Visions for Australias Future

Annual Scientific Congress of The Royal Australasian College of Surgeons

1997 May, 14

Visions for Australias Future

Mr President


In responding to your invitation to articulate my vision for Australia's future, I am constrained by time to share my hopes in relation to just one aspect of that vision: that of reconciliation between the old and new of this land through the settlement of fundamental historical grievances and the establishment of commitments on the part of both, to a common future. I will endeavour to set out reasons why I believe this to be of critical importance to this country.


I will cover four of the questions that I believe are central to this reconciliation.


Firstly, the need for Australians to come to terms with our colonial history and its legacy.


Secondly, the need to settle the question of indigenous rights to land and resources and to realise the cultural and economic empowerment that is related to these rights.


Thirdly, the need to define and to enable the right to self-determination of indigenous peoples within the Commonwealth of Australia and to constitutionally guarantee this as we move towards a republic.

Fourthly, there is the pressing need for indigenous Australians to be empowered to overcome egregious social disadvantage and marginalisation.


Now these four issues have been the subject of longstanding conflict and bitterness ever since whites landed in the Antipodes. These complaints are familiar to post-colonial societies across the world, not the least across the Tasman. Their resolution remains outstanding and all degrees of violence, litigation (and indeed regal buttock baring) give expression to the fact of survival in the wake of disease, poison, murder and unutterable acts of imperial inhumanity, and they speak to the fact that these grievances will not just pass away simply because we don’t want to deal with them.


There are emerging international examples of successful resolutions of issues, but the overwhelming impression one gets is that these conflicts are so intractable that they can never be settled and each successive generation is left to grapple with these unresolved issues according to their opportunities and prevailing prescriptions for justice.


Let me say that I harbour this vision: that we in Australia can comprehensively settle these questions in the present generation. I am not attracted at all to the idea that the struggle between the old and the new in Australia will be perpetual and I am not resigned to this inevitability. I believe that the incrementalistic approach to advancing the cause of indigenous justice, where successive generations of black activists have built upon the achievements of those who have struggled before them, is now approaching its end. Incremental struggle has now yielded the opportunity and the momentum for us to put paid to our fundamental conflicts and to unite for the future.


It is thirty years this year since the 1967 Referendum that finally counted the original peoples of this country as citizens of the Australian Commonwealth. There have been incremental advances in these three decades. Let me boldly say that there is no need for Australians to be arguing about these matters thirty years hence. We can (and I believe that we will) have comprehensively reconciled these grievances in this time.


This may sound like a rash and unreasonable hope, but let me explain what I mean. Many of my compatriots in the cause envisage struggle as interminable and there is no goal that can ever be reached. This vision of struggle fading into the horizon contemplates no temporal destination. Indeed when examined, it is founded on struggle as the cause in itself, where fantasies of Elysium and Glorious Revolution dominate rather than measurable and substantial success in the real world.


I find such fantasies of little use and I just don't think there is enough time and resources and pleasure in struggle for Australians to prolong conflicts that are eminently resolvable - so that is why I'm interested in whether and how we can comprehensively settle these questions.


When I say "comprehensively settle" I mean that we can make clear and just commitments and actually substantively deliver on the first three issues: of dealing with history, land rights and self determination. In relation to the fourth issue of disadvantage we can make clear and just commitments to address problems which we need to understand may take generations of sustained delivery to meet our commitments.


Now it is only in the 1990s that we have experienced the breakthroughs that have led to my belief that we can do it. I take a decision of the High Court of Australia as the foundation stone for my optimism about our future prospects as a new and reconciled nation. The decision in the Mabo Case in 1992 where the common law of old England - of all places - recognised the ancient laws which underwrite the special relationship and indeed entitlement of indigenous Australians to their traditional homelands, was the opportunity that Australia needed, to put our colonial past behind us and to forge a new future. 3 June 1992 is a date few of you will remember, but it was in fact the date of Australia's redemption.


Mabo told us that it was the law that Englishmen brought on their shoulders to those shores that recognizes Aboriginal peoples as entitled to the protections of the rule of law (and not just liable to its proscriptions), which includes the ancient common law concept of communal native title to land. The same native title that was recognized in other former British colonies in the United States in 1823, in New Zealand in 1859, throughout Asia and Africa in the nineteenth century and in Canada in the 1970s. Contrary to the propaganda, Mabo has a longstanding and eminent pedigree in English law.


And this is what is so tremendously heartening about Mabo. Coming as late in our colonial history as it has, it leaves is with a sense of disquiet about the denial of these legal protections whilst the lie of terra nullius reigned in Australia for the first 204 years of white occupation – but it also leaves us with the prospect: that the colonial institutions that were planted in Australia by the invaders had within it the civilised institution of native title. Native title is indeed the product of this country’s British heritage. If Captain Cook carried with him the sword of the British Crown’s presumptuous claim to sovereignty over Australia, he also carried on his shoulders the Rule of the Common Law that recognises native title. What more redeeming prospect can we paint about our inheritance?


The High Court told us clearly in Mabo that at the time when sovereign claim was secured on behalf of the British Crown, Aboriginal people became subjects of the Crown and entitled to the recognition of their traditional title to land and their related customs and laws. The entire continent was therefore covered by native title when the First Fleet first established camp at Botany Bay.


The High Court then described how with lawful authority the Crown appropriated native titles in a parcel-by-parcel process over the next 204 years. The High Court has told us clearly that the fantasy of Aboriginal inhumanity that underwrote terra nullius – a people incapable of owning land, roving over the landscape as some subspecies of social animal – must finally be abandoned. Aboriginal humans with law and customs and ownership of land were here in 1788 and are still here – white Australians are urged by their judicial elders in Mabo to accept this and abandon the fantasy.


The High Court also told us that much native title has been lost through the parcel-by-parcel process and immigrant Australians have accumulated property and entitlements through history. The Court told – those entitlements cannot be usurped. White Australians have rights and relationships with land that must be accepted. The High Court has therefore urged Aboriginal people to abandon that whites are one day somehow going to have to re-board their tall ships and leave.


What the court said in Mabo is that where native title has not bee abrogated by inconsistent acts of the Crown then Aboriginal people should today be entitled to the recognition of their traditional rights under the law. These rights may be exclusive where no other rights exist – such as on vacant crown lands and Aboriginal reserves – or they may be capable of co-existing with other rights – such as the case of pastoral leases.


What more sensible compromise could our highest judicial body set out for us? What could be fairer? The common sense and morality that underlies the compromise of Mabo could not have been better struck. And yet: why is it that almost all of the Aboriginal peoples of Australia have accepted the compromise (proposed after all by white judges in a white court under white law) and it is not clear that a majority of white Australians accept the same compromise?


It is testament to the dominance of the selfish, graceless, uncompromising, myopic and greedy sectional interests have had on public discussion of native title since 1992, that white Australians are equivocal about the compromise proposed by their own elders. That white Australians would contemplate infidelity to their rule of law and indeed suffer violent attacks on the very judicial institutions that are a critical part of the strength of the constitutional democracy we all enjoy.


It is high time for white Australia – and let me urge a start with the membership of this esteemed College – to gain a more intelligent understanding of Mabo and its meaning for all of us. WE can continue to allow the Farmers Federations and the Nationalist political parties and the Western Mining Corporations to obscure a true understanding of the correctness of the Mabo compromise.


Let me now briefly amplify the four issues that I say are central to reconciliation. I believe that Mabo provided us with the opportunity to settle these issues.


Dealing with History


Over the past thirty years our understanding of Australian history has undergone revolutionary change. From the time the late Professor Bill Stanner described in his 1968 Boyer Lecture described “The Great Australian Silence” about the true facts of our colonial past, there has been a historiographical explosion and indeed the story of “The Other Side of the Frontier” is now well established in the writing of Australian history.


What is needed in the teaching of this history to follow the writing. And this is needed because the Australian community remains overwhelmingly ignorant of this history and ill-equipped to deal with it.


Prime Minister Paul Keating’s Redfern Park Speech of December 1992 is without doubt the watershed moment in relation to the question of our history. Read it. It is not about guilt; it is about truth and opening our hearts. Redfern Park deserves recognition as one of the great speeches

of our national history, and should become a natural part of the Australian understanding and coming to terms with our colonial past.


The present Prime Minister’s miserable rejoinder to Redfern Park through glib dismissal of the so-called “black armband view of history” and “political correctness” is untimely, unimaginative, anti-intellectual and childish. It is regressive and yearns for the old comfort of the history that prevailed before 1968. The sooner we rise above this stunted and immature refusal to deal with the truth of the past, acknowledge its legacy in the present and to understand that acceptance does not require guilt – the better off we will be as a country. We won’t have to slink around hypocritical ridges, on the one hand saying Lest we Forget Gallipoli and Kokoda and on the other hand saying the black fellas should forget about all that stuff the past.


There is also the challenge of dealing with the past for Aboriginal people. We can never forget the past, but we must rise about its demoralising legacy. In this respect I take guidance from the Children of Israel who endured the Holocaust – these are a people who will never forget their history, but they have found the means to rise above the evil legacy of that past. To never forget the past but to not be burdened by its legacy and to engage for the future is the challenge for Aboriginal people.


I believe that we now have all of the ingredients to properly deal with our history. But we need leadership. The first person that needs to learn how to deal with our history and its relevance to our future is our Prime Minister. For how can the community move onto a new understanding of our history and an acceptance of its truths and its lessons for our future, when the nation’s leadership harbours such twisted confusion about it? John Howard’s leadership to date has shown that he has much to learn about how a mature society may be able to deal with its history.


Land rights


There has to be absolute fidelity to the Mabo and Wik decisions of the High Court on native title as a fundamental pre-requisite to reconciliation. It is one thing for the legislative machinery to be adjusted so that the processes for identifying native title and dealing with the holders of title may be improved – it is another thing to take away title. The Howard Government went into the 1996 election promising to improve the workability of the Native Title Act and not extinguish native title. In fact, that they endorsed the principle of respect of property rights and committed their government to abiding by the Racial Discrimination Act.


Alas, a sustained campaign of lies by the National Farmers Federation and the National Party combined with a lack of leadership and indeed the compounding of misinterpretations of the Wik decision and the Native Title Act by the Prime Minister, has led us to the point where it appears that the Federal Government’s Ten Point Plan – as adjusted by the commitments that have been given to the National Party over the past two weeks – is in fact a Ten Point Scam.


Rather than confirming the existing legal rights of pastoral leaseholders, the Ten Point Scam appears to provide as follows. The Federal Government will be able to say: we will not extinguish native title in our legislation. But we will permit State and Territory governments to pass legislation which gives freehold title to pastoral leaseholders and therefore to extinguish native title. Moreover, we will pay 75 per cent of the cost of extinguishment by the States and Territories.


Under the Prime Minister’s plan, which State or Territory government is not going to take advantage of this facility and immediately upgrade leases to freehold and get the taxpayers to pay for the windfall to a coterie of National Party politicians and their constituents?


The National Farmers Federation and the National Party are a putrid coalition of liars and hijackers. They have undertaken a sustained campaign of hysteria and lies not so that leaseholders can get security of their existing rights, but so that they can get more rights than they ever had before. Who said pastoral leaseholders had rights to operate tourism enterprises on their leases? Who said pastoral leaseholders were allowed to undertake any form of primary production under the Tax Act – including aquaculture, forestry operations and processing for goodness’ sake? They weren’t allowed to do these things before Wik – why are they being allowed to do so now?


Through unabashed extortion the NFF and the National Party have taken advantage of the pathetically weak leadership of Tim Fisher and the sneaky leadership style of John Howard to come up with a bastardised Ten Point Plan. The only difference between the Liberals and the Nationals remains: the Liberals want implicit Commonwealth extinguishment, the Nationals want explicit Commonwealth extinguishment.


Bu they will not succeed. The Prime Minister says he will now with all vigour present and push his plan through the Parliament. Rest assured that with greater vigour and greater determination and greater resolve, Aboriginal people will not allow this kind of bastardry to pass for fair play. John Howard is prime minister for the moment. His government is not God.


Fairness and the compromise of Mabo and Wik are principles that transcend this present government’s hold on power. There are questions at stake of enormous importance to Aboriginal people and the country that are larger than the small hearts that have produced the Ten Point Scam. These are questions that go to the heart of our history and our future. I will not rest to allow the opportunity we have with Mabo and Wik to get these fundamental questions right, just because we have a government that either refuses to lead or is unable to.


And the tragedy is that we have all of the ingredients available for us to now settle the question on indigenous land rights. And it is in our best interests to and we can, settle these issues in a timely way. Land rights must not be perpetual complaint for Australia’s future – we have got to aim to settle it once and for all. Mabo and Wik have prescribed the principles. If we are intelligent and fair, we can settle the question and we can do it in a way that not only avoids harm to our economic interests in a viable and strong resources sector in Australia – but in ways that capitalise on our opportunities.


Self-determination


This issue has a parallel with the question of multiculturalism. Let me put it this way. John Howard spoke about One Nation in 1987. Paul Keating’s policies were called One Nation. Of the turgid swamps of Australian discontent Pauline Hanson has called her political party One Nation.


There is obviously a general consensus around the commitment to a united nation which is captured under the concept of the Commonwealth of Australia. I believe the majority of Aboriginal people want to belong to this united nation.


But the difference between the multiculturalists, Paul Keating and the Aboriginal community on the one hand, and John Howard, Pauline Hanson and those who decry multiculturalism on the other – is that the latter believe that diversity is anathema to unity, whereas I would have thought it plain that respect for diversity is essential for unity.


We are undergoing an inarticulate and intellectually barren period of questioning our policy of multiculturalism. What is so hard about the concept? Why should we still try to cling to the old prescription of assimilation, which has been so disastrous for Aboriginal people and which is based on the simplistic notion that as humans we are either one or the other: Australians or un-Australian? In fact we have layers of frequently overlapping identities. I know Aboriginal people who are fiercely, not just Aboriginal people but Thayorre people, Wik Ngathan or Wik Mungkan or Kuku Yalanji or Guugu Yimithirr people at one level – they are Cape York people at another level, they are Aboriginal people at another level, they are Queenslanders when the State of Origin is on and they are Australians when Kathy Freeman or Kieran Perkins are winning medals.


