Australian - 3rd January, 1998
Author: GATJIL DJERRKURA

Thirty years ago, Australians gave federal governments effective control of indigenous affairs in the hope of achieving a better deal for Aborigines. Now, warns Gatjil Djerrkura, the Government is abandoning this role

IF any doubt remains about the significance of the 1967 Aboriginal referendum now that the Cabinet papers have been released, we need only recall the "Yes" case prepared for voters.

The "yes" case, supporting the removal of the two provisions in the Constitution that made specific references to Australia's indigenous people, was prepared jointly by prime minister Harold Holt, deputy prime minister John McEwen and Opposition leader Gough Whitlam.

It was authorised by "every available member of the Commonwealth Parliament". Urging support for the removal of the words in Section 51 (xxvi), which prevented the Commonwealth from making laws for indigenous people, the official "yes" case said: "This would mean that the States would automatically lose their existing powers . . . The Commonwealth's object will be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia."

About Section 127, which had excluded indigenous people from population counts, it said: "Our personal sense of justice, our commonsense and our international reputation in a world in which racial issues are being highlighted every day require that we get rid of this outmoded provision."

Thirty years ago, concern about social justice and Australia's international reputation persuaded 90.77 per cent of voters to support constitutional change. They handed the Commonwealth the lead responsibility for indigenous affairs.

The Holt government acknowledged that the changes would inevitably lead to a more active role for the Commonwealth in protecting the rights of indigenous people. In the Cabinet documents, there is discussion of the means for influencing the policies of State and Territory governments. The accepted position was that alteration to Section 51 (xxvi) gave the Commonwealth the power to intervene in the actions of other governments -even if on a "co-operative" basis.

Since 1967, the Commonwealth has been a fairly consistent patron and champion of indigenous rights.

In the spirit of the referendum, successive federal governments have accepted their leadership role on indigenous issues, setting the minimum standards by which other parliaments make their laws. In the same spirit, they have passed federal legislation for the benefit of our people.

If the Commonwealth is to continue to honour these 30-year-old expectations of the Australian people, it must continue as the principal advocate of indigenous interests.

But recent events suggest that the Federal Government no longer wants this role.

In a number of areas -native title, heritage protection and land-rights legislation -the Commonwealth is moving a great deal of responsibility back on to State and Territory governments. These are core issues, at the heart of our cultural heritage and identity. Aboriginal and Torres Strait Islander people have very little reason to take comfort in this development.

During the past 200 years, State and Territory governments and their bureaucracies have had the greatest impact on our communities, wellbeing and culture. Problematic issues such as indigenous health and education, the stolen generations and deaths in custody originated with State and Territory policies. There have been some improvements in recent years and I stress recent years -but these have been uneven and largely driven by Commonwealth legislation such as the Racial Discrimination Act and the Native Title Act.

The nation may choose to accept variable and often incompatible standards in policies on mainstream health, education, licensing, land use and taxation, but we must never tolerate varying standards in human rights and opportunity.

The deaths-in-custody issue is just one example. At last July's ministerial summit, the Federal Government managed to get the States to acknowledge their responsibilities with a national commitment.

But the Commonwealth's fifth and final annual report on the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody, tabled in early December, shows how much remains undone.

The trend in deaths continues upwards as a result of the enormous and growing over-representation of indigenous people in custody.

It is the States and Territories that control police and custody procedures. It is the States and Territories that engage in the law-and-order auctions at election time that result in measures such as mandatory sentencing that discriminate against indigenous Australians, and our young people in particular. It is the States and Territories that are best able to act on the royal commission recommendations on education, training and justice. With a few, but only a few, notable exceptions, the evidence does not support claims of effective progress.

At the first National Indigenous Leaders Summit in Canberra last month, the feeling was that there are some reasons for hope, but many more for despair.

On the one hand, the idea of reconciliation seems to have taken hold in the community and become a genuine people's movement, involving some very active and prominent non-indigenous Australians. We see the movement taking hold in remote communities as well as in the cities, in industry as well as in the churches. But on the other hand, we see Australians who resent our every achievement. They found their voice in 1996 and their most noticeable influence on governments, especially State and Territory governments, has been in the Wik debate.

One year ago, Australia was given a just and equitable judgment from the High Court. It was a result that protected the rights of all stakeholders, a result that should move us forward as a nation.

Yet now we find ourselves talking seriously about an election based on race, after a lengthy national debate largely generated by State governments needing to extract themselves from problems of their own making.

THE future of our rights, as set out in the original Native Title Act and as achieved in the High Court through the Mabo and Wik judgments, is perhaps the most pressing issue for indigenous people. But there are other troubling developments.

Justice Elizabeth Evatt delivered a review of the Aboriginal and Torres Strait Islander Heritage Protection Act in August 1996. The Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, has said that the Commonwealth will withdraw from the field, passing responsibility to the States and Territories.

If the Federal Government does this without putting into place effective minimum standards or without maintaining the power to review decisions, we can have no confidence in the process. Indigenous heritage gives Australia its distinctive international identity, yet at risk is the effective protection of a range of sites, areas and objects that define our culture.

On another land and heritage issue, the Commonwealth is reviewing the Aboriginal Land Rights (Northern Territory) Act. The Government has set an extremely tight schedule, but has not provided a core set of principles to guide the reviewer. It concerns us that the influence of the Northern Territory Government can be seen in the Commonwealth's approach.

With so many of our rights under review and facing reduction, our people are also losing a powerful advocate. The Human Rights and Equal Opportunity Commission, the agency that brought us the Bringing Them Home report, is to be reduced. The position of Aboriginal and Torres Strait Islander social justice commissioner will be amalgamated with that of race relations commissioner.

Since my appointment last year as the chair of the Aboriginal and Torres Strait Islander Commission, I have put a great deal of effort into making ATSIC's partnership with government work. I have maintained a policy of open communication with the Government and relevant stakeholders, especially throughout the native title debate following the Wik decision.

ATSIC has not walked away. But the Government continues to show little recognition of the need to involve elected indigenous people in decisions that affect their lives and the lives of their constituents.

THIS brings me to an important point. It must be understood that indigenous leaders, whether they have government blessing or not, will always place the needs and rights of our people ahead of other political concerns.

We have no choice. We have no right to betray our people or our cultures.

Governments come and go, along with their policies.

At a time when the Commonwealth is planning to reduce its involvement in so many areas of concern, we realise that we need to rely upon our own people.

We need our own representatives in parliament to protect our rights and to remind our political leaders of their responsibilities. We need the skills, commitment and national standing of people such as Noel Pearson (if he chooses to stand), Aden Ridgeway (a Senate candidate in NSW) and others who have nominated for the Australian parliament.

The entire community would benefit from such candidates, but their presence would have special significance for indigenous Australians. In many ways, their political affiliations are less important than their presence as representatives and advocates.

In March, ATSIC will follow the Prime Minister's Constitutional Convention with an Indigenous Constitutional Convention. Issues for discussion will include constitutional recognition of our status as the First Australians, dedicated seats in parliament and a Bill of rights with guarantees for the rights of all Australians.

We will not be asking for more than our rights, but we will be asking for constitutional recognition of our rights. Our experience with governments leaves us all too aware of the uncertain nature of their interest and commitment and the fragile nature of the spirit of 1967.

Gatjil Djerrkura is the chairman of ATSIC.