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.
The Queensland government’s in-principle agreement to pay A$190 million in compensation for the wages withheld from more than 10,000 Indigenous workers is a watershed moment for the stolen wages movement.
Indigenous people across Australia have been fighting for their denied and withheld wages for decades, both on the streets and in the courts. There have been some victories along the way and many setbacks.
The significance of the Queensland settlement (to settle a class action) is that it marks the first recognition these claims have legal as well as moral and political merit. Its ramifications are potentially limited, however, given the full injustice of how Indigenous wages were stolen.
A significant contribution
Historically Aboriginal and Torres Strait Islander men and women found work in farming, mining, roadbuilding, irrigation, fencing, gardening, pearling, sealing, fishing and domestic duties. But they were most concentrated in the cattle industry of northern Australia, from Western Australia to Queensland.
Tens of thousands worked on cattle stations from the 1880s to 1970s. The beef industry could not have survived without them. In 1913, the federal government’s Chief Protector of Aborigines, Baldwin Spencer, noted that “under present conditions, the majority of cattle stations are largely dependent on the work done by black “boys”. In the 1930s, when the rest of the economy floundered in the Great Depression, Indigenous labour helped keep the industry profitable.
Indigenous workers were entitled to be paid two-thirds of other workers, but even then employers often paid them less. Sometimes the low value of their wages was disguised by being paid in food and clothing rations. Sometimes workers were provided “store credit”, which could only be used to buy exorbitantly priced items.
Station managers may have justified under-payment on the basis they were “caring” for workers through providing scant food, clothing and accommodation.
Governments, meanwhile, “withheld” income – often putting money into trust funds that Indigenous people were unable to access. The Queensland government’s $190 million offer is to settle a class action claim for it misappropriating such trust funds.
The fact Indigenous people were vulnerable to such exploitation for decades was made possible by an intricate legislative regime that gave the state expansive powers over their lives. In all states and territories, Aboriginal Protection Acts gave the government officials the power to control the money earned by Indigenous workers.
In Queensland, historian Rosalind Kidd has estimated that 4,500 to 5,500 Indigenous pastoral workers may have lost wage entitlements worth more than $500 million between 1920 and 1968.
There have been redress schemes in Western Australia, Queensland and New South Wales.
The Queensland government set up the first redress scheme in 2002. It set aside $55.6 million to compensate any individuals who could supply documentary evidence their wages or savings were taken by the Queensland government. If they could do so – and there was a deadline of 2006 on claims – the scheme provided an ex gratia payment of $2,000 to $4,000.
These conditions set a high bar, and $21 million went unclaimed.
Western Australia established its scheme in 2012. It also involved a small ex gratia payment ($2,000) with a limited window to make claims. Claimants called the scheme insulting and mean-spirited. The ABC reported a source that said state treasury officials agreed individuals were owed as much as $78,000, and the government kept the work of its stolen wages taskforce quiet for years, waiting for potential claimants to die.
In distinction to these two schemes, the NSW Trust Funds Repayment Scheme (2006 and 2010) matched the wages withheld in trust funds between 1900 and 1969. It paid $3,521 for every $100 owed, or an $11,000 lump sum where the amount could not be established. This was the closest model to a reparations scheme, though also inhibited by bureaucratic requirements and time limitations.
Due to the limitations of all these state redress schemes, in 2006 a Senate Inquiry into Stolen Wages recommended a national scheme. But no federal government since has acted on this recommendation.
Stolen wages claimants have taken their cases to court in Western Australia, New South Wales and Queensland – but it is only in Queensland that they have had some success.
One of those is the case of James Stanley Baird, who sued the Queensland government for withheld wages on the basis that paying under-award wages to Indigenous workers was in breach of the Racial Discrimination Act 1975. The state government compensated Baird and other plaintiffs the difference owed to them in damages and provided an apology.
The current settlement is based on a legal claim that the Queensland government breached its duty as a trustee and fiduciary in not paying out wages that were held in trust. The outcome is the most significant repayment for stolen wages plaintiffs in Australian history. Yet the benefits may be confined.
First, in Queensland there is a rich archive of documents (substantially unearthed and analysed by historian Rosalind Kidd) to prove the government misappropriated funds. Such a record may not exist elsewhere.
Second, the settlement only applies to wages placed in “trust accounts”. It has no implications for wages denied to Indigenous workers in other ways, such as by private employers who booked down wages or otherwise refused to pay.
