The Coalition Governement, Mabo and Wik

Australian Jewish Democratic Society

1997 September, 9

The Coalition Governement, Mabo and Wik

I suppose in some ways I want to apologise for some intemperate remarks that I made during the course of the 1996 federal election, when I alleged that the Coalition government’s campaign For All of Us was not an inclusive campaign, that it was in fact a campaign prompting division in Australian society.

I made those intemperate remarks during the course of an address to the Sydney Institute in the middle of the campaign, and the wrong theory I had at that time was based on my gut analysis of the various strategies of the major contenders in that election.

I’d always feared, particularly since 1993, that the prominence of Mabo and native title as an issue in Australian politics and society, and the high profile given to the concept of reconciliation by the former federal government, would inevitably lead to a backlash. I thought that whenever there were expressions of racism against Aboriginal people, the situation had to be too good, when you had the national leader, no less, consistently defending reconciliation and advocating Indigenous land rights at every turn. Because it’s obvious to everybody who has been involved in Aboriginal politics, being such a small and detested minority in a community such as this, that it is very difficult to get people to understand and to feel positive about Aboriginal issues. Aboriginal affairs and Aboriginal people are not readily marketable in the business of politics.

So for very good reason, politicians are reticent about coming out and identifying themselves with Indigenous issues and Indigenous people. So I always thought that the prominence given to native title, Mabo, reconciliation and so on during those salad days in the three years from 1993 to 1996 might one day come to an end. I was fearful about the continuing controversy surrounding native title after the Native Title Act was put in place in 1993. And I was in fact speculating as to whether it might be in our better interests for the issue to assume a lower profile.

During the course of 1994 and 1995 I learnt from polling conducted by the Council for Aboriginal Reconciliation and by the Australian Labor Party that there was a solid core of opposition to Mabo and to native title, particularly amongst the so-called battlers of the country. But there was hope, at least in the Labor ranks, that opposition was dissipating and that Mabo might even become a political positive. I think I allowed myself to believe, as did a lot of people, that Mabo had, by the end of 1995, finally come to be seen as an act of political decency. Native title had become a barometer of political decency in Australian society. And I relaxed into feeling that there was no way a political party could enter into an election making Mabo a negative issue without paying some political cost.

Mabo didn’t become an explicit issue in the 1996 election campaign. On the surface, the federal Coalition merely committed itself to amending the native title legislation to make it ‘more workable’. There was no substantive debate about the issue of native title in that election.

But I have to tell you that when I saw, on the first day of the campaign, the slogan of the Liberal Party – For All of Us – I was struck with a visceral force because it immediately hit me with its implicit strategy. I understood from the minute I saw that slogan that it invited a question: If John Howard was going to be for all of us, for whom were the other mob? If this was going to be the government for all of us, for whom had Paul Keating been governing?

Well, Paul Keating had been governing, in the subliminal and subterranean imagination of Australia, for the Mabo crowd, the APEC crowd, the multicultural crowd and any minority or fringe-interest group you happened to resent: anyone you wanted to hold accountable for your own sense of economic, social and psychological malaise.

So I gave this lunatic speech to the Sydney Institute in the middle of the campaign, outlining my analysis of the psychological strategy underlining the federal campaign by the Liberals. I said that this was the cleverest campaign slogan that could ever have been thought up by smart political operators who had their fingers on the pulse of economic and social malaise – the sense out there in Middle Australia that people weren’t getting it as good as they were entitled to. That somehow the Paxtons out there were ruining our economic opportunities. Th at somehow these undefined groups were living it up at the Labor trough at our expense.

So poor Middle Australia, the Great Mainstream of Australia (who hasn’t heard those terms consistently over the last year and a half?) had lived through thirteen long years of neglect and misery at the hands of an uncaring federal government. And my analysis was that the For All of Us slogan invited people to project an undefined resentment. It invited voters to believe that somehow other people were to blame for our condition.

