Mandatory Detention and Deportation

Australia today has one of the highest deportation rates relative to population in the Western world. Over 10,000 people are forced to leave the country each year. Most of them are overstayers who have remained in the country after the expiry of their visas. However, the enforcement system is so indiscriminate and inflexible that it catches others up. The seed of this problem was planted in 1989 when the Labor government introduced a law for the ‘mandatory deportation of illegal entrants’, a draconian measure to tackle the increasing number of visa overstayers in the country (called ‘illegal entrants’ after their visas expired). In 1992 mandatory deportation was superseded by a new section of the Migration Act for the mandatory ‘removal of unlawful non-citizens’. This new measure was accompanied by the much more controversial — and visible — policy of mandatory detention of asylum seekers arriving without a visa. Under this mandatory regime, any person in Australia without a valid visa must be detained and, if not granted a visa, deported. Immigration officials must take action against anyone they reasonably suspect of not having a valid visa. This had tragic consequences for Cornelia Rau and Vivian Alvarez, two women who were in poor health and in no position to prove their residence status. The official investigators in these cases, Mick Palmer and Neil

Comrie, were critical of the way that the detention and deportation system ticked over in a series of mandatory actions. Officials had become beholden to an ‘assumption culture’ whereby the department did not review the validity of its actions but simply assumed that it was justified in taking enforcement action. Comrie found that no actual decision had ever been made to deport Alvarez; it had happened because officers believed that the Act required it. The system worked as a ‘dehumanised mechanical process’.

The solution to this problem is not further mechanisation through a $550 million computer upgrade. Nor will a change of culture do much good given that the department’s culture of acting on suspicions and assumptions is merely a reflection of the law requiring it to act against suspected unlawful non-citizens. For over a decade immigration ministers and officials have repulsed any questions or criticisms of deportation actions by invoking the ‘requirements of the law’, a stance summed up in 2004 by a letter from a departmental spokesperson to a critical US newspaper: ‘The department does not apologise for locating, detaining and removing people who live or work in Australia unlawfully. Australian law requires that we do this’. The department’s rhetoric may now be less bullish under its new culture, but the law has not changed and the department’s action against suspected unlawful noncitizens has not diminished. Despite the revelation of their tragic story, Tony Tran and his son still have the prospect of deportation hanging over their heads. They are now living in the community on temporary visas. Minister Kevin Andrews did not comment on their case when it came to light on 12 November 2007, but he was moved to anger a few days later when a court finding led to the release of fourteen detainees and a review of all individuals in detention. Andrews vowed to toughen immigration law even further to prevent future court intervention.

The real solution to the mechanical deportation regime is more human intervention in the system. Suspected unlawful non-citizens should not be detained or deported without being brought in front of a magistrate or independent authority to check their identity and the grounds on which they are being detained or deported. This is vital in the case of deportations where the Immigration Department unilaterally makes the arrangements to remove the person (and passes the costs onto the person) — approximately one half of all enforced removals, or 5,000 cases per annum.

The independent authority should conduct a series of checks prior to deportation taking place. The checks should include the person’s health status and how it is likely to fare in the destination country (not just a certificate of fitness to travel); how family members will be affected; and what arrangements are in place for the person to be looked after on arrival. A report, Removing Seriously Ill Asylum Seekers From Australia, published in July 2007 by La Trobe University, highlights this point:

removals are the realm of officers who are fulfilling a process of law: Unlike a number of other nations, there is no formal decision to remove someone. This means there is no pre-removal assessment of the whole of an individual’s situation, including medical issues or issues regarding children and family ties, that may bring to light significant reasons to delay or reconsider removal. A pre-removal assessment, or ‘fitness to return assessment’, would strengthen the integrity of removals, and offer the removee an opportunity to have the whole of their situation recognised.

Not only do many other countries undertake the type of independent check I advocate, it was previously a part of the Australian system. It was introduced in 1958 by Alexander Downer senior in his finest moment as immigration minister. Downer remembered the plight of refugees in the Second World War and his own experience as a prisoner of war. He introduced legislative requirements that people facing detention and deportation should receive legal assistance and a court hearing and on 6 January 1959 Downer issued instructions to his department that: ‘The deportation powers are formidable and capable of abuse. Therefore, it is the duty of the Department to inform the Minister as fully as it is reasonably possible about the facts, and related circumstances, of each case’.

Under the policies of mandatory deportation, court oversight over deportations has been dispensed with and immigration ministers fail to exercise the type of careful supervision recommended by Downer. Recently, refugee advocates implored Kevin Andrews to delay and review the deportation of a Sri Lankan man, ‘RW’ (name confidential). The government had refused RW’s application for refugee status but advocates asserted that RW had injuries consistent with his claims of having been tortured and that he was he was in deep distress after two years in Maribyrnong detention centre. However the advocates’ call was not even referred to the minister. His spokesman told AAP that it did not meet ‘referral guidelines’. RW was deported under sedation on Tuesday 16 October.

Visa Cancellation

Australia’s system of mandatory deportation became even tougher in 1998 when Phillip Ruddock got amendments to the Migration Act through parliament called the ‘Strengthening of Provisions relating to Character and Conduct’. These amendments gave the Immigration Minister and Department greater powers to deport people by cancelling their visas on grounds of criminal record, criminal association or being a threat to national security — known together as the character test. Since these amendments were promulgated in 1999, immigration ministers and officials have used their new powers aggressively as part of the Coalition government’s determination to be tough on border control, crime and terrorism. They have used the character test to cancel hundreds of visas, turning the individuals concerned into unlawful non-citizens who must be detained and deported. Two categories of people have been hit particularly hard.

The first are long-term Australian permanent residents who have not taken out citizenship and who are sentenced to one year’s imprisonment or more. Before 1999 individuals could not be deported on grounds of criminal offending after more than ten years residence in Australia. But the 1999 changes effectively dispensed with the ten year limit, although Ruddock’s Second Reading Speech did not disclose this and the Labor Opposition supported the changes on the basis that, as its spokesperson Con Sciacca told parliament on 2 December 1998, ‘all this is doing is giving some more power to the Minister in terms of making sure that we do not bring people into this country who are undesirable and may have been convicted of offences’.

In fact the visa cancellation powers have been used against people who came to Australia as child migrants and grew up in the country. For example, Stefan Nystrom came to Australia as a twenty-seven day-old baby, grew up in the country and did not leave until he was deported to Sweden, his place of birth, on 29 December 2006, the day before his thirty-third birthday. Nystrom had been convicted of serious crimes and the immigration minister at the time, Amanda Vanstone, decided that he should be deported after completing his prison term because he was not of good character. Nystrom spoke no Swedish and felt no connection to that country. After arriving there he told The Age journalist Julie Medew that ‘I am an Aussie. I don’t give a stuff about Sweden. I never have and I never will’.

Nystrom’s was not an isolated case. In the previous three years, 2002–05, the Australian government deported 233 permanent residents from Australia on the grounds that they had been sentenced and had served prison terms of one year or more. Many had lived for decades in Australia. Some had mental illnesses and addiction problems, others were reformed addicts cast into stressful situations and danger of relapse by deportation. A question by Senator Andrew Bartlett to a parliamentary enquiry revealed that these people were sent to forty destination countries, including strife-torn and developing countries with rudimentary mental health and drug rehabilitation services such as Turkey, Lebanon, Vietnam, Romania and Iran.

Deporting people who are long-term residents is, in my view, an abnegation of Australia’s responsibilities. The deportees may have criminal convictions and ‘character’ flaws but they are Australia’s responsibility and should not be expelled even if they have not taken out citizenship. The ten year limit must be reactivated.

Circumventing the Courts

The other people hit hard by the 1999 changes are visa holders who become the subject of suspicions in regard to terrorism or national security. Scott Parkin, a US citizen, had his visitor’s visa cancelled on the eve of the fourth anniversary of the attack on the World Trade Centre on the basis of an adverse security assessment by the Australian Security Intelligence Organisation (ASIO). Parkin was imprisoned on 10 September 2005 and deported the next day. He appealed to the Australian courts but this did not stop his deportation. And he got an $11,000 bill from the Australian government for the cost of his detention and deportation. Parkin has not been charged with any offence, either in Australia or the United States. He still does not know the basis of ASIO’s assessment. It has taken him over two years to get the Federal Court of Australia to order ASIO to disclose information to his lawyers about its adverse assessment (and the Court made similar rulings in respect of ASIO assessments against two refugees denied visas on character grounds, Mohammed Faisal and Mohammed Sagar). The Court made its ruling on 2 November 2007. It reasoned that Parkin’s lawyers should have access to ASIO’s information in the interests of a fair hearing, but ASIO has indicated that it will appeal rather than comply with the Court’s order.

Meanwhile, two other deportation cases show similar undermining of the courts. On Friday 12 October 2007 the Immigration Department deported Timothy Borstrok to New Zealand. His visa had been cancelled on character grounds in 2002 by Philip Ruddock and Borstrok subsequently left Australia. But he returned in November 2005 and cleared immigration controls using a fraudulent passport. He asserts that his visa should never have been cancelled in the first place because the charges associated with the cancellation decision had in fact been dropped by the Director of Public Prosecutions. The Federal Magistrates Court dismissed his application to have the cancellation reviewed and Borstrok appealed to the Federal Court, but he was deported before this appeal was heard. Justice Margaret Stone was fiercely and rightly critical of this action. She stated that in deporting Borstrok the Immigration Department had negligently or deliberately — and she inclined to think it was deliberate — prevented him putting his case in her court. Whether or not Ruddock’s cancellation decision in 2002 was lawful will thus never be known. The department defended its action stating that Borstrok had failed to take out an injunction against being removed from the country; it was not surprising that Borstrok failed to do this since he had no legal adviser and represented himself in court. Despite her criticism of the Immigration Department, Justice Stone indicated that she would have to find in the department’s favour and dismiss Borstrok’s appeal since he was no longer available to appear. The matter was ‘all the more disgraceful,’ Stone stated, ‘because this court can do nothing about it’.

Finally, the case of Dr Mohammed Haneef has turned into a display of strength by the government at the expense of the principles of procedural fairness. On 16 July 2007 Kevin Andrews cancelled Haneef’s visa to work as an overseas doctor in Australia on the basis that he had an association with distant relatives involved in terrorist attacks on Glasgow airport and thwarted attacks on London. This was in flagrant disregard of the decision by Magistrate Jacqui Payne to grant Haneef bail after twelve days in custody. Andrews’ decision condemned Haneef to immigration detention and branded him ‘not of good character’. Under the changes made in 1999, Andrews neither gave Haneef a hearing on the cancellation decision nor any opportunity to refute the information against him. Indeed, this information was secret until Andrews released it selectively in a press conference.

On 27 July all the charges against Haneef were dropped because the information they were based on was wrong. However, Andrews refused to reinstate Haneef’s visa and Haneef has been forced to resort to the courts to try and wrest his visa back. The then Labor Opposition, which initially supported Andrews’ action, changed tack and called for a judicial inquiry in Andrews’ handling of the case.

