Aboriginal and Torres Strait Islander Peoples, Law Reform and the Return of the States
Dani Larkin, Harry Hobbs, Dylan Lino and Amy Maguire
11.05.2022
Editors’ note: This post is cross-posted on the Indigenous Constitutional Law Blog, a national platform hosted by the Indigenous Law Centre at UNSW Law & Justice for information and quality commentary from experts across Australia on the reforms contained in the Uluru Statement from the Heart: Voice, Treaty, Truth. We encourage you to visit that blog and consider subscribing for future posts.
In the wake of the historic 1967 referendum extending the Commonwealth Parliament’s legislative power in Indigenous affairs, Prime Minister Harold Holt made a prediction to his Cabinet that the electorate would undoubtedly look increasingly to the Commonwealth Government as the centre of policy and responsibility regarding Aboriginal and Torres Strait Islander affairs. That prediction proved true.
Prior to the referendum, the Commonwealth Government had occupied a relatively marginal place within Indigenous affairs, because of its ostensible lack of constitutional authority. After federation in 1901, the states continued – virtually unimpeded by Commonwealth intervention – in their pre-federation roles of governing Aboriginal and Torres Strait Islander peoples through laws and policies that variously entailed forms of domination, racism, paternalism, exclusion and neglect. With the states responsible for controlling so many aspects of their lives, Aboriginal and Torres Strait Islander people directed most of their activism, advocacy and ire towards state governments.
After many decades of oppressive and racially discriminatory governance by the colonies and their successor states, First Nations advocates and their non-Indigenous allies came to see the Commonwealth as the level of government more likely to be sympathetic to Indigenous demands. This was a view which drove the campaign for constitutional change culminating in the 1967 referendum. In the decades after the referendum, the Commonwealth would become the focal point for Indigenous affairs policy and Aboriginal and Torres Strait Islander advocacy. As a result, the Commonwealth Government came to play a leading role in many key legal and policy reforms in Indigenous affairs, including expanded funding for social services, protection against racial discrimination, recognition of Indigenous rights to land, protections for cultural heritage, the establishment of Indigenous representative bodies and the proliferation of Indigenous community organisations. But in a remarkable reversal of the historic constitutional and policy change inaugurated by the 1967 referendum, the centre of progressive momentum in Indigenous law reform has now shifted back to the states and territories.
The return of the states and territories and corresponding retreat of the Commonwealth in Indigenous affairs has been noticed in many policy areas. In 2020, Michael Dillon identified this trend in the revised 2020 Closing the Gap Agreement. As Dillon explained, the Closing the Gap refresh increased focus on ‘shared accountability’ and nominated targets ‘that overwhelmingly relate to state and territory responsibilities’. His conclusion is clear: ‘the federal government has stepped back from its post-1967 responsibilities’.
In a new paper for the University of Queensland Law Journal we trace the return of the states and territories in the field of public law. As Dillon, Megan Davis, and others have noted, the turn back to the states and territories can be traced to the election of the Coalition Government led by John Howard in 1996. That election marked the beginning of two key changes in Indigenous affairs. First, in dismantling institutions of Aboriginal and Torres Strait Islander self-determination, advancing an agenda of ‘practical reconciliation’ and seeking to devolve responsibilities to the subnational level, the Howard Government commenced the Commonwealth’s retreat from the promise of the 1967 referendum.
Second, obstruction, resistance and delay in the Commonwealth sphere has prompted a pragmatic decision by many Aboriginal and Torres Strait Islander peoples to seek change at the subnational level. Where that approach has borne fruit, it has done so in large part due to the receptiveness of sympathetic Labor governments, which have progressed reform intermittently, borrowing and adapting from each other. The most recent manifestation of this combination of Commonwealth recalcitrance and subnational openness has concerned the reforms proposed in the 2017 Uluru Statement from the Heart: Indigenous constitutional recognition through a First Nations Voice to Parliament followed by treaty-making and truth-telling processes.
In this short post, we draw on our paper to chart the retreat of the Commonwealth and the return of the states and territories in the centrepiece of the Uluru Statement from the Heart: the call for a First Nations Voice to advise Parliament and government on laws and policies that affect Aboriginal and Torres Strait Islander people. As our paper and this post demonstrate, while reform at the subnational level can offer some advantages, there are also major downsides to the turn back to the states and territories in Indigenous law reform. Our hope is that a fuller account of the subnational turn and its causes can help in the tasks of evaluating its consequences and thinking about pathways towards the return of the Commonwealth.