Those of us who were outraged at John Howard’s refusal to answer Pauline Hanson during the last two years should not be outraged. We should understand that John Howard came before Pauline Hanson. John Howard did things deliberately, whereas Pauline Hanson did things instinctively. John Howard knew the truth about Aboriginal disadvantage, about the fact that Aboriginal people just don’t get free homes and free cars and free loans. He knows all those facts. In Pauline Hanson’s defence, a lot of the ignorant things she professes she actually believes. But the same cannot be said of our prime minister. The first press conference that John Howard gave as prime minister of this country was to announce an enquiry into corruption at ATSIC. Th ere was then, of course, a sustained abuse of Aboriginal organisations and Aboriginal people, as though the money spent on Aboriginal affairs was at the core of our economic malaise in this country.

Let me talk about Howard’s ten-point plan and true liberalism.

Essentially, the Native Title Amendment Bill should be called the Compensation for the Extinguishment of Native Title Act, because we have 400 pages of new amendments that basically authorise the extinguishment of native title and of course the payment of compensation. For the federal government to say that it is at least providing compensation is no concession whatsoever. Everybody is already entitled to compensation under the Constitution. We did not need John Howard’s version of courage and leadership in order to be entitled to compensation. Governments cannot escape paying compensation under our existing Constitution. So it is no answer to Aboriginal people to say that fiscal compensation is available. Throughout the country, I constantly hear Aboriginal elders saying that we’re not interested in the money; we want our land.

John Howard’s plan is complex – every ‘i’ dotted, every ‘t’ crossed – to allow state and territory governments to extinguish native title. It really is (although I’m not sure this is the right audience to which to say this) a piece of Pontius Pilate legislation. John Howard will say, ‘I’m not extinguishing native title. I’m just going to allow the state and territory governments to extinguish.’ And that’s what the whole scheme is all about.

He will be able to run up and down every Australian hill and dale and say, ‘I’m not extinguishing. I’m just allowing Rob Borbidge to extinguish.’ This is going to be a very difficult argument for us to counter. Because if the Native Title Act of 1993served any purpose, it served the purpose of restraining the state and territory governments from just arbitrarily extinguishing native title, as Richard Court attempted to do in 1993.

You see how easily we forget that the Court government of Western Australia passed legislation in 1993 that wiped out native title across the entire state in one fell swoop. If Court’s legislation had been constitutionally valid, there would be not one square inch of native title in the whole state of Western Australia. Thankfully the High Court struck down that legislation as unconstitutional. But protection against that kind of predatory and arbitrary and racially discriminatory deprivation of property by state and territory governments was provided by the Native Title Act, and that protection is now under grave threat.

The Indigenous position, if it can be summarised, is this. We don’t want the money; we want to share our land. That is the essence of the Aboriginal submission in relation to pastoral leases. We don’t want to be paid to have our title killed (and such a payment would be very large for Australian taxpayers). We don’t want to be paid for extinguishment of our title. We just want to be able to share our land under the prescription laid out by the High Court.

I had a very depressing evening last night in Sydney, and please don’t tell the people I was with about this. But I was in a room full of Liberal Party supporters and I attempted to urge them to consider three principles of true liberalism that we can’t deny in this current debate.

Firstly, the fundamental and central importance of the rule of law. How can liberals renounce a decision that emanates from the rule of law? Th ere should be no stronger defenders of the benefits and protections – not just the prohibitions and the punishments – of the rule of law, and of the extension of those benefits to Aboriginal people as citizens and as subjects of the rule of law. So how is it that liberals are not standing up for the rule of law when Aboriginal people are concerned?

Secondly, property rights. There should be no stauncher defenders of property rights than true liberals. But when it concerns Aboriginal people, the benefits of the rule of law and the benefits of true liberalism are not extended.

Thirdly, arbitrary deprivation of rights by governments. Ron Castan, Bryan Keon-Cohen and Eddie Mabo struggled for ten years with their famous court case. In 1985, three years into it, the Bjelke-Petersen government arbitrarily passed a law called the Queensland Coast Islands Declaratory Act, in the middle of the night, which retrospectively extinguished native title on Murray Island. The law basically said that if the State of Queensland had not extinguished or had not intended to extinguish native title in 1879, it intended to do so now.

