5.6. What is the history of Indigenous (non-)recognition?
- Asmi Wood, ‘Voice, treaty, truth: Can we get to an affirmative 91.4 percent again?’ Law Society Journal 1 (2022).
- Mike Seccombe, ‘The Uluru Statement and Indigenous Recognition’, The Saturday Paper, July 29, 2017.
- Julianne Schultz, ‘Introduction: Whispering in our hearts’, Griffith Review 60, ‘First Things First’, 2018.
- Asmi Wood, ‘Self-determination under International Law and some possibilities for Australia’s Indigenous Peoples’, in Indigenous self-determination in Australia: Histories and Historiography, ed. Laura Rademaker and Tim Rowse (Canberra, ANU Press, 2020).
- John Chesterman, ‘Settling on a national Indigenous Australian “voice”’, Australian Public Administration 80 (2021).
What is the history of (non-)recognition?
Asmi Wood, ‘Voice, treaty, truth: Can we get to an affirmative 91.4 percent again?’, Law Society Journal 1 (2022), p. 82
This article discusses various aspects of the proposal for an Indigenous Voice, including potential benefits, limitations and obstacles. Professor of Law Wood examines political reactions to the proposal, particularly focussing on those of the Greens and Teal independents. These reactions are significant since, as Wood notes, the powers of the Voice ‘will depend on the will of the current Parliament’. Wood proceeds to discuss what the proposal for a Voice entails, including its purpose to augment ‘equality and equity’ and the way in which it would be controlled by Australian law and principles of governance.
The article goes on to discuss the limitations of the proposal of Constitutional reform to better the lives of Aboriginal and Torres Strait Islander peoples. Wood then recounts ‘a brief history of recognition’ which tracks the treatment of First Nation’s people from the invasion of the British, to mid-1950s assimilation policies, international focus on the rights of Indigenous people worldwide and current difficulties in establishing new policies in the area. These issues are discussed in further detail, as are recommendations from the Uluru Statement from the Heart and their potential benefits.
‘A brief history of non-recognition
Calls for constitutional recognition of Indigenous people, as the descendants of the first and original inhabitants of this continent, viewed in a relatively positive and affirmative way, is a recent development in Australia’s post “settlement” history. At Federation, the Constitution mentioned Indigenous people but did so for the purpose of excluding them from society. Indigenous people were separate from “the people”, that is, from the body politic of British settlers, immigrants to that “White” body politic and their descendants. The history of contact from between the 1770s and the Federation can be traced through the so-called “frontier wars” and can, in a very broad-brush way be characterised, and although never acknowledged as that in law, as “conquest”. Then, there was a period in which the Aboriginal body-politic (which was in direct and close contact with the Settler society) was treated as separate and different. In the 1841 case of R v Bonjon, Willis J stated:
[The colony of New South Wales] was neither an unoccupied place, nor was it obtained by right of conquest and driving out the Indigenous population, nor by treaties.
As the British became more secure and gradually leading up to Federation and the Constitutional Conventions, the settler community’s leadership largely ignored the Aboriginal population, seeking to leave them alone and separated until they would, in the view of the many, simply die out.’
Mike Seccombe, ‘The Uluru Statement and Indigenous Recognition’, The Saturday Paper, July 29, 2017
In this piece for The Saturday Paper, Seccombe notes that the proposal to formally recognise Australia’s Indigenous peoples in our Constitution has had a long history, with change still waiting to happen. Striking a note of optimism Seccombe cites lawyer Mark Leibler, co-chair of the Referendum Council, saying that the Voice proposal both represents the result of a process to find out what Aboriginal and Torres Strait Islander want and that the proposal is simple and conservative. Seccombe also cites lawyers Anne Twomey — who says that the proposal is modest, pragmatic, and would be a living ongoing process — and Shireen Morris, who notes that previous bodies such as ATSIC have been abolished rather than reformed and that is ‘why we need a constitutional guarantee’. Seccombe concludes that, up until now, Indigenous recognition has only been ‘countenanced’ as something that should be seen but not heard.
‘Over almost two centuries, powerfully worded cases have been presented by Indigenous people, first to colonial authorities, then to state governments and then to the federal government, seeking justice, recognition and greater control over their affairs. There have been sporadic investigations of various means by which symbolic recognition might be given through the constitution or by treaty, along with various efforts to implement practical measures to give Indigenous Australians greater power. All ultimately disappointing.