The rise and fall of Indigenous representative bodies at the Commonwealth level
The capacity of Aboriginal and Torres Strait Islander peoples to have their voices heard in the federal Parliament is limited. Although granted the right to vote in federal elections since 1962, the structure and operation of the Australian electoral system inhibits the capacity of a territorially dispersed, demographic minority to secure seats in the federal Parliament. The 1967 referendum may have empowered the Commonwealth with the legislative authority to enact laws with respect to Indigenous peoples, but it was not until the Whitlam Government (elected in 1972) formally recognised self-determination as Australian policy that the first significant attempt to promote Aboriginal voices in policy development was made. These efforts were important but limited.
In 1973, the Whitlam government established the National Aboriginal Consultative Committee (NACC). Composed of 41 delegates directly elected from an Indigenous-specific electoral roll who were paid an annual salary and allowance, the NACC was designed as ‘a forum for the expression of Aboriginal opinion’ as well as providing ‘a direct and effective channel of communication’ to the Minister for Aboriginal Affairs on policy and administration.
In 1977, the Fraser Government replaced the NACC with the National Aboriginal Conference (NAC). While the two bodies were similar in form, the government desired a different function. Ian Viner, the Minister for Indigenous Affairs, explained that the NAC was not an ‘Aboriginal parliament’; it was a
forum in which elected members will be free to debate and express, among other things, an Australia-wide Aboriginal view on long term goals which the Government should pursue, programs which it should adopt and priorities for expenditure.
As Scott Bennett notes, the NAC was designed ‘to enhance the government’s image’ rather than give ‘Aborigines a significant role in their own affairs’. The Hawke Government wound it up in 1985.
The NAC was eventually replaced by the Aboriginal and Torres Strait Islander Commission (ATSIC) in 1990. ATSIC sought to combine a government bureaucracy with elected regional representative structures. It was a unique experiment, combining political representation, service delivery, policy advice and a monitoring role over government activity. At its peak, ATSIC was responsible for approximately half of the Commonwealth expenditure on Indigenous-specific programs. Decision-making was devolved down not only to 35 Regional Councils, but also to the more than 1000 Aboriginal and Torres Strait Islander organisations given responsibility for the delivery of services such as child welfare support, housing, and health, legal and employment services.
The election of the Howard Government proved inauspicious for ATSIC. Howard’s longstanding philosophical objection to the Commission placed extreme pressure on the body. In the early 2000s, concerns over the integrity of some of its senior leaders damaged ATSIC’s credibility, and in 2004 the Commission was abolished with bipartisan support. In announcing the move, that the ‘the experiment in separate representation, elected representation, for Indigenous people has been a failure’. The Commission was replaced by the National Indigenous Council (NIC), a government-appointed 14-member body. The NIC did not last long, but no national Indigenous representative body with a direct connection to government or Parliament has been set up since. Even the Minister responsible for ATSIC’s abolition, Amanda Vanstone, has regrets, suggesting that ATSIC could have been reformed rather than eliminated.
The emergence of Indigenous representative bodies at the state and territory level
The abolition of ATSIC has had permanent consequences. Among other elements, it has informed an unfair and unwarranted reluctance among Commonwealth politicians towards establishing a new national Indigenous representative body. In 2008, for instance, Jenny Macklin, the Labor Minister for Indigenous Affairs, calmed nerves by explaining that the government had no intention of creating ‘another ATSIC’. In 2016, her LNP successor Nigel Scullion echoed these comments, declaring that ATSIC was gone for good. The Rudd and Gillard Labor Governments did support the establishment of the National Congress of Australia’s First Peoples, a national Indigenous representative body established in 2010 outside government as a not-for-profit corporation. But funding cuts that started under the Abbott Government resulted in the Congress closing in mid-2019.
The absence of an Indigenous representative body leaves First Nations peoples in the same position as they were in the 1960s—with an inability to have their voices heard and interests considered in the processes of government. In the face of Commonwealth reluctance, First Nations activism has turned to the states and territories. This strategy has had some success.
In 2008 the Aboriginal and Torres Strait Islander Elected Body (ATSIEB) was established in the Australian Capital Territory. ATSIEB provides a political voice and platform for Aboriginal and Torres Strait Islander peoples living in the Territory on government programs, services, and policies to ensure they are considerate and inclusive of Aboriginal and Torres Strait Islander people.
That same year, the South Australia Aboriginal Advisory Council (SAAC) was established in South Australia. SAAC provides the SA government with advice on existing and new programs and policies that affect Aboriginal people, emerging issues likely to affect Aboriginal people in SA, the development and implementation of future policies and services concerning Aboriginal people, and how the government should consult with Aboriginal communities. At the time of writing, the newly elected South Australian government has also announced its commitment to ‘restarting the treaty process and picking up the other tenants [sic] from the Uluru Statement from the Heart... voice and truth’.
