10 May 2011
Dr John Gardiner-Garden
Social Policy Section
This background note provides an overview of legal, administrative and political developments in the Commonwealth (and to less an extent in the state and international) Indigenous affairs arena from 1992 to the present day. A companion paper, Overview of Indigenous Affairs: Part 1: 1901 to 1991, traces developments prior to this period.
The paper is structured by year, with change of federal governments marked by a box offering a brief overview of developments during that government’s term. Entries have been chosen if they have been judged significant developments in public policy in the area of Indigenous affairs. Items under each year are not strictly chronological and to keep the focus on Commonwealth developments, state and international entries are generally mentioned at the end of each year section. Acts named can be assumed to be Commonwealth Acts unless the name of the state follows in parenthesis.
The notional citizenship ascribed to Aboriginal people upon first settlement at the end of the 18th century was eroded during the 19th century (a period of colonial state governments)—with dispossession from land being followed by dispossession from family. With federation in 1901 and the advent of a Commonwealth Government the situation did not initially change significantly, but over the next 110 years there were several major shifts in the policy relationship between the Australian Government and Australia’s Indigenous people, and there were many other developments of significance to this relationship.
In Overview of Indigenous Affairs: Part 1: 1901 to 1991, the companion paper to this one, the authors’ trace developments in the first 90 years since federation. In the mid-20th century a rhetorically more benign period of assimilation was ushered in, but laws, including laws framed by the new Commonwealth Government that had responsibility for the Northern Territory—intended to ‘protect’ or advance people’s ‘welfare’ quickly became laws which further alienated Indigenous people. Indeed, during this period the removal of children from Indigenous parents shifted from being an ad hoc state practice to a systematised strategy agreed on by all governments, state and federal. In the 1960s, as more voices drew attention to the meagre achievements of the assimilation policy, the Commonwealth began to reform the system within its own jurisdiction, removing various legal liabilities it had imposed, or let be placed, upon Indigenous Australians and sponsoring a referendum which cleared the way for greater Commonwealth involvement in the policy area. Successive Commonwealth Governments then led policy in this area through phases underpinned by expressions such as ‘self-determination’, ‘self-management’, and ‘reconciliation’.
In this second paper, the authors trace developments over the next 18 years, as policy has shifted from a focus on ‘reconciliation’ and ‘social justice’, to ‘practical reconciliation’ and ‘emergency response’, to ‘closing-the-gap’ and ‘partnerships’. The changing rhetoric has been punctuated with the setting up, dismantling and potentially setting up again of several different administrative and consultative mechanisms, and it has been woven through with issues such as how to improve socio-economic outcomes and recognise rights and injustices.
Prime Minister Keating, in his Redfern speech of December 1992 and his government’s decision to set up a national inquiry into the separation of Indigenous children, sought to encourage recognition of past injustices. In his government’s native title and land fund legislation and proposed ‘Social Justice Package’ he sought to advance the process of making amends for the disregard of Indigenous common law rights which the 1992 Mabo judgement had found to have occurred.
On 26 January, the 20th anniversary of the Aboriginal Tent Embassy, Old Parliament House was occupied by 60 protestors and the embassy re-established on the lawns of Old Parliament House. Members of the embassy presented the Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, with a Declaration of Aboriginal Sovereignty.
Source: The Age, 2 and 4 February 1992; Canberra Times, 27 and 29 January, 1992; The Australian, 29 January 1992.
The Torres Strait Islander flag was designed.
The Commonwealth Government released its response to the Aboriginal Deaths in Custody Royal Commission and announced new funding totalling $400m over 5 years. In the months that followed most state governments released responses to the Aboriginal Deaths in Custody Royal Commission.
The Council of Australian Governments endorsed a National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders.
On 3 June the High Court handed down its decision in Mabo and Others v. Queensland (No. 2) (1992) 175 CLR 1 ruling that the Meriam people of the Murray Islands of Mer, Dauar and Waier held native title to their islands. The Court found that Australia was occupied by Aboriginal and Torres Strait Islander peoples who had their own laws and customs, and whose ‘native title’ to land survived the Crown’s annexation. Thus the court recognised the existence of native title as part of Australian common law. Native title could not be transferred to others, but it could be surrendered to the Crown or extinguished by the Crown upon a clear and plain intention to do so. It was noted that the common law may also recognise native title to have survived on mainland Australia, but the question of the circumstances in which it may have survived on the mainland was not before the court so not fully explored. The judgment necessitated new policies, legislation and public administration procedures.
Minister Tickner invoked the Aboriginal and Torres Strait Islander Heritage Act 1984 to protect women’s sites near Alice Springs threatened by a dam proposed by the Northern Territory Government.
Prime Minister Keating, at the Australian Launch of the International Year for the World’s Indigenous People, Redfern, 10 December, 1992, made his Redfern Speech which acknowledged past wrongs:
It begins, I think, with the act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these things being done to us.
The Mabo decision on native title brought many responses. Representative land councils and legal services presented the Prime Minister with ‘the Aboriginal Peace Plan’. The Wik Peoples made a claim for native title in the Federal Court of Australia for land on the Cape York Peninsula in Queensland. A national meeting of Aboriginal and Torres Strait Islander people was held at Eva Valley, Northern Territory, to formulate a response to the High Court decision in Mabo. Delegates agreed on a statement (Eva Valley Statement) which rejected the Commonwealth Government position on native title, called for national standards for native title recognition and set out five principles to guide Commonwealth actions on native title.
The Commonwealth Government released a native title discussion paper and negotiations between Indigenous stakeholders, pastoralists, the mining lobby and governments led to the eventual introduction of native title legislation.
The Native Title Act 1993 was passed. It set up a land management regime to deal with the native title rights and interests of Indigenous Australians as recognised by the common law in the Mabo decision. It recognised native title rights, validated certain Commonwealth acts that would otherwise have been invalid, enabled the state and territories to validate certain past acts, created a National Native Title Tribunal, provided for the establishment of state and territory bodies to determine native title and compensation claims, and set out how acts affecting native title may be done in the future (this included a right to negotiate on certain ‘future acts’ and compensation where native title was impaired as a result of such acts). In his second reading speech on the Bill Prime Minister Keating promised to establish a National Aboriginal and Torres Strait Islander Land Fund and an Indigenous Land Corporation to acquire and manage land for dispossessed Indigenous groups.
The government has always recognised that despite its historic significance, the Mabo decision gives little more than a sense of justice to those Aboriginal communities whose native title has been extinguished or lost without consultation, negotiation or compensation. ... While these communities remain dispossessed of land, their economic marginalisation and their sense of injury continues. As a first step, we are establishing a land fund. It will enable indigenous people to acquire land and to manage and maintain it in a sustainable way in order to provide economic, social and cultural benefits for future generations.
Source: House of Representatives, Debates, 16 November.
In Coe v The Commonwealth (1993) 118 ALR 193 Justice Mason of the High Court struck out a claim asserting Aboriginal sovereignty, genocide, fiduciary duties and common law native title in relation to large areas of NSW.
The Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner was established in response to issues highlighted by the Royal Commission into Aboriginal Deaths in Custody and Human Rights and Equal Opportunity Commission’s National Inquiry into Racist Violence.
Source: Social Justice Infosheet.
Michael Dodson was appointed the first Social Justice Commissioner and in his first report stressed a rights based approach to achieving social justice:
The recognition that social justice is about the enjoyment and exercise of human rights establishes a framework in which indigenous peoples cannot be regarded as the passive recipients of government largess but must be seen as active participants in the formulation of policies and the delivery of programs.
Source: Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report, Human Rights and Equal Opportunity Commission, 1993.
In state and territory developments the Mt Todd Project Agreement Ratification Act 1993 (NT) offered statutory recognition to an agreement between Jarwoyn and Mining Company. The Native Title (Queensland) Act 1993 (Qld) set in place mechanisms for processing native title claims in Queensland and the Land (Titles and Traditional Usage) Act 1993 (WA) which extinguished native title across WA was found invalid by the Western Australia v The Commonwealth (1995) 183 CLR 373.
Internationally it was the Year of Indigenous People and the United Nations Draft Declaration on the Rights of Indigenous Peoples was developed by a five member Working Group on Indigenous Populations (WGIP).
The Native Title Act 1993 commenced operation, the National Native Title Tribunal was established, native title representative bodies were recognised in law and states started to pass complementary legislation.
In the Budget the Government announced plans for a new land acquisition fund ‘to enable Indigenous people to acquire land and to manage and maintain it in a sustainable way, in order to provide economic, social and cultural benefits for future generations’. In June Prime Minister Keating introduced the ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994. It was quickly passed by the House of Representatives but debated at length in the Senate before being passed.
Source: House of Representatives, Debates, 28 Feb 1995 p.1106, 2 Mar 1995 p.1410; Senate, Debates, 1 Mar 1995 p.1206-10.
The Government renewed its commitment to the National Aboriginal Health Strategy with a second five-year package for community health services, housing and infrastructure.
A separate Torres Strait Regional Authority came into existence.
At the Going Home Conference in Darwin representatives from every state and territory met to expose the history of the removal of Aboriginal children from their families and the effects this policy had on Aboriginal people.
Justice Drummond in the Federal Court decided that the claim of the Wik and Thayorre peoples could not succeed over the areas that were subject to pastoral leases. He considered that the grant of pastoral leases under Queensland law extinguished any native title rights. The Wik and Thayorre peoples appeal to the High Court.
In Western Australia v The Commonwealth (1995) 183 CLR 373 the WA government was unsuccessful in its challenge to the Native Title Act 1993 on the basis that it was inconsistent with the Racial Discrimination Act 1975. The High Court unanimously decided that the Commonwealth has constitutional power in relation to Native Title Act 1993 and that certain WA legislation was invalid as a result of being inconsistent with the Native Title Act 1993. The High Court stated that the Native Title Act can be regarded ‘either as a special measure… or as a law which, though it makes racial distinctions, was not racially discriminatory’.
In Brandy v HREOC (1995) 183 CLR 245 the High Court determined that the Human Rights and Equal Opportunity Commission, as a non-judicial body, did not have the constitutional power to make legally binding decisions.
In May the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families was established in response to efforts made by key Indigenous agencies and communities.
The Aboriginal and Torres Strait Islander flags were gazetted as official flags under section 5 of the Flags Act 1953, a move that was criticised by the leader of the opposition John Howard.
Source: Commonwealth of Australia Gazette No. S 258 and No. S 259, Friday 14 July 1995, and J. Howard (Leader of the Opposition), Playing politics with flags, media release, 4 July 1995.
The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 established the Indigenous Land Corporation (ILC) and the Aboriginal and Torres Strait Islander Land Fund. The ILC’s role was to assist Indigenous Australians to acquire and manage land in a sustainable way to obtain economic, environmental, social and cultural benefits. Funds for such activities were made available through the Aboriginal and Torres Strait Islander Land Fund. The legislation prohibited lands purchased from the fund in NT from being converted from leasehold into Aboriginal freehold.
The development of a Social Justice Package began. This package was to contain measures directed towards structural reform and encompassing a broad range of social, economic and cultural factors and was to be the third stage of the Keating Government’s response to the High Court’s Mabo decision. Submissions were received, including three major ones: Recognition, rights and reform from the Aboriginal and Torres Strait Islander Commission (ATSIC), Going forward from the Council for Aboriginal Reconciliation (CAR) and Indigenous social justice, strategies and recommendations from the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner. These same three bodies also produced Towards social justice: compilation report of consultations, 1994.
In response to Justice French’s discussion paper on proposed changes to the Native Title Act 1993 and the High Court’s decision in Brandy v Human Rights and Equal Opportunity Commission earlier in the year, in September the Government circulated a document entitled Outline of Proposed Amendments to the Native Title Act 1993 and in November introduced the Native Title Amendment Bill 1995. The Bill lapsed with the calling of the 1996 general election.
In other developments Gibbs v Capewell (1995) 128 ALR 577 helped determine the meaning of ‘Aboriginal Person’ in the context of a challenge to candidate for ATSIC regional council, the Family Law Reform Act 1995 defined ‘best interests of the child’ to include consideration of Aboriginal identity and culture, the Local Government (Financial Assistance) Act 1995 included as one of its purposes the improvement of service provision to Aboriginal and Torres Strait Islander Communities and the Racial Hatred Act 1995 broadened the terms of the Racial Discrimination Act 1975 to prohibit conduct likely to ‘offend, insult, intimidate or humiliate’.
In the States the Aboriginal Lands Act 1995 (Tas) established the Aboriginal Land Council to use and sustainably manage Aboriginal land, and the Northern Territory Aboriginal Sacred Sites Act 1995 (NT) provided a scheme for registration and protection of sacred sites.
Internationally, the UN Decade of the World’s Indigenous Peoples began and the UN declared 9 August each year would be the International Day of the Worlds’ Indigenous Peoples.
Title to traditional lands including Guratba (Coronation Hill) was handed to the Jawoyn people by Minister Tickner. The area, known as Gunlom and Gimbat, was held by the Gunlom Aboriginal Land Trust, and was leased to the Australian people as part of Kakadu National Park.
The new Howard Government dropped the terms ‘social justice’ and ‘self-determination’, withdrew support from many of the initiatives and institutions for which these terms were the raison-d’etre and declared its new priorities to be ‘accountability’, ‘improving outcomes in key areas’ and ‘promoting economic independence’. Government actions such as creating a Special Auditor, reducing Aboriginal and Torres Strait Islander Commission (ATSIC) funding, amending the Native Title Act and perceived inactions on reconciliation and in responding to the rhetoric of the new One Nation Party placed a strain on relations with the Indigenous community.
Upon his Government’s re-election in October 1998, the Prime Minister declared reconciliation a priority. The Prime Minister did eventually express support for some form of constitutional recognition of Indigenous people and a declaration of reconciliation, but his proposed constitutional preamble fell short of recognising prior Indigenous custodianship of the land or any past injustice. His impression of the Council for Aboriginal Reconciliation’s Draft Declaration was that it would need amendment and he continued to resist calls to make a Government apology for past injustices. In May 2000 the Council for Aboriginal Reconciliation presented its road map at a National Reconciliation Convention but few suggestions were taken up by the Government which shunned ‘rhetorical’ gestures.