Now we are trying again. The short story of the latest attempt is that a Referendum Council on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians was jointly appointed by Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten in December 2015 to consult and advise on potential change. The exhaustive process culminated in a four-day constitutional convention of 250-plus delegates at Uluru in late May.
The longer story is that the process built on the work of an expert panel on constitutional recognition, and a parliamentary joint select committee. And they, in turn, followed numerous previous talks about recognition including but not limited to Howard’s 2007 promise, his failed 1999 referendum on a constitutional preamble, not specifically about Indigenous recognition but encompassing it, and then Prime Minister Bob Hawke’s 1988 commitment to a treaty, a Makarrata, “between the Aboriginal people and the government on behalf of all the people of Australia”, within the life of that parliament. In summary, a lot of talking, investigating and promising with no result.’
Julianne Schultz, ‘Introduction: Whispering in our hearts’, Griffith Review 60, ‘First Things First’, 2018, pp. 9, 10.
This article was written in support of the recommendations made in the Uluru Statement from the Heart. Schultz focusses on past policies regarding First Nations people and calls for improvements to be made in the future. The article begins with a recount of colonial ownership of Uluru, beginning with William Christie Gosse who claimed to discover it. Schultz tracks developments until 1985 when Anangu Elders were given the title deeds to the area. The article names the Uluru Statement from the Heart ‘the latest in a long line of entreaties … dismissed out of hand by those with political power’. The [Turnbull Coalition] government, Schultz notes, rejected ‘the recommendations of a body it had appointed’ on the same day the rights to Uluru were returned to the Anangu people in 1985. The article proceeds to analyse past policies regarding Aboriginal and Torres Strait Islander people and asserts that these policies ‘are marked more by failure than success’. Schultz concludes by calling for ‘an enduring settlement with our First Peoples’ to be established in the near future.
‘Government management of Indigenous affairs has oscillated on the false binary of symbolic and practical responses since first settlement. Most politicians have followed their worst imaginings of public opinion, rather than provided leadership. The history of Indigenous policy-making is marked more by failure than success. Professor Tim Rowse has done a great service to the nation by documenting this sad, sometimes well-meaning, often misguided and racist history in Indigenous and Other Australians Since 1901 (UNSW Press, 2017). It is a sobering but important read as it is important to know the history, even as it is repeated. Among the countless pieces of legislation and responses is a consistent pattern: that First Australians have never been treated as truly equal citizens, and the repeated call for greater self-determination has been ignored at huge economic and human cost.
As a result, the lived legacy for many First Nations people is marked by trauma and rage. As a friend of mine said: “Remember how frustrated you feel on your worst day, and imagine living like that all the time, with no money, fearful of authority, knowing you are disrespected and suspected and not considered an equal citizen”. Not surprisingly, this translates into high rates of suicide, incarceration, violence and abuse for Indigenous Australians that routinely, but ineffectively, attract voyeuristic attention, but little meaningful action — what the Uluru Statement described as the “torment of [our] powerlessness”.
Even the government’s rejection of the Referendum Council’s recommendations acknowledged this: “People who ask for a voice feel voiceless and feel like they are not being heard”. The solution proposed in the next paragraph of the media release — more Indigenous members of parliament — wilfully missed the point.
There are nonetheless successes that can be attributed to policy interventions the past fifty years: despite the limits of the native title process, the Indigenous Estate has grown to include almost half the land mass of Australia; fifty-two years after Charles Perkins was the first Aboriginal student to complete a degree, more than thirty thousand have graduated; fifteen thousand Indigenous students are enrolled in Australian universities each year, and hundreds have now completed doctoral degrees and are making important contributions; Indigenous artists, writers, singers, actors and filmmakers are now the most consistent and distinctive cultural creators. The treaty generation is well-educated, articulate and determined — we ignore them, and their less fortunate cousins, at our peril.
Unlike all the countries Australia compares itself with, we have not reached an enduring settlement with our First Peoples that recognises and institutionalises their unique perspective and experience. This must be addressed as a matter of national urgency.’
Asmi Wood, ‘Self-determination under International Law and some possibilities for Australia’s Indigenous Peoples’, in Indigenous self-determination in Australia: Histories and Historiography, ed. Laura Rademaker and Tim Rowse (Canberra, ANU Press), pp. 276, 277.
