Keywords

1 Introduction

When Australia became a ‘nation’ in 1901, the Constitution, Section 51(26), specifically forbade the new Commonwealth government from legislating in Indigenous Affairs, restricting this power to the State governments. This restriction remained for another two-thirds of a century. A Constitutional Referendum was finally passed by over 90 % of the electorate on 27 May 1967, that granted the Commonwealth government the power to legislate on Indigenous Affairs.

Almost fifty years since the Commonwealth government was granted this power, there have been many Commonwealth governments that have legislated and developed policies in Indigenous Affairs. In this chapter I examine the legislation and policies that Commonwealth governments have developed in the area of Indigenous rights. Indigenous rights, such as self-determination, land rights and a treaty, are critical to Australia progressing towards peace, justice and reconciliation regarding Indigenous and non-Indigenous relations (Behrendt 2003; Gunstone 2009). I argue, however, that the legislation and policies developed over the past five decades have failed to genuinely acknowledge and recognise Indigenous rights.

2 Whitlam Government (1972–1975)

Despite the constitutional change in 1967 to allow Commonwealth governments to legislate on Indigenous Affairs , the subsequent Holt, Gorton, and McMahon conservative governments generally did not implement legislation or policies in this area. This inactivity occurred despite Indigenous people strongly advocating for their rights through activities such as the implementation of the Aboriginal Tent Embassy in 1972 (Foley 2007). It was not until the election of the Whitlam Labour government in 1972 that a Commonwealth government first started to substantially implement legislation or policies in Indigenous Affairs. The Whitlam government attempted to address two key areas of Indigenous rights—self-determination and land rights —in their legislation and policies.

The long-standing policy of assimilation had been held by State and Commonwealth governments since the 1930s. This policy was formally abolished by the Whitlam government and replaced by a policy of self-determination. This policy stated:

The Government no longer expects that they [Indigenous people] will want to become like other Australians in all respects, nor that they should do so. The former policy of assimilation which assumed that Aborigines would choose to and eventually become indistinguishable from other Australians in their hopes, loyalties and lifestyles is no longer part of Australian Government policy … our aim is … to make it possible for Aboriginal communities and individuals to develop as they wish within the overall Australian society (Pollard 1988: 36).

Although the Whitlam government’s rhetoric was supportive of self-determination, it failed to address self-determination in policy development (Foley 2007). For instance, the Whitlam government established the National Aboriginal Consultative Committee (NACC), and asserted that the process of Indigenous people electing Indigenous members to the NACC would address self-determination. The reality, though, was that the Whitlam government created the NACC as an advisory and consultative organisation with little effective power (Bennett 1999). Another example was the creation by the Whitlam government in 1972 of the first Commonwealth Department focussing on Indigenous issues, the Department of Aboriginal Affairs (DAA) . While many Indigenous programmes were created by the DAA, many Indigenous people were concerned about the ineffective delivery of these programmes (Bennett 1999).

The Whitlam government was also the first Commonwealth government to look at Indigenous land rights and to respond to Indigenous political land rights campaigns. In 1972, they created the Woodward Royal Commission into Land Rights. This Commission examined the issue of Indigenous land rights in the Northern Territory, an area of Australia at the time controlled by the Commonwealth government. The Whitlam government, in responding to the Commission’s report, drafted Northern Territory land rights legislation. Although the government was defeated before the draft legislation was enacted, the following Fraser government passed the Northern Territory (NT) Land Rights Act 1976 (Cth), which was modelled on the draft legislation (Pollard 1988: 92). However, while this Act has returned over 40 % of the Northern Territory to Indigenous people over the last four decades and enabled Indigenous owners to veto mining proposals, this returned land is the most economically unworkable land in the Territory and is almost entirely uninhabited by non-Indigenous people (Neill 2002: 267).

3 Fraser Government (1975–1983)

The Fraser Liberal/National conservative government was elected in 1975. This government continued a similar approach to its immediate predecessor, the Whitlam government, in regards to self-determination and land rights. The Fraser government also had to address the political demands from Indigenous people regarding a treaty.