However, what is really needed is a review of the expansion of the Immigration Minister’s and Department’s deportation powers since 1989, particularly under the character and conduct provisions promulgated in 1999. The Migration Act should not be used to circumvent the court system and the fraught atmosphere created by international terrorism is no excuse. At other times immigration ministers have taken more principled stances. For example in 1953 Harold Holt was Immigration Minister in a cabinet under Robert Menzies well known for its hatred of communism. Despite this hatred and the Cold War, Holt took a deliberate step away from using the Migration Act against communist migrants in Australia. If they were to face deportation, he said, it should be under the Crimes Act, a much higher threshold because it required a criminal conviction in court, not just a stroke of a pen by an immigration minister or official. As a result, deportation proceedings were dropped against the Greek Cypriot immigrant Demetrius Anastassiou who had been arrested in 1952, a year after attending the World Youth Festival in East Berlin, and whose case has been researched by Philip Deery from recently declassified files. Holt maintained his stance on Anastassiou’s case in the face of fury from the director-general of ASIO. After Holt’s move, no deportations took place under the Crimes Act and the deportation provisions in that Act were abolished in 1973 by the Whitlam government.

The Howard government turned back the clock and increased the powers of the Immigration Minister and Department to circumvent the court system. Ministers and officials are using these powers at the expense of the rights of vulnerable individuals. It is time to repeal these powers.

Glenn Nicholls works at the Institute for Social Research, Swinburne Institute of Technology, and is the author of Deported: A History of Forced Departures from Australia, UNSW Press, 2007.

But of course it is not that simple. The fact that there is such vocal critique of gay marriage within the gay community itself is indicative of the fact that the issue isn’t just a case of ‘for or against’.

The political struggle around gay marriage has led to a polarisation of the debate. It is framed as a choice between competing agendas: conservative versus progressive. Progressives argue along the lines of human rights and equity: the regulations around marriage should be adapted to ensure all people have the right to marry their chosen partner. The conservative argument is that the institution of heterosexual marriage is sacrosanct and cannot be altered. ‘Marriage’ is a universally understood union between a man and a woman, not something that evolves to suit the times.

But what about the problem of marriage itself?

Decades of feminist and Marxist critique of the institution of marriage seem absent in a debate framed by a ‘for or against’ dichotomy. Where is the scope for a critique of marriage as a social and economic institution? Many conservatives argue that marriage must be protected at all costs because it is the fundamental institution of our society. They’re right; marriage is the fundamental institution of capitalism. From its inception it has been a social contract rooted in private property laws. Marriage regenerates and maintains the workforce free of charge and history has shown that, as an institution, marriage contributes to the oppression of women. Couples may challenge gender norms and the sexual division of labour within their own home, but at a structural level the institution of marriage remains steadfastly committed to patriarchal and heterosexual norms.

It’s not surprising that when it comes to marriage many gay people are asking: ‘Why do we want in?’ In fact, marriage is increasingly not the relationship of choice for many heterosexual couples. It almost seems strange that in a climate where marriage is decreasing in popularity, conservatives aren’t supporting a group that is actively promoting the social benefits of marriage.

While same-sex marriage creates new boundaries around the genders of those involved in the contract, it doesn’t necessarily open new conceptual space for imagining relationships and family. The fundamental model of marriage still stands, and many would argue that the capitalist state doesn’t care about the gender of a married couple so long as the institution is doing its job.

Does same sex marriage really create greater acceptance for people whose sexualities defy the norm? Or does it further entrench a traditional, nuclear family model? A model that doesn’t relate very closely to the lives of thousands of gay people.

Ultimately, would legalisation of gay marriage represent radical social change? No one involved in gay politics is kidding themselves. No one believes that legalisation of gay marriage signals the end of oppression. But currently, gay couples are denied the right to engage in a common social contract to which heterosexual couples have access. Marriage laws are a clear target for gay and lesbian activism because they represent an achievable change. It is a barrier to equality that can be overcome within the existing social framework. And, without doubt, there are many gay couples that, on a personal level, don’t have political axes to grind with the concept of marriage; they simply want to walk down the aisle.

Marriage is still a significant social ritual, and the right to engage in marriage is a staple of western citizenship. Without marriage rights, gay relationships have no rituals of acknowledgement and gay people are symbolically denied full citizenship. This creates an interesting tension in the conservative agenda that explains why you see people like conservative Queensland Liberal MP Warren Entsch actively campaigning for gay marriage. Disallowing gay marriage contravenes basic liberal notions of a level playing field. Full citizenshi for nationals, freedom and individual choice are theoretically at the heart of western liberalism.

But marriage clearly isn’t a totally ‘free’ arrangement. Marriage cannot be defined by individuals outside the boundaries of some form of social agreement. Marriage is a social contract that, by definition, must have agreed-upon boundaries for it to be meaningful. If marriage could be on any terms between any one — or any thing — it wouldn’t be a contract of social significance. Howard has been at pains to point this out. What we recognise as marriage, he argues, must be defined by community standards, not by individuals. In Howard’s view, the Australian public would not accept gay marriage because Australians understand marriage to be a union between a man and woman (how he knows exactly what the public feels is not entirely clear). As far as Howard is concerned, the fact that gay people want to be married is not an argument for considering gay marriage; marriage is, and will always be, heterosexual.

It is this logic that allows Howard and his cronies to maintain that banning gay marriage does not constitute discrimination against gay men and women. He presents the current heterosexual boundaries of the marriage contract as ahistorical and universal — not open to change.

But marriage is not something that has universally accepted and unchanging codes. Even within our own culture the idea of arranged marriage was once a social norm, something that even Howard would probably consider undesirable in the current social climate. Perhaps, then, what is radical about campaigning for gay marriage is that it demonstrates that social institutions aren’t static entities; they are products of society and as society changes so to do institutions such as marriage. There is nothing natural about marriage. It is a socially derived formality and society determines the codes that define it.

Fighting for gay marriage could be seen as cow-tailing to an institution that has long been a source of social oppression for women and gay couples. But perhaps while gay men and lesbians are denied access to such an institution they are also denied the legitimacy to challenge the basis of marriage. Maybe full rights of citizenship are needed to be gain the confidence and authority to take the next step?

The gay marriage debate exposes the conservative social agenda of the current government. Howard has claimed that he is simply following public opinion on issues like gay marriage: his legislation dutifully follows the will of his constituents. Of course, when it comes to industrial relations regulations or economic reform he prides himself on his capacity for leadership and reform — he is showing the Australian public where they need to go.

In the end, context is everything. What is conservative in some instances is radical in others. At this point in history, the campaign for gay marriage does challenge a conservative social agenda and it does subvert the idea that marriage is innately about heterosexual unions. In this context, that’s got to be a good thing.

Jennifer Power is a Melbourne writer.

Yet such support as non-Labor received from working people was always dependent on leaving IR out of the picture. It was based on a widespread belief that the Coalition was a better bet for national security, macro-economic management and, compared to Latham, maturity of leadership. It is offered strategically — it was given to Howard in 1996 to knock Keating out, and taken back in 1998 when Beazley still had credibility — and the canny ACTU campaign has made the most of it.

Yet it was also likely that the unity of resistance would start to come unstuck as soon as questions arose of IR models of the future. Kim Beazley’s recent qualified support for the use of AWAs (Australian Workplace Agreements) in the face of opposition from union leaders was a case in point. It is inevitable that Labor would support AWAs, since a vital part of the vote they have to claw back (especially miners and some skilled tradespeople) do well out of them, or believe they do, and to oppose them would have the same effect as opposing the recent tax cuts: it would paint Labor as standing between workers and higher wages.

The unions rightly say that such agreements, which cover only a small minority of workers, individualise the workplace. But they also cut with the grain of a combination of mobility and full employment in some economic sectors.

Consequently in this area, and perhaps in others, the labour movement as a whole will be on the defensive — but only because the process of developing new ideas for IR from within the heart of the union movement has virtually ceased just when it was most needed. The division occurs because a new program for transforming IR — and hence a leading and aggressive strategy — has not been hammered out.

From the late 1960s into the 1980s, the dominance of labour and Labor was driven by the force of its ability to draw on separate sections of the left to set the agenda, a process culminating with Australia Reconstructed in 1986. That document came in for critical analysis from the first series of this publication, but at least there was something to criticise. In the last decade the labour movement — as part of a wider malaise — has simply foregone the essential task of getting a picture of the world and setting a policy agenda from it. This is not simply an old strand of anti-intellectualism, just as the new pragmatism is not simply improvisation. In fact it is a knock-on effect of the wider cultural belief that there is no better or worse picture, no more or less untrue analysis. It is precisely in the face of that trend that some process of rethinking is necessary. That has begun at the edges of the movement. If it is not quickly brought to the centre, the movement is looking at another wilderness decade to add to the first.

Stones and Bones

Before the echo of the London bombs had even begun to die away, local pundits had a suspect in their sights, and a headshot-to-kill policy in their minds for multiculturalism. Pamela Bone was one of the first to suggest that this might be a warning sign that we have gone too far. Might it be time for a new policy: ‘couscous yes, child marriage no?’ John Stone went further and suggested that an ethnically based immigration policy and an assimilationist culture should now be on the agenda. Muslim clerics were found who could be called to pledge a commitment to policing the views of other Muslim clerics. In all of this there were two ruling assumptions: that multiculturalism was to blame, and that multiculturalism was nothing other than a specific cultural policy.

As John Hinkson notes in his essay, and as Spiked columnist Josie Appleton observes of the UK scene, the assumption that suicide bombing is something that comes, like a virus, from a medieval ‘over there’ — borne to the west by subversive crackpots, and permitted to flourish by Whitlamite social policy wonks — is a consoling fantasy. Suicide terror comes from the heart of modern global society, as does religious fundamentalism. What allows the most radical and political forms of the latter to flourish in the west is the feature of the west held to be most characteristic of it: a liberal public sphere. Were an assimilationist policy to be re-enacted it would presumably teach that this was the centrepiece of civil life, and that it is assumed to stop at the entry to private life — chief among which is religion. The confusion is exemplified by Bone’s comment above: it already bloody is ‘couscous yes, child marriage, no’. If Bone means that we should take steps to stop the cultural transmission of the (rare) practice of arranged marriage then she is proposing a total intrusion of the state into parent-to-child values formation and/or the restriction of religious education, the latter protected by the Australian constitution.

Stone appears more consistent until you remember that he is a free-marketeer, and that the hypercharged neo-liberal economy he proposes is going to need a variety of global labour flows — Indian computer programmers this year, Nigerian nurses the next — in order to remain competitive. It doesn’t matter whether you have a multicultural policy (as we do), a mandated secular civic culture (France) or rely on guest workers (Germany), people will practice their religion and way of life. Fundamentalism, of any stripe, comes not from these practices, but as an answer to the deep sense of dislocation that people feel in relation to these processes. Multiculturalism is not a policy that leads this global process, it is a cultural technology that adjusts both migrant and recipient society to a new level of mobility and exchange. In this context, a small number of people — usually of the next generation and thoroughly assimilated — feel ‘called’ to commit an ultimate act in a manner that fuses outrage at injustice at what is seen on CNN with a deeper and wholly modern sense of powerlessness and meaninglessness. The most urgent thing to do is to get a less inaccurate picture of what is happening. To judge by the mainstream debate, we have a long way to go.

