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Australian Indigenous Law Reporter |
Extraordinary Forum - The Future of Australian Indigenous Governance
Virginia Falk[∗]
In 1944, Australian voters rejected the Constitution Alteration (Post-War Reconstruction) Bill 1944, which included a proposal to give the Commonwealth Parliament a power to legislate with respect to ‘people of the aboriginal race’. The Constitution was not altered until 1967.
Considering the current news about ‘misleading’ official communications on war and immigration, it is unsurprising that Aboriginal communities were misled by the fanfare that accompanied the outcome of the 1967 Referendum. Progress has been slow, and in some cases, virtually non-existent. Recent history has shown that Aboriginal peoples’ crawl out of poverty and social disengagement could never be cured by bureaucratic Federal establishments, including ATSIC.
Legislative window-dressing could not conceal the inherent departmental nature of ATSIC, which was essentially another Department of Aboriginal Affairs. The notion that the existence of the commission rested on ‘special laws’ which would only benefit Aboriginal peoples is erroneous, and this has been well documented. The enactment of ‘special laws’ does not implement Aboriginal governance. It should also be noted that such laws are far removed from grass-roots Aboriginal processes and decision-making.
The Aboriginal and Torres Strait Islander Commission was ‘hyped up’ by many at the time of its establishment. As the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) states, it was intended to provide
a structure to represent Aboriginal and Torres Strait Islander persons to ensure maximum participation by them in the formulation and implementation of programs and to provide an effective voice within the Australian Government.
The telling line, ‘to create a voice within the Government’ should have sounded alarm bells for Indigenous Australians. ATSIC clearly was not intended to provide Indigenous Australians with a model for self-governance or even anything resembling Aboriginal governance. The establishment of ATSIC under the Act is under the direction of the Commonwealth by the Minister of Indigenous Affairs and was tied conveniently to the apron strings of federal bureaucracy. As the late H C Coombs believed, ATSIC was designed to provide a means for government consultation.[1] Why then is the proposed abolishment of ATSIC by the Federal Government significant and for whom?
The end of ATSIC is not really about the suspension of its chairperson and the allegations of misbehaviour which were levelled against him. These types of scandals are regularly exposed in the media, and are common among both politicians of all persuasions and the public at large.
The proposal to abolish ATSIC is borne of the fundamental idea that a dissident voice is better silenced. ATSIC consistently and audibly challenged the Federal Government over a number of major Aboriginal issues, including the amendments to the Native Title Act 1998, an apology to the Stolen Generations, the introduction of mandatory sentencing laws and the formation of a Treaty between Aboriginal nation groups and the Federal Government. Its failure to tow the ‘black bureaucracy script’ made ATSIC a prime target for dismantling as early as 1997.
Another key issue has been that ATSIC played a representative role in the international arena, and especially in the United Nations and its various committees. Various United Nations reports (especially that handed down by the Committee for the Elimination of Racial Discrimination in 2000) have highlighted the total failure of the Federal Government to improve the Aboriginal health and education, to prevent the erosion of services controlled by Indigenous Australians and to improve Indigenous poverty. The world has also been well informed of the past denial of Indigenous Australians’ welfare payments and wages. These revelations have been a constant thorn in the side of the Federal Government.
ATSIC also maintained a presence in the media to remind the Government of its failures. The tension between the Federal Government and ATSIC was obvious, and it was also clear that Indigenous Australians would be left to deal with the outcomes of this uneasy relationship. The Federal Government has undertaken extensive departmental program-cutting in other areas, and even education has come under attack. For example, Abstudy has been radically changed.
Another low point in the relationship of ATSIC and Federal Government came with calls from Aboriginal communities for the resignation of Senator John Herron. The former Minister of Aboriginal Affairs was widely criticised for his divisive commentary on the policies of Aboriginal child removal, in response to the Human Rights and Equal Opportunity Commission (‘HREOC’) report Bringing Them Home. Indigenous Australians sent a clear message to the Federal Government on the issue of forced child removal during the Reconciliation Conference, when backs were turned away from the Prime Minister. The Federal Government attempted to explain away Herron’s cultural faux pas and ATSIC continued to remind the Government of its failings. On the world stage, the Federal Government was seriously condemned by other States, and most Australians empathised.