In regard to land rights, as mentioned above, the Fraser government passed the Northern Territory (NT) Land Rights Act 1976 (Cth), based on the Whitlam government’s draft legislation. In regards to self-determination, the Fraser government abolished the NACC in 1977 when the advice provided by the NACC clashed with the Fraser government’s policies. A new organisation, the National Aboriginal Conference (NAC), was then created by the Fraser government. There were strong similarities between the NACC and the NAC, with both organisations having members elected by Indigenous people and were theoretically able to influence policy. Neither the NACC nor the NAC though were actually able to impact on the government’s Indigenous Affairs policies (Bennett 1999). Another similarity between the two Indigenous organisations, which weakened government claims that the organisations advanced self-determination, was that both bodies were abolished by governments when governments disagreed with their advice (the NAC was subsequently abolished by the Hawke government in 1985).

In 1979, given the negligible actions by Commonwealth governments to address Indigenous rights, along with the High Court of Australia twice rejecting Indigenous claims of sovereignty (Wright 1985; Harris 1979), the NAC began campaigning for a treaty to be negotiated between Indigenous and non-Indigenous people. The NAC called for a makarrata , which meant in the Yolngu language , “the end of a dispute between communities and the resumption of normal relations” (Wright 1985: 125). The NAC took this position as they understood the broader Australian public would reject the word ‘treaty’. The Fraser government argued they would consider a makarrata, but would reject a treaty as it “implies an internationally recognised agreement between two nations” (Baume 1981: 713). The government’s position that Indigenous people needed to acknowledge they were part of a single Australian nation was at odds with many Indigenous people’s viewpoint that a treaty should be negotiated with an Indigenous nation (Brennan 1991).

In late 1981, the Senate in the Commonwealth Parliament referred the debate over a treaty to the Senate Standing Committee on Constitutional and Legal Affairs. This Committee investigated “the feasibility, whether by way of constitutional amendment or other legal means, of securing a compact or ‘Makarrata’ between the Commonwealth Government and Aboriginal Australians” (Wright 1985: 173). There were a number of concerns expressed by Indigenous leaders regarding this Committee investigation. The concerns included: no funding from governments for education programmes on a Makarrata for Indigenous people; the Committee potentially prejudicing the investigation by referring to makarrata instead of treaty; the absence in the Committee’s terms of reference to Indigenous sovereignty and the assumption of Commonwealth sovereignty; and, questioning whether the NAC could appropriately represent all Indigenous people throughout Australia (Wright 1985). The Senate Standing Committee eventually completed and reported on its investigation in 1983, after the election of a new Commonwealth government, the Hawke government.

4 Hawke Government (1983–1991)

The Labour Party announced on several occasions in the period 1980–1982 that it would implement a national land rights policy, based to some extent on the Northern Territory model, if it was elected at the 1983 Commonwealth election (Broome 1982). This position was a result of political campaigns from Indigenous people and was supported by several key sectors of the Australian community, including unions and churches. However, once the Hawke Labour government was elected in 1983, they retreated from this long-standing commitment to Indigenous people to legislate on national land rights. The government experienced a substantial campaign against national land rights from many elements of the wider community, most particularly the mining industry but, also, the media and both progressive and conservative sides of politics, including the Commonwealth Opposition, internal Labour elements and most critically, the Western Australian Labour Premier Brian Burke. As a result of this significant opposition the Hawke government announced in 1986 that they were no longer supporting a policy of national land rights (Bennett 1999).

As mentioned above, the Senate Committee established to investigate a makarrata delivered its findings in 1983. This Committee, which included five Labour senators, unanimously rejected a treaty and Indigenous sovereignty (Brennan 1991). These findings contradicted the Hawke government’s 1983 commitment to a treaty (Evans 1983). Further, the Committee’s recommendation that the Hawke government discuss with Indigenous people about possible Constitutional reform to allow the Commonwealth to negotiate a compact with Indigenous people was rejected by the Hawke government. “The Government considers that …the wider issues involved in a makarrata could make it difficult at this stage to enlist the support necessary to achieve constitutional amendments as recommended by the Commonwealth” (Australian Parliament 1985: 2961). Also, in 1988, Prime Minister Hawke argued his government’s commitment to a treaty, stating: “We would expect and hope and work for the conclusion of such a treaty before the end of the life of this Parliament” (ABC 1991), before rescinding on this commitment just a few weeks later, stating that he was “not hung up on the word treaty, it’s not the word that’s important … if there is a sense of reconciliation (DPMC 1991: 15).