For justice for all wronged Indigenous workers, there needs to be broad-based reparations for stolen wages. This requires truth commissions and a commitment by governments and anyone else that profited from that theft to restore what is owed.
Eleven years after Australia adopted the Closing the Gap strategy, many pressing First Nations health issues remain unresolved.
The gap between Indigenous and non-Indigenous life expectancy, currently 10.8 years for men and 10.6 years for women, is actually widening.
Similarly, the target to close the gap between Indigenous and non-Indigenous child mortality has not been met. The Indigenous rate of 164 deaths per 100,000 children aged 0-4 years is still 2.4 times the non-Indigenous rate of 68 deaths per 100,000 in this age group.
The causes of Indigenous health inequality are complex. They stem from social determinants such as employment, education, social inclusion, and access to traditional land, rather than strictly biomedical causes.
Government policies have a critical role to play here. But funding cuts, policy incoherence, and governments retaining control over resources and decision-making explain why the gaps between Indigenous and non-Indigenous health outcomes are not closing.
Regardless of who wins the federal election on May 18, these enduring health issues affecting Indigenous Australians will require sustained and concerted policy attention.
A look at the major parties’ policy promises reveals some signs of hope, but also plenty of room for improvement.
The budget did include A$35 million for First Nations solutions to family violence, and A$10 million for the Lowitja Institute for health research.
Indigenous youth suicide remains an urgent policy concern, with Indigenous children five times more likely to die in this way than non-Indigenous children. A coronial inquest recently identified complex causes including intergenerational trauma, poverty, and problems stemming from the home environment.
The Coalition’s budget committed A$5 million over four years to address Indigenous youth suicide. This figure has since been increased to A$42 million following criticism from First Nations organisations and advocates.
Meanwhile, the budget directed A$129 million towards the expansion of a cashless welfare card system that operates in a number of Aboriginal communities. The card quarantines 80% of welfare recipients’ income for use in government-approved stores, and on government-approved items, to prevent spending on alcohol, cigarettes and gambling. This decision was taken despite a lack of evidence these cards reduce social harm or public expenditure.
The government also made some pre-budget commitments around Indigenous health. These included:
The Morrison government deserves some credit for its part in reaching an agreement between the Council of Australian Governments and a coalition of Aboriginal and Torres Strait Islander peak organisations in December 2018.
This agreement commits governments and Indigenous peak bodies to shared decision-making and joint accountability in devising and working towards new Closing the Gap targets.
Labor has also promised A$20 million for sexual health promotion in northern Australia, A$13 million to combat vision loss, and A$16.5 million for the “Deadly Choices” initiative, which aims to prevent chronic disease through education.
Further, the opposition has announced a compensation scheme and healing fund for surviving members of the Stolen Generations and their families. This could help manage the effects of intergenerational trauma.
Both parties’ funding commitments must be assessed in the context of the 2014 budget cut of more than A$500 million dollars to Indigenous affairs by the then Coalition government, which only the Greens have committed to restoring.
Impacts have been severe for specific programs, especially those run at the community level. These include youth services in Maningrida (NT) and employment and training programs in Inala (Queensland).
Funding for crucial Indigenous health infrastructure and capital works is also lacking, with the current shortfall estimated at A$500 million. Many Aboriginal Community Controlled Health Services are run from old buildings in desperate need of upgrades to accommodate increasing patient numbers and rising demand for services. The Coalition recently announced an incremental increase to infrastructure funding, but much more is needed.
Neither the Coalition nor Labor has made any substantial commitment to a national Indigenous housing strategy. Inadequate, insecure and poor quality housing worsens physical and mental health through overcrowding, inadequate heating and cooling, injury hazards, and stress.
Similarly, both parties have been silent on reducing poverty in Indigenous communities. Poverty is another social determinant that contributes to Indigenous physical and mental ill-health, as well as high incarceration levels.
As the Close the Gap steering committee’s shadow report emphasised, “when Aboriginal and Torres Strait Islander people are involved in the design of the services they need, we are far more likely to achieve success”.
The Coalition has been silent on the issue of community control, and funding reforms under the Indigenous Advancement Strategy and the Indigenous Australians’ Health Programme have destabilised the position of Aboriginal organisations.
Community control is threatened by the government’s focus on competitive tendering, where First Nations organisations compete with “mainstream” service providers trying to secure contracts to deliver Indigenous health services.