Ripe for New Politics

Watching the tractors and harvesters roll off the Tasmanian ferry in Melbourne was enough to make one think they had come in search of vehicles capable of more than ten kilometres an hour. In fact they were on a mission to link up with Victorian farmers to protest at decisions by major food buyers, including supermarket chains and McDonald’s, to buy a larger proportion of their produce from overseas, whether it be New Zealand (for McDonald’s potatoes) or China (for supermarket fruit and vegetables). The direct action was admirable, but the demand — for a ‘Buy Australian’ labelling initiative — was lame. To put one’s hope in a patriotic super-vigilant consumer is to sell your own cause out: the contemporary shopping experience is all about minimising the time and torture of the activity itself, via supermarkets and, eventually, online ordering. The farmers have in mind an earlier era when shopping was a daily, neighbourhood-based act of social exchange, not the mass hauling of bulk-bought supplies. The only shoppers likely to shop in such a manner in any sustained way are environmentally conscious label readers,  likely to be only partially sympathetic to the farmers’ plight.

Yet what else could they do? For years, farmers large and small have supported the NFF, and for years the NFF have slavishly supported the National Party, and for years the National Party has told its constituency that free trade will ultimately be to its benefit. That may be true for the whole sector quantitatively, but it ignores the social devastation of rural Australia that will occur in the coming shake-out of the agricultural sector. In this era, the interests of small farmers, larger agribusiness concerns and pastoralists diverge utterly, and it is the first of these that will suffer the most, simply because there is no living level at which they will be able to compete in the wake of an AustraliaÐChina free trade   agreement. They are currently being fed with fantasies of specialisation and niche markets, with no acknowledge that our relationship with China will be asymmetrical, to put it mildly.

What such farmers need to argue for, loud and clear, is a measure of protection, on the grounds that it is necessary for any region or community that wants to maintain its independence to have a viable and diverse agricultural sector. They should argue that slightly higher prices for all are necessary for this social good (and that most purported savings would, in any case, rarely reach the consumer). But of course it is impossible to come out for the virtues of protection when their peak bodies have spent so much time knocking them down in manufacturing and other areas. The rural   sector is still seeing the new world through the categories of the old. They will realise eventually that their interests lie more with the increasing numbers of people being deemed socially redundant, (including the workers they scabbed on during the waterfront dispute) than with pastoral combines. They are ripe for a new politics — as Labor realised when it developed its ‘country Labor’ brand. But the Greens could also make headway if they were to send out organisers — possibly with a differently named organisation and devoid of the inner-city sartorial style and cultural baggage — and make connections over rural decline, viable community, OHS and more. If small farmers are hoping to survive by appealing to the better instincts of the globalised shopper, then they haven’t yet begun to realise what is about to happen to them.

Arena and the Internet

One of the most cherished pieces of cyber folklore is that the internet will provide the means to reconstruct an ethic of co-operation and reciprocity. The rise of Napster and the evolution to peer-to-peer computing which enable users to share songs, movies and any other digital content; the open-source community responsible for the freely distributed operating system Linux and associated open-source programs continue the apparent gift culture of the internet.

That promise — and it was no more than a promise — is fast receding. Indeed, in some ways the internet is undermining the deeper sources of co-operation that gave rise to and sustained its ethic of reciprocity.

A case in point relates directly to the magazine you’re now reading. Each issue of Arena Magazine is sent to a multinational academic publisher in electronic form in the Portable Document Format (PDF). Such formats are necessitated by the fact that, increasingly, readers, students and researchers no longer access information by going to the bound version, but simply download electronic copies of individual articles which effectively appear as off-prints of the original article.

However, the publishers with which we deal also sell articles on the open market. This editorial, for instance, will no doubt be available from Amazon.com in the months after its publication for US$5. Arena makes very little from such sales; in 2004 it amounted to around $500.

It is here that the contradiction between the internet and the deeper sources of co-operation and reciprocity become evident. It is disconcerting to see the freely given fruits of one’s labour being sold on the internet and seeing little or nothing in return. Contributors (not to mention editors and publishers) are likely to feel that they’ve been used by such arrangements. The on-selling of articles cuts into the fabric of reciprocity and co-operation on which Arena’s publications are founded. Indeed, Arena finds itself caught within a contradiction the core editorial team has discussed at length in both the journal and the magazine; namely the tendency of highly abstracted forms of life to dominate and reconstitute more basic sources of sociality.

The problem here is that the internet enables one to bypass the embedded conditions under which magazines are produced. By reconstructing publishing and writing in these ways, they reconfigure the ground on which co-operative ventures such as this magazine are based.

One solution to this would be to undercut online providers, by putting the complete contents of the Magazine and Journal online, making them freely available. But this is a partial solution. To keep the bound version viable, some limits would have to be placed on this, such as a time gap. Ceasing production of the bound versions altogether and going to a completely ‘virtual’ Arena is not realistic: people still baulk at reading content onscreen, it would limit access to those without online access, and would be to give up on the ethic of co-operation and reciprocity based on the face-to-face relations that are central to producing a magazine like Arena. In other words, it would be to imagine that these relations, which have their basis in face-to-face interaction, could be simply reconstructed in virtual form without cost. Such a view is, in the long-term, untenable.

In the face of these changes the editors will examine alternative arrangements by which to engage with the transformations in publishing, while remaining committed to the collective ethic on which Arena’s publications are founded.

For a start, the $1500 is not cumulative — at least as far as reporting by the party receiving the donation goes. Over the course of a year, a party could receive $1499 a number of times from  a donor, and have no obligation to report it.

Donors are required to report donations which reach a cumulative total of more than $1500. However this is poorly enforced. Approximately 50 per cent of donors never submit the required forms.

The Australian Electoral Commission (AEC) writes to donors who fail to submit forms, but there is little they can do to force compliance. According to Kathy Mitchell of the AEC, the last time a donor was fined for either lodging a false return or not lodging a return was in the mid 1990s. As donors hear of this there is even less incentive to file donors’ forms.

Concern over the impact of donations on government decisions led us to commence a major research project on political contributions four years ago.

Each year the AEC releases donation information on all registered political parties for the proceeding financial year. We use this data to examine the amount and type of donations. The results of that work can be seen on our web site <www.democracy4sale.org>.

The task of donation reform has now become all the more urgent as, rather than acting on the AEC’s recommendations, the Liberal Party’s Senate strongman Eric Abetz and his colleague Nick Minchin now argue that electoral laws governing donations need to be further loosened. Abetz and Minchin say the limits at which disclosure of donations must be made should rise from $1500 to possibly $5000. This will lead to further problems in transparency of the source of funds for political parties. They also advocate a rise from $100 to $5000 for tax-deductible political donations.

Senator Minchin argues that raising the disclosure threshold is a move to protect the privacy of the donors. However, as Anna Johnston, chair of the Australian Privacy Foundation, stated in a recent letter to the Australian Financial Review about the Liberal Party’s proposal, ‘This is secrecy, not privacy. One hides corruption, the other exposes it’.

In order to get a better picture of the impact of changing the disclosure threshold from $1500 to $5000, we looked at the figures from the AEC for the NSW division of the Liberal Party for 2003Ð2004. This is the most current data on donations to the political parties that is publicly available.

Much more money flows to the state divisions of the major parties than their federal division. This is certainly the case for NSW. This is the reason we are using the NSW Liberals as an example.

In 2003Ð2004 the Liberals in NSW received a little over $9 million in contributions from individuals, companies and other organisations such as ‘associated entities’ (front organisations that raise money for political parties), and various lobby groups.

In our analysis we combined donations of money and gifts in kind with money spent at fundraising events. We believe it is important to consider all this money contributed to the parties since it fills their coffers for campaign purposes. We omitted other sources of income such as tax refunds and money received from the NSW State Electoral Office based on votes received in the 2003 state election.

Almost 54 per cent of the number of reported contributions were under $5000 and would not be made public if the threshold changes suggested by Abetz are passed by federal parliament. While these contributions account for only 11 per cent of the money contributed to the party that year, it means that almost $1 million would not be identified under the new disclosure proposal.

While some of these small donors were individuals, much of this money came from property developers, media companies, law firms and other businesses. A number of the individuals giving small amounts were also associated with various companies.

When we look further at the monetary breakdown of the $9 million the party received, 44 per cent of the money was from contributions of $5000 or above. Combining this percentage of money with the 11 per cent received from contributions between $1500 and $4999, this means that 45 per cent of the money the NSW Liberal Party received in 2003Ð2004 was still from unknown sources. While a small amount of that total could be from refunds on electric bills and payouts of insurance claims, most of the money was small contributions from unknown people and companies. This money would be from those who gave $1499 or less, perhaps a number of times during the year.

In summary, our analysis shows that had the threshold for declaring contributions been $5000 rather than $1500  in 2003Ð2004, 56 per cent of the   money (almost $5 million) received by the NSW division of the Liberal Party would have been from unknown donors.

The new proposed threshold for disclosure of donations is clearly a recipe for deception. If such a system were introduced, the public would have even less access to information about those who bankroll Australia’s political parties. The proposal by Abetz and Minchin is a major backwards step for accountability in this country.

The move to weaken disclosure rules for donations to political parties comes at a time when a number of top companies are reassessing their once generous ways. Lend Lease, BHP Billiton, National Australia Bank, Rio Tinto and AMP have all decided to stop donating to political parties. Some of their CEOs are reported to have said that they have decided that giving political donations is just not worth the grief they were getting from shareholders and the public. Maybe Abetz and Minchin are keen to change the disclosure rules before they lose too many more donors to Liberal Party coffers. In 2003 Malcolm Turnbull, who at that time was treasurer of the Liberal Party, stated that the new non-donation policies of many companies had cost the party $700,000 in potential donations during the previous year.

We believe campaigns against the potential corrupting influence of political donations led by the Greens and others have raised public awareness and concern. This in turn has caused many large companies to stop making donations to the political parties.

There are many prominent political leaders who have argued for disclosure rules to be tightened rather than weakened. Former ALP federal president Carmen Lawrence, former Prime Minister Paul Keating, former Labor NSW secretary Eric Roozendaal and NSW Liberal whip in the Legislative Council Don Harwin are all on the public record calling for tightening the present regime on party donations.

Even Turnbull, now one of the rising stars on the backbench of the federal Liberal Party, has recently called for banning all donations from businesses and unions. He argues that because of questions about vested interests and the ethics of big business and union contributions, donors should be restricted to people on the electoral roll. The amount individuals can donate should be capped. Turnbull’s position is one the Greens have taken for years.

If we want to maintain a vibrant and open democracy we must have complete transparency about the millions of dollars flowing into the coffers of our political parties and strongly oppose the moves proposed by Abetz and Minchin.

We believe an even more positive step would be to ban all corporate and union donations in order to protect our democratic institutions.

