The Delta variant is a particular concern for higher-risk populations, including Aboriginal and Torres Strait Islanders. Vaccinations of First Nations people must be carried out more quickly.
And in light of the elite Sydney private school erroneously giving all Year 12 students vaccines that were intended only for First Nations students, there’s also a need for stricter guidelines and better oversight.
When questioned about the mistake this week, NSW Health Minister Brad Hazzard demanded that critics “move on”. But authorities should not dismiss public concern that vaccines are not being distributed to those who need them most.
To ensure this, the vaccination rollout for First Nations people needs to involve Aboriginal community-controlled health organisations in the planning and implementation. We have already seen that when community-controlled organisations take control, vaccine delivery is successful and communities feel safer.
In March, a vaccine implementation plan for Aboriginal and Torres Strait Islander peoples was published by the federal health department. The publication iterated the urgent need for Aboriginal and Torres Strait Islander people to be a high priority in the rollout.
First Nations people over the age of 55 have been able to get vaccinated since March. It’s also been a little over a month since Aboriginal and Torres Strait Islander people aged between 16 to 49 years have been eligible for COVID-19 vaccines.
However, there is currently limited publicly available data on just how many vaccines have actually been distributed to Aboriginal and Torres Strait Islander people so far.
While the media has reported on vaccine hesitancy in Aboriginal and Torres Strait Islander communities, there is anecdotal evidence that hesitancy is actually decreasing and that remote community clinics are vaccinating many First Nations people.
This success highlights the importance of having Aboriginal and Torres Strait Islander organisations involved in the rollout. This involves recognising that self-determination, as well as health information being delivered in first languages, results in improved uptake of services and better health outcomes.
Despite this, there is evidence First Nations people are not being sufficiently included in planning and implementation of the rollout.
For example, a meeting of the national COVID vaccine taskforce last week excluded the National Aboriginal Community Controlled Health Organisation. The Aboriginal and Torres Strait Islander Advisory Group on COVID-19 was also excluded from the discussion.
Pat Turner, the head of the National Aboriginal Community Controlled Health Organisation, said the lack of First Nations inclusion was “deeply concerning”.
The vaccine rollout must be managed so First Nations people and other vulnerable groups are prioritised. This means securing better vaccine supplies and putting Aboriginal and Torres Strait Islander people at the heart of decision-making.
Colonisation is invasion: a group of people taking over the land and imposing their own culture on Indigenous people.
Modern colonisation dates back to the Age of Discovery in the 15th century, as European nations sought to expand their influence and wealth. In the process, representatives of these countries claimed the land, ignoring the Indigenous people and erasing Indigenous sovereignty.
Laws and policing were significant tools of dispossession and oppression. Indigenous people were brutalised, exploited and often positioned as subhuman. As Jean-Paul Sartre described colonisation:
[…] you begin by occupying the country, then you take the land and exploit the former owners at starvation rates […] you finish up taking from the natives their very right to work.
Colonisation is more than physical. It is also cultural and psychological in determining whose knowledge is privileged. In this, colonisation not only impacts the first generation colonised but creates enduring issues.
Decolonisation seeks to reverse and remedy this through direct action and listening to the voices of First Nations people.
The word “decolonisation” was first coined by the German economist Moritz Julius Bonn in the 1930s to describe former colonies that achieved self-governance.
Many struggles for independence were armed and bloody. The Algerian War of Independence (1954- 1962) against the French was particularly brutal.
Other struggles involved political negotiations and passive resistance.
While the exiting of the British from India in 1947 is largely remembered as nonviolent resistance under Gandhi’s pacifist ethic, the campaign started in 1857 and was not without bloodshed.
The quest for independence is rarely peaceful.
Decolonisation is now used to talk about restorative justice through cultural, psychological and economic freedom.
In most countries where colonisers remain, Indigenous people still don’t hold significant positions of power or self-determination. These nations are termed “settler-colonial” countries – a term made popular in the 1990s by academic Patrick Wolfe, who said “invasion is a structure not an event”.
Another word that is useful in understanding decolonisation is “neocolonial”. It was coined by Kwame Nkrumah, Ghana’s first president, in the early 1960s to refer to the continuity of the former coloniser’s power through economic, political, educational and other informal means.
In these neocolonial or settler-colonial countries, advocacy for the rights of Indigenous people is not always matched by action. The voices of Indigenous people for treaty and truth in culture, politics, law and education resound while practice lags.
We might kneel to remember those murdered. But we need to call on institutions to enact required reforms for decolonisation. We need to support people in organisations who speak out against racism. We need to question whether colonisation taught us to stand, in institutional uniforms of the mind, and passively watch the choking.