Neither the Coalition nor Labor has outlined a response to these structural issues.
A final verdict
It’s difficult to identify major differences between the two parties’ Indigenous health promises. The likely impact of these polices is also hard to gauge given the significant role played by state and territory governments in service delivery.
Labor has promised to support Aboriginal Community Controlled Organisations but specific details have not been announced. Labor’s significant funding pledge for rheumatic heart disease, though, makes their Indigenous health offering perhaps slightly more likely to achieve health gains than the Coalition’s.
This piece is part of a series on race and racism in Australia. The series examines this complex and incendiary topic, and the role it plays in contemporary Australia. You can read the rest of the series here
When Indigenous Referendum Council member Megan Davis stood on the red sands close to Uluru and read the Uluru Statement from the Heart in May 2017, she was enacting a tradition steeped in Indigenous cultural and political significance.
It was not just a response to politicians’ requests to consult the Indigenous community on constitutional recognition, it was a powerful political act, enshrined in a message carried by elders and subsequently inscribed in art.
Following substantial months-long consultations, Davis, as envoy of the people, delivered a message to the nation concerning the resetting of “inter-tribal” relations between Indigenous and non-Indigenous peoples in Australia. The Uluru Statement from the Heart was an act of Indigenous diplomacy solemnised in song, dance and ceremony.
The history of Indigenous envoys
Historically, such ambassadorial moments were the glue of politics and negotiations between Indigenous peoples. They built cohesion and peace, facilitated inter-community exchanges and allowed for the settling of disputes.
As messengers, envoys were critical to this diplomatic mesh. Carefully selected, they were highly respected members of their tribes. They often possessed the ability to speak different dialects and were skilled negotiators. They were the bearers of important information, such as the deaths of leaders, appointments of successors and important gatherings and ceremonies like marriages, burials, corroborrees and initiations.
Given their significance, it is little wonder that many Indigenous peoples described former Prime Minister Tony Abbott’s recent appointment as special envoy in Indigenous affairs as deeply disrespectful.
On every level this was an act of egregious political misjudgement, as many Indigenous people have been quick to note.
Why Abbott’s appointment was controversial
Not only was Abbott’s appointment hasty, ill-planned and unsolicited, it lacked a key requirement for the role – the wider support of his own community.
Beyond lacking all merit, Abbott’s previous policies on Indigenous issues had been characterised by funding cuts, exclusions and silencing. His Indigenous Advancement Strategy was criticised for its destructive consequences to governance within Indigenous communities. Someone who had caused such injury and grief in the past, stripped communities of their capacity for self-determination and seemed so lacking of respect in their own community was largely unwelcome.
There were some, however, who were willing to give Abbott the benefit of the doubt and saw an opportunity in his role.
For them, his task was clear. In accordance with tradition, he needed to come with models and messages of agreement-making and considered responses to the Indigenous peoples’ own message, as conveyed by the Uluru Statement. He needed to bring news of progress on constitutional recognition and the Makaratta Commission – the Indigenous-inspired body to facilitate agreement-making and help reset relations.
He needed to engage in dialogue, be open to consultations, and most importantly, listen.
As Dennis Walker, the Ngarrindjeri Regional Authority chair, believed, Abbott would come to listen to Ngarrindjeri about their concerns: economic development, stable governance and developing better relationships with non-Indigenous political leaders. For Jeffrey Newchurch, the Kaurna Nation Cultural Heritage chair, Abbott’s visit presented an opportunity to discuss important issues affecting them, like burials, social cohesion and how to build good intergovernmental relationships.
Yet, this is not how Abbott saw his job. Disregarding cultural protocols, he arrived with dictates and outsider rules, and a specific agenda aimed at improving school attendance and performance in remote communities.
Even in this, his apparent lack of knowledge, a critical trait of the position, was apparent.
Over a decade’sworth of reportsinto remote schooling have overwhelmingly stressed the connection between education, language and culture, and the importance of family and community involvement for children. Education programs succeed when Aboriginal people are the architects of their own policies and services. Partnerships between the people and governments must be based on local priorities, and these must be mutually understood.
Abbott’s ignorance was compounded by the impropriety of another white elder of his tribe. Earlier this month, news broke of Indigenous Affairs minister Nigel Scullion’s approval of grants to a fishing industry lobby group from a fund intended to address disadvantage in Indigenous communities.