Lee Rhiannon is a Greens MP in the NSW Parliament. Norman Thompson is a retired academic who has led Ms Rhiannon’s  political donation project for the past four years. The full report can be read on <www.democracy4sale.org>.

Personal attacks on high court judges; lending legitimacy to racially and ethnically divisive political movements while quietly pilfering many of their policy ideas; ripping up the laws of the sea; portraying vulnerable people as perpetrators of self-interested infanticide; going to war to placate a paranoid ally; scandalously diverting public money to prop up private schools while presenting themselves as defenders of the free market; instituting a raft of draconian surveillance laws (comprehensibly documented in Jenny Hocking’s contribution to the latest edition of the Arena Journal) — the sorry list of the conservatives’ misdemeanours could go on and on.

To its eternal shame, Labor has far too often acquiesced. The prospect of a Latham Government has been greeted by some as the beginning of the end for Howard, and it may well be. Short of physically assaulting another employee in the service industry (or anyone else for that matter), Latham can afford a couple more gaffes, including the odd bit of on-air feistiness. Whitlam, Dunstan, Hawke and Keating primed the public for more colourful Labor leaders than their conservative counterparts. Add to this his homespun suburban character and Latham has, at the very least, dragged Labor to the precipice of electability.

There remains, though, Latham’s authoritarian streak. The proposal to send parents of unruly children to parenting school and the faintly Orwellian portfolio of community relations, are just two examples. The optimistic view is that such proposals are little more than a strategic counter to the conservatives. Part of the goodwill towards a future Latham Government derives from his close realtionship to Gough Whitlam — a connection given some prominence in Margaret Simon’s recent Quarterly Essay, ‘Latham’s World’. The implication seems to be that a Latham Government would be a bold, progressive government in the mould of Whitlam. The authoritarian elements would, therefore, be no more than a tactic to neutralise conservative critics, to be quickly discarded once safely in government.

That may well turn out to be the case. Or it may not. There’s some reason to think that it won’t. Tony Blair’s record — the inspiration for many of Latham’s ideas — is instructive here.

Prior to his victory in 1997, many of Blair’s supporters turned a blind eye to the abrasive edges of the Blair Project as if they were no more than a strategic counter to Conservative criticisms of British Labour as irresponsible, incompetent and soft in areas like welfare, law and order and industrial relations. Blair’s tactic was to take on Toryism on its own turf, talking tough to placate voters astounded at the incompetence of the Major Government but wary of Labour. The expectation seemed to be that many of the socially and economically regressive elements of Blairism would be quietly dropped once safely in government, leaving the progressive core in tact.

Things turned out somewhat differently. When it came to punitive social policies, Blair was a man of his word. The authoritarian elements remained, with harsher approaches to law and order; attacks on single mothers, pensioners and the unemployed; and a more hard-line approach to asylum seekers that was, in part, spurred on by the Howard Government’s malicious little campaign against asylum seekers.

Latham isn’t Blair and Australia isn’t Britain. Nevertheless, there is reason to expect that a Latham Government will follow a similar trajectory. On the issue of asylum seekers, for example, Latham’s instincts are towards maintaining the present arrangements, framing the issue as a law and order matter.

In January 2002, in response to a letter from the secretary of the NSW Labor Council asking for MPs to support NSW Labor for Refugees, Latham defended Federal Labor’s support for the current detention regime on law and order grounds:

Groups like Labor for Refugees look at atrocities such as the Woomera riots or the payment of money to people smugglers and declare, the people who did this need help … The first priority for a just society is to help needy people within the collective boundaries of the law. The first priority of your organisation is to find excuses for people who break the law.

He went on to suggest that groups like Labor for Refugees claim that people who:

… oppose an open door policy are ignorant, racist and emotive is a massive slur against the working class. In my experience, working people do not regard this as a question of race. They see it in terms of decency and legality (Sydney Morning Herald, 2002).

This year’s National Conference resulted in some changes to Labor’s stance, committing a future Labor Government to closing the detention centres on Naurau and Manus Island. But the new policy is more tweaking, rather than a comprehensive departure from the Howard Government’s regime.

If the Coalition is returned, which is a distinct probability, these authoritarian impulses may come to the fore. Indeed, another term for the Coalition may create the conditions for a perfect storm; one in which the forces of reaction coalesce to create a political climate where the ALP decides that the only path to power is to outdo the Coalition’s punitive approach. The leadership ambitions of Peter Costello and Tony Abbott will obviously complicate this situation, alternatively averting it or intensifying it.

More optimistically, a Labor victory may well be the making of Mark Latham. The fact that he only defeated former leader Kim Beazley by a small margin — and that, even then, many of those who voted for him did so because they couldn’t bear a return to the Beazley doldrums — may mean that Latham’s authoritarian instincts are reined in and his madder policy schemes (giving financial assistance to enable people on low incomes to purchase shares, for example) are given the flick.

Should it come to pass in the next election, a Latham Government would likely combine elements of populist labourism with social conservatism. Expect to see a modest government that tinkers with the present policy settings rather than a bold reformist, progressive government in the mould of Whitlam. Which is another way of saying expect a run-of-the-mill ALP government.

There have been two challenges for proponents of the ‘rights’ approach.

One is to connect ‘rights’ to issues of social policy. The Howard government’s great rhetorical advantage is that it can point to a connection between government programs and acknowledged problems (and this remains so even if the programs are of untested effectiveness and/or underfunded). That is, ‘practical reconciliation’ is about ‘doing something’. Is the rights-based approach about ‘doing something’ – or is it just an assertion of noble principle, a discourse lofted over the heads of people in need? In that demanding question we see the rhetorical power of ‘practical reconciliation’.

The second challenge for the ‘rights’ approach is to be clear about what ‘rights’ are being invoked. There is no dispute that Indigenous Australians have ‘human rights’ and that one realisation of these ‘human rights’ is their ‘rights of citizenship’. One can appeal, without much fear of contradiction, to the idea that if Indigenous Australians lack clean water, access to housing, education and medical services of a certain standard, or security in their property, then their rights as citizens are not being honoured. ‘Citizenship rights’ remains a potent spur to Australian governments’ action.

Citizenship Rights and Indigenous Rights

However, some Indigenous intellectuals go further, adding ‘Indigenous rights’. Citizens who are Indigenous are bearers of a right to self-determination that cannot be honoured by putting in their hands merely those instruments of self-determination that were afforded to all Australian citizens through the Australian Constitution. That is because Indigenous Australians were not parties to the federal compact of 1901. Giving Indigenous Australians the vote can not in itself redress their omission from the founding processes of nationhood. To admit them as parties to nation-building it would be necessary to negotiate changes to the Constitution that acknowledge their collective interests in some way. This should have been the main business of the Centenary in 2001. Thus some advocates of a Treaty now argue for constitutional recognition of an Indigenous order of government – the instruments of their self-determination as a distinguishable people within the Australian nation.

Among Indigenous intellectuals who embrace a ‘rights-based’ approach we can see different ways of formulating the relationships between ‘citizenship rights’ and ‘Indigenous rights’. In Arena 45 it seemed that readers were offered a choice between Larissa Behrendt’s and Pat Dodson’s presentations.

Arguing that Australia’s next step should be a legislated bill of rights, Behrendt suggested:

Not only does this have the advantage of being a minimalist approach, it also has the added attraction of being a process that could engage the public in the content of the Bill, giving Australians a greater interest and feeling of association with and ownership of the outcome. This would help to create a culture of rights protection in the Australian psyche and perhaps help to shift some popular misconceptions about Aboriginal rights being special rights (my emphasis).

A few pages later we found Pat Dodson asserting in his 1999 Lingiari Lecture that

Aboriginal peoples have the right to all the common human rights and fundamental freedoms recognised in national and international law, as well as to our distinct rights as Indigenous peoples.

In the same issue, lawyer Sarah Pritchard seemed closer to Dodson than to Behrendt in her assertion that: ‘Policies which do not comprehend the distinct status of Indigenous peoples, and their right to determine their own affairs, are ultimately assimilationist.’

Would Behrendt’s view be taken as ‘assimilationist’ by Pritchard or by Dodson? This seems unlikely. My attempt to reconcile Behrendt’s point with Dodson’s and Pritchard’s goes like this: ‘Aboriginal rights’ are derived from ‘human rights’, so they are not ‘special’. However, Aboriginal rights’ are ‘distinct’ instances of human rights because in the circumstances of the settler colonial nation-state, Indigenous peoples’ human rights have suffered systematic abuse. Indigenous people thus are justified in invoking their human rights in order to demand a systematic redress. Their unfortunate history has given their human rights a distinct content and pertinence. Their collective demand for recognition of their rights proceeds from their historically unique status vis a vis other citizens: they are the colonised, not the colonisers and justice demands that the colonised and colonisers negotiate a relationship of consent. The ‘price’ of Indigenous consent would be for Indigenous Australians to nominate and then negotiate. It is from that historically contingent process that ‘Indigenous rights’ would be given their Australian content.

There is an alternative sense of ‘Indigenous rights’ – that they are defined by what is distinct in the evolved governance customs of Indigenous Australians. My impression is that Indigenous intellectuals have not developed an account of ‘Indigenous rights’ on this basis, though they often allude to its possibility. Either way, it is important that the precise content of the concept ‘Indigenous rights’ be historically open. That openness is the basis of all interventions into the ‘treaty debate’, including this essay; it allows our conception of ‘Indigenous rights’ to be strategically flexible, rather than incised in stone. (I write ‘our’ because Indigenous and non-Indigenous people have to engage in this discussion; a bilateral process cannot privilege one side.)

I want to argue that it is both difficult and unnecessary to include social policy considerations within ‘Indigenous rights’. In my ‘reconciliation’ of the apparent contradiction between the Behrendt and Dodson positions, it is not necessarily relevant that Indigenous Australians, on average, are worse off than non-Indigenous Australians according to nearly all indices of welfare. The argument that ‘social justice’ obliges Australians to strive for ‘equality’ between Indigenous and non-Indigenous people in respect of these indicators could be based on a principle that is more familiar and less contentious than ‘Indigenous rights’. That is, familiar liberal principles of ‘equal opportunity’ compel governments to ensure that no category (ethnic, sex, region) of citizen suffers worse life chances than other categories. Indigenous Australians, as a category, do suffer worse average life chances, so public policy must respond. Another familiar principle of liberal government is that no category of citizen should suffer compromising of its property rights. Legislative, administrative and judicial action in Australia has begun to honour systematically the much-abused property rights of Indigenous Australians since South Australian land legislation in 1966, though the process of redress continues to be compromised by hesitations and reversals on the part of State and Federal governments. Crucial to those compromises have been efforts to circumscribe the Racial Discrimination Act 1975, a legislative expression of the robust liberalism of a common citizenship.

So it is possible to uphold some Indigenous demands (for statistical equality in indices ‘welfare’, for property rights) using no stronger argument than the assertion of Indigenous Australians’ rights as citizens.