You probably know the details of the death of George Floyd. He was a doting father and musician. He was killed when a police officer, Derek Chauvin, knelt on his neck for nearly nine minutes while he cried out “I can’t breathe!”
Do you know about David Dungay Jr? He was a Dunghutti man, an uncle. He had a talent for poetry that made his family endlessly proud. He was held down by six corrections officers in a prone position until he died and twice injected with sedatives because he ate rice crackers in his cell.
At the end of a long inquest that stretched to almost four years, the coroner declined to refer the officers involved in Dungay’s death to prosecutors (who might consider charges) or to disciplinary bodies.
When I heard [George Floyd] say ‘I can’t breathe’ for the first time I had to stop … My solidarity is with them because I do know the pain they are feeling. And as for the Aboriginal deaths in our backyard … it’s not in the public as much as it should be.
A perception Indigenous deaths in custody are expected
Many people on this continent know more about police and prison violence in the US, another settler colony, than the same violence that happens here. Both are deserving of our attention and action, so what’s behind the curious silence on First Nations deaths in custody in Australia?
Aboriginal and Torres Strait Islander people have raised this concern long before today in the media and social media.
Why do we have to? The reasons are complex, but boil down to a system of complicity and perceived normality in Indigenous deaths at the hands of police and prisons. The settler Australian public simply does not see Indigenous deaths in custody as an act of violence, but as a co-morbidity.
The choice of language is important: it evokes a certain response in the reader and shapes our understandings of events. In the case of Palm Island, the often-repeated meta-narrative of so-called ‘dysfunctional’ and ‘lawless’ Aboriginal communities served to justify further acts of colonial violence.
In my 2018 pilot study on a sample of 134 Indigenous deaths in custody since the Royal Commission into Aboriginal Deaths in Custody, I found coroners considered referring just 11 deaths to prosecutors and only ended up referring five. Of those, only two made it to court and both resulted in quashed indictments or acquittals.
These are monumental figures. They are also stories of deep systemic complicity, both before and after death. And they are full lives, with loved ones who mourn and fight for them.
The scale of devastation is unthinkable – and violent, and racist.
What makes Australian silence about deaths in custody so especially bizarre is that, unlike the US, we have a mandatory legal review of every death in custody or police presence. Each case, regardless of its circumstances, goes before a judge called a coroner.
Just as public political will is always changing, so is law and legal strategy. Compared to the campaigns for justice for black people killed by police in the US, which have made relative gains, many families here are working in a complex space of honouring their loved ones, proper cultural protocols around death and the dead, and securing CCTV footage to mobilise the public for justice.
Coroners have offered mixed responses, and each state and territory’s coroner approaches the question in a slightly different way.
After the death of Ms Dhu, a Yamatji woman, in police custody in Western Australia in 2014, persistent advocacy from the families and media organisations prompted the coroner to release footage of her treatment before her death. Coroner Ros Fogliani did so
in order to assist with the fair and accurate reporting of my findings on inquest.
However, last year, NSW deputy coroner Derek Lee initially declined to release footage showing the circumstances of Dungay’s death, citing cultural respect, sensitivity for his family and secrecy over prison procedures.
Members of Dungay’s family, who had applied to have it released, responded with exasperation. It was eventually shown on the opening day of the inquest, although the fuller footage requested by the family remains suppressed from public view.
Other ways families are silenced
There are other transparency issues that give a legal structure to silence about Indigenous deaths in custody. Recently, there appears to be a new push in non-publication or suppression orders being sought by state parties in coroners courts.
In Dungay’s inquest, for instance, the media was ordered not to publish the names, addresses or any other identifying features (including photographs) of 21 NSW corrections staff members.
There have been other suppression orders in deaths in custody matters before criminal courts, such as the identity of the officer facing a murder charge in the death of Yamatji woman Joyce Clarke in Western Australia last year.
Officers in South Australia are also going to some strategic effort to avoid testifying before the inquest into the death of Wayne Fella Morrison, a Wiradjuri, Kookatha and Wirangu man, or even speak with investigators on the grounds of penalty privilege.
investigations surrounding the cause of death in prisons can have a great impact for our grieving families to at least get an account of what happened to our loved ones in the absence of our care. It can also raise the spotlight on the behaviours of correctional and police officers – like those that piled atop of my brother’s body.
Outside of coroners courts, there is the threat of subjudice contempt, when media coverage may pose a prejudicial threat to a potential trial.
This carries a risk for families who speak out about their loved one’s deaths in a way that even implies something happened or someone did something. Subjudice contempt poses liability to them personally when they speak out, but also could jeopardise their push for justice.
This puts First Nations peoples at the mercy of what can be raised before a jury, judge or coroner. With lengthy procedural delays, this can also mean a case is hard to talk about publicly for years.
