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Behrendt, Larissa --- "Meeting At the Crossroads: Intersectionality, Affirmative Action and the Legacies of the Aborigines Protection Board" [1997] AUJlHRights 17; (1997) 4(1) Australian Journal of Human Rights 98

[1] Larissa Behrendt is currently undertaking doctoral studies at Harvard Law School. The author wishes to thank Prof. Roberto Unger, Susan Gibb, Jason Behrendt, Stephen Lloyd, Kate Sutherland and Kris Faller.

[2] Kennedy D "A cultural pluralist case for affirmative action in legal academia" in Kennedy D Sexy Dressing etc: Essays on the Power and Politics of Cultural Identity (Harvard University Press, Cambridge 1993) p 34.

[3] Due to the limited availability of the Report -- an issue in itself! -- these citations come from the report posted on the internet.

[4] After initial contacts governments couldn't prevent many of the massacres by white settlers who moved south in search of grazing. Often the government sanctioned mass killings. The last massacre was in the Kimberley area of Western Australia in the late 1930s. See Reynolds H Frontier: Aborigines, Settlers, and Land (Allen & Unwin, Sydney, 1987); Reynolds H The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (Penguin Books, Ringwood 1990).

[5] This was achieved through the establishment of missions which later became government reserves, on which Aboriginal people were forced to live.

[6] This policy was implemented when it was realised that indigenous people were not going to die out as earlier governments had predicted. The policy was focused mainly on children and was aimed at eradicating Aboriginality. For narratives of government policies in addition to Reynolds op cit; see Goodall H Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770-1972 (Allen & Unwin, Sydney 1996).

[7] This was a policy that reversed the eradication of culture embodied in assimilation policies. The government wanted to incorporate indigenous cultures into Australian society in what was often conceptualised as a "melting pot". Policies concerning Aboriginal people were still made by the Government and were misdirected and based on racial stereotypes.

[8] This policy was introduced under Labor government. Its definition of self-determination was embodied by setting up the Aboriginal and Torres Strait Islander Commission (ATSIC) with a bureaucracy run by elected Aboriginal people. It remains to be seen how the policy will be interpreted by the new conservative Liberal Government. ATSIC was formed in a structure similar to other institutional frameworks even though this would have provided an excellent opportunity for institutional experimentalism.

[9] Hawaii, New Zealand, the United States, Canada, Brazil, Chile and other South American countries provide the closest analogies. See James Anaya S Indigenous Peoples in International Law (Oxford University Press, Oxford 1996).

[10] Girls were sent to a home at Cootamundra where they were trained to be domestic servants and boys were sent to a home at Kinchela where they were trained to be stockmen. Note that both institutions concentrated on producing a pool of manual labour rather than preparing children for further education. In addition to the oral histories collected by HREOC in preparing the Bringing Them Home report, see Sykes R Murrawina Australian Women of High Achievement (Doubleday, Sydney, 1993); Edwards C and Read P (eds) The Lost Children: Thirteen Australians Taken From Their Aboriginal Families Tell of the Struggle to Find Their Natural Parents (Doubleday, Sydney 1989).

[11] Note the essentialist critiques of feminism and its inability in the past to include effectively the experiences of working class women. See generally Wing A K (ed) Critical Race Feminism: a Reader (New York University Press, New York 1997). This reader includes texts by Patricia J Williams and Angela P Harris that are of particular interest.

[12] Although the right to vote is not included in the Constitution, it is argued that Aborigines were not excluded from citizenship by the Constitution. The right of Aborigines to vote was stopped by state legislation. The referendum, by transferring the power to make laws relating to Aboriginal people, allowed for those discriminatory state laws to be over-ruled. See Galligan and Chesterman "Aborigines, citizenship and the Australian Constitution: Did the Constitution exclude Aboriginal people from citizenship?" (1997) 8 Public Law Review 45.

[13] The Prime Minister refused to issue an apology on behalf of the government for the removal policy. He originally cited legal impediments to such a claim. When these were dismissed as irrelevant, he steadfastly maintained that an apology was not warranted. Alan Ramsey put the Prime Minister and his party's dismissiveness of the Aboriginal experience under the Aborigines Protection Board into perspective when he described their actions in Parliament in response to Labor party concern. He noted: "It was the day all but 13 of the Government's 94 members walked from the House as Beazley was urging full equality for Aboriginal people and the day after the 30th Anniversary of the referendum which supposedly gave it to them." He compared the hour plus that was spent debating a bill that placed a levy on emu's that were killed to the 31 minutes spent on the Bring Them Home report. Ramsey A "Ramsey's View: A week of emus and ugliness" Sydney Morning Herald Saturday, 31 May 1997. I mean no disrespect to the emu's. They are, after all, my totem. The lack of understanding of these issues by the government was reflected just as brightly in the comments of the Minister for Aboriginal Affairs, Senator Herron, on the HREOC inquiry to the effect that many Aboriginal people benefited from being forcibly removed as children. See Ceresa M "Aborigines benefited from separation: Herron" The Weekend Australian 5-6 October 1996.

