Not So Reconciled - UTSpeaks - 28 May 2009
Not So Reconciled
28 May 2009
by Alison Vivian
NOT SO RECONCILED
Given the further undermining of Aboriginal land rights and Aboriginal autonomy in the Northern Territory over the past week, it seems especially important that we acknowledge that tonight we are meeting on Aboriginal country. I would like to respectfully acknowledge the Gadigal people of the Eora nation the traditional custodians of the land and Elders past and present.
I would also like to acknowledge Larissa for her work in exposing the reality of the Northern Territory Intervention. But I think more importantly, she has been instrumental in giving a voice to those who are subject to the Intervention, who have had such difficulty being heard.
In his 2008 Social Justice report, the Aboriginal and Torres Strait Islander Social Justice Commissioner commended the National Apology to the Stolen Generations. He described it as a ‘transformational event in Australia's history'; and as marking the beginning of a new relationship and a new era of respect. He said that the next stage is to go beyond the Apology to healing.
This set me to thinking about healing, what it means to be healed and whether we are ready to enter into a healing process as a nation.
I want to go back to the day of the Apology to remind us of what the Prime Minister held out. While there were some who were cynical about it - and I'm sad to say that they seem more and more prescient - the Prime Minister had those of us who couldn't make it to Canberra glued to our televisions in schools, community halls and in our workplaces.
I go back to that day, because, as the first business of the new Government, it was supposed to be a blueprint for a new relationship. I think Rudd tapped into genuine hope, that we could throw off the mean spirited divisiveness of the Howard era and engage in a conversation based on the truth of Australia's racist history and past policies.
It was galvanising because we were tired of a historical view that glorified the feats of Don Bradman but denied the reality of a racist past of land grab, violence and assimilation. That denied the dignity and the social, economic and cultural legacy of the First Australians.
Declaring it a ‘day of national reconciliation', of ‘new beginning', of ‘partnership' and ‘respect', Rudd's Apology eloquently described the ‘hurt, the humiliation, the degradation and sheer brutality' of ‘well meaning' past policy.
Rudd asked we non-Indigenous Australians to own our past.
Rather than a trite dismissal of a ‘black armband view of history', he recognised that it was - and these are his words - ‘the truth: the cold, confronting, uncomfortable truth'.
Importantly, the Prime Minister apologised for ‘laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss.' He apologised for - among other things - the ‘indignity and degradation inflicted on a proud people and proud culture'.
Against this background of these words and of these sentiments, I cannot overstate my utter astonishment at the irony of the Minister for Indigenous Affairs, Jenny Macklin, invoking the Apology when she responded to Intervention review in October last year. 
Ignoring the recommendations of the Review Board, she announced that the Intervention would continue in its entirety.
Yet, these are the words of the Review Board: 
- Experiences of racial discrimination and humiliation as a result of the [Intervention] were told with such passion and such regularity that the Board felt compelled to advise the Minister ... that such widespread Aboriginal hostility to the Australian Government's actions should be regarded as a matter for serious concern.
- There is intense hurt and anger at being isolated on the basis of race and subjected to collective measures that would never be applied to other Australians. The Intervention was received with a sense of betrayal and disbelief.
As the Chairperson of the Review Board, Peter Yu, observed, people found the Intervention to be ‘punitive, coercive and racist'. They were exasperated at being unfairly singled out when child abuse and neglect occur throughout Australia in every section of our society.
The Prime Minister had also promised in the Apology a ‘future where all Australians, whatever their origins, are truly equal partners, with equal opportunities and with an equal stake in defining the next chapter in ... Australia.'
Yet, ... two of the defining features of the Intervention are policy formation without consultation and the unprecedented haste of its enactment so as to avoid "talkfests" and "red tape". As Rex Wild described, instead there was consultation with Canberra bureaucrats. We also now know that the Intervention was devised in just 48 hours.
This is the difficulty for the Government in starting its term with an aspirational statement. When you hold out promise of a new approach, people expect a new approach.