This is problematic given that timely publicity about deaths in custody is what drives attention. Taleah Reynolds, the sister of Nathan Reynolds, who died in custody in NSW in 2018, said,
We’re coming up to a year since he died and we still don’t know anything more.
I feel like they don’t have any remorse; they hide behind the system. No one’s held accountable, that’s the most frustrating part.
All of this leaves our public discourse full of blak bodies but curiously empty of people who put them there.
The power of public campaigning
Prosecution or referral seems to come only from cases where First Nations families have strong public advocacy and community groundswells behind them and strategic litigation resources (not just inquest legal aid).
As the late Wangerriburra and Birri Gubba leader Sam Watson said of the campaign for justice for the death of Mulrunji Doomagee on Palm Island:
Unfortunately, the government had to be dragged to this point screaming and kicking every inch of the way. Every time there’s been a breakdown in the procedure, the family and community on Palm Island are being subjected to more trauma, drama and unnecessary grandstanding by politicians.
Right now, three deaths are either before prosecutors or in their early stages of prosecution. All have been part of growing, public campaigns driven by their families and communities — although many others, like Dungay’s family, have done the same and still been faced with institutional complicity.
Clearly, there is much legal structure that supports this silence, but the basis of the silence itself is colonisation and white supremacy. As Amy McQuire writes:
Their wounds also testify to this violence. But while this footage has been important for mobilising Aboriginal people, non-Indigenous Australia is still complacent and apathetic.
They are not ‘outraged’ because they are not ‘shocked’. There is nothing shocking about racist violence perpetrated by police, because it is normalised.
When we do hear about the Indigenous lives lost in custody, it is undoubtedly because of the persistence, expertise and courage of their families and communities who mourn them. But it is not enough to hear about justice, justice must be done.
Yesterday was National Sorry Day in Australia. It marks the anniversary of the tabling of the Bringing Them Home report, which chronicles decades of removals of Aboriginal and Torres Strait Islander children from their families.
Sorry Day also acknowledges the strength of the Stolen Generations survivors and reflects on the role everyone can play in healing our country.
Yesterday was also the third anniversary of the release of the Uluru Statement from the Heart, which poignantly notes:
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
And this week is National Reconciliation Week, which represents a time for all Australians to learn about our shared histories, cultures and achievements. The theme this year is “In This Together”.
However, a new report released today makes clear the treatment of First Australians during the COVID-19 outbreak is not the same as for non-Indigenous Australians.
The report by Change the Record, the First Peoples-led justice coalition of peak bodies and allies, highlights numerous ways Aboriginal and Torres Strait Islander peoples have been disproportionately affected by the more punitive and restrictive policy responses to the pandemic.
Among the findings were:
First Nations people have experienced an increased use of lockdowns in prisons and have had reduced access to lawyers and visits from families
some prisons have required people in prison “to pay exorbitant fees to call loved ones”
victim-survivors of family violence have been unable to access police protection and support services due to staffing shortages (a particular concern because there is evidence such violence is increasing)
Aboriginal and Torres Strait Islander legal services have reported “substantial challenges” in working with their clients and are concerned about a spike in legal demand as soon as restrictions are lifted
the closures of residential drug and alcohol facilities have led to people being sent home, leaving some people without alternative and safe living arrangements
First Nations parents have had access to their children in out-of-home care restricted, causing “distress and anxiety in a time of heightened stress for everyone”
there has been over-policing of First Nations people for offences such as public nuisance, public drunkenness, fare evasion and failure to comply with move on orders. There have been high numbers of fines issued in small towns with high First Nations populations and low levels of COVID-19.
Governments’ COVID-19 prison policies have been inadequate
As we have argued in open letters to governments and elsewhere, the risk of transmission of COVID-19 in prisons has been a concern requiring immediate action across the country.
First Nations people are particularly at risk of infection, due to:
The Change the Record report chronicles the despair of First Nations people in prisons and their lack of access to services and support.
An Aboriginal man, Daniel, has been remanded in prison in Tasmania since early 2020. … Daniel is not allowed any visits with his family or his lawyer because of COVID-19 restrictions. He reports feeling lost in the legal proceedings because he cannot have a decent chat with his lawyer about the matters and get advice.
The report makes recommendations for people in prisons, including:
the release of First Nations people in prisons who are low-risk, on remand, elderly or at increased risk of COVID-19, as well as children and those with chronic health conditions
protecting the human rights of First Nations people in prison, by ensuring access to oversight and monitoring agencies, family, legal services, mental health care, education and programs
The impact of COVID-19 restrictions on children
Some of the invisible victims in the pandemic are the children of prisoners. Imprisonment disrupts family life, especially in cases when a First Nations mother or primary caregiver is incarcerated.