However, the other notable Indigenous demand – that their sovereignty, never validly extinguished by the colonial process that resulted in the federal compact, be acknowledged and actualised in institutions of ‘self-determination’ – is a clear departure from what we normally understand to be rights of Australian citizenship. It requires an historical critique of the federal compact – a critique showing how the process of making the federal compact honoured settlers’ sovereignty at the expense of Indigenous sovereignty. As Geoff Clark put it in a seminar paper for AIATSIS on 2 April 2001, ‘At the time of federation, Aboriginal people were excluded from the process of nation-building. We did not give our informed consent. We were not even asked.’

I like to make this distinction (between Indigenous demands that can be and can’t be expressed within the widely accepted terms of Australian liberalism) because I prefer a parsimonious approach to ‘rights’ discourse. That is, I prefer to appeal to specifically Indigenous rights only when our concepts of citizenship rights prove themselves complicit with settler colonial liberalism by their failure to honour Indigenous sovereignty. For me, ‘Indigenous rights’ and ‘citizenship rights’ are significantly different ways to formulate the ‘human rights’ of Indigenous Australians. Indigenous Australians can avail themselves of both ‘rights’ approaches, but I do not think that they should conflate them.

Here I differ from some Indigenous intellectuals who seem to me to use the term ‘rights’ in ways that blur the distinction between their standing as ‘citizens’ and as First People. Thus Pat Dodson’s list of rights in his Lingiari Lecture moved from ‘the right to determine priorities and strategies for economic and social development’ (which I take to be a specification of the right of Indigenous self-determination) to ‘the right to special measures to improve our economic and social conditions’ (surely a citizenship right, based on comparisons of social indicators). He continues with ‘the right to all forms and levels of public education and training’ – another ‘citizenship’ right. Larissa Behrendt repeats Dodson’s practice of not distinguishing ‘rights’ according to their historical and political derivation when, in a recent critique of ‘practical reconciliation’, she seeks to derive all the ‘rights’ that she claims for Indigenous Australians from the concept of Indigenous ‘self-determination’. The phrases I have italicised formulate ‘rights’ that are not dependent on that concept and that can be derived from a principled approach to ‘citizenship’.

The rights enmeshed in the concept of ‘self-determination’ include, I would argue, everything from the right not to be discriminated against, to the rights to enjoy language, culture and heritage, our rights to land, seas, waters and natural resources, the right to be educated and to work, the right to be economically self-sufficient, the right to be involved in decision-making processes that impact upon our lives and the right to govern and manage our own affairs and our own communities. These rights that can be unpacked from the concept of ‘self-determination’ point to a vision that has been described as ‘internal self-determination’. It is a vision of increased Indigenous autonomy within the structures of the Australian state. (Arena 58,26)

Why do I think that it is not useful to make ‘self-determination’ the master concept from which a medley of ‘rights’ can be derived? Is my wish to make distinctions between citizenship rights and Indigenous rights anything more than academic pedantry? These doubts were in my mind when I embarked on a short winter journey through three conferences in which the idea of an Australian treaty was on the agenda:

‘Unfinished Business Conference’ 3-5 June, Melbourne (available as “Unfinished Business” Text and addresses from the Unfinished Business Conference including the inaugural Eddie Mabo Memorial Lecture, Editors – John Rickard and Vince Ross, Publisher – DesBooks)

‘Treaty – advancing reconcilitation’ 26-28 June, Perth

‘National Treaty Conference’ 27-29 August, Canberra.

Indigenous sceptics.

ATSIC does not assume that Indigenous Australians are in favour of a treaty process. ATSIC was co-sponsor of each conference, pursuing its strategy of ‘informing the Aboriginal and Torres Strait Islander community about the treaty concept’, in Geoff Clark’s words at AIATSIS in April 2001, and perhaps ‘seeking their support for progressing the matter through a plebiscite or some similar mechanism’. He reported the ATSIC Board’s resolve to establish ‘broad Aboriginal support and endorsement for the treaty before formal negotiations can occur.’

Here and there at these conferences, reservations were sounded by Indigenous speakers. In Perth Michael Mansell, himself a firm treaty advocate, acknowledged that Indigenous Australians might choose what he called ‘assimilation’ – that is, they might be content to claim only the same citizen entitlements that other Australians enjoy. The Indigenous leaders who advocate a treaty process and who believe that Indigenous Australians have distinct ‘inherent’ rights do not assume that they yet have a popular mandate to act on their own positive assessment of a treaty.

Each of the conferences listened respectfully to Indigenous treaty-sceptics. In Melbourne, Audrey Kinnear Ngingali, co-chair of the National Sorry Day Committee, argued that the treaty process was a distraction, using up resources required in other endeavours. Terry Waia, elected Chairperson of the Torres Strait Regional Authority (TSRA) since April 2001, told the Canberra conference that the priority issues for his people were their excessive mortality rates, the survival of their language and their welfare dependency. He implied a distinction between the TSRA’s aspiration to define a ‘realistic’ degree of Islander sovereignty, and the Indigenous concern with ‘sovereignty’ in other parts of Australia. Perhaps the sovereignty issue was, for some, a ‘luxury’ that they enjoyed because they did not have issues of health, culture and economic development to worry about, he ventured.

In Perth, we listened to Eddie Mabo junior after he was introduced with some reverence by the Reverend Cedric Jacobs. (Veneration of Mabo family members was also a feature of the Melbourne conference, though on that occasion they were silent icons, not speakers.) Eddie Mabo described as ‘problematic’ ATSIC’s promotion of a treaty ‘How can we explore a treaty when our communities are themselves not able to govern themselves efficiently, economically, and politically?’ Citing Noel Pearson on ‘passive welfare’, he warned against a ‘passive treaty’. It was up to Indigenous Australians to develop their many ‘jurisdictions’ and to win acknowledgment for them. His rhetoric was hostile to ‘elitists…advocating on our behalf in national forums’. He identified with the ‘grassroots people’, contrasting them with those ‘working inside the bowels of government’. His priority was to develop ‘appropriate Indigenous governance structures at the grass roots’…’our own system of democracy and representation as colonised people…Only through this will we develop Indigenous jurisdictions that are worthy of negotiating a treaty.’

One way to hear Eddie Mabo’s point is to note its resonance with doubts about ‘Indigenous capacity’. He cited Noel Pearson in blaming ‘passive welfare’ for undermining ‘self-sufficiency and cultural traditions.’ Without mentioning Pearson, Senator Aden Ridgway suggested at the Melbourne conference that since 1967 there has been a ‘complete breakdown of culture and values in communities’. Malcolm Fraser, speaking at the Canberra conference, asserted that some Aboriginal and Torres Strait Islander communities are ‘getting close to the point of non-recovery.’ Dean Collard, Noongar Director of the Manguir Corporation, told us in Perth that when the Whitlam government introduced self-determination, it had overlooked ‘capacity development’. I heard no-one dispute these gloomy assertions. From that we cannot infer consensus, but it is clear that many Indigenous and non-Indigenous participants and onlookers have concluded that ‘self-determination’ makes demands that some Indigenous Australians are not yet able to meet. Larissa Behrendt felt obliged to address this perception in her recent (Arena 58) article: ‘Not all Indigenous communities are incapacitated or dysfunctional.’ Bill Jonas, speaking at the Canberra conference, argued that a treaty process would build much-needed governmental capacity among Indigenous Australians. For such capacities to grow, it would be important for all concerned to work with a dynamic concept of Indigenous tradition, he added.

Social policy in the treaty

The view that parts of Indigenous Australia are without basic capacities for self-determination, that they are more socially-stressed than ever in their colonial history, is just what gives point and urgency to the Treaty, as far as some of its advocates are concerned. In the selection of speakers for the Canberra conference there was evidently a desire to exhibit a coalition of progressive forces in favour of a Treaty. Under the heading ‘Social impacts of a treaty’ we heard from Kerryn Phelps (Australian Medical Association Federal President). The treaty is AMA policy; the AMA believes that the physical and mental condition of Indigenous Australians is a ‘blot on our human rights record’. Access to adequate health services is a human right, effectively denied Indigenous Australians through underfunding – and not just in remote areas, she was at pains to point out. Economists such as John Deeble and Gavin Mooney have even quantified the dollar gap that governments must make up. The AMA’s interest in the Treaty, in short, is that its terms would include guarantees of adequate funding of health services for Indigenous Australians.

Phelps conveyed the urgency of the Treaty process. Yet some of its advocates are prepared to take a long time. To persuade Australians that ‘Indigenous sovereignty’ can be given a practical form that is not threatening to Australian sovereignty will not happen overnight, they argue. For them a treaty that would be adequate to its basic concept – Indigenous sovereignty – is not to be rushed. Phelps’ paper thus raised a problem of political strategy: short term or long term? Behind this dilemma lies the conceptual problem that I raised earlier: can the treaty be the expression both of Indigenous Australians’ entitlements as citizens (to essential services such as water, housing, schools and health care), and of Indigenous Australians’ unique entitlements as First Peoples, their sovereignty never validly extinguished?

In the last three years, it has been tempting for ATSIC and its allies in the field of social policy to speak as if the treaty could and should be given a ‘social policy’ content and rationale. There is a precedent for this mistake in the advocacy of ‘land rights’ in the 1960s and 1970s. It was the hope and the claim of some proponents of land rights that granting Indigenous land title was the key to advances in economic prosperity and in health. We now know that this argument claims far too much for land and sea rights. Their social utility is various, depending on circumstances, and in many parts of Australia entitlement to land has not proved to be the answer to poverty. Now we are tempted by the rhetoric that the Treaty is the key – the essential basis for Indigenous advancement in health, education and prosperity, the closure of all the ‘unfinished business’. We are seduced by a kind of ‘holistic’ thinking in which the resolution of an issue of principle is the ‘key’ to the solution of many practical problems of living. We should be sceptical of such holism.

The Canberra conference nurtured my scepticism. In the assembly of Michael Horsburgh (National Council of Churches), Megan Mitchell (ACOSS), Deryck Schreuder (Australian Vice Chancellor’s Committee), Lester Irabinna Rigney (Flinders University) and Lynne Rolley (Independent Education Union of Australia) under the theme ‘social impacts of a treaty’ I could find no intellectual framework that linked their myriad policy concerns to the terms, timetable or rationale of a Treaty. Here I saw the point of the treaty sceptics. They see a series of relatively discrete policy problems and failures of public provision, each of which requires its own intellectual and political effort. The ‘sceptics’, as I understand them, are not dismissing the assertion of Indigenous sovereignty; they simply do not see (as I do not see) how recognition of Indigenous sovereignty through a Treaty process should be seen as a necessary (or even helpful) step in the development of better (and better funded) policies on education, health, housing, and so on.

Practicalities and principles are much more coherently combined when Treaty advocates set their sights on constitutional reform. George Williams (a Professor of Law at the University of New South Wales) reminded us in Canberra that the Constitution is defective in that it gives the Commonwealth powers in relation to Aborigines that the Howard government has recently chosen to exercise against their interests – in legislation on heritage protection (the Hindmarsh Island issue) and in hostile amendments to the Native Title Act in 1998. The immediate utility of a Treaty could be, at minimum, defensive. It could inscribe within the Constitution certain ‘rights’ – whether they be specifically Indigenous or citizenship rights – and thus give a basis for litigation against obnoxious governmental actions. Larissa Behrendt made this point in Arena Magazine 45: ‘What the experience in the Kruger case and the overriding of the Racial Discrimination Act 1975 provisions in the Native Title Amendment Act 1999 show is that legislative whims to infringe Indigenous rights need to be tempered. The best way to do this is with a specific constitutional protection like the one provided in the Canadian Constitution Act 1985.’