Scullion transferred significant sums to the Northern Territory Amateur Fisherman’s Association to pay their legal fees in disputes over Aboriginal land claims.
As the former Indigenous affairs minister, Dr Jak Ah Kit, said, this was totally against the rules. Aboriginal elders are skilled negotiators of their resources, particularly their fisheries. There had been no consultations or efforts to negotiate with them.
Diplomatic blunder and policy failure
Prime Minister Scott Morrison’s appointment of Abbott as special envoy was more than a diplomatic faux pas. It was a diplomatic blunder and a policy failure.
In foreign policy parlance, a diplomatic blunder results from a judgement blinded by bias and ignorance, while a policy failure is caused by behaviour that is both costly and has undesirable and unanticipated consequences.
Abbott’s bias and ignorance are palpable and demonstrable. And the policies he pushed — more police in the communities and learning in English — would be costly in the human and economic sense. Investing in policies that aren’t wanted and don’t work will do nothing to reset intergovernmental relations.
Abbott and the federal government would do well to learn from the examples of deliberative and democratic governance demonstrated by the Indigenous political negotiations leading up to the Uluru Statement.
These negotiations demonstrated how politically astute Indigenous elders are. The network of regional dialogues were not about political platitudes of the sort Abbott said to the Anangu – “thanks for putting up with the invasion” — but a recipe for action.
Abbott could also learn from the likes of Megan Davis, whose diplomatic credentials, by contrast, are impeccable.
In March this year, Sunrise aired a panel discussion about the removal of Indigenous children from dangerous or abusive family situations.
It wrongly claimed that Indigenous children could not be fostered by non-Indigenous families and one panellist, commentator Prue MacSween, suggested that the Stolen Generation might need to be repeated in order to save children from physical and sexual abuse.
The reaction was swift and fierce: the segment was condemned as racist and insensitive, with many questioning why the panel featured no experts or Indigenous people. There were protests at the show’s Sydney studio, and multiple complaints were made to the Australian Communications and Media Authority.
This week, ACMA announced that the Channel Seven breakfast show did indeed breach the Commercial Television Industry Code of Practice in airing false claims that Indigenous children could not be placed with white families.
It was also found that the segment provoked “serious contempt on the basis of race in breach of the Code as it contained strong negative generalisations about Indigenous people as a group”.
Seven has defended their actions, labelling the ACMA’s decision as “censorship” and “a direct assault on the workings of an independent media”. They are also considering seeking a judicial review of the decision.
However, it is not correct to assess ACMA’s decision, nor its role, as censorship. Rather, the ACMA monitors and enforces basic journalistic principles governing ethics and responsibility.
The decision is more symbolic than material – Channel Seven will not be forced to pull the segment from online; indeed, it is widely available. ACMA also has no power to order any compensation to be paid to a wronged party or fine the broadcaster; nor can it force Channel Seven to apologise or correct its error.
This dispute is but one of many examples that raises questions over the power of the media and what happens when media make a mistake, deliberately bend the truth or publish information that may cause harm to people, especially from marginalised groups.
In his research on the media portrayal of Indigenous people and issues, and the difference between sensitivity versus censorship, Michael Meadowsargues the media are resistant to admitting there is a problem with racist or insensitive coverage. He writes:
Aboriginal Australians have had to be content with a portrayal which is mostly stereotypical, sensational, emotional or exotic, with an ignorance of the historical and political context in which these images are situated.
While “censorship” is a label that is often used by the media in response to criticism, actual censorship in Australia by government or media watchdogs is thankfully rare to nonexistent. Other issue such as defamation law are greater sources of censorship.
In a 2018 report released by Reporters Without Borders, a worldwide organisation that advocates for a free press, Australia ranked 19th out of 180 countries on press freedom. This was a fall from ninth in 2017 due to of media restrictions on reporting on asylum seekers and refugees in offshore detention centres, not the role of ACMA. In fact, ACMA and the Australian Press Council were not even mentioned.
Australian journalists are expected, although not obliged, to abide by the Media, Entertainment and Arts Alliance’s Code of Ethics. This states that journalists should “report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts” and to “do your utmost to achieve fair correction of errors”.
ACMA’s finding on the Sunrise segment that featured sweeping claims such as “children left in Indigenous families would be abused and neglected”, is simply holding those responsible to the minimum standards expected, not just within the industry, but from the public, too.
