongoing subservience to to the will of the Conservatives?

Linda Burney on the other hand indicated that Labor’s policy was to accept the Uluru Statement without modification, and to work towards its implementation when in government. This however might prove an impossibility without Coalition support.

Audience participant Clayton Simpson was one of the Uluru attendees who did not agree with the Uluru Statement, which he claimed was written by the Referendum Council, and un-democratically imposed on the convention. He was one of a protest “walk-out group” who evidently wished to agitate for a position of Indigenous sovereignty over their own affairs.

Outstanding young female Aboriginal leader Sally Scales who is Deputy-Chair of the APY Land Council, and was a delegate to the Uluru Convention, did not publicly dispute his allegations, but called for a private exchange of views. She did however emphasize that the 250 attendees at Yulara were a representative group from 13 regional dialogues, representatives from a multiplicity of aboriginal organizations, and ten official delegates.

She backed Bill’s call for action to achieve tangible results based on the Uluru Statement that is not, as some might wish to portray it, an aggressive push for separate indigenous sovereignty, but a plea to all Australians to be accepted just as they are. It is a request to continue to help them find their place in a modern world. The conciliatory tenor of this heartfelt statement must surely awaken the conscience of those of us who have often failed to understand and meet their expectations.

Well known NT politician and anti-domestic violence activist Bess Price, is the mother of multi-talented young Warlpiri/Celtic woman, Jacinta Price. Jacinta grew up in Alice Springs, and has been blessed with talents inherited from both her mother, and father Dave. Speaking as a panelist she pointed out that the Uluru Statement does not cover the diversity of Indigenous opinion. Certainly, she spoke as one of an expanding sub-group of talented, well-educated and articulate Indigenous people who identify strongly with their Aboriginal heritage, and need little if any assistance, to excel in either culture.

Jacinta appeared somewhat ill-at-ease and unsmiling in being rather disparaging of the Uluru Statement, speaking as the Lingiari CLP candidate at the recent election. She failed to win this seat against veteran Labor candidate Warren Snowden, but performed well, receiving 44.54% of the vote and recording a 2.75% swing for the CLP, in this NT seat.

Bill suggested that what she was saying reflected conservative political policy, rather than representing the genuine sentiments of the Indigenous people. She sees herself as one dedicated to assisting her people meet their goals, but she did not think the request for a political voice was necessarily in their best interest. Her position was flexible, and she would endorse workable solutions. However, she was critical of the lack of specificity as to what form a Voice would take, but over-looked the desire expressed in the Uluru Statement, for this to be co-designed.

It would seem that she has offended many in the Indigenous community who see her as condoning the draconian Intervention of the Northern Territory Emergency Response, still fresh in their memories She is seen as being used by Conservatives who continue to denigrate Aboriginal culture and the ABC which gives them valuable television exposure.

Pat Turner encouragingly told of the commitment and diligence of existing government departments for Indigenous involvement at all levels of government. Rather than wasting time arguing, she sees the way forward as coming from the concerted efforts of the various agencies to “Close the Gap” between disadvantaged remote village communities, and privileged white societies. The modus operandi she advocates is lobbying government for adequate funding of operations that would ensure an optimum proportion of Indigenous workers.

What now?

Pragmatically the chances of a Referendum approving Constitutional Recognition for the first peoples of Australia, given the unrelenting anti-Indigenous propaganda of so-called “Sky News after Dark”, are zero.

But I have not altogether abandoned hope for a sensible resolution given the concern of the Catholic Church for Aboriginal welfare, and the programs they sponsor to advance their interests. Some policies have undoubtedly been paternalistic, and have limited spontaneous expressions of Aboriginal culture, but they have been well intentioned, with many of the most prominent Indigenous leaders educated in Catholic schools.

Tony Abbott had a genuine concern for them, frequently visiting Aboriginal communities, and promoting regular school attendance. In addition Barnaby Joyce has shown admirable leadership by renouncing his earlier negative opinions, and suggesting an option for change that would not entail constitutional change. It could improve the lot of all those who live in remote communities, whether black or white, and have to contend with the tyranny of distance.

It surely deserves close scrutiny!

About Kenneth Robson

I studied at Adelaide Boys' High School, and the University of Adelaide, Medical School. graduating in 1961. My field of specialisation was Plastic and Reconstructive Surgery. Prior to establishing my practice in Adelaide, I spent 5 years working in India, and Papua-New Guinea, in the field of reconstructive surgery for leprosy. In retirement I joined the Australian Technical Analyst Association and passed the two examinations for a Diploma inTechnical Analysis, and the designation Certified Financial Technician (CFTe) by the International Federation of Technical Analysts.
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