For goodness sake, a mark of maturity as a nation will come when we commit to a society which respects diversity and is unified around a wider public good as Australians. Not just a policy that lasts for decade when we happen to have the political commitment to fund a few programs and operate a television station and some radio stations. But a policy commitment that is a foundation for our future. I have not yet heard a compelling argument against the concept of multiculturalism.


Self determination for Aboriginal people raises similar issues. But it differs in that the right to self determination of Aboriginal people as peoples is sourced in their distinctive place as original Australians whose laws and customs are now recognised in Australian law.


The problem is that whilst the concept of self determination was expressed as the Whitlam Government’s policy in the 1970s, we have never properly defined its meaning. We have not defined the autonomy that Aboriginal people are entitled to exercise in their own communities and on their own lands.


Self determination in international law is only defined in relation to Nation States and to individuals as citizens of Nation States. There is no available definition of the right to self determination of peoples within Nation States.


This is our challenge. We have long talked about Aboriginal people having the right to self determination, but we have avoided coming to terms with what we mean.


For John Howard, the concept of an indigenous right to self determination in Australia implies a separate Aboriginal nation in Australia, and is unacceptable. But this is not what is meant. Aboriginal communities that I am familiar with desire autonomy for their own people on their own land and under their own customs and laws, subject to the over-riding nationhood of the Commonwealth of Australia. This approach has long been constitutionally guaranteed to Native Americans in the United States and indeed to concept of indigenous self government is well developed and accepted in Canada. And this does not involve a fracturing of the nation.


Indeed in Australia we already have substantial autonomy vested in the people of Norfolk Island. This is the very autonomy which Aboriginal peoples are seeking for their own people.


Clearly we need to define our commitment to the right to indigenous self determination and we need a much more mature understanding of the concept from our political leaders and the wider community. These are after all well established principles with indigenous peoples who are citizens of other first world nations.


Finally, our commitments in relation to the indigenous entitlement to autonomy must have constitutional guarantee, as is the case in North America.


Overcoming disadvantage


It is the challenge of overcoming disadvantage that will be our biggest challenge for our commitment to reconciliation. Because we will only be able to make commitments that can only yield progress, in many areas, in the long term. A deficit reduction strategy on Aboriginal life expectancy in comparison with the Australian average, will have to be a generational strategy. We will not return Aboriginal people to anywhere near the state of health enjoyed by my grandmothers who lived to over 100 years and the numerous old people that used to die in their 80s and 90s in my hometown, in quick time. The people in my hometown who are now dying in their 50s present challenges for our commitments on health and living conditions, that will not be easily turned around.


We will therefore need sustained commitments and long term guarantees of resources. Not just in health, but in relation to the criminal justice system, and the poverty that feeds this problem that is growing, not diminishing.

We need sustained commitments to education. I am 100 per cent the beneficiary of Abstudy through my secondary and tertiary education. Many thousands of Aboriginal students, young and mature, have benefited from this same program. There are today Aboriginal lawyers, doctors, architects, social workers, writers, public servants and business people who benefited from this same program. A shift has started to occur after twenty years of provisioning, but the statistics are still not good.


I see in today’s budget papers that $29 M is to taken away from Abstudy. At a time when we need to consolidate in the one policy area where we have made progress over the past 30 years, we have a miserable Federal Government with the vision of mean moles.


We will not overcome disadvantage overnight. There are many health problems that can be readily overcome quickly and efficiently if we get organised and just do it. Fred Hollows showed this with his eye program. Many other problems will not show results within political cycles.


We can however reconcile around commitments to address these disadvantages in the longer term. It is essential that we do so for reconciliation to have meaning.


Conclusion


In conclusion Mr President, I say that despite the problems that I have alluded to and the obvious frustrations that I and my likeminded colleagues have with the present Federal Government, we have as Australians a great opportunity before us. We can get these things right. It will require maturity and generosity and compromise on the part of black and white Australians.


Concerning the fundamental question of our national culture and identity and the relationship between the old and new of this continent - we as a country simply cannot afford to turn back. We now have the foundations upon which we can begin to build truly great things. The cornerstone that Mabo laid for us will withstand the most blistering cynicism that our national critics can muster.


Mabo is the correct foundation for our future no matter the frustrations we will all experience and despite the impatience, anger, arguments, misgivings and faithlessness that might afflict us from time to time. It is the correct foundation because without a foundation of truth no national structure can endure. We forsake Mabo and we will be bereft of our one chance at national coherence: an opportunity to come to terms with the past, take its prescriptions in the present and therefore map out a future.