The Federal Government’s review of ATSIC was well received by both Indigenous Australians and the Government itself. The report of the review, titled In the Hands of the Regions – A New ATSIC, was released in November 2003. It put forward a number of recommendations about the need for change at ATSIC, and also noted with amazement that ‘there is widespread support for the objectives of ATSIC’.[2]
The report of the review panel did not recommend the abolition of ATSIC. Instead, it proposed that ATSIC and ATSIS [Aboriginal Torres Strait Islander Services] reform as a single organisation through the amendment of the ATSIC Act, while allowing ATSIC to retain its current legal powers and to continue working towards its core objectives.[3] Further, the report stated that while ATSIC has a documented protocol for working relationships between its elected and administrative arm, it recommended that its Chief Executive Officer be appointed by the Minister.[4] Any potential CEO would not be appointed from the so-called ‘radical mobs’ but would most likely be an Indigenous voice aligned to the government.
Such recommendations are far removed from the ideals of Indigenous autonomy and must be avoided. Ultimately, in a democratic state, all contentious policy questions and points of political difference should be mooted in a public forum.
This brings us to an overview of the current Aboriginal and Torres Strait Islander Commissioner Amendment Bill 2004 (Cth). This 88 page document covers the abolition of ATSIC, amendments to the existing act and also provides for transitional arrangements. It is significant that the Bill would result in the an act named the Aboriginal and Torres Strait Islander Act 2004, which omits the crucial word ‘Commission’. Throughout the Bill, the word ‘Minister’ is substituted for ‘Commission’. For example, The new Act would empower the Minister to direct Indigenous Business Australia (‘IBA’) to perform any of its functions and exercise its powers according to any written directions from the Minister. Many of the amendments are administrative changes which remove the role of ATSIC, and the Act also includes secrecy provisions and some criminal penalties.
In essence, the Act grants the Minister considerable powers, which recall the days of the mission manager and the Chief Protector of Aborigines. At the same time, it removes any mechanisms for Indigenous control.
Concern should also given to the monies that will stand in ‘credit’ with the Regional Land Fund and any other assets that ATSIC held under the old Act. It is unclear whether their future earnings, if any, will be passed to Indigenous Australians. If the Commonwealth is soon to inherit all of ATSIC’s assets where will they be distributed and to whom?
Another particular concern is whether all Aboriginal and Torres Strait Islander employees will be seconded to other departments. The many individuals employed within ATSIC that tried to make a difference and battled on under the machinery of government will be sorely missed. Their record through the koori grapevine will speak for itself.[5]
We are currently awaiting the return of a Senate Inquiry. The Inquiry is said to have requested thousands of submissions, but has received only 85. I believe that Indigenous peoples are not responding because they wish to exercise a silent vote against ATSIC. It is abundantly clear in many Indigenous communities in urban and rural Australia that there is no need to further institutionalise Australia’s First Peoples.
ATSIC was never designed to free Indigenous Australians. It merely replicated the well known bureaucracy that wanted to ‘whiten’ and civilise a proud ancient peoples. On the one hand, it has raised the concerns of Indigenous Australians on both the domestic and international stage. Unfortunately, because of its bureaucratic structure, it also lost the general support of the community it was intended to represent.
Both Regional and Urban Aboriginal communities will survive the changes which are afoot, and will return with a new collective force. They will emphasise the need for independent Aboriginal governance systems that are tailored for individual or cluster communities, as opposed to systems which operate as government loud speakers.
Australian society should now realise that Indigenous Australians are tired of being the focus of spurious experiments and take note that the opportunity for Aboriginal Governance has arrived. Treaties and partnerships are a core part of the Australian nation, and two percent of Australia’s population becoming independent and self-funding is nothing to fear.
The question of whether Indigenous Australians need to be assimilated again into the mainstream deserves an emphatic negative answer. Mainstreaming is assimilation and does not recognise difference. Mainstreaming services may be fiscally savvy, but it will only place Indigenous Australians at the end of the financial queue. Competition for community monies will be taken to a new level, as the community with the most dazzling submission wins out.
[∗] Virginia Falk is an Indigenous solicitor who is currently an Associate at the Federal Court, Sydney. Virginia has completed university studies with a Bachelor of Laws, Bachelor of Arts majoring in Sociology, a Bachelor of Vocational Education and Training, Honours in Communications, a Graduate Diploma of Legal Practice and a Master of Laws. Currently she is researching Indigenous Fishing and marine tenure as the basis of a doctoral thesis. Virginia has worked most recently as an academic, in native title services and as a criminal solicitor with the Legal Aid Commission.
[1] H C Coombs (1994) in D Smith (ed) Aboriginal Autonomy: Issues and Strategies, 71.
[2] Commonwealth of Australia, Report of the Review of the Aboriginal and Torres Strait Islander Commission, In the Hands of the Regions – A New ATSIC, November 2003, 7.
[3] Ibid 73–74.
[4] Ibid 74–77.
[5] A word of warning must be sounded: if any Indigenous Australian is asked to jump into a large wooden horse, they are advised to run the other way.