Native Title – a Treaty stimulus?

Among the many impulses to revive the idea of a Treaty is disillusion with ‘native title’. On the one hand, the Mabo judgment seemed to promise a new spirit of recognition. Indeed, on one plausible reading of the judgment, it implied unextinguished Indigenous sovereignty and thus a jurisprudential basis for Treaty talks. On the other hand, the legislative ‘native title’ regime has produced mixed results. The denial of the Yorta Yorta claim by Justice Olney weighed heavy on our minds at the Melbourne conference, particularly when we listened to Monica Morgan (Yorta Yorta Nation Aboriginal Corporation) and to Wayne Atkinson (political scientist, University Of Melbourne and a Yorta Yorta man). Many people are also disappointed at the slow nature of legal proceedings and negotiations, and at the privileging of ‘suits’ over ‘ordinary people’ in native title processes. It was easy to get a laugh at these conferences by lampooning a lawyer, a bureaucrat or a politician. Churches were the main co-sponsors of the Melbourne conference, and people whose involvement in Indigenous affairs is mediated largely through their membership of a congregation were numerous. Among such people of good will and high principle tolerance of political and legal process is low. At times, when the anti-political rhetoric was in full flood beneath the chandeliers and plush curtains of Melbourne’s Carlton Crest, I closed my eyes and imagined I was at a One Nation meeting.

Fred Chaney (Deputy President of the National Native title Tribunal and Co-Chair of Reconciliation Australia) and Graham Neate (President of the Native Title Tribunal) confronted this populist ennui. Both argued that the Native Title Act has stimulated a ‘culture of negotiation’. In many regions of Australia, the assertion of native title is being taken seriously by other parties; in very many cases they are negotiating land-sharing arrangements with putative native title holders. Neate explained why such negotiations take time. They are multipartisan (Telstra was always involved, he noted); the parties were previously strangers to one another with little or no common knowledge or background. Yes, native title mediation was slow, Neate conceded, but from that carefully deliberated process would flow outcomes that were secure. He warned that ‘speed’ was not necessarily a virtue. Chaney has been tireless in promoting the emergence in Australia of a ‘culture of negotiation’; so seriously are native title assertions taken, he has sometimes argued, that the myriad negotiations amount to an untheorised concession of many local sovereignties, a de facto and regionalised Treaty process. With 30 determinations of native title and nearly 600 native title applications still to be dealt with, we are at the beginning of a transformative process. Australians are pragmatists, Chaney explained in Perth, innovative in practice but slow to theorise what they are achieving. His phrase ‘culture of negotiation’ is his attempt to give a name to a new social reality. Chaney and Neate are both talking up native title and attempting to lower people’s expectations of it.

In one of the more important research projects current in Indigenous Studies, Marcia Langton and her colleagues at Melbourne University are attempting to document the culture of negotiation, to identify its achievements and processes. She calls it an ‘audit of agreement-making’, and her concerns range far beyond native title. As she explained in Arena 50 (p.34),

Since the first agreements signed under the provisions of the Aboriginal Land Rights Act in the Northern Territory more than twenty years ago, there has been an astonishing proliferation of agreements between Australian Indigenous people and resource extraction companies, railway, pipeline and other major infrastructure proponents, local governments, state governments, farming and grazing representative bodies, universities, and many other institutions and agencies.

Not all share the optimism of Chaney and Neate that ‘native title’ can contribute to the culture of negotiation. One Western Australian ‘consent determination’ – Nganawongka Wadjari and Ngarla – is becoming infamous for having resulted in fewer rights than the native title holders enjoyed before they began to negotiate. (Yet as lawyer David Ritter pointed out in Perth, this outcome is being touted in some non-Indigenous circles as exemplary of the maturity of Indigenous negotiators.) At the Perth conference Aboriginal and Torres Strait Islander Social Justice Commissioner Bill Jonas argued that negotiations under the Native Title Act should not be hailed as a de facto Treaty process because the native title regime is not a respectful relationship between equals. The Commonwealth and State laws and negotiating stances were framed in a spirit of restricting Indigenous rights, he argued, and the Commonwealth had never funded adequately the Native Title Representative Bodies.

An organic process?

Whether we judge native title to be a disappointment or to be good work slowly performed, it is possible to consider the Treaty process as having already begun in the molecular processes of ‘self-determination’. That is, every time an organised Indigenous interest makes an agreement (about land use or about service delivery) with a non-Indigenous interest (whether government or private), something small but important is added to a growing edifice of Indigenous self-determination. Self-determination is arguably analogous to the growth of a coral reef. This is so even if the Howard government in 1998 disavowed ‘self-determination’ as a policy rubric, because the governmental practices of devolution (of service delivery) and recognition (of land ownership) have become a normal and growing feature of Australian life since the 1970s. The process can be slowed and its vicissitudes can be discouraging in the short term, but there is an impressive continuity in public sector practice since the 1970s. An Indigenous institutional order (I call it the Indigenous Sector) and an Indigenous land base are growing year by year.

Converging with this process of incremental recognition and devolution is the emerging flexibility in Treaty proponents’ use of the term ‘sovereignty’. That is, ‘sovereignty’ is being imagined in such a way that Australian practices are incrementally realising it. At the Melbourne conference, University of Melbourne law teacher Maureen Tehan asked that we not prejudge the meaning of that word. ‘Sovereignty’ refers to negotiated domains of legitimate power. We face the task of defining Indigenous sovereignty, she argued, and of building upon what is already taking place – agreement making in many contexts. Constitutional entrenchment would eventually be essential to secure certain standards and principles of agreements. Mick Dodson has also been pointing to a decentred process of agreement-making. A single national treaty is not possible, he argued at the Canberra conference. Rather we should aim for regional agreements varying within a national template whose features might include: non-discrimination, access to education and employment, heritage issues and the many recommendations – from years of official inquiries – that have not yet been implemented. He appealed to us to rediscover the policy wisdoms in these many reports, particularly those that could be subject to local agreement and implementation.

The import of this way of seeing ‘sovereignty’ is to bring closer together the two principles that I was at pains to distinguish in my introduction: citizenship rights and Indigenous rights. That is, if Indigenous Australians advance their access to basic services through service agreements (and even shared public revenue agreements) between their organisations and all three levels of government, then the resulting edifice (the coral reef, or ‘Indigenous Sector’) begins to approximate to a decentred Indigenous polity. The point of asserting Indigenous rights could then be as much retrospective as prospective. That is, the content of ‘Indigenous rights’ would be the securing of these evolved ways of actualising Indigenous Australians’ citizenship rights. I acknowledge that this notion of Indigenous rights is radically different, in principle, from the idea that ‘Indigenous rights’ give expression to evolved Indigenous custom. In that view, the original sources of ‘Indigenous rights’ (and this would be the point of naming them as distinct rights) are to be found in the pre-colonial Indigenous way of life. However, the difference in principle between these two ways of thinking about Indigenous rights need not obscure their practical convergence in the recognition of evolved Indigenous ways of doing political business.

Sovereignty – a hot potato

For Malcolm Fraser, speaking at the Canberra conference, the notions of ‘sovereignty’ and ‘treaty’ had to be softened. Attuned to conservative opinion, Fraser warned of the extreme sensitivity of the Australian electorate to any suggestion that Indigenous Australians considered themselves a people apart from the Australian people. ‘Agreement’ was a better word that ‘Treaty’, he suggested, because ‘Treaty’ had a ‘two nations’ connotation that Australians generally would not accept. This is exactly what he and Fred Chaney argued in the early 1980s, when persuading the National Aboriginal Conference (NAC) to drop ‘treaty’ and say ‘makarrata’. The opinion of such conservatives meets much respect among advocates of the Treaty. At the Canberra conference, Jackie Huggins (Chaney’s co-chair at Reconciliation Australia) paid Fraser the compliment of wishing that he was still Australia’s Prime Minister! (Et tu Jackie? I can hear Gough plead.) The question that such conservative counsel raises is whether Australia’s emerging ‘culture of negotiation’ – a political system abounding in local and regional agreements such as Langton is documenting – could ever tolerate a nation-wide ‘framework agreement’ that might be called a Treaty and that would recognise Indigenous sovereignty. Would that be the gradual end-product of the piecemeal progress I sketched above – or is there a qualitative gulf separating all those little agreements and the one big one at the end called the Treaty?

It has been good to listen to Bill Jonas and Michael Mansell with that question in mind. In Perth, Mansell argued that Indigenous Australians should assert what they think are their rights, and put the onus on others to say why that isn’t so. Indigenous Australians should assume their unextinguished sovereignty and then question the logic of those who deny it. Sovereignty must be on the table, for a political settlement that articulates a broad vision for Indigenous futures. I suggested at the Perth conference that ‘putting sovereignty on the table’ should include considering negotiating the valid extinguishment of Indigenous sovereignty (presumably in exchange for significant concessions, a point that I pick up from H.C.Coombs and the Aboriginal Treaty Committee of 1979-83). Mansell responded that no Indigenous leader would entertain sovereignty’s extinguishment. Yet, at the same conference he considered the possibility of Indigenous sovereignty being ‘suspended’; and in Canberra eight weeks later he said that a Treaty did not have to make any definitive comment on the issue of Indigenous sovereignty.

Bill Jonas argued in Canberra that Indigenous people, not governments, must define the practical meanings of their ‘sovereignty’. In presenting his suggested meaning, Jonas emphasised the complementarity of Australian with Indigenous sovereignty. Australia’s recognition of Indigenous sovereignty would not be an act of weakness but of strength, because Australia would henceforth be judged as honouring more conscientiously the doctrine of popular sovereignty.

In short, both Mansell and Jonas exemplify the Indigenous willingness to evoke ‘Treaty’ and ‘sovereignty’ in terms that connect the two concepts with the more progressive doctrines and tendencies of government extant in Australia.

The three practices of recognition

As a speaker at two of the three conferences covered by this essay, I became preoccupied with the historical and practical question of: how would we get there from here? The hardest part of that question is to describe ‘here’. I’ll conclude my impression of the Winter 2002 Treaty debate with some observations about the Australian approach to Indigenous self-determination. I draw on some ideas expressed in my recent book Indigenous futures: choice and development for Aboriginal and Islander Australia.

Insofar as Australian governments have pursued a policy of Indigenous self-determination, that policy has had three elements:

First, We have a series of legislations creating land title, each with its own version of Indigenous property rights.

Second, We have a tradition of encouraging the formation of publicly-funded Indigenous organisations. Some of these organisations are necessitated by the new land title regimes. Many others have been set up in order to place Indigenous Australians in charge of the delivery of essential services, and a few – notably ATSIC – have been created to give Indigenous Australians political representation within the government itself.