Overall Commonwealth Indigenous Affairs expenditure rose in the late 90s and into the next decade, but from 2004 successive administrative rearrangements led to the demise of ATSIC and the staged transfer of its funding and responsibilities through, and to, other agencies. The new arrangements also saw the rise of Council of Australian Governments trials of a ‘whole-of-government approach’, Shared Responsibility Agreements and Regional Partnership Agreements. The new philosophy also saw policies directed at freeing up land tenure possibilities on communal land, encouraging private-home ownership and providing employment and training opportunities in lieu of Community Development Employment Projects.
Policy and debate entered a new phase when in mid to late 2007, following a series of reports (most notably the June 2007 Little Children are Sacred) about levels of child sex abuse in Indigenous communities in the NT, the Commonwealth announced and then legislated for a series of emergency measures.
Soon after the new Government took office the Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, issued General Directions to the Aboriginal and Torres Strait Islander Commission (ATSIC) requiring the appointment of a Special Auditor to make a determination on whether a prospective grantee was ‘not fit and proper’ to receive public money and the new Government announced cuts to ATSIC of $400 million over the next four years. In Aboriginal Legal Services v Senator Herron  FCA 826 the Federal Court ruled that the Minister did not have the power to issue the above directions but overall Indigenous specific expenditure fell dramatically in the 1996–97 financial year. Later that year with the Aboriginal and Torres Strait Islander Amendment Bill 1996 the Government attempted unsuccessfully to amend ATSIC legislation to enable the Minister to install an administrator if fraud or mismanagement was suspected. The ATSIC chair would have been government appointed rather than elected. A Senate Committee found the bill to be discriminatory.
The new Government released a discussion paper on native title, Towards a more workable Native Title Act. In that paper and its Outline of proposed amendments to the Native Title Act the government proposed amendments to the Native Title Act 1993 which included removing the right to negotiate and alterations to the threshold test for native title claims. It argued these changes would improve the ‘workability’ of the legislation. The Government prepared a Native Title Amendment Bill 1996 which toughened the registration test, made significant inroads into the right to negotiate, increased powers of Ministerial intervention in order to allow miners to circumvent negotiations with native title holders and enabled Governments to expand the purposes, interests and length of pastoral leases without consulting native title holders. Many Indigenous peoples protested the racially discriminatory nature of the proposed amendments through the media, parliamentary inquiries on the amendments, and international forums.
The first successful resolution of a native title claim for mainland Australia happened when the Dunghutti people of Crescent Head, NSW allowed the development of 12.4 hectares of their land in return for compensation for the Government’s sale of the land without first establishing whether native title existed.
Hon. Justice Elizabeth Evatt’s 1996 Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 called for the adoption of a national policy covering all aspects of Indigenous culture and heritage. In the same year the Hindmarsh Island Bridge Bill 1996 was introduced into the House of Representatives. The legislation prevented a heritage protection declaration being made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to the Hindmarsh Island Bridge site.
The Racial Hatred Act 1995 was finally passed but did not include criminal sanctions as recommended in the 1991 Report of the National Inquiry into Racist Violence in Australia that had recommended the Federal Crimes Act 1914 be amended to include ’a new criminal offence of racist violence and intimidation’, as well as ‘a clearly identified offence of incitement to racist violence and racial hatred which was likely to lead to violence’. The Racial Hatred Act also fell short of the implementation requirements of the Convention of the Elimination of All Forms of Racial Discrimination to which Australia was a signatory.
In The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors (1996) 187 CLR 1 the High Court decided that particular pastoral leases issued in Queensland did not reveal an intention to extinguish native title. Native title rights could therefore continue at the same time that land was subject to a pastoral lease. Where there was a conflict between the exercise of rights granted under a pastoral lease and the exercise of native title rights, the rights of the pastoralist prevailed. The court had not been asked to decide if the Wik and Thayorre people had native title rights to the land in question but only to determine if they could argue their case for the survival of native title on pastoral leases in the Federal Court and the finding was yes.
The National Indigenous Working Group on Native Title (NIWG) was formed and representatives of various Aboriginal organisations held consultations and negotiations with Indigenous people across Australia and developed a response to the Wik decision and to the proposed amendments to the Native Title Act 1993.
In North Ganalanja Aboriginal Corporation v State of Queensland (1996), 185 CLR 595, also called the Waanyi Case, the High Court found that the Registrar of the National Native Title Tribunal must accept applications for native title if a question of law upon which it depends is fairly arguable.
In the Northern Territory the Community Welfare Act 1996 (NT) embodied the Aboriginal child placement principle, the now repealed Juvenile Justice Amendment Act 1996 (NT) provided for mandatory sentencing provisions for property offenders, the Mining Act 1996 (NT) gave the Warden’s Court (NT) the right to determine following arbitration in relation to the right to negotiate and the Pastoral Land Act 1996 (NT) included provision for Aboriginal access to pastoral leasehold land and a scheme for claim of a small area of a pastoral lease for residential purposes.
In Western Australia the Report of the Review of the Aboriginal Lands Trust recommended that Aboriginal reserves be vested in and managed by an Aboriginal Affairs Planning Authority. This would be a non-Aboriginal body set up under the Aboriginal Affairs Planning Authority Act 1972 (WA) and would have the power to transfer land to the Aboriginal Lands Trust, an all Aboriginal body, which had the power to grant 99 year leases to local communities.
In New South Wales the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW) provided for Aboriginal ownership and primary management of various lands, while retaining for those lands their status as national parks, nature reserves and historic sites.
The Howard Government introduced a ‘Ten Point Plan’ to address the Wik decision. It was widely rejected by many Indigenous peoples who saw it as an attempt to extinguish native title on pastoral leases. Amendments to the Native Title Act 1993 were, however, introduced into the Parliament. A coalition of non-government organisations and concerned citizens, Australians for Native Title and Reconciliation (ANTaR), began a campaign of protests against the Commonwealth Government’s response to the Wik decision and failure to make an apology to the stolen children.
The Human Rights and Equal Opportunity Commission’s Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families was tabled. It was more commonly referred to as the Bringing them home report. Attorney-General Daryl Williams ruled out payment of compensation to members of the stolen generation on the grounds that it would be inappropriate and divisive. In December Minister Herron announced Government initiatives in response to the Bringing Them Home. They included access to records, additional funding for link-up services and counselling, funding for family support and parenting programs and an oral history project. They fell short, however, of the report’s recommendations. For example, there was no provision for reparations or compensation and no apology.
In Kruger, Bray v Commonwealth (1997) 146 ALR 126 the High Court decided that the Aboriginals Ordinance 1918 which authorised the removal of Aboriginal children was not constitutionally invalid.