Because physical visits have been suspended, children’s access to their imprisoned parents has been even more constrained.
The Change the Record report also notes how First Nations parents are unable to visit with their children in out-of-home care.
Julia had been having multiple face-to-face visits with her child every week. Due to COVID-19, Julia’s contact with her daughter has been reduced to one phone/video call a week. … When children cannot engage in this mode of communication, for some parents contact with their children has stopped all together.
The report makes recommendations for policies affecting children during the pandemic, including:
increasing support and access to safe accommodation for First Nations families fleeing family violence to stop further removals of children
implement legislative changes to ensure parents of First Nations children in out-of-home care don’t lose their children to permanent care during COVID-19.
The report also calls for:
rebuilding our justice system after COVID-19 to focus on investing in community, not prisons, to increase community safety and prevent black deaths in custody.
No return to status quo
We endorse these recommendations, especially the final call to rebuild our justice system. As we emerge from the immediate threat of the pandemic, it is vital that we not return to the status quo.
If Reconciliation Week is to be meaningful, governments must take action to heal, rather than jail, First Nations people. In the current circumstances, this includes acting on Change the Record’s recommendations.
Chronic diseases such as respiratory diseases (including asthma), heart and circulatory diseases, high blood pressure, diabetes, kidney diseases and some cancers are more common in Indigenous people, and tend to occur at younger ages, than in non-Indigenous people.
These diseases, and the living conditions that contribute to them (such as poor nutrition, poor hygiene and lifestyle factors such as smoking), dramatically increase Indigenous people’s risk of being infected with coronavirus and for having more severe symptoms.
So Elders and those with chronic disease are vulnerable at any age.
We know from past pandemics, such as swine flu (H1N1), Indigenous Australians are more likely to become infected with respiratory viruses, and have more serious disease when they do.
So far, there have been 44 cases of coronavirus among Indigenous people, mostly in our major cities. We’re likely to see more in coming months.
This suggests the decision to close remote communities has been successful so far. But we also need to now focus on urban centres to prevent and manage further cases.
Current Australian government advice is for Aboriginal and Torres Strait Islander people 50 years and over with existing health conditions to self-isolate. General government health advice tells all Australians to maintain good hygiene and seek health care when needed.
But this advice is easier said than done for many urban Indigenous people.
So what unique family and cultural needs and circumstances so we need to consider to reduce their risk of coronavirus?
This is particularly the case when it comes to infectious diseases, which thrive when too many people live together with poor hygiene (when it’s difficult for personal cleanliness, to keep clean spaces, wash clothes and cook healthy meals) and when people sleep in close contact.
Crowded accommodation also means increased exposure to passive smoking and other shared risky lifestyles.
Households are also more likely to be intergenerational, with many children and young people living with older parents and grandparents. This potentially increases the chances of the coronavirus spreading among and between households, infecting vulnerable older members.
Immediate solutions to prevent infection are, with guidance from Aboriginal organisations, to house people in these situations in safe emergency accommodation. But it is also an opportunity to work with Aboriginal organisations in the longer term to improve access to better housing to improve general health and well-being.
Poor health literacy
Indigenous Australians don’t always have access to good information about the coronavirus in formats that are easily understood and culturally appropriate.
The challenge is to get these distributed in urban centres urgently. These health messages should also be distributed in Aboriginal Medical Services waiting rooms and on Indigenous television and radio.
Poverty will limit some families’ ability to buy hand sanitiser, face masks, disinfectant and soap.
Although there are provisions for Indigenous Australians to receive free vaccines against the flu and pneumococcal disease to protect against lung disease, not all age groups are covered.
Scepticism of mainstream health services
Due to policies and racism that have marginalised Indigenous people, many do not use health and other services.
This is why Aboriginal Controlled Health Services are so important and successful in providing culturally sensitive and appropriate care.
However, there is concern these health services are not adequately funded or prepared to manage a coronavirus pandemic in urban centres.
They need more personal protective equipment (including masks). They also need more Aboriginal health workers, community nurses and others for testing and contact tracing.
What do governments need to do?
Some regions’ responses have been better than others.
In Western Australia, the urban-based Aboriginal Community Controlled Health Services (ACCHS) are working with key state government departments to coordinate the COVID-19 response. This includes guidance about how best to prevent and manage cases.
It’s time for other governments to set up collaborative arrangements with ACCHS and other Aboriginal controlled service organisations in urban centres to better manage the COVID-19 pandemic.
This should include more staff to:
help people self-isolate
explain and embed the digital COVID-19 media messages about hand washing, use of sanitisers and social distancing
enable accommodation that is acceptable and safe, especially for Elders and homeless people.