In the era of “fake news”, it is not surprising that the public’s trust in journalists is low; a 2018 surveyfound only 20% of Australians deemed newspaper journalists as being “very” honest and ethical, with television reporters fairing even worse, at 17%.
The ACMA was created in 2005 following the public outcry over the infamous “cash for comment” scandals in 1999 and 2004. At the time, the then-Australian Broadcasting Authority was criticised for being “too soft” and ineffective in response, the ABA was abolished and replaced by the ACMA.
It’s incorrect to label the ACMA’s role as playing “censor” when they do no such thing. In fact, there is criticism that ACMA, like its predecessor, is a “toothless tiger” that lacks any power to actually hold the media to account.
No media can operate without a basic framework that places public interest, a commitment to accuracy and responsibility to the public.
In a statement released on September 4, ACMA chairwoman Nerida O’Loughlin highlighted this important distinction:
Broadcasters can, of course, discuss matters of public interest, including extremely sensitive topics such as child abuse in Indigenous communities. However, such matters should be discussed with care, with editorial framing to ensure compliance with the Code.
With “clickbait” and inflammatory opinion increasingly finding a home in the media, it’s more important than ever that the media respect and abide by their responsibilities to fairness and the truth. And when they cannot or do not do this, regulatory bodies such as the ACMA are essential.
Today, the High Court of Australia will begin hearing the most significant case concerning Indigenous land rights since the Mabo and Wik native title cases in the 1990s.
For the first time, the High Court will consider how to approach the question of compensation for the loss of traditional land rights. The decision will have huge implications for Indigenous peoples who have lost their land rights and for the state and territory governments responsible for that loss.
For Queensland and Western Australia in particular, the outcome will likely provide clarity on the significant amounts of compensation they may be liable for in the future.
Western Australia, for example, has areas of determined native title that are collectively larger than the entire state of South Australia. Within those boundaries, there are a number of potential native title claims that could be compensable in the future.
In 2011, the state’s attorney-general, Christian Porter, reportedly described potential compensation claims as a “one billion dollar plus issue”.
Background on native title
The Mabo decision first recognised, and the Wik decision later clarified, how Australia’s common law acknowledges and protects the traditional land rights of Indigenous peoples. Following some uncertainty and political clamour caused by both of those decisions, the Native Title Act 1993 provided a legislative structure for the future recognition, protection and compensation of native title.
The act provides a right of compensation for the “impairment and extinguishment” of native title rights in a range of circumstances. However, it provides little guidance on what compensation means in practice. Parliament decided to leave the details to the courts.
Surprisingly, it was not until the end of 2016 that the first-ever compensation claim wound its way to the point of judicial determination – in the Timber Creek decision.
The Timber Creek decisions
The case coming before the High Court today is an appeal following two earlier decisions by the Federal Court.
Mansfield awarded the Ngaliwurru and Nungali peoples AU$3.3m in August 2016 for various acts of the NT government going back to the 1980s. These acts included grants of land and public works affecting areas totalling 1.27 square kilometres near the remote township of Timber Creek.
Mansfield approached the compensation award in three steps:
Firstly, he worked out the value of the land rights in plain economic terms. He did this by looking to the freehold market value of the land, but discounting it by 20% to reflect the lower economic value of the native title. This is due to the fact its use is limited to rights under traditional law and custom, such hunting and conducting ceremonies, but does not include a right to lease the land, for example.
Secondly, he considered how to compensate for the loss of the non-economic aspects of native title, such as cultural and spiritual harm. This involved having to:
…quantify the essentially spiritual relationship which Aboriginal people … have with country and to translate the spiritual or religious hurt into compensation.
Thirdly, he gave an award of interest to reflect the passage of time since the acts of the NT government occurred.
The decision was quickly appealed to the Full Court of the Federal Court, which corrected a few errors and reduced the award to just over AU$2.8m. But in broad terms, it approved the three-step approach Mansfield used to calculate the award.
Whether the High Court will follow the same path remains to be seen. A number of new parties, including various state governments, have now become involved in the proceedings, each with their own barrow to push.
The challenge of valuing native title
The challenge is that conventional methods for valuing land may not be suitable to reflect the unique nature of native title rights and the significance of those rights to Indigenous peoples. New principles, or adapted versions of old ones, may be needed.