In May the Australian Reconciliation Convention in Melbourne called for a people’s movement to achieve reconciliation between Indigenous and non-Indigenous Australians, and for a national document of reconciliation. The Council of Aboriginal Reconciliation’s research had revealed strong support for developing some form of national document or documents to underpin reconciliation. Prime Minister Howard gave the opening address, expressing his personal sorrow about the stolen generations. He said we must acknowledge past wrongs, understand personal distress suffered and address indigenous disadvantage, but did not apologise on behalf of the nation and to some seemed to characterise injustices left on our history as mere blemishes. At least 100 convention delegates turned their backs on him. The next day in Parliament in a speech on a motion of Aboriginal Reconciliation, the Prime Minister said:
In the remarks that I made to the Reconciliation Convention yesterday, I deliberately said, and I repeat it in the House today, that we believe that the essence of reconciliation lies not in symbolic gestures—although some of them are important; this motion in a sense is a symbolic gesture. It is important on these issues that the parliament, as far as possible, speak with one voice—not in overblown rhetoric but in a practical determination to address the areas of disadvantage that indigenous people suffer.
Source: House of Representatives, Debates, 27 May 1997.
In October Minister Herron appointed barrister John Reeves to review the Aboriginal Land Rights Act (Northern Territory) 1976. The review was to examine the overall effectiveness of the legislation, the operation of its exploration, mining and royalties provisions, the operation of the Aboriginal Benefits Trust Account and the future role and structure of the land councils.
In December the House of Representatives laid the Native Title Amendment Bill 1997 aside after accepting some Senate amendments and rejecting others.
The controversy surrounding Kumurangk (Hindmarsh Island) and the Commonwealth’s failure to act on the application lodged by the Gamileroi people over a sacred site at Boobera Lagoon continued. The Hindmarsh Island Bridge Act 1997 prevented the Heritage Protection Act 1984 from preventing the building of Hindmarsh Island Bridge.
In state developments, Hamersley Iron and the Gumala Aboriginal Corporation finalised a unique regional land use agreement making way for the $500 million Yandicoogina iron ore mine in the Pilbara region of Western Australia. The agreement was the result of 20 months of consultation and negotiation. Similarly, Alcan South Pacific Pty Ltd entered into a detailed Heads of Agreement with the Aboriginal community in Weipa, Cape York, for a proposed bauxite mining and shipping operation from Alspac’s existing mining lease at Ely, north of Weipa.
An official apology was made to the stolen children by the governments of South Australia, Western Australia, Tasmania, the Australian C apital Territory and New South Wales. Various local governments and churches across the country also made official apologies.
Source: C Dow, ‘Sorry’: the unfinished business of the Bringing them home report, Background note online only, 4 February 2008, Parliamentary Library, Canberra, 2008, viewed 12 November 2010.
The Constitutional Convention at Old Parliament House resolved that in the event of Australia becoming a republic that the preamble to the Constitution of Australia should contain an acknowledgment of the original occupancy and custodianship of Australia by Aboriginal and Torres Strait Islanders.
Prime Minister Howard announced that the Government would introduce legislation to amend the ATSIC Act to provide for the appointment of the ATSIC Chair and reduce the number of regional councils. The Prime Minister also announced the appointment of a Special Auditor to determine whether prospective grantees were ‘fit and proper’ persons to receive public money and proposed to amend the ATSIC Act to enable an Administrator to be appointed if the Minister was satisfied that there had been fraud, gross mismanagement or failure to respond to a directive of the Minister.
In May the first ‘National Sorry Day’ was held to mark the anniversary of the tabling of the ‘Bringing Them Home report and was marked by hundreds of activities around the country. The Federal Government did not take part. Father Frank Brennan later reported that Minister Herron had responded to a letter he had sent John Howard with the words ‘The government does not support an official national apology. Such an apology could imply that present generations are in some way responsible and accountable for the actions of earlier generations, actions that were sanctioned by laws of the time, and that were believed to be in the best interests of the children concerned.’
Source: F Brennan, ‘Now is the moment for political leadership’, Eureka Street, 6 February 2008.
Minister Herron sought a special audit from ATSIC’s Office of Evaluation and Audit into ATSIC conferences.
After two long parliamentary debates in late 1997 and early 1998, a deal reached between the Prime Minister and Senator Harradine saw the passage of the Native Title Amendment Act 1997 in response to the High Court’s Wik decision. The legislation provided for substantial changes to the future act regime, the registration test, the validation provisions, the relative roles of the Federal Court and the National Native Title Tribunal, the statutory regulation of Native Title Representative Bodies and the law on agreements.
The review of the Aboriginal Land Rights Act (Northern Territory) 1976, Building on Land Rights for the Next Generation (the Reeves Report), was tabled in the Senate. John Reeves QC concluded that the Aboriginal Land Rights Act had been very effective in granting traditional Aboriginal land in the Northern Territory and that ‘the benefits of the Land Rights Act have greatly exceeded their costs for Aboriginal Territorians’. Nonetheless, his recommendations included the establishment of a new central body, the Northern Territory Aboriginal Council (with members appointed by the NT and Commonwealth) to replace the Northern and Central Land Councils; the formation of a system of 18 Regional land councils to make all decisions in relation to Aboriginal lands at the regional level; the removal of the permit system to enter Aboriginal land and the application instead of the Northern Territory’s trespass laws; and that power be given to the Northern Territory to compulsorily acquire Aboriginal land for public purposes. In December Minister Herron referred the Reeves Report to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (HORSCATSIA) who then set up an Inquiry into the Reeves Report on the Aboriginal Land Rights (Northern Territory) Act.
Minister Herron in his Lyons lecture set out the government’s new directions in Indigenous policy. The term ‘self-empowerment’ was preferred over ‘self-determination’ and was defined as ‘a means to an end—ultimately social and economic equality—rather than an end in itself.’
The Howard Government was returned and Prime Minister Howard declared reconciliation a priority for his Government’s second term:
I also want to commit myself very genuinely to the cause of true reconciliation with the Aboriginal people of Australia by the centenary of Federation. We may differ and debate about the best way of achieving reconciliation, but I think all Australians are united in a determination to achieve it.
Source: J Howard, ‘What they said on the night—PM claims mandate for major tax reforms’, Sunday Herald Sun, 4 October 1998—an edited transcript of Election Night Speech, Sydney, 3 October 1998.
In New South Wales the Mutawintji lands were leased back to the Mutawintji Local Aboriginal Land Council (NSW).
On 23 March the Prime Minister presented a draft preamble to the Constitution. The preamble was presented as an effort on the part of the Australian Government to express in contemporary and essentially ageless language historical realities and contemporary values but it did not refer to prior Aboriginal ownership or custodianship of the country. Later that year the Prime Minister released a new draft preamble mentioning the deep kinship Aborigines and Torres Strait Islanders have with the land. In the November referendum the proposal to include this preamble was not accepted.
The Council for Aboriginal Reconciliation released a Draft Declaration for Reconciliation for public debate.