And third we have a regime for the definition and recognition of the Indigenous population. This demographic regime was created in the early 1970s, when the Australian Bureau of Census and Statistics decided to let individuals and household heads decide for themselves whether or not they were ‘Aboriginal’ or ‘Torres Strait Islander’. It is easy to overlook the significance of this third ‘recognition’, since it is easy (but false) to think of the ‘Indigenous population’ as a kind of ‘natural’ phenomenon whose existence is independent of any process of recognition. In fact, the phenomenon ‘the Indigenous population’ does not exist unless governments go to the trouble to enumerate it.

It is an important feature of the Australian path towards Indigenous self-determination that these three recognitions – land title, Indigenous Sector, and population – are not governed by the one policy philosophy. The three recognitions have grown largely independent of one another. They interact and they intersect, to be sure, but they do so in different ways in different parts of Australia, and the relationship between them is not the effect of anyone’s larger integrative design.

Here are some examples of the ‘loose fit’ between these three dimensions of Indigenous self-determination. On many portions of Indigenous land, the traditional owners find themselves having to forge relationships with Indigenous organisations in which they may or may not be involved, such as CDEPs, community councils, funded medical services. This is not necessarily a problem, but it is a significant feature of Indigenous political life that the presence of many Indigenous Sector institutions on Indigenous land need not have much to do with the customary authority of the traditional owners themselves. Many government agencies have an interest in servicing the local population through subsidised organisations, and the staff and the clientele of these organisations form a political constituency that possibly overlaps with the land-owning families but is not identical to those owning families. Much of the expertise that is embodied in the Indigenous Sector is devoted to managing these local relationships between co-existing clusters of resources and authority.

My second example concerns the relative autonomy of the Indigenous Sector and the Indigenous population. When ATSIC was designed, two important decisions were made that have not generated much debate. The architects declined to declare a separate Indigenous roll and they declined to make voting in ATSIC elections compulsory. One result of these decisions is that the ATSIC voter turn out is very low when compared with the compulsory votes in State and Federal elections. That is, the number of people voting is only a fraction of the number of people of voting age who answer the Census question that they are Indigenous. One way to interpret this low proportion of voters is to say that ATSIC does not command the interest or respect of most Indigenous adults. I offer another interpretation. The actions of government offer a number of different ways of being ‘Indigenous’. One of the easiest is to tick the box in the Census that declares you to be an Aboriginal or Torres Strait Islander person. It is possible to make that identity choice in the Census every five years and to have no other involvement with the Indigenous Sector nor with Indigenous land. I am not suggesting that this act of identity choice is superficial or insincere; it may well be deeply felt. However, there is no doubt that the Australian system for enumerating the Indigenous population is very permissive. To be counted as part of the Indigenous population in the Census, you don’t have to do anything but tick that box. So there is no necessary correspondence or connection between being a member of the Indigenous population and being involved in some way with the Indigenous Sector.

The Indigenous land base, the Indigenous Sector and the Indigenous population sit alongside each other as three distinct and relatively autonomous forms of recognition of Australia’s Indigenous people. That has been characteristic of the Australian way of moving towards Indigenous self-determination. That Indigenous ‘self’ is realised in acts of choice at both the individual and collective levels. In the recognition of the Indigenous population, individual choice plays an essential part. In the recognition of the Indigenous Sector and in the legal securing of communal Indigenous land tenure, Indigenous people acquire or enhance their capacities for collective decision-making.

One of the implications of a Treaty process would probably be to tighten up the relationship between the three dimensions of Indigenous recognition. For example, the security of Indigenous land tenure and the property rights associated with land tenure could both be brought up to standards acceptable to Indigenous Australians. This would have implications for the Indigenous Sector. Indigenous Sector institutions with land ownership and land management functions might become more important relative to Indigenous organisations whose concern is the delivery of services that are citizenship entitlements.

What would a Treaty do to Australia’s permissive demographic regime? That is, if a treaty process gives rise to substantial, well-defined and specifically Indigenous rights, will it be necessary to have a clearer and more rigorous way to specify who is an Indigenous person?

In Tasmania in 2002 we have seen a trial of this more rigorous definition of the entitled population. The specific Indigenous entitlement that is in question is the entitlement to stand as an ATSIC Regional Councillor. Hearing complaints that some candidates in the past have not been verifiably of Indigenous descent, ATSIC established a mechanism for the challenging and the proving of one’s Indigenous status. The process was in turn subject to the Administrative Appeals Tribunal, and a number of individuals found reason to be appellants. The existence of a specifically Indigenous entitlement since the 1989 ATSIC Act made it necessary to go beyond the permissive approach to identity that has characterised the Australian recognition of the Indigenous population since the 1970s. From press coverage of the Tasmanian scene it is clear that there have been two competing descriptions of this process of authentication. From one point of view, it is dividing the Indigenous community. From another point of view it is strengthening the Indigenous community by establishing its true boundaries. In a recent Four Corners program on the Tasmanian situation, a number of speakers suggested that this process of dividing/refining could and should be conducted in other regions of Australia.

The Tasmanian debate illustrates the tension between two developments within Indigenous self-determination. On the one hand, there is the move – associated with the Treaty process – to specify a distinct set of Indigenous rights. On the other hand, there is a permissive approach to the issue of who is an Indigenous person. Is there a way to avoid this tension, or is it an unavoidable feature of the process of recognising distinct Indigenous rights? Does our approach to defining the Indigenous population have to become less permissive?

I don’t think that it does. There is a way to minimise the tension, though not to avoid it altogether. Here I return to my earlier point that the ‘Indigenous self’ in ‘Indigenous self-determination’ can take more than one form. That ‘self’ can be an individual or it can be an organised collective, such as a Community Council. We face a choice of emphasis. If Indigenous ‘selves’ are to be recognised as having distinct entitlements by virtue of being Indigenous, then there is less need for a test of who is Indigenous if we put the emphasis on the entitlements of organisations rather than on the entitlements of individuals. I know that it would be possible to have an authenticity dispute about an organisation, just as you can have them about individuals. But I think that the tests of whether an organisation is ‘Indigenous’ can continue to be relaxed and permissive, for two reasons:

first, an Indigenous organisation is already, inevitably, a hybrid body. It is made up of Indigenous and non-Indigenous personnel. It mingles formal procedures with informal procedures (including informal procedures that we might label ‘Indigenous’).

second, any Indigenous organisation is open to another test – the test of its effective relevance to the constituency that it claims to serve. Indigenous individuals are not compelled to use the services of Indigenous organisations. In many urban and rural regions, the Indigenous households and individuals have a choice between mainstream and Indigenous services. Indigenous choice will therefore declare the relevance or otherwise of the work of an Indigenous organisation. Indigenous organisations prove themselves to be Indigenous by their success in attracting an Indigenous client base. This is true even of statutory Indigenous organisations. For example, Northern Territory Land Councils are under pressure to satisfy their client base because that client base has the option of petitioning the Minister to allow them to form ‘break away’ Land Councils.

I want to suggest that a treaty process should take seriously the distinction between the Indigenous Sector and Indigenous population. The Indigenous Sector is more rigorously defined than the Indigenous population. The Indigenous population is defined by thousands of acts of identity choice. The Indigenous Sector is defined by its receipt of money from governments and by the continuing decisions by families and individuals to be clients of the organisations of the Indigenous Sector. This distinction helps me to think more precisely about what the Treaty process (and the culture of negotiation) is. We have a loose way of talking about the Treaty as if it were a new relationship between the sovereign Indigenous people of Australia and the Australian people. While those words are good enough at a rhetorical and symbolic level, they beg the important question of who would be the actual parties of a Treaty or of many small treaties/agreements. On one side the answer is clear – the Australian government, or particular agencies of government. On the other side the answer would have to be not the ‘Indigenous people’ but Indigenous organisations.

It is not yet clear whether there is an Indigenous organisation that could conduct mandated negotiations at a national level. ATSIC is intelligently unsure of its mandate. However, there are many local and regional and functionally-specific Indigenous organisations that could do so. If we think of the parties to the Treaty process as organisations, not as ‘peoples’ then we have already the means to make many local agreements about particular issues of government in which Indigenous Australians have an interest.

I thank Bruce Buchan and Tony Connolly for comments on a draft of this essay.

Tim Rowse works in the History Program at ANU’s Research School of Social Science. He is the author of Indigenous Futures: Choice and Development for Aboriginal and Islander Australia and Nugget Coombs: A Reforming Life, both published in 2002.

What had begun as a disturbed and shocked response to the rise of Hansonism has been replaced by the complacent concession that perhaps things had gone too far in the other direction and that the current xenophobic conservatism is a credible and sensible way forward for Australia. Hugh Mackay’s social research is identifying this change in mood of the general populace. Nothing reinforces this picture of the current orthodoxy more than the Prime Minister’s statements published on the front page of the Australian on 6 May under the banner ‘PM’s reconciliation hope’. There the Prime Minister noted his belief that ‘the widespread rejection of welfare, and a lesser emphasis on the rights approach by Indigenous activists such as Noel Pearson showed the debate was shifting towards the Coalition’s viewpoint’.

The clear agenda, articulated more carefully and precisely by the Minister for Aboriginal Affairs, Phillip Ruddock, is one of assimilation and integration. This, of course, is not a new ideology, but a throwback to the paternalistic days when Welfare Boards and Aboriginal Protection Boards dictated the lives of Indigenous people and their children. It is an ideology that has been used in the past, did not work then, and has not only been rejected by Indigenous people, but has left a lasting legacy of disadvantage, trauma and family breakdown that is still plaguing Indigenous communities and families today.

The cynicism of practical reconciliation

While the rhetoric of ‘practical reconciliation’ states that it will see policy target the problems in Indigenous communities, the budget figures show that there is little money spent on the issues that are affecting Indigenous communities and a lot of money being spent on stopping Aboriginal and Torres Strait Islander rights from being recognised. If there ever needed to be more evidence of what a farce the federal government policy of ‘practical reconciliation’ is, the 2001-2002 Portfolio Budget Statements provide plenty of fodder. What Howard didn’t detail is that part of this $2.3 billion went towards defending the Stolen Generations case brought by Peter Gunner and Lorna Cubillo in the Northern Territory, and went into the various areas of the government arm that were actively trying to defeat native title claims. That is, although it was ascribed to ‘practical reconciliation’, this money has been spent preventing the recognition and protection of Indigenous rights.

The federal government claims to have spent $2.3 billion on Indigenous issues in the last financial year. ATSIC received only $1.1 billion of that. The other $1.2 billion, spent through various government departments, is not monitored closely enough to ensure that money allocated for Aboriginal and Torres Strait Islander issues through government departments is being used effectively, efficiently, and for the benefit of our people. In 1996, ATSIC funding was drastically cut and, as a result, family violence programs had to be terminated. The 2001-2002 Portfolio Budget Statements show, however, that the federal government has only spent $2 million on Indigenous family violence. This should be compared to the $16.3 million dollars allocated to the Attorney-General’s Department and to the States for litigation against native title claimants. The money spent on a key issue like family violence can also be compared to the $450,000 dollars that was spent on Indigenous cultural, education and recruitment programs by the Department of Defence and the $4.362 million provided by the Health Department to supplement the costs of the army involvement in infrastructure projects in remote communities.