For example, in most cases where a piece of land is resumed by a government for an infrastructure project or some other purpose, the principal measure of compensation is the market value of the land.
But in the case of native title rights, there is no market to value the land. Native title cannot be sold, mortgaged or leased. Further, native title is different in every case, with no uniform content. Native title rights can include everything from a right to exclusive possession of land to a very limited right to conduct traditional ceremonies on a piece of land.
Whether the Federal Court has taken the right approach – or whether a new approach should be adopted – will be the subject of debate in the High Court.
The Ngaliwurru and Nungali people contend the correct approach would have seen them awarded roughly AU$4.6m. The NT government is arguing, however, that the amount should be no more than about AU$1.3m.
One sore point is between the federal government and the states and territories over who will pay any compensation. Under both the Keating and Howard governments, the Commonwealth undertook to pay 75% of the compensation a state or territory may be required to pay in future claims (with some exceptions).
Porter may now find himself on the opposite side of the table, having shifted from state supplicant to his new position as a Commonwealth purse holder.
Just how much political friction there will be will depend on the High Court’s approach to determining compensation and the potential cost if hundreds of other native title groups pursue compensation claims in the future.
During the second world war, a young Aboriginal soldier, Private Clarrie Combo from New South Wales, exchanged mail with Mrs F. C. Brown from Loxton, South Australia — a white woman whom he had never met.
Very few letters penned by Aboriginal soldiers who served in either of the two world wars survive, yet one of Clarrie’s letters has endured in what might seem a surprising context. Mrs Brown contacted the young soldier after seeing an advertisement calling for volunteers to “adopt” Aboriginal soldiers. His reply was printed in her local newspaper, and its survival provides us with a rare opportunity to learn about military service from an Aboriginal soldier’s perspective.
Clarence Combo was born in Wardell, New South Wales, on 14 September 1919. Young Clarrie grew up in a harsh environment — Kinchela Aboriginal Boys’ Training Home near Kempsey. Consistent with government plans to assimilate Aboriginal people into white Australian society, children like Clarrie were forcibly removed from their families. At Kinchela, boys were called by their allocated numbers rather than names. Identities and cultures were stripped away.
In a country where discriminatory legislation and practices precluded Aboriginal people from earning a fair wage, voting, marrying non-Aboriginal partners, buying property or entering a public bar, it is not too difficult to imagine why some young Aboriginal men signed up for the military when war broke out. An estimated 1,000 Aboriginal soldiers served in the Australian Imperial Force as black diggers during the first world war. By the mid-20th century it was easier for Aboriginal men to sign up, so around 3,000 served Australia during WWII.
Shortly after WWII began, the Melbourne-based Aborigines Uplift Society, founded by non-Aboriginal activist Arthur Burdeu, created a comforts auxiliary for Aboriginal soldiers. The idea was that women could “adopt” an Aboriginal soldier. They would correspond with him and arrange comfort parcels to be sent to him at the front.
In the Society’s August 1940 Uplift newsletter, Burdeu explained how “native women have not the resources to do as their white sisters, though they are already at work”. In Queensland, for example, children at the Purga Aboriginal Mission sewed underpants, toilet tidies, calico bags and hussifs (sewing kits), and knitted socks, mittens and balaclavas. Yorta Yorta women and children at the Cummeragunja Reserve (located in New South Wales) were also involved in knitting for the war effort.
Newspaper advertisements ran across Australia inviting women to contact Burdeu about “adopting” an Aboriginal soldier. With at least one son-in-law serving Australia, Mrs Brown may have felt compassion for those men whose families could not afford to send them parcels.
Corresponding with Mrs Brown
On September 25, 1941 the Murray Pioneer and Australian River Record published one of Clarrie’s letters to Mrs Brown under the headline “Aboriginal’s Appreciative Letter”. Clarrie opened his correspondence with Mrs Brown by thanking her for writing to him. He wrote: “it is very nice of you to write to someone you do not know”. At a practical level, Clarrie advised Mrs Brown that he wore size seven boots, as she had offered to knit socks for him.
The young private’s letter provides a unique perspective on his experiences serving abroad. “I was in action for the first time in Greece,” he told his correspondent. He described Greece as “the nicest country that I have been in since leaving Australia”, then marvelled at having seen snow for the first time.
However the horrors of war included being “attacked practically every day by the German planes”. He told Mrs Brown how “a few of my pals were killed over there … There were German planes in the sky all day long and they were always bombing”.
