Election 2007: Indigenous policy – unfinished business

Megan Davis, University of New South Wales

Of all Western liberal democracies, Australia stands out as particularly intransigent on Indigenous peoples’ issues. Unlike Canada, New Zealand and the United States, Australia resists negotiating a final settlement with its first peoples and continues to challenge the internationally accepted idea of the inherent and fundamental rights of Aboriginal and Torres Strait Islander people. The situation of Aboriginal and Torres Strait Islander peoples in Australia remains the great ‘unfinished business’ of the Australian state.

Unfinished business is broadly about reconciliation, because to move forward as a nation we must reconcile. This must be done, as it has been in most democracies, in a new settlement. It must begin with the recognition in law of the inherent rights of Indigenous peoples. The form recognition takes, whether statutory or constitutional, must be determined in consultation with Indigenous peoples. Such recognition would remove Indigenous peoples from a highly politicised sphere that enables our issues to be manipulated as a ‘political football’. The important correlation between the recognition of Indigenous rights and the wellbeing of Indigenous communities has been strengthened by the United Nations General Assembly’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples.

To move forward
as a nation we must reconcile.

Why is addressing unfinished business so crucial in 2007? The perennially grave statistics of Indigenous disadvantage highlight the structural incapacity of Australia’s public institutions to provide Aboriginal and Torres Strait Islanders with an uncontested space within the frame of the Australian nation. The single most important step toward reconciliation is to ask the question, what kind of institutional reform is needed to address indigenous disadvantage?

Given that Australia is a democracy, there must be renewed emphasis upon consultation with Indigenous peoples about the decisions that affect them. This is also known as the right to self-determination. Because Australia has never had treaties with Indigenous peoples nor had any form of legal recognition, self-determination is discussed in a very confused manner. Research evidence has established a correlation between the effective exercise of the right to self-determination with economic development and improved livelihoods for Indigenous peoples (Behrendt, Brennan, Strelein & Williams 2004). It is incorrect to say that self-determination has been ‘tried’ in Australia and it hasn’t worked. The right to self-determination for Indigenous peoples has never been truly expressed or exercised in Australian history.


Until 2005, the Aboriginal and Torres Strait Islander Commission (ATSIC), was the peak national Indigenous organisation established by a federal Labor government as an independent statutory authority in 1990. Its primary role was policy making and advocacy for Indigenous people. Its hybrid form—a mixture of administrative powers and representative function—hampered its ability to achieve effective outcomes for Aboriginal and Torres Strait Islanders. Worse, during its existence, ATSIC provided a convenient scapegoat for state and federal governments’ failures on Indigenous policy. ATSIC was abolished by the federal Coalition government in 2005 without any consultation with Aboriginal and Torres Strait Islander communities. Its abolition was supported by the Labor party who also failed to consult Aboriginal and Torres Strait Islanders. Most Indigenous leaders and activists are saying that a new national representative body is crucial for Indigenous Australians to have a true political voice in Australian democracy. This is essential for effective policy making in Australia because, as a utilitarian liberal democracy, it has a tendency to disregard the interests of small numbered groups, particularly financially weak, unpopular, racial groups. An extra parliamentary national representative body would temper this majoritarian tendency of political deliberation.

An extra-parliamentary national representative body is also crucial for the implementation of the right to self-determination. Rather than being viewed as a right granted exclusively to Indigenous peoples, the Australian polity must come to understand self-determination as much of the world does, as the ‘oldest democratic entitlement’ (Franck 1992, p. 52). Self-determination is the right of all peoples to determine their collective destiny within a democracy. A national representative body is perfectly consistent with the principle of democratic entitlement, and would enhance Australian democracy.


Race has been the defining feature in the relationship between the state and Indigenous peoples.

It is important that any new extra-parliamentary structure does not replicate the flaws of ATSIC, such as its hybrid administrative and representative function. Most importantly it should not replicate the under representation of women in office. While ATSIC Regional Councils fared marginally better, the national representative body struggled to elect women in the absence of a Minister’s appointment. ATSIC evaluation also highlighted that Aboriginal and Torres Strait Islander women felt removed from ATSIC policies and that it was dominated by men (ATSIC Audit and Evaluation Report 1995). In a representative democracy, representation is determined procedurally via a ballot box. There is a well established patriarchal tendency of this system, reflected in the low numbers of women in mainstream Australian state and federal parliaments. Arresting the tendency of procedural democracies to result in low representation by women is crucial for Aboriginal and Torres Strait Islander women, given the reports in the Northern Territory, Western Australia and New South Wales of a serious epidemic of child sexual assault in Aboriginal communities. I support calls from many Indigenous women for a mandated representative mechanism that guarantees equal representation of women (Hannaford, Huggins & Collins 2003). Any national representative body and any such mandated mechanism for Aboriginal and Torres Strait Islander women can only be designed with adequate consultation because ownership is crucial to successful public institutions.