Aden Ridgeway was sworn in to the Senate, becoming the second Aboriginal person to sit in Federal Parliament and in his first speech called for an apology that expressed deep and sincere regret. On 26 August the Government moved, with the co-sponsorship of Senator Ridgeway, a motion of reconciliation that did not include an apology but expressed:
Deep and sincere regret that indigenous Australians suffered injustices under the practices of past generations, and for the hurt and trauma that many indigenous people continue to feel as a consequence of those practices.
The motion was opposed by Labor on the basis that it was not strong enough, but passed with Australian Democrats support.
The Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 was introduced by Senator Bob Brown to override the mandatory sentencing laws in WA and NT. It led to a Senate Inquiry into mandatory sentencing – a significant issue for Aboriginal people - and national and international attention being focussed upon the issue.
Several native title amendments were judged by the United Nation’s Convention on the Elimination of All Forms of Racial Discrimination (CERD) Committee to be in breach of the CERD convention. Although the Australian Government rejected the finding they were reaffirmed by the CERD Committee in August 1999 and March 2000.
The issue of Indigenous domestic violence received increased media attention following the TV Sunday Program ‘The Truth about Aboriginal Domestic Violence’ on 13 June 1999 and the Queensland Government’s 1999 paper The Aboriginal and Torres Strait Islander Women’s Task Force on Violence Report.
On the subject of the ‘stolen generation’ a prima facie case was established against the Commonwealth by two of its members in Cubillo v Commonwealth of Australia  FCA 518 and the Senate asked the Senate Legal and Constitutional References Committee to inquire into the implementation of recommendations made in the Bringing Them Home report, including the adequacy and effectiveness of the Government’s response.
In 29 March the $27 million Indigenous National Literacy and Numeracy Strategy was launched. At the launch the Prime Minister declared the strategy was ‘very much an exercise in practical reconciliation’ a term that was to reappear throughout 2000 in government policy.
The Prime Minister announced on 22 May that Reconciliation Square would be constructed in the national capital. Up to $5 million was to be provided for the square and related initiatives.
At Corroboree 2000, the 5th National Reconciliation Week, held 27 May - 3 June, the Council for Aboriginal Reconciliation, 10 years since its inception, presented Reconciliation: Australia’s Challenge – Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament, an aspirational statement that the Council hoped would be embraced by all Australians, and Roadmap for Reconciliation, containing four strategies proposing practical and symbolic actions to make reconciliation a reality. Coinciding with this Convention, on 28 May, over 150,000 people walked across Sydney Harbour Bridge as part of The People’s Walk for Reconciliation. Prime Minister Howard released a version of the Council for Aboriginal Reconciliation’s Australian Declaration Towards Reconciliation which omitted reference to an apology.
The Senate Committee for Legal and Constitutional Affairs tabled its report Healing: A legacy of generations and made ten recommendations. The key recommendations concentrated on the issue of reporting and monitoring of responses to the Bringing Them Home report and the establishment of a reparations tribunal.
The Commonwealth Government granted $5.6 million to establish Reconciliation Australia to continue the ‘people’s movement’ for reconciliation, and gave tax deductibility status for donations to the organisation.
The Senate Inquiry into Mandatory Sentencing and The United Nations Committee on the Elimination of Racial Discrimination in relation to Australia both condemned the mandatory sentencing laws in the Northern Territory and Western Australia.
On the subject of native title, the Federal Court found in Western Australia v Ben Ward  FCA 191 that the native title of the Miriuwung and Gajerrong families had been extinguished with respect to the Ord Irrigation Scheme and the Argyle Diamond Mine but in Anderson v Wilson  FCA 394 that native title potentially exists on almost all NSW pastoral leases.
Media coverage on the issue of Indigenous domestic violence increased with the response of Pat O’Shane to allegations of rape by ATSIC Chair, Geoff Clark, with the Four Corners program ‘For Shame’ on 3 September 2001 and with the release of Violence in indigenous communities, a report commissioned by the Attorney-General’s Department.
The Government established Indigenous Business Australia to forge partnerships between Indigenous people and corporate Australia by developing viable joint ventures that will enable Indigenous Australians to acquire equity in large businesses and create employment opportunities.
In June 2001 the Government tabled its response to the Senate’s Healing: a legacy of generations, a report on the implementation of recommendations made by the Human Rights and Equal Opportunity Commission in Bringing them home.
The Commonwealth Grants Commission, Report on Indigenous Funding 2001, identified needs across a range of indigenous social indicators and services.
In native title developments, the High Court in Commonwealth v Yarmirr  HCA 65 (the Croker Island decision), confirmed that the common law can recognise native title offshore but rejected the applicants’ claim to exclusive rights.
The Council of Australian Governments (COAG) agreed to trial a ‘whole-of-government’ approach in up to ten communities or regions and to commission a regular report on Indigenous disadvantage. Family Income Management Trial Projects began in Cape York.
Reconciliation Australia, ATSIC and the National Institute for Governance co-host an Indigenous Governance Conference.
Minister Ruddock released the options paper Reform of the Aboriginal Land Rights (Northern Territory) Act 1976. In response the Northern Territory Government and the four Northern Territory Aboriginal land councils prepared a joint submission to the Commonwealth.
The issue of ‘stolen wages’, though of more relevance to the states than the Commonwealth, started to attract national attention. The Queensland Government, after 2 years of consultation offered to set up an Indigenous Wages and Savings Reparations scheme and allocate to it $55.4 million package to compensate those whose finances had been controlled. The offer also included an apology, a Parliamentary Acknowledgment and Government protocol to acknowledge traditional owners. The Beattie proposal did not, however, address the issue of stolen child endowment money, only wages, and the Premier said he would only offer an apology to claimants who signed the waiver against future legal action. The offer was condemned by many Indigenous leaders and the Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr William Jonas.
The federal government initiated a major review into the structure and functions of the Aboriginal and Torres Strait Islander Commission (ATSIC). Responsibility for ATSIC moved from the Reconciliation and Aboriginal and Torres Strait Islander Affairs Portfolio to the newly created Immigration and Multicultural and Indigenous Affairs Portfolio (IMIA), and within IMIA an Office of Aboriginal and Torres Strait Islander Affairs (OATSIA) was created to handle policy and coordination on Indigenous issues.
With respect native title matters, the High Court decided in Members of the Yorta Yorta Community v Victoria  HCA 58 upheld the Federal Court determination of 1998 that the tide of history has washed away their traditional connection and native title rights.
The paper J.C. Altman and B.H. Hunter, Monitoring ‘practical’ reconciliation: Evidence from the reconciliation decade, 1991-2001, CAEPR Discussion Paper 254, examined changes in the socioeconomic status of Indigenous Australians during the decade 1991-2001. Using data from three censes the authors believed they could show that, despite the rhetoric of post 1996 policy being ‘practical’ there was no evidence that the Howard Government had delivered better outcomes for Indigenous Australians than their predecessors.
The Prime Minister held a national roundtable on Indigenous family violence. Following the roundtable, a working group was established to advise the Prime Minister on ways of advancing strategies to address family violence in Indigenous communities.
The Ministerial Council for Aboriginal and Torres Strait Islander Affairs (MCATSIA) released its evaluation of government and non-government responses to Bringing them home, the Evaluation of responses to Bringing them home.
Most of ATSIC’s programs were transferred to the Aboriginal and Torres Strait Islander Services (ATSIS)—a newly created body within the Immigration, Multiculturalism and Indigenous Affairs (IMIA) portfolio.
The Senate’s Legal and Constitutional References Committee reported on progress towards reconciliation. In Reconciliation: Off track, they reported that there had been progress towards reconciliation at all levels of government but expressed concern on slow progress in setting appropriate targets, benchmarks and evaluation mechanisms and that progress towards reconciliation in a broader sense had stalled: ‘there is a sense that momentum is being lost. People are becoming disheartened and reconciliation is slipping off the national agenda’. The majority report criticised the limited nature of the federal government’s ‘practical reconciliation’ policy.
ALP National Conference delegates passed a motion to enact the draft legislation recommended by the former Council for Aboriginal Reconciliation—legislation which would put in place a process to unite all Australians by way of an agreement or treaty.
The findings in the above cited Altman and Hunter paper of the previous year were criticised in an Appendix to an April 2004 report entitled Key social and economic indicators for Indigenous Australia: A comparative analysis, by Australasia Economics—the authors suggesting Altman and Hunter had not taken account of the expected delay between policy change and indicator change.
The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs completed its report Many ways forward: Report of the inquiry into capacity building and service delivery in Indigenous communities.
On the subject of stolen wages, after consultation with over 500 Aboriginal people and interested organisations in NSW at various locations, the Report of the Aboriginal Trust Fund Repayment Scheme Panel was released and the NSW Government announced the establishment of the Aboriginal Trust Fund Reparation Scheme (ATFRS).
On 15 April the Prime Minister, John Howard, and the Minister for Indigenous Affairs, Senator Amanda Vanstone, announced the Government’s intention to abolish the Aboriginal and Torres Strait Islander Commission.
The implementation of a ‘new arrangement’ in the administration of Indigenous affairs, begun the previous year, gathered more momentum. All ATSIS and OATSIA functions and some left over ATSIC ones were combined in a newly created Office of Indigenous Policy Co-ordination within the Department of Immigration, Multiculturalism and Indigenous Affairs (DIMIA), and the process began of mainstreaming these out of DIMIA to other departments. Accompanying these changes was the commencement of Council of Australian Governments trials of a whole-of-government approach, and the negotiation of Shared Responsibility Agreements and support for Regional Partnership Agreements.
The new approach also involved freeing up land tenure possibilities on communal land, encouraging private-home ownership and trying to provide employment and training opportunities in lieu of Community Development Employment Projects. As an extension of this approach, resources were directed away from areas where mainstream services and markets were strong. Where they were not strong, policy settings would encourage Indigenous people to seek educational, training and employment opportunities elsewhere.
The completion of the administrative reform of Indigenous Affairs.
In October and November Minister Vanstone announced reforms to the native title regime, including a review of the native title claims resolution processes and effectiveness of native title representative bodies.
The first Regional Partnership Agreements (RPAs) were concluded – these included the Ngaanyatjarra Council, East Kimberley, Port Hedland RPAs.
Australia appeared before the UN Committee for the Elimination of Racial Discrimination, which expressed concern about the abolition of ATSIC, the lack of genuine progress in native title, the continuing over-representation of Indigenous peoples in prisons and the extreme inequities between Indigenous peoples and others in the areas of employment, housing, health, education and income.
In May the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 was introduced to the House of Representatives and referred by the Senate to the Senate Community Affairs Legal Committee. The Committee’s Report expressed concern over a number of amendments included in the Bill, particularly those relating to the township leasing proposals, which had not been included in the earlier consultative process. The Committee recommended that the Bill proceed subject to amendments. In the dissenting reports of the Opposition Senators, the Australian Democrats and the Australian Greens it was recommended that the Bill not proceed in its current form, but be split to enable negotiated provisions relating to mining, exploration and subleasing to proceed, and allowing for further consultation and negotiations with stakeholders. The Government subsequently made 63 amendments to the Bill (accepting no non-Government amendments) and the bill was passed on 17 August 2006.
The issue of sexual abuse in Indigenous Communities received increased attention with the release of the NSW Attorney General’s Department’s Aboriginal Child Sexual Assault Taskforce’s report, Breaking the silence: Addressing child sexual assault in Aboriginal communities in NSW.
Minister Mal Brough announced a review of Commonwealth legislation allowing for the permit system for access to Aboriginal land in the Northern Territory, putting the view that increased external scrutiny would be in the interests of vulnerable persons and that liberalised access would bring economic benefits to Aboriginal people in remote communities. Proposed legislative changes were outlined in the discussion paper Access to Aboriginal land under the Northern Territory Aboriginal Land Rights Act - Time for change?
In June a high level of child sex abuse in Indigenous communities was reported to the Northern Territory Government in the report Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’. Minister Brough announced a Northern Territory child abuse emergency response. Over the next three months the Commonwealth announced and then legislated for a series of emergency measures. Among the financial measures were those meeting the costs of increased personnel, infrastructure upgrades, improved IT capacity across a number of agencies, child-health-checks, improved childhood support services, an increased teacher workforce and more drug and alcohol diversionary programmes, legal services and night patrols. Among the legislative measures were:
- removing the permit system governing access to Aboriginal land in the NT (to take effect February 2008).
- creating five year Commonwealth leases and enabling the Commonwealth to acquire certain rights, titles and interests in certain town camps
- introducing an Income Management Regime which might involve many indigenous people having some or all of their welfare payment diverted
- discouraging the use of alcohol in Aboriginal communities by using various penalty provisions
- providing that the Commonwealth can retain an interest in buildings and infrastructure on Aboriginal land which it funded
- banning the possession of pornography within ‘prescribed areas’ and requiring the installation of filters on publicly-funded computers
- extending the mandate of the Australian Crime Commission to include ‘Indigenous violence and child abuse’
- removing customary law as a consideration in sentencing or setting bail but requiring the impact on victims and witnesses to be taken into account, and
- providing for Commonwealth management of ‘business management areas’ and closer management by the Commonwealth of community stores.
The Government also announced the winding up of the Community Development Employment Projects (CDEPs) in the Northern Territory and that they would be replaced with ‘real jobs, training and mainstream employment programmes’. An initial outcome was a movement of CDEP participants from wages to income support.
Sources: Jobs and Training for Indigenous People in the NT, media release, Canberra, 23 July 2007, a fact sheet accompanying the media release, and Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007, Bills digest, no.27, 2007–08, Parliamentary Library, Canberra, 2007, and Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007, Bills digest, no. 21, 2007–08, Parliamentary Library, Canberra, 2007.
During the election both the Coalition and Labor promised to support a new preamble to the Constitution which recognises Indigenous Australians.
The Rudd Government maintained most of the previous Government’s Northern Territory intervention measures, but adopted a different policy language, issued a national apology, attempted to repeal the previous government’s changes to the permit system for access to Aboriginal land in the Northern Territory, endorsed the UN Declaration on the Rights of Indigenous People, oversaw legislation which reinstated the full operation of the Racial Discrimination Act 1976 and promised consultation on a range of issues–from the future of the CDEP scheme, to the formation of a new Indigenous representative body. The Gillard Government introduced no new direction.
In November 2007 the Rudd Labor Government came to office with a slightly different rhetoric in the area of Indigenous Affairs. Key words were now ‘new partnership’ and ‘closing the gap’. These terms were used in the Communiqué from the Council of Australian Government’s meeting on 20 December 2007, where there was a commitment to clarify the roles and responsibilities of different levels of governments and to close the life expectancy gap within a generation, to halve the gap in mortality rates for Indigenous children under five within a decade, and to halve the gap in reading, writing and numeracy achievements within a decade.
In January the Government terminated the National Indigenous Council, the 12 member advisory body which the Howard Government had set up after the Aboriginal and Torres Strait Islander Commission was abolished. The Government expressed a commitment to re-establish a national Indigenous representative body and related issues and options were addressed in the Human Rights and Equal Opportunity Commission’s Building a sustainable National Indigenous Representative Body: An issues paper prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner.
Prime Minister Rudd delivered in Parliament a National Apology speech on 13 February 2008. In addition to the expression of an apology, he declared:
Our challenge for the future is to embrace a new partnership between Indigenous and non-Indigenous Australians. The core of this partnership for the future is closing the gap between Indigenous and non-Indigenous Australians on life expectancy, educational achievement and employment opportunities.
On 21 February, the Government introduced the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008. The Bill, among other things, provided for the reintroduction of the permit system on Aboriginal land in the Northern Territory. The Bill was referred to the Senate Community Affairs Committee and their report, the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008 [Provisions], was tabled on 15 May. The report included Liberal Senators concern that it was too early to assess the success or failure of the previous government’s decision to remove the permit system. The Bill went to the Senate in September but the section that would have reinstated the permit system was rejected. The Government circumvented the rejection by continuing to not make any determinations specifying which roads can be used to gain access to communities, meaning people wishing to visit communities by road would still require a permit unless the roads are public roads. The Senate also rejected a section of the bill that would have eased some pornography bans imposed under the intervention.
The new Government’s 2007 commitment to a ‘new partnership’ and ‘closing the gap’ was restated in the Close the Gap, Indigenous Health Equality Summit, Statement of Intent which the Commonwealth signed on 20 March 2008. In the May 2008 Budget media releases the Government expressed its commitment:
- To developing a comprehensive, long-term plan of action, that is targeted to need, evidence-based and capable of addressing the existing inequities in health services, in order to achieve equality of health status and life expectancy between Aboriginal and Torres Strait Islander peoples and non-indigenous Australians by 2030.
- To ensuring primary health care services and health infrastructure for Aboriginal and Torres Strait Islander peoples which are capable of bridging the gaps in health standards by 2018.
- To ensuring the full participation of Aboriginal and Torres Strait Islander peoples and their representative bodies in all aspects of addressing their health needs
- To working collectively to systematically address the social determinants that impact on achieving health equality for Aboriginal and Torres Strait Islander peoples.
- To building on the evidence base and supporting what works in Aboriginal and Torres Strait Islander health, and relevant international experience.
- To supporting and developing Aboriginal and Torres Strait Islander community controlled health services in urban, rural and remote areas in order to achieve lasting improvements in Aboriginal and Torres Strait Islander health and wellbeing.
- To achieving improved access to, and outcomes from, mainstream services for Aboriginal and Torres Strait Islander peoples.
- To respect and promote the rights of Aboriginal and Torres Strait Islander peoples, including by ensuring that health services are available, appropriate, accessible, affordable and good quality.
- To measure, monitor, and report on our joint efforts, in accordance with benchmarks and targets, to ensure that we are progressively realising our shared ambitions.
The Council of Australian Governments (COAG) framed a new ‘Indigenous Reform Agenda’ comprised of five new strategies: an ‘Indigenous Early Childhood National Partnership’, a ‘National Partnership on Closing the Gap in Indigenous Health Outcomes’, ‘Remote Indigenous Housing Partnership’, an ‘Indigenous Economic Participation National Partnership’ and an ‘Indigenous Remote Service Delivery National Partnership’.
Sources: J. Macklin (Minister for Families, Housing and Community Services), Indigenous Affairs statement, Closing the gap between Indigenous and non-Indigenous Australians, Appendix B, Council of Australian Governments Indigenous National Partnerships, 12 May 2009.
Despite rhetorically distinguishing itself from the Coalition Government, the new Government’s programs, the focus on improving the situation in the Northern Territory and the level of funding, $3.86 billion in the May 2008 budget, were not very different from those of the previous government.
Sources: ‘Whole of Government’ section of Australian Government, Budget measures: budget paper no. 2: 2008–09, Commonwealth of Australia, Canberra, 2008, pp.299–320.
Three different reviews of the first 12 months of the Northern Territory Emergency Response (The NTER, or ‘Intervention’) were produced: the Northern Territory Emergency Response Taskforce Final Report to Government June 2008; the Government’s report, Northern Territory Emergency Response—One Year On, June 2008, and the independent assessment Report of the NTER Review Board, October 2008. The Government announced a review of the intervention.
The Government declared, consistent with the 2001 High Court decision in the Croker Island case, that non-exclusive native title rights could exist in territorial waters up to 12 nautical miles from shore.
Prime Minister Rudd and 15 Cabinet ministers met with Yolngu people at Yirrkala, Northern Territory, and received from them a statement of their aspirations and a petition of demands—including for constitutional recognition.
The Government declared an intention to review the changes to the Community Development Employment Projects (CDEP) program that had been made by the previous Government the previous year and in May 2008 issued Increasing Indigenous economic opportunity: A discussion paper on the future of the CDEP and Indigenous employment programs. In October 2008, after some months consultation, the Minister released a paper on the Government's preferred model for Indigenous employment programs, Increasing Indigenous employment opportunity. The Prime Minister and relevant ministers also launched a new ‘Australian Employment Covenant’.
Sources: J Macklin (Minister for Families, Housing, Community Services and Indigenous Affairs), Government welcomes Australian Employment Covenant, media release, 30 October 2008, viewed 12 November 2010.
The Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Stolen Generation Compensation Bill 2008 received 85 submissions. Its report recognised that most of these submissions expressed support for monetary compensation, presented models for effecting it and recommended that ‘the Commonwealth should engage with state and territory governments, through COAG, to establish a cooperatively-funded national scheme’ even though this had been explicitly ruled out by the Rudd government.
The Government promised to improve transparency and efficiency in the Aboriginals Benefit Account (ABA) and ensure ABA funds are not used to fund services that would normally be provided by government, releasing a discussion paper on Optimising benefits from Native Title Agreements.
Australian of the Year, Professor Mick Dodson, used an Australia Day address to try to put education at the top of the Indigenous Affairs agenda and to suggest that there should be a ‘national conversation’ on the possibility of moving Australia Day. The Rudd Government declared the day would not be moving.
Sources: C Kerr, ‘Kevin Rudd rules out Australia Day changes’, The Australian, 26 January 2009.
The Government issued its first promised annual report on the subject, Closing the gap on Indigenous disadvantage, in February 2009. In that document the Government announced its intention to appoint a Coordinator General for Remote Indigenous Services to drive implementation of reforms in areas such as remote Indigenous housing, infrastructure and employment. It also stated its six key Closing the Gap objectives as to:
1. close the life expectancy gap within a generation
2. halve the gap in mortality rates for Indigenous children under five within a decade
3. ensure access to early childhood education for all Indigenous four years olds in remote communities within five years
4. halve the gap in reading, writing and numeracy achievements for children within a decade
5. halve the gap for Indigenous students in year 12 attainment or equivalent attainment rates by 2020, and
6. halve the gap in employment outcomes between Indigenous and non-Indigenous Australians within a decade.
A clearing house was established to provide a single national repository of reliable evidence on a broad range of topics related to improving Indigenous outcomes.
The Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, agreed to a request from the Australian government to convene an independent Indigenous Steering Committee to organise consultation on the form future representation might take. In March a hundred Indigenous people from around the country met in Adelaide for a three-day workshop to lay the groundwork for a new national Indigenous representative body.
The UN Committee on the Elimination of Racial Discrimination urged the Australian Government to ensure that the Northern Territory Intervention complies with the Convention on the Elimination of All Forms of Racial Discrimination. In an Urgent Action Letter to Australia dated 13 March 2009 the Committee called upon the Australian Government to report in four months’ time on the progress it has made to reinstate the Racial Discrimination Act 1975 and to build a new relationship with Aboriginal Australia. From 17 to 28 August UN Special Rapporteur, Professor James Anaya, visited Australia and on 29 August the Special Rapporteur released a statement critical of the NT intervention.
In April 2009 the Australian Government made a statement in support of the UN Declaration on the Rights of Indigenous Peoples, which had been adopted by the UN in September 2007. As a non-binding declaration it did not need to be signed or ratified, nor even endorsed to be used, but the statement reversed the previous Government’s position.
In May 2009 the Government released its second Northern Territory Emergency Response Monitoring Report and it opened a period of consultations about future directions for the Northern Territory Emergency Response. It released a paper, Future directions for the Northern Territory Emergency Response, as a starting point for discussions on how certain measures could be changed, where necessary, in the context of the Government’s commitment to make the NTER subject to the Racial Discrimination Act 1975.
Sources: Australian Human Rights Commission Questions and answers on the UN Declaration on the Rights of Indigenous Peoples, A McQuire, ‘Rudd government endorses UN Declaration on the Rights of Indigenous Peoples’, National Indigenous Times, 3 April 2009.
In the middle of the year, Minister Macklin was able to strike a deal with the Alice Springs town camps’ Tangentyere Council to deliver over $100 million in housing and infrastructure upgrades in exchange for a 40-year lease over the land. However, the joint Commonwealth-NT $672m Strategic Housing and Infrastructure Program, intended to deliver to Indigenous communities across the Northern Territory 750 new house, 230 rebuilds and 2500 refurbishments was being widely reported as being far behind schedule.
The Government released its Mid Term Progress report, June 2009, discussing among other things its ‘National “Closing the Gap” Strategy’:
In August 2009 the Cooperative Research Centre for Aboriginal Health’s report The Overburden Report, Contracting for indigenous health services (along with other studies such as J.Lavoie, J Patches of equity: Policy and financing of Indigenous primary health care providers in Canada, Australia and New Zealand, London School of Hygiene and Tropical Medicine, 2005, identified problems of overly complex contracting and administration in the area of Australian Indigenous public health care provision. The National Health and Hospitals Reform Commission released its Final Report, recommending radical change in the way health care for Aboriginal and Torres Strait Islander people is funded and proposing the establishment of a National Aboriginal and Torres Strait Islander Health Authority, though not making it entirely clear how this body could fulfil its potential.
The Resale Royalty Right for Visual Artists Act 2009 established a scheme which proponents believed would help Indigenous artists receive some benefit from the large increases in the after sale value of their work. Concerns had been expressed in many quarters, however, about the efficacy of the scheme proposed—for example, in the House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts February 2009 report Resale Royalty Right for Visual Artists Bill 2008.
The Government passed the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010, an Act intended to:
- repeal provisions in the Northern Territory Emergency Response Act 2007 which limited the application of the Racial Discrimination Act 1975 and State and territory anti-discrimination laws
- ensure that measures under the NTER and Cape York Welfare Reform Trials remain consistent with the RDA and state and territory anti-discrimination laws
- change a number of measures associated with the NTER—including income management, and
- provide the basis for the extension of income management to other regions throughout Australia.
Sources: L Buckmaster, J Gardiner-Garden and M Thomas, Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009, Bills Digest, no.94, 2009–10, Parliamentary Library, Canberra, 2010.
The Government’s May budget presented Australian Government Indigenous Expenditure figures that totalled $3 348 million for 2009–10 and $3 482 million for 2010–11 (budgeted), down a little from the $3 507 million the 2008–09. The Government’s Budget statement Budget statements 2010–11: Closing the gap—building momentum, included housing completion data that suggested that the joint Commonwealth-Northern Territory Strategic Indigenous Housing and Infrastructure Program (SIHIP) program, which is meant to be delivering on the commitments in the National Partnership Housing Agreement, was seriously behind schedule.
Sources: J Gillard (Minister for Education, Employment and Workplace Relations), J Macklin (Minister for Families, Housing, Community Services and Indigenous Affairs), N Roxon (Minister for Health and Ageing), R McClelland (Attorney General), M Arbib (Minister for Employment Participation), P Garrett (Minister for Environment Protection, Heritage and the Arts), and W Snowdon (Minister for Indigenous Health), Closing the Gap—strengthening Indigenous communities, media release, Canberra, 11 May 2010.
The Commonwealth Government and the Northern Land Council plan for a radioactive waste dump on Indigenous land at Muckaty Station near Tennant Creek in the Northern Territory is met with a Federal Court challenge, brought by senior traditional owners.
Sources: Maurice Blackburn Lawyers, Indigenous owners launch Federal legal challenge over Australia’s first nuclear waste dump, media release, 3 June 2010.
On 2 September, the West Australian Government commenced a formal process to acquire land at James Price Point for an LNG precinct. The land is Crown land and subject to a native title claim, but no native title determination has yet been made nor Indigenous Land Use Agreement finalised. The decision has stirred many different reactions, including calls for Commonwealth involvement.
Sources: C Barnett (Western Australian Premier, Treasurer and Minister for State Development), State Government to trigger land acquisition process for LNG precinct, media release, 2 September, 2010; R Taylor, James Price Point is no Noonkanbah, The West Australian, 3 September 2010; V Mills, James Price Point: acquisition of unallocated Crown Land or theft of Aboriginal Land?, ABC Kimberley, 2 September 2010.
In mid September violence and rioting in the Northern Territory Aboriginal community of Yuendumu led to the despatch to the community from Darwin of a Police Tactical Response Group and to 100 or so Aborigines seeking refuge from the trouble travelling to Adelaide.
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