Following this week’s news of the High Court’s ruling in the Maloney case upholding alcohol restrictions in Palm Island, I read American historian Peter Mancall’s article, “The Bewitching Tyranny of Custom: The Social Costs of Indian Drinking in Colonial America”.
As an advocate for alcohol management plans, I was pleased with the ruling.
But reading Mancall’s account of how alcohol was present in the colonial story of North America, and reflecting on the wreckage of alcohol in modern Native American reservations, brought home to me that the battle against grog for these peoples is 500 years old.
And there is no end yet in sight.
Reminded of native leaders who resisted the disasters unleashed by alcohol centuries ago, I am struck by three thoughts.
First, these leaders were right. Second, their battles may have stemmed some problems but they have been largely futile.
Third, the battle rages on unresolved.
There is no doubt alcohol was not only a symptom but a tool of colonialism.
It weakened indigenous peoples and facilitated their dispossession and destruction.
That alcohol still devastates indigenous Australian communities is probably the surest indication that the processes of colonisation have not ended. The point has not been reached when indigenous peoples have managed to take control of alcohol in the way that other peoples have.
The prolongation of our people’s battle with alcohol is not just a consequence of the ongoing rapaciousness of the colonial imperative to dispossess peoples of their lands and to make money from misery – though this is still an overwhelming imperative in remote and regional Australia, where the grog sellers are without pity or conscience. It is prolonged because we are confused about how we might bring the momentum of colonisation to an end, and launch into a new future.
Therefore the Human Rights Commission and the National Congress of Australia’s First Peoples intervened in the Palm Island case, arguing with Maloney that alcohol management plans infringed the human rights of indigenous people.
In my view these bodies are confused about human rights and they perpetuate colonialism.
AMPs have worked to provide some basic stability to communities devastated by alcohol and violence. The data is clear: the stricter the AMP, the greater the reduction in hospitalisations for severe injury. Children are safer when the flow of grog is stemmed. Yet various politicians and human rights advocates continue to argue against them.
While things have improved, the rates of violence are still high. Children are still removed at alarming rates. Violence against women is still much higher than in elsewhere. There is still further to go before these communities reach normal levels of harm.
I do not dispute that AMPs should be reviewed. But the evidence supports a strengthening of AMPS. They should be improved and made more effective.
The High Court held that the Palm Island AMP is a valid special measure, implemented to address alcohol abuse and associated violence on Palm Island. The court said the AMP promoted the equal enjoyment and exercise of fundamental human rights and freedoms on Palm Island, particularly with respect to “personal security and freedom from violence and bodily harm”.
Elements of the court’s reasoning highlight weaknesses in our current legal approach – the traditional human rights approach to special measures under racial discrimination law. The race-based approach continues to confuse the real issues and hold us back as a nation.
The problem is in the perpetuation of the concept of race itself.
AMPs themselves are more geographically and locally targeted to particular communities. But the special measures framework talks about race. It is unhelpful. The point here is subtle but important. It is about the language we use and the way in which we conceive of ourselves. It is about our place in the Australian nation and our place as Aboriginal individuals and members of Aboriginal communities.
We are approaching an opportunity, as a nation, to change our thinking. It is an opportunity for Australia to lead the world in rising above racial divides.
It starts with a change in self-perception. We must first accept there is no such thing as race; there are only human beings.
What is important is we are all Australian citizens. Yes we have different coloured skin and different cultural backgrounds.
Why is it that we do not treat Aboriginal Australians, first and foremost, as Australian citizens? For we still do not. Governments do not hold indigenous Australians to the same responsibilities and expectations as other Australians.
During colonisation and after, the discrimination was explicit. There was malice underlying the intent behind those policies: denying the vote, denying equal pay, removing children to breed out Aboriginality. That malice is embedded in the Constitution’s race power, which was designed to “control and exclude” the “inferior and coloured races”.
These days we hope that malice is mostly gone. These days governments have good intentions. And so we use concepts such as special measures to explain why differential treatment of certain ethnic groups is allowed to address the particular harms suffered by those groups. And this is where our reasoning arguably goes wrong.
In trying to rectify the effects of long-term discriminatory exclusion of certain groups, we make the mistake of treating them again as groups – as faceless collectives. We forget they are human beings, whose disadvantage and need, whose merit and reward, despite the history of discrimination, should be addressed just like any other human being in a similar situation.
AMPs, I maintain, are measures based on need, not race. This is where my preferred conceptualisation differs from our present legal approach.
Yes, in effect AMPs affect more indigenous people than non-indigenous. But the intent of the measures is clearly to address a need. It is not to keep down a “race”, as was the case in 1901 when indigenous people were excluded from citizenship.
If a white community exhibited similar alcohol-related dysfunction, that community should have AMPs in place too. Every Australian child should be free from violence and abuse. Every Australian community should be safe.
The incorrect emphasis on race began 1901, when our nation was founded. It persists at the very top of our law, in our highest legal authority. And so the confusion still troubles us.
It will forever, until we correct the error and set in place the right rule. If the nation proceeds with serious constitutional reform, as we should, part of our challenge will be reforming the relevance of “race” in law and public policy.
Those who argue that our High Court is inappropriately activist should be heartened by this week’s decision. The judges wisely upheld the will of elected law-makers. They saw no malevolent intent in the Palm Island AMP. I congratulate the High Court on a well-reasoned application of our present law.
But the challenge for us as a nation is to agree on a better approach in dealing with these issues than our present legal system provides. That approach needs to move beyond the colonial paradigm of race.