Race has been the defining feature in the relationship between the state and Indigenous peoples. Indigenous Australians have played no role in state-building. The symbolism of inclusion is the unavoidable remedy to this isolation. Symbolism nurtures a sense of belonging. It is important for the nation to atone for past policies of the separation and removal of Indigenous children from the families. It is an obfuscation for the Prime Minister to repeatedly rule out an apology on the grounds that Australians today were not physically involved in the removal of children from their families. The Prime Minister is an office, not a man, and removal policies were policies of the state. An apology is about healing. These policies have manifested in intergenerational trauma that has had an impact upon the lives of all Indigenous Australians. The next government should respect the findings of the Bringing Them Home report (1997) and provide a formal apology. This momentous occasion must be supported by adequate funding to remedy the effect of the policy through counselling and healing.


Unless Australia is able to finalise a new settlement with Indigenous peoples, there is no impetus for the colonial project to end. You cannot finalise the colonial project without dealing with Aboriginal and Torres Strait Islander people. In the last Senate inquiry into a republic for Australia, only historian Mark McKenna seriously discussed Indigenous peoples. The only other mention in the entire Senate transcripts was an Australian Republican Movement suggestion that the title for an Australian president be an Indigenous word. It is the concern of some republicans that raising Indigenous issues in relation to a republic risks derailing any proposal because of an apparent Australian preponderance for racism (McKenna 2004). Yet reconciliation and a new settlement is inextricably linked to a republic. If those difficult conversations can’t be had prior to a republic, they will not be held after Australia becomes a republic.

The preamble to the Constitution has no legal effect.


The Constitution is Australia’s founding document. The Constitution has provided Indigenous Australia with no formal recognition or rights protection. This is not surprising, given the intention of the document was not to provide human rights. The federation period in which the Constitution was drafted was dominated by ideologies of racial superiority and the text reflects that history. The 1967 referendum was a watershed constitutional moment because it enabled Aboriginal people to be counted in the national census and gave the federal government powers to make laws in respect to Indigenous peoples.

Yet there remains an unresolved question in the Constitution, of whether ‘the races power’, s 51(26) in fact permits racially discriminatory laws. It has been argued by the Coalition Federal Government that such a power can be used to the detriment of Aboriginal and Torres Strait Islander peoples as well as for the benefit. For this reason many Indigenous peoples advocate the amendment or deletion of s 51(26) and, more importantly, argue for the inclusion of a non-discrimination provision that would reflect Australia’s commitment to non-discrimination as a democratic value. Other constitutional changes that the Council for Aboriginal Reconciliation has supported include the removal of section 25 of the Constitution, which is an exhausted provision relating to the calculation of House of Representative seats, but which remains in the text. It is incomprehensible for a vibrant, multi-cultural democracy to maintain references to race, a discredited construct, in its Constitution.

There have also been calls for an acknowledgement of the history and unique culture of Aboriginal and Torres Strait Islanders in the preamble to the Constitution. The preamble has no legal effect and this is why such a minimalist symbolic gesture must be accompanied by a substantive amendment to the operative text such as the addition of a new provision that prohibits the discrimination against any people on the basis of race or the removal of the races power. An amendment to the preamble alone does not involve the state giving up anything and that is what a new settlement negotiated in good faith requires. An amended preamble alone is nothing more than a constitutional bridge walk.


Indigenous peoples’ contribution to establishing infant industries in colonies whose domestic economies now dominate the global economy remains largely unexamined and unacknowledged. Indigenous peoples’ contributions include the wealth manifest in their dispossessed lands, territories and natural resources; unpaid labour in the sugar, diary and cattle industries; and the theft and exploitation of Indigenous culture and knowledge. In Australia, Indigenous peoples are rarely recognised for their achievements in establishing such industries such as cattle, dairy and sugar. Prime Minister Paul Keating did recognise this contribution to Australia in his now famous Redfern speech, ‘Where Aboriginal Australians have been included in the life of Australia they have made remarkable contributions. Economic contributions, particularly in the pastoral and agricultural industry’ (Keating 1992).

Intergenerational poverty caused by dispossession was exacerbated by state policies such as the removal of children from their families; the regulation and controlling of Aboriginal people, including restrictions on freedom of movement and labour; the misappropriation of wages and entitlements; and the exclusion of Indigenous peoples from laws regulating wills and inheritance (Kidd 2000). Many Indigenous peoples who lived under the Protection Acts had their wages and entitlements siphoned into government run trust accounts administered by the Protector of Aborigines (or the Aborigines Protection Board as in the case of NSW).

Few policies and laws are effective if Aboriginal people are not consulted from
the outset.

To access their money, earned through employment, Indigenous peoples were required to write letters to request use of their own monies for restricted items such as blankets, radios or interstate travel for events such as funerals or cultural ceremonies. The money rationed and the record keeping was inadequate, and the wages of Aboriginal Australians have never been repaid in full to those administered under the Act. In Queensland much of the money was used to resuscitate an ailing Queensland economy, to build roads, schools and hospitals. In both Queensland and New South Wales, schemes have been established to attempt to address the injustice but the compensation on offer does not reflect the income and entitlements lost.