We need to be diligent about how federal dollars for ‘Indigenous Specific Programs’ is being spent. There is no sign that these budget allocations will be placed in programs that will be of benefit to Indigenous people and communities. For example, last year’s federal budget included as ‘Indigenous-specific’ $2.2 million to the Agriculture, Fisheries and Forestry portfolio for pest and diseases monitoring and surveillance in North Queensland under the North Australian quarantine strategy. The cynicism displayed by the government towards ‘practical reconciliation’ can be best evidenced by the use of the issue of family violence as it affects Indigenous families as the cornerstone of the practical reconciliation agenda. The federal government had underspent $4.6 million of its allocation for domestic violence projects stating that it could not find appropriate programs to fund. At the same time, ATSIC allocated $4.3 million to specific family violence intervention and said during Senate estimates that they could have easily spent the money unspent by the Office of Status of Women.

More of the same

The federal government recently reiterated a greater emphasis on mainstreaming and assimilation when the Minister for Indigenous Affairs, Philip Ruddock, addressed the ATSIC Policy Conference on 26 March 2002. There he set out the five points guiding the government agenda: a shift towards individuals and families and away from Indigenous organisations; an emphasis on jobs and education; partnerships between Indigenous people and the government, which would underline the responsibilities of Indigenous people; an emphasis on substance abuse; and recognition that general programs need to cater to Indigenous needs so that Indigenous services wouldn’t be used when mainstream services could be providing them.

Although Ruddock’s talk was titled ‘Changing Direction’, the policy statement did not indicate how mainstream services were suddenly going to start performing in a way that would begin to meet the socio-economic needs of Indigenous people. It did not indicate how this move to rely more heavily on mainstream services was going to remedy their continuing failure to recognise and cater for the unique socio-economic and cultural issues of Aboriginal and Torres Strait Islander communities. The need for specific services for Aboriginal and Torres Strait Islander people has occurred because of the inability of mainstream services to provide for the specific needs of Indigenous people. This is particularly so in the areas of health, housing, employment and justice. There is nothing in the plan put forward by Philip Ruddock to indicate that those mainstream services will now be able to cater to the specific needs of Indigenous people that they have historically been incapable of addressing.

Misunderstanding the role of ATSIC

These gaps in service delivery are most times expected to be met by the Aboriginal and Torres Strait Islanders Commission (ATSIC). However, there is some confusion about ATSIC’s roles and functions and it is often assumed that it can fix any problem. What is often not appreciated is that, although it has primary responsibility for infrastructure and CDEP, it has only supplementary responsibility for other areas — housing, legal services, domestic violence. It has no fiscal responsibility for the areas of health and education. In addition, last financial year, although its expenditure was $1.2 billion, $857 million was quarantined, leaving only $343 million in discretionary funds to fill in the gaps in federal government policy and service delivery. This has to include $155 million for operational costs and $16 million in federal government taxes. So effectively there was only $172 million in its discretionary fund. It should be noted that when $400 million was cut from the ATSIC budget by the federal government in 1996, most of the programs cut were infrastructure programs. These were the programs that were largely focused on capacity building in communities and for individuals.

ATSIC’s ability to fulfil its role as a supplementary funder is restricted by its fiscal constraints and institutional limitations. The Commonwealth Grants Commission reported in 2001 that the failure of mainstream programs to effectively address the needs of Indigenous people meant that Indigenous specific programs were expected to do more than they were designed for. A report this year from the Australian National Audit Office noted that this places pressure on ATSIC funding where mainstream programs do not cope with the demands, and as a result ATSIC programs often substitute rather than supplement funding from other agencies.

ATSIC is a unique experiment in public administration. It has an elected arm that has accountability to its Indigenous constituency and then it has a bureaucracy that is, under the principle of the separation of powers, supposed to be neutral. The bureaucracy has to report to the Minister for Aboriginal and Torres Strait Islander Affairs and to the Board. Navigating the distance between the political agenda of the Board and the political agenda of the government is an on-going challenge. The scrutiny and accountability ATSIC receives is in stark contrast to the other government departments administering parts of the ‘Indigenous specific programs’. They have no review mechanisms for effectiveness or for accountability to the Indigenous community.

Given the institutional tensions within ATSIC as a policy making organisation, its pending review is something that must be closely monitored. It is right to review ATSIC at this point in time. It has been there for twelve years, and has gone from an appointed to an elected Chair. It is also timely given the tendency to increasingly devolve responsibility for Indigenous issues to the States. It is a very different institution now than it was under the leadership of Lowitja O’Donahue. The potential for reimagining the structure and role of ATSIC at this moment could be great. As then Acting CEO Geoff Scott stated in a memo to ATSIC staff in May, 2002: ‘The review would not be seen as a threat but an opportunity to objectively and constructively examine the role and responsibilities of ATSIC’.

An ATSIC review should also come as no surprise. It has been part of the federal government’s agenda for a while and was certainly part of their election platform. The review will consider the adequateness of advocacy and representation of Indigenous people (particularly Indigenous women), service delivery and the role of reviewing the effectiveness of legislation. There are problems with the structure of the organisation that Ruddock has identified. He has also said that the review will not be prescriptive and will be done in consultation with the Board of Commissioners. If the government undertakes an independent, constructive and honest review of the operations and effectiveness of its functions, it will be of benefit. If the agenda of the review is tainted by the continuing cynicism of the federal government about Indigenous matters, it will be a wasted opportunity and will perpetuate the problems of developing and implementing effective policy.

On the ground

The Howard Government’s policies have done nothing to alter the socio-economic disparities between Indigenous and non-Indigenous Australians. This embrace of an assimilation policy as the new cornerstone in Howard’s Indigenous policy is a dangerous direction and it is disturbing that there has not been more vocal opposition to this reversion to policies that were rejected more than thirty years ago as being fundamentally flawed. It highlights the fact that the federal government has no vision on Indigenous issues and can only repeat antiquated and out-dated policies.

Things are happening in Indigenous communities, and it is not because of federal government policies. The most exciting and transforming activities within the Indigenous community are not propelled by government policy but have been facilitated by Indigenous people themselves. For example, Indigenous women have been seeking solutions to endemic levels of violence in Indigenous communities. They are the ones who set up the community-based initiatives and institutions, the dry-out shelters, the medical centres and the community buses when government policy fails. They make things happen when the federal government can only find $2 million dollars a year to allocate to family violence in Indigenous families.

The breeding of scapegoats on an agribusiness scale does not occur without conditions being favourable of course. The Howard Government launches these initiatives — the commission into the causes of the existence of trade unions within the building industry is another — confident that they will succeed, not only because contemporary society produces rage and frustration in the same proportions as coal mines produce slag, but because changes in social and economic class have made it easier for those with little or no social power to be demonised.

Changes in both social class and people’s understanding of social class make it easier to hive off sections of what was once a more generalised working class and set them against each other. The government’s integrated strategy for doing this was revealed in the budget. Hundreds of millions of dollars are to be spent on ‘border protection’ — protection of empty coast from exhausted, desperate refugees — and the ‘Pacific Solution’, some of which will be counted as overseas development aid and located in the foreign aid budget. To fund this, benefits are cut and work tests imposed on the disabled, causing immense unnecessary suffering in the lives of the vast majority of genuine claimants. Simultaneously social infrastructure is run down, with funding to state education systems frozen at existing levels, while private school grants are set to double to a billion dollars over several years.

It is not a khaki budget, but a camouflage one: the nation is upheld as the carrier of communal meaning; within its borders all forms of collective welfare or interest is relentlessly individualised. The money going to the new private schools — overwhelmingly outer suburban start-ups — is designed to give added assistance to the ‘aspirationals’ in attaining scarce professional training for their children; the further depreciation of state school systems is designed to limit the competition such children will face from the publicly-educated. The strategy is political-social engineering on a grand scale, the creation of politically loyal sub-classes. It opens a gap between social classes into which any number of human sacrifices can be tossed — black people, brown people, sick people, poor people. It is a decisive repudiation of Paul Keating’s statement of the duty owed to the powerless in a society in which inequality has proved to be intractable — ‘we will take them with us’. The Keating Government may well have honoured that more in the breach than the observance; the Coalition’s plan is to leave them for the dingoes.

Yet how would it be possible to restate social democratic and just policies in a context in which increasing division within social classes is a reality brought about by a globalising economy?

The rip-it-up, get-down dream response to a revival of the notion of ‘dole bludgers’ would be to note that any society with permanent unemployment benefits from those willing to live contentedly on the pittance that the dole provides. Such people reduce the pressure on the overworked bureaucracy, and businesses swamped by job applicants. Maybe they should be honoured with a medal or award (the Furphys, perhaps) at ceremonies across the nation.

Such a strategy may not be politically practicable. But using such a return of scapegoating for a restatement of mutual obligation — to each other, not to Centrelink — may be not only possible but opportune.

However it will need to be a statement that acknowledges the degree to which social life has been individualised by global shifts over the last two decades. To acknowledge such is different to pandering to it — it puts the onus on the politically active to enter a dialogue with such shifts in an attempt to clarify a different social vision. It is because people’s lives have become more individualised and set against each other, that universal mutual obligation becomes not impossible but imperative. State funded social infrastructure is an expression of this; but if it becomes the sole expression of such then it is open to charges of being dead and bureaucratic. It is true that social problems such as welfare dependency can occur, and that this is of especial concern for indigenous groups who have a complex relationship to the global market.

But welfare dependence and other reductions of political contexts to behavioural and psychological categories can also be fetishised, and are currently being so. To consent to social debate being framed in such punitive terms is to consent to dominant myths which do little more than provide reactionaries with political capital — that social policy must be based on scarcity and an implicit model of charity.

Yet it is clear that the capital for social reconstruction is not scarce — it is simply locked up in markets out of reach. Moving the debate away from the language of punishment, scarcity, illegality and bludgerdom involves expanding the horizons of what can be talked about. The Right — in government, business and media — has imposed a form of ‘economic correctness’ in which certain questions cannot be asked — the most obvious being this: if the economy is as prosperous as it is alleged to be, why is government policy pushing us towards ever deeper degrees of private affluence and public squalor?

Asking that question leads on to related questions — why is work so poorly distributed that people are either overworked, or deprived of any at all? Why are child care and maternity or paternity leave so grossly inadequate? Why are people not getting the social dividends to which they are entitled?

Turning the debate around in this way would overcome much of the effort that the Right puts into social division — because it would be speaking the language of universal entitlement, rather than welfare targeted to particular ‘disadvantaged’, ‘marginalised’ ‘losers’. (Choose one, go to question two, provide medical certificates and list eight jobs you have applied for. Paraplegics and amputees may have this form filled out by a friend or family member.)

Making it happen would also assist in making space for the main important cultural and existential revolution that must occur outside the domain of politics as it is currently understood — one in which we develop communal and collective forms of life which enhance and complement selfhood and individuality, rather than being falsely set against them.

Guy Rundle is co-editor of Arena Magazine.