These services should also provide free flu and pneumococcal vaccinations.
Getting Indigenous health experts to lead this defence is clearly the way to go. We must listen and respond to these leaders to implement effective strategies immediately. If ever there was an opportunity to demonstrate that giving Indigenous people a voice to manage their own futures is effective, it is this.
Our hope is that, after this pandemic, the value of Aboriginal control will be recognised as the best way to improve Aboriginal health and well-being.
This article was co-authored by Adrian Carson, Institute for Urban Indigenous Health; Donisha Duff, Institute for Urban Indigenous Health; Francine Eades, Derbarl Yerrigan Health Service; and Lesley Nelson, South West Aboriginal Medical Service.
The catastrophic bushfire season is officially over, but governments, agencies and communities have failed to recognise the specific and disproportionate impact the fires have had on Aboriginal peoples.
Addressing this in bushfire response and recovery is part of Unfinished Business: the work needed for Indigenous and non-Indigenous people to meet on more just terms.
In our recent study, we found more than one quarter of the Indigenous population in New South Wales and Victoria live in a fire-affected area. That’s more than 84,000 people. What’s more, one in ten infants and children affected by the fires is Indigenous.
But in past bushfire inquires and royal commissions, Aboriginal people have been mentioned only sparingly. When referenced now, it’s only in relation to cultural burning or cultural heritage. This must change.
Indigenous people comprise only 2.3% of the total population of NSW and Victoria. But they make up nearly 5.4% of the 1.55 million people living in fire-affected areas of these states.
And of the total Indigenous population in fire-affected areas, 36% are less than 15 years old. This is a major concern for delivering health services and education after bushfires have struck.
Importantly, where Indigenous people live has a marked spatial pattern.
There are 22 discrete Aboriginal communities in rural fire-affected areas. Of these, 20 are in NSW, often former mission lands where people were forcibly moved or camps established by Aboriginal peoples.
Ten per cent of Indigenous people in fire-affected areas in NSW and Victoria live in these communities.
And those living in larger towns and urban areas aren’t evenly distributed. For example, Indigenous people comprise 10.6% of residents in fire-affected Nowra–Bomaderry, compared with 1.9% of residents in fire-affected Bowral–Mittagong.
These statistics are steeped in histories and geographies that need to directly inform where and how services are delivered.
Indigenous rights and interests
Aboriginal people hold significant legal rights and interests over lands and waters in the fire-affected areas. These are recognised by state, federal or common law. This includes native title, land acquired through the NSW Aboriginal Land Rights Act or lands covered by Registered Aboriginal Parties in Victoria.
Even where there’s no formal recognition, all fire-affected lands have Aboriginal ownership held and passed down through songlines, languages and kinship networks.
The nature of these legal rights and interests means the bushfires have different consequences for Aboriginal rights-holders than for non-Indigenous landowners.
Many non-Indigenous land-owners in the fire-affected areas face the difficult decision of whether to stay and rebuild, or sell and move on. Traditional owners, on the other hand, are in a far more complex and unending situation.
Traditional owners carry inter-generational responsibilities, practices and more that have been formed with the places the know as their Country.
They can leave and live on someone else’s Country, but their Country and any formally recognised communal land and water rights remain in the fire-affected area.
Relegated to the past
Clearly, Aboriginal people have unique experiences with bushfire disasters, but Aboriginal voices have seldom been heard in the recovery processes that follow.
The McLeod Inquiry, which followed the 2003 Canberra bushfires and the 2009 Black Saturday Royal Commission – were critical processes of reflection and recovery for the nation. Even in these landmark reports, references to Aboriginal people are almost completely absent.
There were only four brief mentions across three volumes of the Black Saturday Royal Commission. Two were cultural heritage protections discussions in relation to pre-bushfire season preparation, and two were historical references to past burning practices.
In other words, Aboriginal people – their cultural practices, ways of life and land management techniques – are relegated to the past.
This approach must change to acknowledge that Aboriginal people are present in contemporary society, and have distinct experiences with bushfire disasters.
More than cultural burning
This year, we’ve seen strong interest in Aboriginal people’s fire management, including in the early months of the federal royal commission, and in NSW and Victoria state inquiries.
But including Aboriginal voices only in regards to cultural burning is deeply problematic. Yet, it’s an emerging trend – not only in these official responses, but in the media.
This narrowly defined scope precludes the suite of concerns Aboriginal people bring to bushfire risk matters. Their concerns go across the natural hazard sector’s spectrum of preparation, planning, response and recovery.
Aboriginal people need to be part of the broad conversation that bushfire decision-makers, researchers, and the public sector are having.