So deeply frustrated were a group of senior Aboriginal people in with the imposed indignity of the Intervention and by their inability to be heard; that they have requested ‘urgent action' from the United Nations Committee for the Elimination of Racial Discrimination (‘CERD'). [serious, massive and persistent discrimination]
The complaint asserts that the scale and oppressiveness of the Intervention requires immediate action due to the potential for irreparable harm.
Their request to CERD is not a complicated one. The complainants simply ask that the Racial Discrimination Act be complied with. Importantly, they ask the Australian Government enter into discussions with Aboriginal people to develop solutions that comply with its international obligations.
The reason that this group has been forced to go to the United Nations is also a simple one. There is literally nowhere else that they can go to have their grievances heard.
While much of the media attention and public debate has centred on income quarantining, I'm not sure that people really appreciate the extent to which the oppressive measures of the Intervention operate together to control every aspect of Aboriginal lives.
Those who oppose the Intervention - whether subject to it or not - have had to withstand vehement criticism. The message is, that if you oppose the Intervention, then you don't care about women and children and that you support paedophiles. Incredibly, women, who took the complaint to the UN have copped the same criticism.
No one would seriously suggest that decades of cumulative neglect did not require urgent redress. Communities have been asking for the same health, housing, education and law and order that most Australians entirely take for granted. There are communities in the Northern Territory, and elsewhere for that matter, that are in deep distress. Undoubtedly, the question of how best to enable communities to achieve their social, economic and cultural ambitions is immensely difficult but a superficial fix will not provide the solution.
The problem is that a debate that requires nuance and thoughtful consideration has been highjacked as an all or nothing proposition.
It is often couched in terms of competing human rights, where it is argued that the urgency of the situation facing Aboriginal women and children in the Northern Territory, justified immediate action. That there was a crisis that required human rights protections to be pushed to one side if necessary.
Megan Davis has written that the Intervention raises the complex interaction between conflict of rights, in an environment where an understanding of intersecting human rights protection is lacking. She observes that a proper consideration of the particular rights of women and children is needed and calls for a more balanced discussion.'
The problem is that this is not the debate that we are having. The Intervention is not being approached within a rights framework at all. In fact, the sophistication of the debate doesn't seem to extend beyond, ‘You don't care'. Therefore, the legitimate question of why protection of women and children required racially discriminatory actions has not been satisfactorily answered.
It is not possible to discuss the Intervention with the level of detail that it deserves. My aim then is to provide a snapshot of the measures. I especially want to talk about some of the lesser known measures.
Nicole is going to describe how things could have been done differently, building on best practice and the research that emphasises community empowerment as the necessary precondition to successful outcomes for Indigenous communities.
The Northern Territory Intervention
The Howard Government announced the Intervention in June 2007; six days after the release of the Little Children are Sacred report. It received in principle support from the Labor Opposition on the same day.
Panic and anxiety was widespread, including reports that women were hiding their children for fear of their removal.
The imagery surrounding the Intervention was of an emergency requiring such haste that the army, police and volunteer doctors had to be mobilised en masse. It was justified by the contention that ‘there was nothing less than a war zone in Australia'.
The Intervention was said to be a response to the Little Children are Sacred report but, by now, that myth has well and truly debunked.
Not only did the Intervention not comply with a single recommendation of the report but Mal Brough criticised the authors, essentially for not making the recommendations that he would have made. [to ‘immediately secure communities and protect children from abuse]
Instead, the report stressed the complexity of violence and sexual abuse in Northern Territory Aboriginal communities and identified an array of contributing factors. It contemplated a fifteen year timeframe, necessary to overcome these problems.
Radical change in the way government and non-government organisations consult, engage with and support Aboriginal people was called for. It spoke of ‘partnership', of ‘immediate and ongoing dialogue' and ‘genuine consultation' to design initiatives to address family violence and child abuse.
Previous approaches had left Aboriginal people ‘disempowered, confused, overwhelmed, and disillusioned.'
Instead, within seven weeks of its announcement, the 480 pages of legislation enacting the Intervention went from first reading to assent, within an incredible 10 days.