That was an arbitrary deprivation of property. No report in the newspaper next day. No political movement of outrage in the community. Not a single voice raised against that arbitrary deprivation of property rights by the government. And it fell upon the legal team and upon Eddie Mabo to go to the High Court to say that this Bjelke-Petersen law was unlawful and unconstitutional. And they eventually succeeded in striking down that law. And once they struck that law down they were able to continue with their litigation until they achieved success in 1992. The arbitrary deprivation of property rights is something that true liberals ought to be concerned about.

The debate over the coming weeks will be a desperate debate, and it is fundamentally important that we preserve the High Court’s decision in Mabo. Unfortunately, however, the biggest problem we’re going to have is the prime minister’s lies. I say this advisedly. He went out to Longreach three months ago and told the farmers out there – and you’ve all seen the grabs on the television – ‘You’re not going to lose your land. I won’t let them.’ As if the decisions in Mabo or Wikallowed Aboriginal people to take over pastoral leases from the leaseholders. There has never been any prospect of anyone losing their title to land, but this fear is held by enormous sections of the rural community. Th e fear is totally unfounded. But we have our national leader telling the people of Longreach, ‘I won’t let them take your land.’ Instead of saying, ‘Well, in fact the High Court decision means that if anything, you should share the land with the traditional owners.’

Another lie: on the 7.30Report on ABC television last Thursday, the prime minster said that Aboriginal people could end up having a right of veto over 78 per cent of the country under the Native Title Act. The Native Title Act provides the right to negotiate, the right to discuss and the right to make agreements for six months. If you can’t reach an agreement about a mining proposal then there is arbitration. The arbitrator can rule against the Aboriginal people, and if the arbitrator rules in favour of them, the minister can override the arbitrator. There is no veto. The only people I know who have a comprehensive veto over mining in this country are Western Australian farmers. There is no way under Western Australian law that you can mine on farming land without the consent of the landowner. There is no ministerial power to grant leases or mining access in the absence of consent by the landowners. But Western Australian wheat farmers are the only beneficiaries of a right of veto. As I’ve explained, under the Native Title Act, the Aboriginal right to negotiate is a fairly weak right.

So for the prime minister to be waving around a map of Australia, saying that Aboriginal people are going to have a right of veto over 78 per cent of the country, shows exactly the kind of difficulty we’re going to have in the forthcoming debate. Th e person who is supposed to be in the middle is in fact out there on the extreme fringe.

The other lie that will be peddled, and which is so fundamentally wrong, is the lie about the pendulum: ‘It’s swung too far in favour of the black fellas. I’ve got to bring it back here to the centre.’ The High Court spelt out a three-point compromise, and that is where the pendulum should properly sit. That is balance. That is the fair centre. Because it requires both sides to abandon their fantasies. One side must abandon the fantasy of terra nullius; the other side must abandon the fantasy that somehow the whitefellas are all going to go away. The High Court has already located the fair centre for the pendulum.

And yet we have a prime minister who has commissioned 400 pages of pendulum fixing. Four hundred pages which, in an honest analysis, annihilate our position. In my assessment of the bill tabled last Thursday, I have attempted to be as unemotional and rational as I could possibly be – and I have to say that it totally annihilates our position. The published legislation is worse than the legislation that was tabled in June. It’s no longer a ten-point plan. It’s a thirty-point plan. It covers issues that were never mentioned in the original ten-point plan. It deals with extinguishment of native title in Crown reserves, which has nothing to do with the Wik decision. There’s hardly going to be any native title left if this legislation goes through.

Finally, let me say that no other group should better understand the tactics about which I have talked tonight. No other group knows how hard it is. No other group knows what it’s like to be hated by more people than have ever met your people. So I look forward to your support in the coming months.