Amplifying Aboriginal voices
To date, Victoria offers the most substantial effort to include Aboriginal voices by establishing an Aboriginal reference group to work alongside the bushfire recovery agency. But Aboriginal people require a much stronger presence in every facet of these state and national inquiries.
We identify three foundational steps:
acknowledge that Aboriginal people have been erased, made absent and marginalised in previous bushfire recovery efforts, and identify and address why this continues to happen
establish non-negotiable instructions for including Aboriginal people in the terms of reference and membership of post-bushfire inquiries
establish Aboriginal representation on relevant government committees involved in decision-making, planning and implementation of disaster risk management.
The continued marginalisation of Aboriginal people diminishes all of us – in terms of our values in living within a just society.
It was never acceptable to silence Aboriginal people in responses to major disasters. It’s incumbent upon us all to ensure these colonial practices of erasure and marginalisation are relegated to the past.
Museums, galleries and artist collectives around the world are shutting their doors and moving online in response to coronavirus. But engaging with audiences online requires access, skills and investment.
My research with remote Aboriginal art centres in the Northern Territory and community museums in Victoria shows moving to digital can widen the gap between urban and regional organisations.
Local spaces are vital. They ensure our national story is about more than the metropolitan, allowing artists to create – and audiences to engage with – local art and history. These art centres and museums bring communities together.
This cannot be replicated online.
Australia’s digital divide influences the ability of museums and galleries to move online, and the ability of audiences to find them there.
Cultural organisations that cannot produce digital content risk getting left behind. If we don’t support regional and rural organisations in their move online – or relieve them from this pressure entirely – we run the risk of losing them.
More than metropolitan
Community museums are critical in collecting, preserving and enabling access to local history. Across Victoria, these community organisations hold around 10 million items.
Aboriginal art centres produce some of Australia’s best contemporary art, generating A$53 million in sales between 2008 and 2012.
Digital platforms can make these contributions to our cultural life more accessible – particularly in these times of physical distancing. But artists in remote Aboriginal art centres and volunteer retirees running community museums are the most likely to experience digital disadvantage and the most likely to be left behind.
A digital divide
Australians are more likely to be digitally excluded when Indigenous, living in remote areas, or over the age of 65.
Over 30% of Indigenous artists practising out of art centres are over 55, and are most likely to be earning from their art over 65. These remote centres have poor access to web-capable devices and have low-quality internet connections.
The digital divide also exists for local audiences with access issues of their own.
Although most art centres and community museums have active websites and social media accounts, these are unlikely to be truly engaging or interactive.
Art centres tend to focus their digital platforms outside the community on commercial sales. Community museums focus on information about opening hours and events. They rarely have the expertise or capacity to create detailed online catalogues for audiences.
Cultural participation is fragmented along demographic and geographic lines. Cities house the majority of our major institutions, with city dwellers dominating visitation.
Digital inequality ensures barriers remain even for online collections. Regional and rural organisations are unlikely to have the specific skills, resourcing and devices to move fully online.
Under social distancing, cultural organisations that cannot produce digital content risk being left behind. This will disproportionately impact regional and rural organisations.
These organisations are critical for preserving the diversity of Australian stories. Aboriginal art centres and community museums provide spaces where the local is solidified. Communities are formed, documented, responded to and shared.
If these organisations cannot host the same web presence as major metropolitan institutions, even local audiences could divert their attention to the cities. Our local cultural organisations might go the way of our disappearing regional newspapers.
To survive the coming months, these organisations need targeted support to move online. Or a reprieve from the pressure to be completely digitally accessible: not all cultural consumption can happen online.
These physical community spaces will be more important than ever once social isolation rules are lifted.
Aboriginal Australians … are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution.
The outcome of the decision is clear for one of the men, Brendan Thoms, who is a registered native title holder. As such, it is beyond the power of the Commonwealth to deport him.
However, the majority was divided on the question of whether the other plaintiff, Daniel Love, was an Aboriginal person as a question of fact, and so did not make a finding about whether or not he was an “alien”.
This case is significant. In some regards, it is about questions of deportation and immigration. But, crucially, it is a constitutional law case grappling with the deeper question of whether Aboriginal and Torres Strait Islander Australians can be aliens and therefore excluded from the Australian state.
Although the decision applies to only a small number of people – Indigenous Australians who are not citizens – it has a broader impact in recognising the special status of Indigenous Australians in Australia.
Love, a Kamileroi man, was born in Papua New Guinea to an Aboriginal father and PNG mother. He moved to Australia in 1984 when he was five years old, but never applied for citizenship. After serving a 12-month sentence for assault occasioning bodily harm, his permanent residency visa was cancelled by the government. He was in detention but was released in 2018 pending the High Court’s decision.