[14] Matter No. M21 of 1995; Matter No. DS of 1996 (unreported at time of publication).

[15] Gaudron J dissented on this point.

[16] Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, Stephens v West Australian Newspapers Ltd (1994) 182 CLR 21; David Russell Lange v Australian Broadcasting Corporation (unreported, Matter No. S109 of 1996).

[17] The international human rights covenants such as the International Covenant on Civil and Political Rights that Australia has ratified remain the only rights based documents on which Aborigines could seek some redress. On the difficulties and limitations of mounting claims under international human rights documents, see James Anaya op cit.

[18] Figures in brackets represent the Australian average: Life Expectancy for Men 57 (74). Women 65 (80). Infant Mortality -- three times community average. High school retention rates: 25.2% (77%). Homes over occupied 33 % (8%). Home ownership: 28% (less than half that for all Australians). Median Income: $24,600 ($34,800). Jobless rate: 38% (8%). Long term unemployed: 60-70% (46%). In custody: 26 times the rate of non-Aboriginals -- one in seven in jail are Aboriginal or Torres Strait Islanders. ATSIC Indigenous Australians Today (AGPS, Canberra 1992).

[19] Sykes R Black Majority (Hawthorn, Hudson 1989).

[20] Nationalism is also a construct without any legitimate basis. In addressing inequality in society, false nationalism also needs to be targeted. See Anderson B Imagined Communities (Verso, New York 1983).

[21] These sentimentalised images have been thoroughly critiqued by historians as they do not represent a truthful historical experience, although mythologising is what nationalism is all about. See Pilger J The Secret Country (Vintage, London 1992). Pilger has a lovely balance throughout his work of critiquing the national stereotypes while finding the traits that make Australia unique.

[22] Although Australia was one of the first countries in the world to allow women to vote, Australian conforms with the sexist hierarchy and norms of most western countries. Australian women are under-represented in many professions, especially at the higher levels, earn less than their male counterparts and fill jobs in which they are over-represented and devalued.

[23] Geoff Kitney summed it up: "The pendulum of compassion has swung decisively against Aboriginal people." He goes on to warn that "Pandering to populism will be yet another betrayal of Aboriginal people". Kitney G "Politicians bicker as the spirit of an ideal dies" Sydney Morning Herald Wednesday, 28 May 1997.

[24] Duncan Kennedy op cit argues that the destabilising effect of affirmative action will have intellectual benefits. He shows that the benefits gained by individuals from disadvantaged groups and the groups themselves from these programs will be shared by the population in general. Diversity enriches the intellectual environment and provides greater choices to all individuals.

[25] Especially interesting on critiques of affirmative action programs is the work of Fraser N "From Redistribution to Recognition? Dilemmas of Justice in a `Postsocialist' Age" in Fraser N Justice Interruptus: Critical reflections of the "postsocialist condition. (Routledge, London, New York 1997). Fraser argues that for both gender and "race" the scenario that best finesses the redistribution-recognition dilemma facing affirmative action programs is socialism in the economy and deconstruction in the culture.

[26] This is different to attempts of secession where disadvantaged and excluded groups aim at trying to abandon the present society and returning to a past society. Most attempts at this are usually insincere as: (1) most minority groups do not support a successionist approach, and (2) the notion of the "past society" is romanticised in hindsight rather than actual and therefore could not be revived.

[27] Quoted in Raethel S "Plan to teach of tragedy" Sydney Morning Herald Monday, 2 June 1997. Linda Burney is the President of the NSW Aboriginal Education Consultative Group.

[28] The attitudes of Australians reflected in the words of Prime Minister John Howard show the enormity of the challenge ahead for people committed to changing the prejudiced nationalism of Australian society. Howard reacted defensively to the findings of the HREOC report: "So far as the public is concerned, they do not believe in intergenerational guilt and they do believe that this country has a proud history." Howard is more intent on providing a palatable version of history to his children and those like them than letting them understand the true forces of history. He underestimates the intellectual capacity of Australians if he believes that we are not capable of critiquing history and learning from it.

[29] The work of organisations such as the Aboriginal Education Consultative Group have caused dramatic changes in school curriculum over the last ten years. The teaching of Aboriginal perspectives in history remains controversial as debates over the use of the word "invasion" in history texts has shown.

[30] Wright T "Why we can't sleep soundly" Sydney Morning Herald Wednesday 28 May 1997.