The Hawke government’s “betrayal of Aboriginal rights and aspirations” (Riley, cited in Bennett 1999: 95) led to a poor relationship between the government and the NAC which eventually led to the government abolishing the NAC in 1985. In 1990, under sustained pressure to address self-determination (Kelly 2001), the Hawke government legislated to create the Aboriginal and Torres Strait Islander Commission (ATSIC) . The Hawke government argued the formation of ATSIC, which had the administrative role of a government department and the political role of the NAC, advancing self-determination (Bennett 1999; Kelly 2001). Self-determination, though, was undermined by a number of factors, such as: a mainly non-Indigenous workforce; fundamental policy areas such as education and health were excluded from ATSIC oversight; two-thirds of ATSIC funding was controlled by the Commonwealth government; and ATSIC’s Chairperson was selected by the Commonwealth government rather than being elected by Indigenous people (this was changed from the 1999 ATSIC election).

5 Keating Government (1991–1996)

The Keating Labour government was not engaged to any great extent with a treaty as the dialogue shifted in the early 1990s to a reconciliation conversation. In relation to self-determination, the Keating government continued with the ATSIC model, and echoed the same concerns with ATSIC (as outlined earlier), ensuring self-determination was not genuinely addressed by the Keating government. The key Indigenous right that was engaged with by the Keating government concerned the issue of land rights. This issue came to the forefront following the 1992 High Court ruling in the Mabo and Others v Queensland (No 2) case that terra nullius was a legal fiction and that, in a restricted set of circumstances, Indigenous land rights, or native title , had survived the British invasion and colonisation .

The Keating government developed two broad strategies in regard to the Mabo decision. The first strategy was to address the substantial level of racism in the wider community concerning the Mabo decision, particularly among the pastoral and mining industries. For instance, Derek Fisher, president of the Association of Mining and Exploration Companies, stated that the judgement was “probably the greatest single threat to the development and progress of this country yet encountered” (cited in Lavelle 2000: 102–103). The Council for Aboriginal Reconciliation argued that discussion over the judgement was “often characterised by misinformation, fear and even long discredited notions of racial ‘purity’ and cultural hierarchy” (CAR 1994: 52). To address this racism, the Keating government developed a pamphlet, Rebutting Mabo Myths, which detailed the Mabo judgement in an attempt to debunk the racist attacks against the decision. Keating publically supported the philosophy and ideas of the Mabo judgement through forums such as Keating’s Redfern speech (Keating 2000).

The second broad strategy was a legislative response to the Mabo decision. Along with the development of the Indigenous Land Fund to support those Indigenous people who would be unable to have their native title rights recognised, the Keating government enacted the Native Title Act 1993 (Cth) (NTA). This legislation created a formal bureaucratic process for making native title determinations and addressing the needs of both Indigenous native title claimants and the mining and pastoral industries. However, there were a number of significant restrictions in the NTA to genuinely recognise Indigenous native title. One restriction was that the NTA did not allow Indigenous groups who had native title the right to veto mining on their land, which meant that native title was an inferior form of land title than the land rights addressed in the Northern Territory (NT) Land Rights Act 1976 (Cth). Another restriction was the failure of the Keating government to include several key Indigenous leaders in the negotiations over the development of the NTA, including Gary Foley and Michael Mansell (Bennett 1999). A third restriction was that the Keating government did not address significant concerns raised by Indigenous leaders regarding previous government land legislation but, instead, agreed with the mining industry and validated this past government legislation. The fourth and most significant restriction was the failure of the Keating government to acknowledge Indigenous sovereignty (Mansell 1992, 1993).

6 Howard Government (1996–2007)

Although very limited, the bipartisan policy of self-determination, which had survived since its creation by the Whitlam government, was abolished in 1996 by the Howard Liberal/National conservative government. The government, on the basis of its accusations of absence of accountability and the misuse of public funds within ATSIC , significantly cut $470 million from ATSIC’s budget, with the focus of the cuts being in political programmes instead of socio-economic programmes (Howard 1996). The government also argued in 1998 for the term ‘self-determination’ to be removed from the United Nations Draft Declaration of the Rights of Indigenous Peoples (Forbes 1998). ATSIC was abolished by the Howard government in 2005 and, in its place, the government created a non-elected, advisory committee, the National Indigenous Council. In 2007 the Howard government legislated for an Intervention in the Northern Territory, which involved suspending the Racial Discrimination Act (Cth) 1975 and marginalising self-determination (Behrendt 2008).