Thoms, a Gunggari man and declared native title holder, was born in New Zealand to an Aboriginal mother and New Zealand father. He has lived in Australia since 1994. Like Love, his visa was cancelled after he served part of an 18-month sentence for a domestic violence assault. He has remained in immigration detention pending the court’s decision.
The Commonwealth has maintained that since the men are not citizens of Australia, the minister for Home Affairs has the power to cancel their visas and deport them. Under Section 51 (xix) of the Constitution, the Commonwealth has the power to make laws relating to “naturalisation and aliens”.
However, lawyers for the two men argued that although they are not citizens, they cannot be aliens – and therefore cannot be deported.
As a question of law, an alien is a person who owes allegiance to another country because they were born there. For people recognised as Aboriginal Australians, with longstanding connections to community, culture and traditional land, this implies they do not belong in their own country.
as a member of the Aboriginal race of Australia and the child of an Australian citizen … [he] is not an alien.
This argument suggests a new category of person described as “non-citizen non-aliens”. And under this special category, the lawyers argued, the minister would not have the constitutional right to deport them.
The basis of the men’s argument, therefore, rests on the connection of Aboriginal and Torres Strait Islander people to their country and the obvious implication of belonging.
Impact for Indigenous Australians
The court’s decision is good news for Indigenous Australians, as it expresses a new form of relationship between Indigenous people and the state – that of a “non-citizen, non-alien”.
The category will protect Aboriginal and Torres Strait Islander Australians born overseas, ensuring they will not lose their right to traditional lands because of an accident of birth. The decision upholds the law’s recognition of the importance of Indigenous Australians’ connection to, and rights over, their lands.
But it does mean that a person must be able to prove their Aboriginality before the court as a question of fact.
Because Thoms is a native title holder, his circumstances were clear. The majority was divided, however, on Love’s status as an Aboriginal person, as he is not a native title holder. And there was ultimately no finding as to whether he qualifies as an alien under the law.
The case also highlights the ongoing challenges for Indigenous Australians in their fight for proper legal recognition in relations with the state.
The minister ignored the implications of these men’s Aboriginality in seeking to deport them. And the Commonwealth argued before the High Court that these men did not belong in Australia – that they were aliens. Further, three of the seven judges agreed with that argument and decided there was no special category for “non-citizen, non-aliens”.
The fact this case was brought at all indicates that the relationship between Indigenous Australians and the state remains unresolved.
Despite the majority decision, it seems First Nations peoples’ close connection with the land is still not enough on its own to guarantee their ongoing rights to be part of Australia, and to retain their ties to community and country.
This decision will be recognised as a milestone for Indigenous Australians. But the closeness of the decision and the qualified finding in relation to Love’s case means this question of belonging for non-citizen Indigenous people will likely be raised again.
Morrison has been adamant there should be no reference to a Voice in what is inserted in the Constitution to recognise Australia’s First Peoples.
Without bipartisan support, a referendum would not have a chance of success and, indeed, would not be put.
Indigenous leaders in the Uluru Statement from the Heart called for “the establishment of a First Nations Voice enshrined in the Constitution”.
I want a Voice and Truth then Treaty to be part of our nation’s journey, part of our national life. It’s not just about respect and redress. It’s about progress and change. It’s about moving out of the darkness
Although there is a gulf between Albanese and Morrison over what should go into the constitution, Albanese says he still hopes for bipartisanship.
“We have not yet had true reconciliation, and a country that is not truly reconciled is not truly whole. And until we are whole, we will never reach our truest potential as a nation – and we have so very much potential,” he says.
But how can we have reconciliation when one side has no voice?
The Voice is the bedrock upon which we must build.
I will take the fight to the government on so many things; never have any doubt about that. But on this we must work together. We must be together. My hope we can have bipartisanship on this remains alive.
Albanese says he is encouraged by “the tentative moves towards constitutional change” by the Minister for Indigenous Australians, Ken Wyatt. “I hope he gets the support he needs and deserves from his colleagues.”
He says he is also encouraged by “the epiphany experienced by Barnaby Joyce.
“After being part of the chorus pushing the myth that a Voice would amount to a third chamber in parliament, Mr Joyce did something unusual. He stopped. He listened. He asked questions from people with knowledge. […]
“Mr Joyce then went on television to own up to his mistake, and to explain why he’d been wrong. And he encouraged others who’d made the same mistake to follow his example.”
At Tuesday’s caucus meeting Pat Dodson, the opposition spokesman on Indigenous recognition, said constitutional recognition had now been decoupled from everything that was in the Uluru statement. Uluru had now shifted to “co-design with select individuals”, he said.
Dodson said there was no structure for formal consultations with First Nations. “Apparently the minister has a plan for consultation with the Coalition backbench and apparently with Pauline Hanson”, he said.