What’s left out of correspondence can also be telling. In War Dance: A Story of the 2/3 Aust. Inf. Battalion A.I.F., Ken Clift provides an insight into racial attitudes amongst some of the men, telling of an altercation between two Australian soldiers, an Aboriginal one named Clarrie and an Indian or Afghan soldier, Tom. As the men argued heatedly, Tom allegedly called Clarrie: “You black bastard”. Clarrie was said to have retorted, “Well Tom, you’re no bloody glass of milk yourself.” Clarrie’s correspondence with Mrs Brown omits any mention of such tensions.
Over five years’ service, Clarrie’s tours of duty included Egypt, Libya, Greece, Crete, Syria, Sri Lanka (formerly Ceylon) and New Guinea. He suffered illness and injuries. In 1941 he caught sandfly fever, an ailment commonly suffered by soldiers fighting in North Africa. His “Proceedings for Discharge” notes that Clarrie received two war injuries, one to his right forearm and the other, a gunshot wound inflicted in New Guinea in June 1945, to his left forearm.
Clarrie’s war experiences included seeing some of his mates injured or killed. He would also have been expected to fire on enemy combatants. However, his correspondence with Mrs Brown, replete with anecdotes about foreign lands and peoples, highlights how being part of Australia’s war effort in the mid-20th century also gave him insights into other places and cultures.
Fortunately, Clarrie survived the war. He was one of five Aboriginal soldiers welcomed home to Wardell by the Cabbage Tree Island Women’s Guild just before Christmas 1945. By the mid-1960s Clarrie was chairing the Aboriginal Cooperative at Cabbage Tree Island and participating in national conferences advocating equal rights for Aboriginal people.
The tenth Closing the Gap report, to be tabled in parliament by Malcolm Turnbull on Monday, shows only three of the seven targets are on track to be met.
The targets for early childhood education and Year 12 attainment are on track, and the target to halve child mortality is back on track. But the remaining targets are not on track – for school attendance, mortality, employment, and reading and numeracy.
The government will hail this year’s outcome as the most promising result since 2011. Last year, only one target was being met – on improved Year 12 attainment.
Opposition Leader Bill Shorten will mark a decade on from then prime minister Kevin Rudd’s national apology by announcing Labor would set up a compensation scheme for survivors of the Stolen Generations in Commonwealth jurisdictions.
The scheme would give ex-gratia payments of A$75,000 to living survivors. There would also be a funeral assistance fund with one-off payments of $7,000 to Stolen Generations members to assist with their funerals.
The compensation scheme would be accessible to about 150 surviving members of the Stolen Generations in the Northern Territory and any members in the ACT and Jervis Bay.
Labor would also establish a $10 million national healing fund “to support healing for the Stolen Generations and their families – in recognition of the inter-generational effects of forced removals”.
Shorten will say that recently the number of children removed from their families has rapidly increased.
“In 2017, more than 17,000 Aboriginal and Torres Strait Islander children were living in out-of-home care, compared with about 9,000 a decade ago,” he says in a statement with the shadow assistant minister for Indigenous affairs, Patrick Dodson. In response, Labor would convene a national summit on First Nations Children in its first 100 days in office.
Shorten’s announcements would cost $17.1 million over the forward estimates.
With four of the existing Closing the Gap targets expiring this year – child mortality, school attendance, reading and numeracy, and employment – the Council of Australian Governments is working with Indigenous people to refresh the agenda.
The government will point to progress on a range of health indicators:
Child mortality dropped by one-third between 1998 and 2015.
Overall mortality fell 15% from 1998 to 2015.
Fewer Indigenous people are dying from chronic conditions. Deaths from circulatory diseases declined by 45% between 1998 and 2016; respiratory disease deaths fell by 24% between 1998 and 2015; kidney disease death rates decreased by 47% from 2006 to 2015.
The proportion of Indigenous adults who smoke fell from 55% in 1994 to 45% in 2014-15.
Efforts are on track to eliminate trachoma as a public health problem by 2020. The prevalence of active trachoma in Indigenous children aged between five and nine in at-risk communities declined from 14% in 2009 to 4.7% in 2016.
The gap in blindness and vision impairment halved between 2008 and 2016. Indigenous people have three times the rate of blindness and vision impairment compared to the non-Indigenous population. In 2008 the figure was six times.
Drinking during pregnancy halved between 2008 and 2014-15, and there was an 8% drop in binge drinking among Indigenous people from 2008 and 2015.
Indigenous Affairs Minister Nigel Scullion said the results demonstrated “the power of a collaborative approach between governments and Aboriginal and Torres Strait Islander people. Even where we may not be on track, we have achieved solid progress in other target areas compared with a decade ago.”
The government will highlight the success of the Indigenous Procurement Policy. Its target was achieved three years ahead of schedule and it has now passed $1 billion in contracts to Indigenous businesses. Scullion flagged Turnbull would be announcing “new measures to turbo-charge the Indigenous business sector”.
A Senate inquiry has recommended that trials of the Cashless Debit Card be continued and expanded to new sites in other states next year. This is despite Labor and Greens senators providing separate dissenting reports that rejected the recommendation that legislation for the bill should pass.
The majority report’s proposal dramatically contrasts with most of the submissions accepted by the inquiry raising significant concerns and arguing against the trials. These submissions outline a variety of serious issues that have been largely overlooked.
What is the card?
The trials for the Cashless Debit Card began in early 2016 in Ceduna, South Australia, and the East Kimberley in Western Australia.
The card quarantines 80% of social security payments received by all working-age people (between the ages of 15 and 64) in the trial sites. It attempts to restrict cash and purchases of alcohol, illegal drugs and gambling products.
The card compulsorily includes people receiving disability, parenting, carers, unemployed and youth allowance payments. People on the aged pension, on a veteran’s payment or earning a wage are not compulsorily included in the trial, but can volunteer to take part.
The trial of the card has increased hardship in people’s lives. This is not only because of the experiment’s disorganised and ill-conceived implementation, but also due to the trial’s design.
People are being compulsory included because there is an assumption that they engage in problematic behaviours, such as the over-consumption of alcohol, gambling, or the use of illegal drugs. But this is not the reality for most people.
Being put on the card has made people’s lives harder because limiting cash restricts people’s ability to undertake day-to-day activities to help their family’s wellbeing. This includes getting second-hand goods, paying for transport, and buying gifts.
This hardship is reflected in the final evaluation of the trial, in which 32% said their lives were worse since being on the card (only 23% said their lives were better).
Further, 48% of participants reported that the card does not help them look after their children better. This is concerning, as recently completed research into income management programs indicates a correlation with negative impacts on children – including a reduction in birth weight and school attendance.
Getting the assumptions wrong has pushed already vulnerable people into even more vulnerable situations. Medical specialists have raised concerns with the card being used to treat addiction.
Both crime and domestic assaults increased under the card in the East Kimberley. Superintendent Adams of the Kimberley Police District told the Senate inquiry that in the 12 months to June 30, 2016, there were 319 domestic assaults in Kununurra, but in the 12 months to June 30, 2017 (and the time of the trial), this figure had increased to 508.
The government used both the interim and final evaluations as key evidence to justify extending the trials.
Both evaluations have been severely criticised as being methodologically and analytically flawed: from the way interviews were conducted, to having no baseline to test government claims of success, through to an over-emphasis on anecdotal improvements and discarding important issues such as the increase in crime and domestic violence.
The decision to implement the card was not a community decision that represents the regions’ diverse interests or population. And some have had more say than others.
For example, the Miriuwung Gajerrong Corporation noted that, although the:
… Department of Social Services states that the Cashless Debit Card program was co-designed with local leaders in Kununurra … in reality, only four local leaders were consulted in relation to the introduction of the [card] in Kununurra.
In a perverse twist, the only way people can get themselves off the trial is to get a job. Yet in both Ceduna and the East Kimberley, the biggest cause of unemployment is the lack of formal, dignified and secure jobs. Linking to unemployment, some people included in the trial are also subjected to the punitive Community Development Program. This compounds poverty, as the program’s nature induces high breaching rates.
Even if a few support the card, many more have suffered material and emotional hardship. The community has been fractured through such heavy-handed intervention. And the A$25 million spent on it has demonstrated no credible evidence of sufficient benefit to justify an ongoing rollout.
That the card continues to be pursued by government exposes its dogged obsession with implementing neocolonial and punitive policy for some imagined political gain at the expense of vulnerable people.
The author would like to thank professor Jon Altman and Sarouche Razi for comments on earlier drafts.