It is timely for the next federal government to comprehensively address the issue of Stolen Wages in Australia. The sacrifices that Indigenous people involuntarily made under oppressive state policies have bolstered the Australian economy and challenge the neo-liberal perception of Indigenous peoples as merely unproductive recipients of welfare.


The suite of policies I propose here, which are aimed at addressing unfinished business with Indigenous peoples in a consultative and comprehensive manner, is more likely be effective than options offered by the major parties. Certainly, none of the raft of measures proposed by Indigenous peoples over the years have ever been taken up by a federal government—that’s why it’s still called ‘unfinished business’. Moreover the Northern Territory Intervention, the abolition of ATSIC, and the winding back of native title and land rights in the Northern Territory have been done without adequate consultation with Indigenous peoples.

The symbolic aspects of the proposals I have presented here have been derided, during the entire Howard era, as ‘bleeding heart’ or ineffective. The rights agenda has been criticised as contributing to Indigenous disadvantage—yet very few substantive rights to date have been realised. The current commonwealth Indigenous policy eschews ‘symbolism’ and rejects consultation with Indigenous peoples as the underlying principle of engagement. For this reason, the Federal Government’s response to the Ampe Akelyernemane Meke Mekarle “Little Children are Sacred” report will be difficult to implement (Wild & Anderson 2007). Evidence-based research shows that Indigenous peoples must be included in formulating solutions to the complex problems in their communities. Best practice reveals that very few policies and laws are effective if Aboriginal people are not consulted from the outset. Consultation fosters a sense of ownership and that feeling of ownership has been incontrovertible in the success of economic development of indigenous communities globally. Consultation manifests in a sense of control over one’s own destiny and life. Evidence demonstrates that all the good intentions in the world are irrelevant if the people affected are not consulted.

Howard has cherry picked the raft of measures that constitute unfinished business.

The future of the rights of Indigenous Australians depends ultimately upon whether we treat our existing institutions as conclusions or static or as evolving. To imagine our nation as something different than it is requires leadership because without leadership there can be no community consensus. Leadership would show that these aspirations do not threaten the Australian state but can only enhance our democracy and our sense of national identity. This is the key to the success of addressing unfinished business. Political leadership is essential to effect structural change and it always has been essential in the context of race. ANZAC, Kokoda, Gallipoli, the wattle on the lapel, the settler, the farmer, Don Bradman, war—these images have defined our nation and they are a mixture of both history and mythology. As a nation, Australians do not fail to understand the importance of symbolism in creating a sense of nationhood. Therefore it is intriguing to consider the argument symbolism in Indigenous policy should be eschewed because it cannot have any practical effect upon Indigenous lives. The government’s Northern Territory plan is irrefutable evidence that practical reconciliation has failed in Australia and confirms that the manufactured tension between the practical and the symbolic is a false one. Prime Minister Howard admitted this by belatedly announcing a proposal to amend the preamble to the Constitution four days prior to the announcement of the election campaign. Yet Howard has cherry picked the raft of measures that constitute unfinished business and has selected the one proposal that gives the least ground, has no legal effect, and will have no impact on the lives of Indigenous peoples. It would be a strange commitment to reconciliation and to democracy for the Australian people to support an amended preamble to an operative text of a Constitution that can be used to discriminate against a group on the basis of race.

Indigenous peoples’ support for and emphasis on the ‘rights agenda’ has been shaped by history. The political and constitutional history of Australia is indelibly connected to the contemporary problems of Indigenous Australia: insecurity of rights and policy experiments. It is only when we negotiate unfinished business together, with nothing ruled out and ready to compromise, that we can move forward together as a nation.


Anderson, P. & Wild, R. 2007, Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’, Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse [Online], Available: http://www.nt.gov.au/dcm/inquirysaac/ [2007, Oct 31].

Behrendt, L., Brennan, S., Strelein, L. & Williams, G. 2004, Treaty, Federation Press, Sydney.

Franck, T. 1992, ‘The Emerging Right to Democratic Governance’, American Journal of International Law, vol. 86, no. 1, pp. 46–91.

Hannaford, J., Huggins, J. & Collins, B. 2003, In the Hands of the Regions—A New ATSIC, Report of the Review of the Aboriginal and Torres Strait Islander Commission [Online], Available: http://www.atsia.gov.au/Media/Reports/PDF/atsic_review_report.pdf [2007, Oct 31].

Human Rights Equal Opportunity Commission 1997, ‘Bringing Them Home’ Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Human Rights and Equal Opportunity Commission, Sydney [Online], Available: http://www.humanrights.gov.au/social_justice/bth_report/report/index.html [2007, Oct 31].

Keating, P. 1993, ‘Redfern Park Speech, 10 December 1992’, Aboriginal Law Bulletin, vol. 3, no. 61.

Kidd, R. 2000, The Way We Civilise: Aboriginal Affairs—The Untold Story, University of Queensland, Press St Lucia, Qld.

McKenna, M. 2004, This Country: A Reconciled Republic?, UNSW Press, Sydney.

Megan Davis is Director of the Indigenous Law Centre and Senior Lecturer in the Faculty of Law at the University of New South Wales.

View other articles for Election 2007:

View other articles by Megan Davis: