Embracing our First Australians

Dinner Address to ANU Treaty Forum, Canberra, 13 November 2019

I have treasured many things about my time at ANU, but one of the things I have treasured most of all has been my friendship, and work with, members of the Indigenous community here on issues and projects that have mattered so much to us all:

• working with Aunty Anne Martin’s superbly committed leadership of the Tjabal Centre with the marvellous mentoring and support role for Indigenous students she and it has played;
• working with, and enjoying the wicked sense of humour of, Aunty Matilda – Doctor Matilda – House and relishing that extraordinary spirit of community that led her and her fellow Ngunnawal and Ngambri elders to gift the name ‘Kambri’ to the vital new redeveloped precinct at the heart of our ANU campus;
• appreciating the outstanding work of the National Centre for Indigenous Studies (NCIS), so ably led by Mick Dodson since its foundation, and now equally ably on an interim basis by Asmi Wood until Peter Yu takes over next year;
• appreciating the outstanding work done by Mick and others in developing and implementing the ANU Reconciliation Action Plan;
• working with Patrick Dodson and Peter Yu, two great national Indigenous leaders who we have had the great pleasure and privilege of having serve with us on the ANU University Council;
• learning about and helping to generate external funding support for the outstanding work that is also being done at the Centre for Aboriginal Economic Policy Research (CAEPR) under, now, Tony Dreise’s leadership; by Ray Lovett at the College of Health and Medicine; by of the College of Law people working on criminal justice issues in Central Australia and the Kimberley; and
• appreciating the many additional ANU programs and projects that are now focusing on recognition and governance issues, like last year’s First Nations Governance Forum, last week’s teaching workshop on Indigenous Diplomacy, and this week’s ANU Treaty Forum.

It’s hardly surprising that Indigenous issues are so centre-front in the culture of ANU. We were established immediately after WWII by an act of Federal Parliament specifically to provide the nation with a centre for research and knowledge that would guide our national future. For more than 70 years, we have been leading the nation, and often the world, in public policy-focused research on important international and domestic issues, including inequality and discrimination.

No one was more important in establishing from the beginning ANU’s Indigenous research and advocacy credentials than my predecessor as Chancellor, Nugget Coombs. Of all the leading Australians of his generation there was no one who had a better or more deeply intuitive understanding of the history, culture, traditions, dignity and humanity of Indigenous Australians. He got it, earlier than almost anyone else, about the absolute centrality of land rights for our Aboriginal and Torres Strait Islander people; about the absolute necessity of developing health, education, employment and welfare programs in close collaboration with Indigenous Australians; about the need for extinguishing every last vestige of discrimination against Indigenous Australians in our institutions and national life; and about the need for both understanding and recognition of the role that our First Australians have played, and continue to play, in our national history and as an integral part of our national identity.

While I can never hope to emulate Nugget Coombs’s achievements I hope that at least a little of his spirit – his stardust - has rubbed off on me during the ten years I have been Chancellor of this great Australian national university of ours, and that – working with our fantastically dedicated Vice-Chancellor, Brian Schmidt and all of you here on campus, we have been able to move the dial at least a little way forward.

What I think I can say, looking back not just over my time at ANU, but the whole five decades or more of my public life, is that no issue has mattered to me more throughout my public life than racism and racial discrimination – treating people badly or unthinkingly not for anything they do but for what they are, and not understanding the reality of our common humanity, and our common human dignity. And no issue of racial hostility or lack of understanding has preoccupied me more, or moved or troubled me more, throughout my public life than hatred, contempt, condescension towards, or simple inability to understand the aspirations of, our First Australians.

Like most city-based Australians, when I was growing up I had practically no contact at all with any Indigenous fellow citizens. That all changed at Melbourne University Law School, when as a young tutor and lecturer I became deeply involved in the establishment of the Victorian Aboriginal Legal Service – with the encouragement of fellow academics like Louis Waller, and legal practitioners like the late, great Ron Castan, who was later counsel for Eddie Mabo and played a huge role in achieving the recognition of Aboriginal land rights.

With the intense engagement of community elders, especially Aunty Molly Dyer and Uncle Jim Berg, we opened a shop-front in the then very non-trendy Gertrude Street, Fitzroy, staffed by volunteer lawyers and community activists. Above all, we focused on ensuring decent representation for Aboriginal youngsters in criminal cases, to try to break the cycle of conviction, incarceration and recidivism into which generations of them had been successively drawn. In retrospect, our results did not match our hopes and expectations nearly as closely as we would have liked, but we tried like hell.

It was working in and around the Victorian legal service – and then, a little later, as a consultant to the Whitlam Government on the implementation of a national program of similar services – that I first developed the close personal connections with Aboriginal leaders and activists around the country which I have treasured ever since.

And it was in that context that I first met, befriended and started to mentor a brilliant young Stolen Generation man from Alice Springs, Brian Kamara Willis, whose life – and tragically early death by suicide, shooting himself in front of his partner and young family as he became overwhelmed by the pressures upon him – made a searingly indelible impression upon me and my family. I wept tears, for the one and only time in my parliamentary life, paying tribute to him in the Senate, and to this day can’t talk of him for long without choking up.

It was the new Aboriginal Affairs Minister Gordon Bryant who in 1973 first got me intimately involved in government policymaking on Indigenous issues, inviting me not only to help him on the implementation of a national legal services program, but also to fly to the Northern Territory and try to make sense on the ground – and in legal terms – of the first semi-urban land rights claim to capture any public attention, that of the Larrakia people in the Kulaluk area of greater Darwin.

Squatting in a clearing in the mangroves in the city outskirts, listening to the local people’s stories, it was impossible not to be moved by their acute sense of loss. But it was also hard not to be overwhelmed by the scale of the political battles that lay ahead if justice was to be done, given the power of competing urban development interests and, further afield, mining and pastoral interests. And of course, in these pre-Mabo times, there was no compelling legal argument to counter the received wisdom that Australia was terra nullius - an empty land, ripe for the plucking – when the first white settlers arrived. I cannot pretend that my own contribution at this stage made much difference.

During my years as an Opposition senator, after being elected in 1978, I kept in touch with the evolving land rights movement including, during a family visit to Broome in 1980, joining Peter Yu and his fellow protestors in their campaign against the Western Australian government allowing mining exploration over land the Noonkanbah station’s Aboriginal lease-holders held sacred. I was an active member of the Senate Committee which – with much input from Patrick Dodson and other Indigenous leaders – recommended, in our 1983 report Two Hundred Years Later, a new compact, or ‘Makarrata’, as both a symbolic and practical vehicle for once-and-for-all reconciliation between Indigenous and non-Indigenous Australians: the idea that has now, I am delighted to say, come to the surface again, is central to the Uluru Statement from the Heart, and which you are debating at this conference.

When I became Minister for Resources and Energy in the Hawke Government, from 1984-87, I was able to re-engage in policymaking on land rights issues. It was not easy going, with intense, often very emotional, arguments within the parliamentary party – both in cabinet and caucus. On one side were those (including my very passionate Aboriginal Affairs ministerial friend and colleague, Clyde Holding) who wanted to give more or less absolute primacy to Indigenous interests, and on the other were those (including some influential Cabinet friends of WA Premier Brian Burke) who wanted to give much greater weight to the national economic interest in resource exploitation. I cannot pretend that everyone, least of all me, was happy with the many compromises that were made.

Five years after I left that portfolio, a legal revolution occurred which made it possible – and necessary – to revisit all these painful compromises. The landscape changed completely when the High Court in 1992 brought down its breathtaking decision in the Mabo Case, creating a whole new basis for land rights claims by overturning the doctrine of terra nullius, and recognising that native title continued to exist in every part of Australia where Aboriginal and Torres Strait Islander people had maintained their connection with the land, and where their title had not been extinguished by valid acts of government.

Although, by then preoccupied as Foreign Minister, I had been a bystander in early stages of Native Title Act saga – it was Paul Keating personally who really drove the effort – I found myself, in December 1993, as Leader of the Government in the Senate, playing perhaps the biggest role of my whole parliamentary career, and unquestionably one of the most difficult, charged with getting through a chamber which we did not control, and where the opposition Coalition was fiercely hostile to every clause of the bill, one of the most important pieces of legislation ever to come before the Australian Parliament, in a debate which occupied in total fifty-two hours – the longest time, until then, ever taken to deal with a single bill.

In the event, with all these stresses and diversions, the final vote on that Bill was carried two minutes before midnight just four days before Christmas 1983, with the Senate galleries packed to the rafters with Indigenous Australians and their supporters, parliamentary colleagues and staff, and many members of the public, cheering and stamping and whistling in a totally undignified parliamentary scene that I don’t think has ever been repeated before or since. It was absolutely the most moving and exhilarating moment of my twenty-one year parliamentary career, and I can still feel that tingle now.

In the years since I left Parliament, we have I think continued to make progress, as an Australian community in recognising and respecting our First Australians, not least with Kevin Rudd’s magnificently moving Stolen Generation apology, as his first act on the first day of the newly elected parliament in 2008. This echoed and took further some of the themes in Paul Keating’s equally magnificent Redfern speech in 1992, recognising that it was we, White Australians ‘who did the dispossessing.. who took the traditional lands and smashed the traditional way of life… It was our ignorance and our prejudice, and our failiure to imagine these things being done to us’.

Social attitudes within the wider community have manifestly been improving. But there is still a big unfinished agenda:

• In terms of social attitudes, there have been some terrible episodes of backsliding, never more so than in the terrible humiliation of Adam Goodes.
• For all the rhetoric devoted to closing the socio-economic gaps between Indigenous and non-Indigenous Australians, the unhappy reality, as Peter Yu put it so directly and lucidly in his Reconciliation Lecture at ANU last year, is one of ‘increasing imprisonment rates, appalling health outcomes, homelessness and overcrowded houses, and family and community violence’.
• And for all the huge nationwide effort that has gone into finding a way forward on the issue of constitutional recognition and governance reform, last year’s Uluru Statement from the Heart has fallen on profoundly deaf government ears, and consensus on meaningful constitutional change – change which is not just symbolic but substantive, which does provide a positive place for Indigenous people in or alongside Australia’s decision-making institutions – seems in some ways as far away as ever.

The element in the Uluru Statement which has featured most prominently in public debates is the simple and modest, but hugely compelling, one of giving a formal voice to our First Nations peoples in the decision-making processes of the Australian Parliament when issues affecting Indigenous people are being debated. Not a decisive voice – not a power to block measures or initiate measures, just a voice. But a formal voice, one that could not be easily silenced, and one which would enable meaningful and respectful engagement.

When I first heard that this was the direction in which the consultations leading up to Uluru was going I have to confess that I was one of those who thought that this might be too modest an aspiration: that surely we needed more than just another talk-forum. But one of the things that one learns very quickly in working with Aboriginal and Torres Strait Islander people – that I think I really did learn right from the outset of my own first engagement on land rights and legal service issues nearly fifty years ago – is that there is enormous wisdom in the conclusions that emerge from the kind of genuine, grassroots consultative processes that produced this centrepiece of the Uluru Statement, and that the rest of us ignore or reject that wisdom at the peril of getting things fundamentally wrong.

It was shameful of the Coalition Government under Malcolm Turnbull to dismiss the First Nations Voice proposal so cavalierly and abruptly, and it remains shameful that the present Prime Minister remains so adamantly opposed to it – even in the face of conservative judicial voices now being heard to say that a constitutionally recognised Voice raises absolutely no problem of constitutional principle. I just hope that Marcia Langton and Tom Calma, leading now yet another consultative process, can recover something from the Coalition’s wreckage.

The other key element in the Uluru Statement, which you are directly addressing in this Forum, is the one that, as I earlier indicated, has intrigued me since I was a member, back in 1983, of the Senate Committee which recommended it: is to give recognition to the idea of a Makarrata – a negotiated reconciliatory compact between Indigenous and other Australians, either as a single overall national enterprise, or on a state or more local basis (as is now happening in Victoria) but under a national framework umbrella. The fact that this has from the outset been slammed, in the Murdoch press in particular (always a badge of honour), as unworkable, unacceptable in principle, and counterproductive, should give us all confidence that this really is an idea whose time has come.

One of the attractions of the treaty idea – establishing, as the Uluru Statement says, a ‘Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history’ – is that it seems to open up the possibility not just for agreed language about the injustices of the past, but hard, practical, nuts and bolts, well-resourced programs for addressing the social and economic problems of the present and future. The obvious difficulty we face is that the concept is still so diffuse – with so many issues still unresolved as to who would be the parties, the mechanisms through which they would negotiate, the scope and limits of the subject-matter they would address, funding, implementation and any necessary enforcement machinery – that it has tended to alarm as many people, particularly again on the conservative side of politics, as it has enchanted.

I’m afraid I don’t have any instant coffee solutions for you on any of the specific outstanding issues I have just mentioned: I’m still in listening mode. But hopefully, as debate and consultation of the kind you are having here this week proceeds, a clearer set of proposals will emerge and, with them, a less emotional and more constructive Makarrata debate might be possible.

Can I just make a little personal plea that in arguing, as you must, for constitutional and other recognition which is not merely cosmetic, you don’t entirely reject as an additional measure – not a substitute measure but an additional one – inserting an inspiring and meaningful, new Preamble to the Constitution. Purely symbolic yes, and not in itself having any legal or executive effect – but capturing some core Australian values, and including an appropriately respectful acknowledgment of the identity and role of our First Australians.

This idea suffered a serious setback when John Howard decided to go it alone in 1999 with a catastrophically tin-eared draft which inspired or satisfied no one. Feeling the need to put my money where my critical mouth was at the time, I drafted a text of my own, which was taken up as a joint submission to the Government by the ALP, Democrats and Greens, and quite well received wider afield (though one colleague was reported as saying ‘Who would have thought Gareth could produce an 83-word history of Australia? He usually takes that long just to clear his throat’). But of course it was too explicitly inclusive, too clear about the recognition we owed to Indigenous Australians, to find any favour with John Howard, and it died a death as a result. But, for what they are worth, the words I suggested were these:

Having come together in 1901 as a Federation under the Crown
And the Commonwealth of Australia being now a sovereign democracy,
Our people drawn from many nations
We the people of Australia
Proud of our diversity
Celebrating our unity
Loving our unique and ancient land
Recognising Indigenous Australians as the original occupants and custodians of our land
Believing in freedom and equality, and
Embracing democracy and the rule of law
Commit ourselves to this our Constitution

With my personal record of failure on this and other constitutional fronts, I don't dare to offer any more suggestions as to how we might now best proceed. But such now is the store of general goodwill in the wider Australian community on Indigenous issues, that I do remain optimistic that the necessary consensus is achievable, even though it is going to take time and patience.

Let me conclude by saying, again, that one of the things that gives me hope for the future is the role that this great Australian National University of ours, of which I am so proud to have been Chancellor for the last ten years, is playing in Indigenous research, advocacy and reconciliation under now the very strong and passionately committed leadership of our present Vice-Chancellor, Brian Schmidt, and with the accompanying leadership and participation of so many wonderful Indigenous leaders on this campus.

Being Chancellor of this great Australian National University of ours has been a wonderful privilege, nowhere more so in the opportunity that it has given me to continue to work on, and support, all those First Australian issues – above all recognition and reconciliation – about which I have been so passionate for so long, and to work with a group of colleagues here, both Indigenous and non-Indigenous, who are the absolute salt of the earth, second to none in their commitment to making this country a better place for all its people.

Thank you so much, for your friendship and above all for something all too often missing in the public life of this country these days – your passion for decency.