Following another High Court decision concerning native title , The Wik People and the Thayorre People v State of Queensland and Others (1996), which found native title might not be extinguished by pastoral leases, there was an outpouring of negativity, hysteria and racism by the mining and pastoral industries, as well as some in the Howard government (Nicoll 1998). The Howard government criticised the High Court decision and proposed legislation that significantly attacked Indigenous rights. The draft legislation marginalised the High Court judgement, discriminated against Indigenous people and restricted the rights of Indigenous people to negotiate over development proposals and to access their land (Attwood/Markus 1999). The Howard government held consultations over their draft legislation with the mining and pastoral industries but noticeably not with Indigenous people (Bennett 1999). Following these consultations, the Howard government was able to pass the Native Title Act Amendment Act (Cth) 1998 which included most of the draft legislation.

While the debate over a treaty subsided during the reconciliation decade (1991–2000), the issue gained prominence again following Corroboree 2000, a major reconciliation event. Several key Indigenous leaders, such as Geoff Clark, Pat Dodson , Gary Foley, Marcia Langton, Michael Mansell, Noel Pearson, Charles Perkins and Peter Yu argued for a treaty (Mitchell 2000). However, the Howard government strongly rejected any calls for a treaty. Prime Minister Howard stated that, “a nation, an undivided nation, does not make a treaty with itself. I mean, to talk about one part of Australia making a treaty with another part is to accept that we are in effect two nations” (Wright/Taylor 2000: 2). Howard also argued a treaty could result in “national separatism, land claims and litigation” (Saunders/Nason 2000: 1). Within two years Howard government also rejected the argument for a treaty from the Council for Aboriginal Reconciliation (Commonwealth Government 2002).

Previous Commonwealth governments had discussed Indigenous rights, even though the policies and legislation had not matched their rhetoric. However, the legacy of the Howard government, with its strident opposition to Indigenous rights, was an increasing rejection of Indigenous rights by the wider community (see Johns 2006; Sutton 2008) and a general failure of later Commonwealth governments to even genuinely discuss Indigenous rights.

7 Rudd/Gillard Governments (2007–2013)

The Rudd and Gillard Labour governments were significantly different from the Howard government in regard to symbolic acts concerning Indigenous Affairs. Both the Rudd government in 2007 and the Gillard government in 2010 implemented an Indigenous Welcome to Country ceremony for the Opening of the Commonwealth parliament (Coorey/Davis 2008; ABC 2010a). The Rudd government also apologised to the thousands of Indigenous people impacted by the past stolen generations policies (Rudd 2008a). The Rudd and Gillard governments though had a similar focus to the Howard government in concentrating on addressing Indigenous socio-economic disadvantage. Closing the Gap targets were established and the outcomes were reported annually (Rudd 2008b; Gillard 2012).

Both governments did to some extent address Indigenous rights. The Rudd government established a new Indigenous national body with its leaders directly elected by Indigenous people, the National Congress of Australia’s First Peoples, and did ratify the United Nations Declaration on the Rights of the Worlds Indigenous Peoples . The Gillard government supported Constitutional change to acknowledge Indigenous people in the Constitution (ABC 2010b).

Overall, both governments were similar to the Howard government in their approach to Indigenous rights. Neither the Rudd nor Gillard governments genuinely addressed Indigenous rights during their terms. This approach was strongly impacted by influential opinions from conservative organisations, commentators, media and politicians that policies and legislation should not be enacted regarding Indigenous rights. These conservative opinions were, as discussed above, strongly encouraged and cultivated during the term of the Howard government.

In regard to the 2008 Apology , the Rudd and Gillard governments did not sufficiently address Indigenous rights. The governments ignored demands and recommendations for a national compensation scheme and reparative justice from Indigenous leaders and the Human Rights and Equal Opportunity Commission (Rudd 2008c). Neither the Rudd nor Gillard government made substantial changes to improve the capacity of native title legislation to address the needs of Indigenous people. The governments failed to adequately address demands from Indigenous people for a treaty, expressed at several times during their terms, particularly during the Rudd government organised national 2020 Summit (Rudd 2008d). Both the Rudd and Gillard governments did not appropriately recognise and support Indigenous self-determination, with the Commonwealth public service bureaucracy, and not the National Congress, (unlike ATSIC) , being predominately in control of managing, funding and creating Indigenous Affairs programs.