The challenge now was to “assist the minister without walking away with all the fleas and ticks that would undermine a principled position”, Dodson said.
This is a significant development. While the Commonwealth government embarks on another round of important yet time-consuming consultations over a potential First Nations Voice to Parliament, the states and territories are taking the lead on treaties.
Queensland’s ‘track to treaty’
Queensland’s announcement reflects a shift in debate on Indigenous constitutional recognition at the state and territory level. Only a few year ago, the states and territories debated whether to include a reference to Indigenous Australians in their constitutions. Now, they are contemplating negotiating treaties.
Treaties have been accepted globally as the means of reaching a settlement between Indigenous peoples and those who have colonised their lands. They are formal agreements, reached via respectful negotiation in which both sides accept a series of responsibilities.
Treaties acknowledge Indigenous peoples were prior owners and occupiers of the land and, as such, retain a right to self-government. At a minimum, they recognise or establish structures of culturally appropriate governance and means of decision-making and control.
The Queensland treaty process is still in its early stages and negotiations will not begin for several years. This is sensible, because it is important that both the state and First Nations are ready to start negotiations.
For First Nations, this means having a clear sense of what a treaty might mean for their communities, as well as a broad consensus on their negotiating position. Preparing for treaty negotiations can also enable First Nations to engage in nation-(re)building, consistent with their values and aspirations, which is valuable regardless of the content, or even the completion, of a treaty.
For the state, it is equally important that non-Indigenous Queenslanders understand what a treaty is and what it might result in.
Their responsibility is to provide leadership and engage with key stakeholders across the state. A treaty working group will also be established soon to lead consultations with First Nations, allowing them to discuss and reach agreement on what a treaty might contain.
In Victoria, the Andrews government committed to entering treaty negotiations in 2016. An Aboriginal Treaty Working Group was established to lead two rounds of community consultations, which resulted in the creation of a First Peoples’ Assembly. The assembly will not negotiate treaties itself, but will work with the state to develop a treaty framework through which the state and First Nations can negotiate.
The process in the Northern Territory is following this pattern. In June 2018, the government signed a memorandum of understanding with representatives of the four Indigenous land councils, committing to exploring a treaty.
Earlier this year, Mick Dodson, the former director of the National Centre for Indigenous Studies at the Australian National University, was appointed NT treaty commissioner. He is currently leading consultations with Aboriginal Territorians.
Why a lack of federal involvement is a problem
These are promising developments, but there are several challenges ahead.
First, treaties are political agreements. As such, they are vulnerable to political fluctuations.
In Queensland, the Liberal National Party opposition wants to look at the government’s announcement in more detail, but has already suggested it would adopt different priorities. If the LNP wins the 2020 state election, it could abandon the process before negotiations even commence.
We have already seen this play out in South Australia. In 2017, the state Labor government formally started treaty negotiations. But within a year, a newly-elected Coalition government stepped away from this commitment.
Second, the federal government’s position is problematic. Ken Wyatt, the new minister for Indigenous Australians, has said the federal government will leave treaty processes to the states and territories.
Federal government involvement is not legally necessary. Queensland has the legal authority to sign and implement a treaty with Indigenous peoples.
However, the Commonwealth parliament has the power to overrule any state or territory treaty. For this reason, it is preferable that the Commonwealth play a role in these processes. The Uluru Statement from the Heart offers an avenue to do so.
A constitutionally enshrined national representative body to advise the federal parliament (known as a “Voice” to parliament); and
A Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about Australia’s history.
As constitutional lawyer Megan Davis has explained, these reforms are “deliberately sequenced.” The value of starting with a First Nations Voice and Makarrata Commission is that they can oversee developments across the country. Without these bodies, state and territory treaty processes may diverge and result in wildly different settlement terms.
Finally, the support of Indigenous peoples is not assured.
Increasingly, First Nations are resisting agreement-making with governments that act inconsistently with their values and aspirations.
For instance, the Djab Wurrung Embassy, a group of traditional owners protesting VicRoads’ plan to cut down sacred trees, has launched a “No Trees, No Treaty” campaign to highlight the state government’s refusal to listen to their views.
as a trip wire and only a pathway to assimilation.
Consensus cannot be assumed, and will become more complex as First Nations articulate their objectives and objections to possible treaties.
Notwithstanding these challenges, Queensland’s announcement is historic.
It confirms that progress on Indigenous constitutional recognition is being led by the states and territories. It also directs more attention to the federal government’s approach to this issue.
It is hoped that the Commonwealth reflects on Queensland’s announcement and commits to establishing a Makarrata Commission. And that commission should be designed by Indigenous representatives serving on a constitutionally enshrined First Nations Voice.