Breaches of international law
Given the speed of its implementation, lack of consultation and ideological orientation, it is hardly surprising that the Intervention breaches human rights.
CERD has recognised that the foundational norm of non-discrimination, has specific obligations as it applies to Indigenous peoples. The Committee has emphasised the particular vulnerability of Indigenous peoples who face the legacy of conquest and marginalisation, accompanied by attitudes of superiority, whereby Indigenous people and culture are characterised as ‘primitive' and ‘inferior'.
Relevantly, State parties have particular obligations articulated in General Recommendation 23:
- to recognise and respect Aboriginal distinct culture, history, language and way of life as an enrichment of the State's cultural identity;
- to ensure that members of Aboriginal peoples are free and equal in dignity and rights,
- and crucially, ... that no decisions directly relating to their rights and interests are taken without their informed consent.
The UN complaint alleges that the Intervention constitutes numerous violations of the Convention including obligations to incorporate the Convention into domestic law, to provide effective protection and remedies; and to take immediate and effective measures to combat prejudice.
The Intervention also violates the rights to equal treatment before the law, participation in public affairs, ownership of property, social security, equal participation in cultural activities, freedom of movement and access to any public place or service.
As I have said, it is not possible to discuss the measures in great detail, so I am now going to attempt a whirlwind summary:
- Exclusion of the Racial Discrimination Act: The first obligation of State parties is to incorporate the Convention into domestic law. But not only does the Intervention exclude the operation of the RDA but it removes protections under state and territory anti-discrimination legislation as well.
I think it's worth noting that the RDA has only ever been excluded on three occasions and on each occasion, it was excluded to enact Commonwealth legislation to the detriment of the rights and interests of Aboriginal Australians.
The exclusion is extremely broad. Not only does it cover the provisions of the Intervention itself, but it covers the public servants and public authorities administering the measures. [any acts done under or for the purposes of the provisions of the Intervention.]
The ultimate effect is that Aboriginal people in the Northern Territory cannot receive legal protection from discrimination under the Intervention and there are no remedies for damage suffered. The only option that is available is for a challenge to the constitutional validity. [Unsuccessfully attempted in Wurridjal v The Commonwealth of Australia  HCA 2 (2 February 2009)]
- Compulsory income quarantining: Compulsory income quarantining is without question the most contentious of the measures and effectively restricts the right to social security on the basis of race.
It is mandatory and non-discretionary and, as the Review Board noted, not based on any assessment of a person's capacity to meet family responsibilities. It attempts to engender behavioural change of the individual, with no discernable attempt at structural reform.
There are numerous stories of extreme hardship that impact on the most vulnerable - the elderly and people with disabilities in particular. BasicsCards not working for days at a time, people going hungry and criss-crossing family groups to find food; people having to travel long distances to shop; people no longer being able to pool money to share resources; exorbitant amounts being spent on taxi fares; and inability to fulfil cultural obligations, such as travelling for funerals are just some examples.
Of particular concern are reports of segregation.
Some stores in Alice Springs have designated BasicsCards cashiers, with the reality of separate queues for Aboriginal people. Centrelink also had separate queues until there were so many complaints, that they had to change practice.
What is perhaps less well known is the impact on freedom of movement. People subject to income quarantining have not been able to travel between communities for sorry business and for cultural obligations. While the new BasicsCard does improve mobility to some extent, the card doesn't operate outside the NT, which effectively means that people can't travel interstate.
- Five year leases. The changes to Aboriginal tenure are of such a scale that I can't really do justice to them. What I will say, however, is that the Aboriginal Land Rights Act was established as restitution for dispossession and is completely undermined by the Intervention.
- Minister's powers to intervene in the operation of Aboriginal councils and organisations. The Intervention gives extraordinary powers to the Minister to direct how funds are used, how services are provided and even transfer possession and ownership of assets. The Minister can appoint observers to attend any or all meetings and can take over management.
You might imagine that the powers are triggered when there is mismanagement, corruption or fraud. But no. The powers were introduced to support the role of Government Business Managers. They are triggered when negotiations fail or when - and I quote - ‘community organisations are unable, or unwilling, to make the changes that are necessary to benefit their community and their children.'