One of the most notable failures of the Rudd and Gillard governments to address Indigenous rights was that both continued to generally support the Howard government’s Intervention into the Northern Territory. The right to pursue Indigenous self-determination by numerous Indigenous leaders and community members critically opposed to this intervention was largely marginalised by both governments (Rudd 2008b; Gillard et al. 2011). The suspension of the Racial Discrimination Act (Cth) 1975 was not addressed until well into the term of the Gillard government. This lack of recognition of Indigenous rights lasted right to the conclusion of the Rudd and Gillard era. In the 2013 Commonwealth election campaign, the Rudd government (and the Abbott Opposition) released no policies at all on Indigenous rights, instead concentrating almost entirely on policies concerning Indigenous socio-economic issues.

8 Abbott Government (2013–2015)

On September 14, 2015 Tony Abbott was voted out as leader by his party and replaced with Malcolm Turnbull, whose approaches to Indigenous affairs have yet to be established at the time of writing this chapter.

In the short time that the Abbott Liberal/National conservative government was in power, it approached Indigenous Affairs in much the same manner as did the previous conservative Commonwealth government, the Howard government. The Abbott government focussed predominately on policies and legislation relating to Indigenous socio-economic disadvantage in areas like health and education, while largely ignoring issues relating to symbolism and Indigenous rights.

The Abbott government implemented the Indigenous Advisory Council (IAC) upon being elected in 2013. Through this approach the government marginalised the process of self-determination, by ensuring members of this organisation were not elected by Indigenous people, (like its predecessor institutions were, such as the NACC , NAC , at SIC and the National Congress of Australia’s First Peoples). Rather its members are selected by the Commonwealth government. Further, the IAC is purely an advisory committee with no policy-making powers or programme management roles (Australian Government 2015). The Abbott government has also been criticised for ignoring advice from the IAC (National Indigenous Times 2015). In September 2015, following the overthrow of the Abbott government, there was an announcement from the new Turnbull Liberal/National conservative government that it would continue to support the IAC (ABC 2015a).

The Abbott government also largely disregarded the National Congress of Australia’s First Peoples, the Indigenous organisation established by the Rudd government, which is directly elected by Indigenous people, and slashed its funding in the 2014 Commonwealth Budget, as part of an overall cut of $550 million to Indigenous programmes throughout Australia (National Congress 2015). Further, the Abbott government generally continued with the Northern Territory Intervention, failing to address the concerns of many Indigenous leaders and communities. The Abbott government also centralised the policy area of Indigenous Affairs into the Department of Prime Minister and Cabinet, which reduced the capacity for Indigenous people to engage with decision-making (ABC 2015b).

The Abbott government supported the national campaign among the Australian community to recognise Indigenous people in the Constitution . However, the Abbott government’s new approach to Indigenous funding, through their Indigenous Advancement Strategy, significantly impacted on Indigenous peoples , communities and organisations, and substantially restricted the national constitutional reform campaign (Davis 2014). Further, some members of the Abbott government openly opposed a constitutional referendum on Indigenous recognition (ABC 2015c). The government also initially failed to support calls by some of the most prominent Indigenous leaders in Australia , including Megan Davis, Patrick Dodson , Kirstie Parker and Noel Pearson for the Commonwealth government to fund a series of Indigenous conferences regarding Indigenous recognition in the Constitution (Kildea 2015). These conferences were intended to obtain a broad understanding of the views and opinions of Indigenous people and to develop a consensus among Indigenous people regarding constitutional reform. Further, when the Abbott government seemed to support the concept of Indigenous conventions and announced the creation of a Referendum Council to oversee the conventions, they did not provide essential details, such as who would be appointed to the Referendum Council, how the conferences would be funded and organised (Castan 2015).

9 Conclusion

Nearly five decades have passed since the Australian Constitution was altered in the 1967 Referendum to enable the Commonwealth government to enact legislation concerning Indigenous Affairs. Over this time, there have been eight Commonwealth governments, four Labour and four Liberal/National conservatives. All of these governments have developed many policies and passed much legislation regarding Indigenous Affairs.

In this chapter, I analysed a particular area of these voluminous Indigenous Affairs policies and legislation from the eight Commonwealth governments, namely those policies and legislation concerning Indigenous rights, such as self-determination, land rights and a treaty. Indigenous rights are a fundamental component of achieving peace, justice and reconciliation concerning Indigenous Affairs in Australia. I have argued that these Indigenous rights have not been addressed and recognised by the policies and legislation developed by eight Commonwealth governments since the 1967 Referendum. This abysmal failure has ensured that Australia remains a nation that does not provide justice for Indigenous Peoples.