Indigenous self-determination in Australia: Histories and Historiography, edited by Rademaker and Rowse was published following the presentation of the Uluru Statement from the Heart to the Australian people. It discusses past attempts to support self-determination for Aboriginal and Torres Strait Islander people and the limitations of these attempts, including that limitations may have been that the Australian government made genuine attempts at self-determination but that these failed or, alternatively, that the government never attempted true self-determination or that it was ‘crippled by underfunding and/or compromised by restraints’ resulting from existing legal and governance structures.
Rademaker and Rowse compare the actions of government and individuals who purported to be furthering self-determination with the ideal of self-determination ‘derived from international law, political theory and Indigenous demands’. The book is in three sections which include an examination of attempts at self-determination made by ‘colonial authority’, by First Nations communities, and in international law and political theory.
In his chapter, Asmi Wood writes from ‘the standpoint that self-determination could and should apply in a regionally differentiated way as determined freely by each group in accordance with their own customs and traditions’. He illustrates ways that Australia’s approach to Indigenous self-determination has been and is still affected by the institutions of Australia’s federation.
‘The executive (through parliament) has explicitly recognised Indigenous peoples in legislation – the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013. The Act acknowledges that Aboriginal and Torres Strait Islander people are the first inhabitants of this nation; it includes a broad timeframe for the holding of the referendum on recognition in the Constitution, without anticipating what forms such recognition will take. This law confirms the common law notion that Indigenous peoples are “peoples” for purposes of domestic Australian law, permitting the parliament lawfully to enter into negotiations with Indigenous peoples. However, under Australia’s Westminster system, the parliament (at the executive’s will) can also rescind this legislation. This is an issue for Indigenous people, as the various parties here live on the same land but only one of these parties — the Australian state — possesses military capacity to enforce its will.
Constitutional amendment would be a more secure and lasting way to recognise Aboriginal people and Torres Strait Islanders as “peoples”, and there is a “recognition process” currently in train. Without constitutional recognition there is a significant gap between the common law, legislation and the Constitution. The significance of this lack of a comprehensive legal recognition of Indigenous Australian peoples under Australia’s domestic law is that Indigenous people are vulnerable to the whims of the executive.’
John Chesterman, ‘Settling on a national Indigenous Australian “voice”’, Australian Public Administration 80 (2021), p. 361.
‘Abstract: This article argues that the call for establishment of a national Indigenous “voice” ought to be seen by the Australian government in historical context, primarily as a call for remediation for historical injustices, not just as an opportunity for improvement in the lives and governance of Indigenous Australians. Viewed this way, the call carries with it an imperative for government both to recognise the moral weight underpinning it and to be active in seeking to settle the matter, either by agreeing to the [Voice] reform proposal or otherwise by negotiating an acceptable outcome. The article closes by considering possible ways in which settlement might occur.’
‘In 2009, the Australian Human Rights Commission released a report, led by the Aboriginal and Torres Strait Islander Social Justice Commissioner, on the possible form a national Indigenous body might take. The proposal there (Steering Committee for the National Representative Body consultations, 2009, pp. 22–29) was for “a private company limited by guarantee rather than a statutory authority”. Membership was proposed to be open to all Indigenous Australians, and would have four key components: a small paid executive arm; a 128-member Congress that would be partly elected and partly appointed; together with administrative and ethics units. In explaining the reason for the national body, the report (Steering Committee for the National Representative Body consultations, 2009, p. 5) stated that “A new National Representative Body is critical to provide Aboriginal and Torres Strait Islander peoples with a national voice. Our people have been without such a voice for five years. We have suffered as a result”.
The initial key roles for the proposed “National Representative Body”, which could expand overtime, were suggested to include (p. 23): ”formulating policy and advice”; ”advocacy and lobbying” to be a “conduit” between Indigenous people and government; and monitoring government performance in relation to Indigenous people. This report did result in the creation of the independent-of-government National Congress of Australia’s First Peoples, but the Congress was able to be marginalised in its interactions with government, in part, I would suggest, because of its non-governmental status. A loss of government trust and reliable funding from 2014 led to its eventual demise, with the National Congress going into liquidation in 2019 (Morgan, 2019).’