Although SAAC is composed only of Indigenous peoples, its members are government-appointed representatives who are limited to providing advice to the SA government—they have no formal relationship with the federal government. This limitation is shared by all state- or territory-based Indigenous representative bodies.
More recently, in 2019 Victoria established the First Peoples’ Assembly of Victoria. Developing out of that state’s treaty process, the Assembly was established to represent Traditional Owners and other Aboriginal and Torres Strait Islander peoples as part of the process of deciding on a ‘Treaty Negotiation Framework’ with the Victorian Government. It operates as a not-for-profit corporation, rather than a body established directly by an executive act of the Victorian government or legislative act of the Victorian Parliament. The Assembly comprises 21 representatives elected by Aboriginal people from five different districts and 11 Traditional Owner representatives chosen by Traditional Owner groups recognised under existing Victorian and Commonwealth legislation. However, since the Assembly currently only has a mandate to decide on a Treaty Negotiation Framework, its remit is quite limited. Unlike the mandate envisioned for the First Nations Voice in the Uluru Statement, or the mandate exercised by ATSIEB and the SAAC, the Assembly’s mission does not currently extend to representing the views and interests of Aboriginal and Torres Strait Islander peoples regarding law and policy more generally. At the time of writing, the Assembly has commenced preliminary discussions with the Victorian government to broaden its mandate and establish a permanent Indigenous Voice to give Aboriginal Victorians influence over government decision-making. That proposal has not yet been formalised but is expected to come to a head in 2023 when the final stages of the Assembly’s treaty framework negotiations begin. Furthermore, other states contemplating and engaging in treaty talks may also set up state-wide Indigenous representative bodies.
No Indigenous representative body exists in Western Australia, but recent moves suggest one may be established soon. In June 2018, the Western Australian Government released a Discussion Paper exploring whether an office for advocacy and accountability in Aboriginal affairs is desirable. The Discussion Paper makes clear that any new body would be an independent and permanent statutory office for advocacy and accountability in Aboriginal affairs in the state. The Office would be responsible for determining how service delivery, accountability, and efficiency of state government programs for Aboriginal people and communities can be improved. If successfully established, it would also advocate for Aboriginal people and communities across the state. Such a development would align with the Victorian, South Australian and ACT initiatives, and with growing community support for a Western Australian Human Rights Act.
Where to now?
The emergence of subnational Indigenous representative bodies in several states and territories is positive. These institutions can enhance the ability of First Nations peoples to have their voices heard in law and policy that affects them. Nevertheless, their development paints a sharp contrast with the situation at the federal level. The continuing absence of a national Indigenous representative body challenges Aboriginal and Torres Strait Islander peoples’ ability to have their voices heard and interests considered in the processes of the national government. As recorded in the Uluru Statement from the Heart, the inability to speak and be heard represents the ‘torment of our powerlessness’.
First Nations peoples involved in and supportive of the authorship and advocacy of the Uluru Statement remain steadfast that constitutional entrenchment of the Voice is critical to ensure its success, longevity and effectiveness as a national Indigenous representative body that holds cultural legitimacy and links to local and regional level Indigenous Voices. This is particularly important given that several states and territories are at various stages of talking treaty with First Nations. While the sub-national initiatives are important in their own rights, the balance of powers between the levels of government and the capacity of the Commonwealth Parliament to make laws affecting all First Nations peoples across Australia means that it remains essential for the Commonwealth to lead in this context.
The federal government should meaningfully engage with the aspirations of Aboriginal and Torres Strait Islander peoples and listen to their calls for structural reform. It is only by doing so that Aboriginal and Torres Strait Islander peoples’ ‘ancient sovereignty can shine through as a fuller expression of Australia’s nationhood’.
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Dani Larkin is the Deputy Director of the Indigenous Law Centre, and a Lecturer at Nura Gili, UNSW.
Harry Hobbs is a Senior Lecturer at the Faculty of Law, University of Technology Sydney.
Dylan Lino is a Senior Lecturer at the TC Beirne School of Law, University of Queensland.
Amy Maguire is an Associate Professor at the Faculty of Business and Law at the University of Newcastle.
Suggested citation: Dani Larkin et al, ‘Aboriginal and Torres Strait Islander Peoples, Law Reform and the Return of the States’ on AUSPUBLAW (11 May 2022) <https://www.auspublaw.org/blog/2022/05/aboriginal-and-torres-strait-islander-peoples-law-reform-and-the-return-of-the-states>