The combined effect of the Minister's powers, the appointment of Government Business Managers and the compulsory acquisition of five year leases is to authorise the Government to control Aboriginal land, assets and service provision, in complete violation of Aboriginal peoples' right to self-determination.
- Removal of the right to negotiate under the Native Title Act. Given that native title applications may take many years to resolve, the future act regime was devised to facilitate negotiations between and project proponents, so that native title could be protected.
One measure that is never referred to is the removal of that right to negotiate. Its removal explicitly prevents traditional owners from exercising their cultural obligations to speak for country. It's link to child protection has never been explained.
- Removal of consideration of customary law and cultural practice in bail applications and sentencing in relation to all laws in the Northern Territory. Northern Territory courts are prohibited from considering customary law and cultural practice in bail applications and sentencing in relation, to all laws in the NT.
The impact of the prohibition is that, unlike non-Aboriginal offenders, the full context of an Aboriginal offender's situation cannot be taken into account. It is not apparent what the purpose of the prohibition is but if it is deterrence then the evidence doesn't support that theory.
I must acknowledge the important discussion as to the appropriateness of traditional law raised as a defence in cases of sexual and violent offences. But this prohibition is not limited to such offences but applies to all offences.
- Star chamber powers. Under the Intervention, the mandate of the Australian Crime Commission was extended to include "Indigenous violence or child abuse." Not violence or child abuse but Indigenous violence or child abuse.
That is one subset - identified by race - of offences that occur in every stratum of Australian society.
Powers compel people to attend examinations, take oaths or affirmations and answer questions or produce documents. The examiner can prohibit disclosure so that it is an offence to tell anyone about the summons, or the examination, except to get legal advice.
Anecdotally, we hear that there has been no increase in prosecutions of by adult offenders against children. But there has been an increase of prosecutions of teenagers having consensual sex.
The powers have been successfully challenged on two occasions by Aboriginal health services on the grounds that the examiner did not have the best interests of children as a primary consideration.
- Equal treatment before the law. Not only are people prevented from seeking protection from, but they are prevented from other forms of review normally available, including by the Social Security Appeals Tribunal, the Administrative Appeals Tribunal, Parliamentary disallowances. Even the construction of significant public works on Aboriginal land is not subject to scrutiny by the Public Works Committee.
The Minister released a discussion paper last week in response to the Review Board that I will dispense with quickly by simply saying it is more of the same.
- Income management will remain compulsory but individuals may be able to apply for an exemption;
- Limited appeal rights to the SSAT may be reinstated but I will let Nicole fill you in on that;
- Alcohol bans remain but may need to be modified to reflect individual communities;
- Five year leases will continue but they are to be superseded by long term leases;
- Licensing of community stores will continue;
- Controls of the use of publicly funded computers will remain;
- ACC coercive powers to continue;
- Removal of the power to remove funding from community councils and organisations.
As I have attempted to stress, you really can't look at the measures of the Intervention in isolation. It is when you appreciate the scheme in total that the depth of the humiliation, attack on self-esteem and the feeling of a return to mission days is clear.
With that in mind, one fundamental obligation of State parties under the Convention that I want to highlight is the obligation to take immediate and effective measures to combat prejudice.
Under the Convention, it is not sufficient for State parties to merely have laws prohibiting discrimination but they must promote understanding, tolerance and friendship. [Article 7]
Instead, the Australian Government has continued a suite of measures that overtly engenders prejudice. The incredible, sensationalist rhetoric that conflated sexual predation and violence with traditional law; mobilisation of the police and armed forces and imagery of a war zone; and huge signs on Prescribed Areas declaring grog and porn bans that may in fact not be able to be read by residents. These among many others have had devastating effects on self-esteem and dignity.
One elderly man who was having difficulty using his store card and was holding up the queue to the annoyance of other customers was told by the young white shop assistant, ‘If you had looked after yourself, this would never have happened.'
Why urgent action?
One question that we are frequently asked is why go ahead with a UN complaint when the Government has announced that it will comply with the Racial Discrimination Act.
The first reason, is that an announcement that there will be compliance is not compliance. Neither is reinstatement in name, compliance.
In any event, the Government does not control the Senate and we have already witnessed the Coalition's reluctance to say yes to just about anything the Government proposes.
More importantly, though, was the need for immediate action to end potentially irreparable and ongoing harm.
In its research into the impact of the Intervention, the Australian Indigenous Doctors' Association reported a feeling of ... ‘collective existential despair'. It described a widespread sense of helplessness, hopelessness and worthlessness. It said there were profound implications for resilience, for social and emotional wellbeing and for mental health.
The Intervention has profoundly undermined the relationship between Aboriginal people and the Australian Government, and has resulted in distrust, hostility and suspicion. It has also contributed to alienation from the rest of the Australian community, where Aboriginal people perceive that it is acceptable to discriminate against them and that they are less worthy of protection. Worryingly, an escalation of racist incidents has been widely reported, most recently in a Senate hearing in Alice Springs.
The affront to Aboriginal peoples' right to freedom and dignity is exemplified by the perception of a return to protectionism and paternalism. People talked about the return to mission days and the Government Business Manager as white superintendent.
The stated aims of the Intervention include such objectives as altering Indigenous social norms, undermining communal ownership to promote individual ownership, and promoting individual responsibility. It undermines traditional authority and prevents traditional owners from fulfilling cultural obligations.
Good governance structures and systems that were in place were ignored and undermined'. Excellent programs that were in place before the Intervention did not receive recognition and support.
Against a background of a racist and discriminatory colonial history, the dominant society, deliberately and without consultation, aiming to alter the social and cultural norms of Aboriginal peoples suffering from poverty, disadvantage and discrimination is of deep concern.
That's why I don't think we are ready for healing. Especially when the research says that deliberately inflicted trauma is the most difficult to recover from.
Jumbunna Indigenous House of Learning
University of Technology Sydney
PO Box 123
BROADWAY NSW 2007
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008 (Australian Human Rights Commission, 2009), 147.
 Ibid, 148.
 Prime Minister of Australia, Hon Kevin Rudd, Apology to Australia's Indigenous Peoples, 13 February 2008 at http://www.pm.gov.au/media/speech/2008/speech_0073.cfm (accessed 20November 2008).
 Hon Jenny Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, Compulsory income management to continue as key NTER measure, 23 October 2008 at http://www.facsia.gov.au/internet/jennymacklin.nsf/print/nter_measure_23oct08.htm (accessed 6 November 2008).
 Report of the NTER Review Board October 2008 (Commonwealth: 20 September 2008), 8.
 Ben Doherty & Leo Shanahan, "Review finds intervention racist" The Age, 29 October 2008 at http://www.theage.com.au/national/review-finds-intervention-racist-20081028-5al0.html?page=-1 (20 November 2008)
 Report of the NTER Review Board October 2008 (Commonwealth: 20 September 2008), 34
 Prime Minister of Australia, Hon Kevin Rudd, Apology to Australia's Indigenous Peoples, 13 February 2008 at http://www.pm.gov.au/media/speech/2008/speech_0073.cfm (accessed 20 November 2008).
 Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 92 (Mal Brough, Minister for Families, Community Services and Indigenous Affairs), 18. (‘Second Reading Speech')
 Rex Wild QC, The First Anniversary of The Report, 26 June 2008 at http://www.getup.org.au/blogs/view.php?id=1341 (accessed 10 October 2008)
 ABC News, "Intervention created in just 48 hours: Brough" at http://www.abc.net.au/news/stories/2008/06/16/2275863.htm (accessed 12 August 2008)
 Megan Davis, ‘International Human Rights Law, Women's Rights and the Intervention', (2009) 7(10) Indigenous Law Bulletin 11.
 Ibid, 14.
 Media release by the former Minister for Families, Community Services and Indigenous Affairs, the Hon Mal Brough MP, National emergency response to protect children in the NT, 21 June 2007 available at http://www.facsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm (accessed 18 September 2008)
 Jenny Macklin MP, Shadow Minister for Families and Community services and Shadow Minister for Indigenous Affairs and reconciliation, Federal Labor Offers Bipartisan In-Principle Support on Indigenous Child Abuse Measures, 21 June 2008 at http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/PKFN6/upload_binary/pkfn61.pdf;fileType=application%2Fpdf#search=%22PG6%20%22shadow%20minister%20for%20indigenous%20affairs%20and%20reconciliation%22%22 (accessed 22 November 2008)
 ABC Television, ‘Report confirms NT intervention created panic', 7:30 Report, 27 October 2008 at http://www.abc.net.au/7.30/content/2008/s2402541.htm (accessed 22 November 2008); Australian Indigenous Doctors' Association, Submission to the Northern Territory Emergency Response Review Board at http://www.aida.org.au/pdf/AIDA_SubmissionNTERRB.pdf (accessed 19 September 2008) at . (‘AIDA Submission').
 The Hon Mal Brough, former Federal Minister for Families, Community Services and Indigenous Affairs, ‘Northern Territory Intervention' 2007 Alfred Deakin Lecture, (Melbourne University, 2 October 2007) at http://www.facsia.gov.au/Internet/Minister3.nsf/content/alfred_deakin_02oct07.htm (accessed 21 September 2008)
 Patricia Anderson & Rex Wild QC, Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred' Report of the Northern Territory Inquiry into the Protection of Aboriginal Children from Sexual Abuse (Darwin: 30 April2007), 50
 Patricia Anderson & Rex Wild QC, Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred' Report of the Northern Territory Inquiry into the Protection of Aboriginal Children from Sexual Abuse (Darwin: 30 April 2007), 50
 ‘Report on the United Nations Seminar on the Effect of Racial Discrimination on the Social and Economic Relations between Indigenous Peoples and States' at 5 cited in Anaya, above, note 38, 130.
 Australian Indigenous Doctors' Association, Submission to the Northern Territory Emergency Response Review Board at http://www.aida.org.au/pdf/AIDA_SubmissionNTERRB.pdf (accessed 19 September 2008) at .
 Report of the NTER Review Board October 2008 (Commonwealth: 20 September 2008), 8, 40; Australian Indigenous Doctors' Association, Submission to the Northern Territory Emergency Response Review Board at http://www.aida.org.au/pdf/AIDA_SubmissionNTERRB.pdf (accessed 19 September 2008) at -; Claire Smith & Gary Jackson, A Community-Based Review of the Northern Territory Emergency Response (Institute of Advanced Study for Humanity, University of Newcastle, August 2008), 5, 126.
 Report of the NTER Review Board October 2008 (Commonwealth: 20 September 2008), 46.
 Claire Smith & Gary Jackson, A Community-Based Review of the Northern Territory Emergency Response (Institute of Advanced Study for Humanity, University of Newcastle, August 2008), 128; CAALAS & NAAJA, Joint Submission by the Central Australian Aboriginal Legal Aid Service and the North Australian Aboriginal Justice Agency to the Senate Select Committee on Regional and Remote Indigenous Communities, July 2008 at http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub24.pdf (accessed 20 November 2008), 4.
 Australian Indigenous Doctors' Association, Submission to the Northern Territory Emergency Response Review Board at http://www.aida.org.au/pdf/AIDA_SubmissionNTERRB.pdf (accessed 19 September 2008) at .
 Australian Indigenous Doctors' Association, Submission to the Northern Territory Emergency Response Review Board at http://www.aida.org.au/pdf/AIDA_SubmissionNTERRB.pdf (accessed 19 September 2008) at ; Central Land Council, Northern Territory Emergency Response: Perspectives from Six Communities, July 2008 at http://www.clc.org.au/media/features/CLC%20_REPORTweb.pdf (accessed 20 November 2008), 79.
 Claire Smith & Gary Jackson, A Community-Based Review of the Northern Territory Emergency Response (Institute of Advanced Study for Humanity, University of Newcastle, August 2008), 129.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008 (Australian Human Rights Commission, 2009), 154.