The Uluru Statement and changing the culture of power and decision-making
28.10.2021
The below is an edited version of a presentation given to a conference held by the Australian Institute of Administrative Law and the Gilbert + Tobin Centre of Public Law to mark the 50th anniversary of the Kerr Report and the establishment of Australia’s administrative law system.
Administrative justice is a key issue for Indigenous peoples. Whether at the level of policy development and implementation, or at the level of administration and review of government programs and decisions, persistent issues plague Indigenous experiences of administrative justice. These issues are too often the result of a combination of discrimination, racism, entrenched inequality, institutional cultures of neglect and a lack of resources or misguided resource allocation.
This is especially true when considering issues such as criminal justice, children in out of home care and health, but is also true of most areas in which Indigenous peoples interact with administrative processes. Think here of dealing with transport and main roads, programs such as the cashless debit card, education, environment and cultural heritage, and the various other services and interactions that many Australian citizens take for granted.
These issues intersect and can often have lethal impacts. The lack of appropriate health care, for example, combined with poor police practice too often results in death. Compounding these issues through its circular impact is the fact that Indigenous peoples are often at a disadvantage when compared to the state and other Australian citizens to enforce their rights through administrative processes. This means most measures of administrative redress – such as review – become meaningless in an environment that refuses to change more fundamentally.
These issues do not occur in a vacuum, however. It is important to understand the broader culture of power and decision-making that these issues occur within. That is, how and why administrative justice continues to produce negative results for Indigenous peoples. This is also a question often asked about the Uluru Statement from the Heart and a First Nations Voice – notably, how would a First Nations Voice to Parliament make a difference?
To answer this question, I am going to step back in time a little and discuss the development of a culture of power and decision making in Australia with respect to Indigenous peoples. At the beginning of this history, there was a foundational failure to relate to and engage with Indigenous peoples as political and cultural entities. This further resulted in a failure to then appropriately deal with the corresponding responsibilities and obligations that recognition would entail. This failure left ‘race’ as the primary institutional mechanism through which Indigenous peoples were related to by the state.
Throughout this history, Indigenous peoples were gradually and retrospectively presumed to be British subjects, but always as subjects (and later citizens) ‘minus’ or ‘plus’. What I mean by this ‘minus’ or ‘plus’ is that Indigenous peoples have always been treated as subjects different to other Australians. Originally this treatment was ‘minus’: one based on racist, social-biological differentiations that were also informed by a primary material demand for Indigenous land.
While the pernicious effects of the subject ‘minus’ status still exist, Indigenous peoples are now also faced with the subject ‘plus’ where they are subjectified as individual subjects or citizens, but ones that also happen to be Indigenous. Here, at least ideally, someone’s indigeneity is an incidental factor to their subjecthood as an Australian citizen and is not considered a legitimate basis of their existence or of their claims as members of self-determining communities. This subjecthood can be witnessed in rhetorical statements that celebrate the ‘unique place’ of Indigenous peoples, while in the same breath, reminding Indigenous peoples of the foundational ‘equality’ and sameness of all Australian citizens.
As the opening issues demonstrate, however, this is a subjecthood that in reality has not been based on equality, but one that has developed by treating Indigenous peoples differently. This isn’t just labelling something racist for the sake of it. Laws and policies come from a place; they are informed, as is Australian society more broadly, by this history. And because of this history, laws and policies are now often aimed at having to retrofit an ‘accommodation’ or ‘negotiation’ for Indigenous peoples within the context of an Australian constitutional system which uses ‘race’ as the primary mechanism to relate to and differentiate Indigenous peoples.
Examples of this, where even positive recognitions are dependent on race to differentiate Indigenous peoples and rights, notably include progressive instruments such as the Racial Discrimination Act 1975 (Cth) (‘the RDA’) and the Native Title Act 1993 (Cth) (‘the NTA’). It was, after all, the protection granted by the RDA to Indigenous property rights that defeated the intent of the Queensland Coast Islands Declaratory Act 1985 (Qld) to retrospectively extinguish native title in Mabo v Queensland (No 1) that was key to the success of Mabo v Queensland (No 2) and the eventual enactment of the NTA.
Race remains the primary institutional mechanism for the relationship between Indigenous peoples and the state. This is highlighted most perhaps by the persistent but limited arguments that to positively recognise Indigenous peoples would be to make a race-based differentiation inimical to equality and the rule of law – the insidious legacy of disingenuous colour-blind liberalism and equality arguments.
Ultimately, we can speak of Indigenous peoples having had to deal with a lack of basic rights and services, including the resources to enforce and pursue these, that other citizens receive and generally have access to, because of an entrenched culture and practice of discrimination against Indigenous peoples – whether as subjects ‘minus’ or ‘plus’. This is what I argue is the predominant culture of power and decision making – even when viewed from a positive, progressive standpoint – that Indigenous peoples have been faced with.
Reactions to these issues are also problematic. This is because the socio-economic disadvantage resulting from decisions made within this culture of power and decision-making – informed by the history of racism and dispossession and its structural affect today that leaves race as the primary institutional mechanism to relate to Indigenous peoples – becomes itself the target of the same administrative system for the alleviation of that ‘difference’. Rather than achieve deeper, structural reforms based on a renewed foundation reconciled with the self-determining existence of Indigenous peoples, the issues effectively cycle within an echo chamber of rhetorical devices that lament the failure and prejudice of past policies and generations while pursuing seemingly, without sense of irony, those same species of solutions tried before.
There is no respect for Indigenous rights or experience at the beginning of decision-making or for the legitimately different basis of those rights claims (that is those based in self-determination, not just those aimed at alleviating the socio-economic disadvantage caused by entrenched discrimination). This fact, coupled with worrying developments in the behaviour and practice of executive government (self-interested spending, lack of accountability and transparency, misappropriation and so on) – such as those experienced by Indigenous peoples under the Indigenous Advancement Strategy – result in a perpetual and overwhelming lack of administrative justice as the status quo.
So how does the Uluru Statement address these issues. Well, the Uluru Statement isn’t a silver bullet and has never claimed to be. However, as Professor Megan Davis has noted, what the regional dialogues that led to the Uluru Statement demonstrate is that Indigenous peoples hold a sophisticated understanding of the culture of public power and decision-making in Australia, including what is wrong with it and how to fix it. This understanding informed the sequenced reforms detailed by the Uluru Statement and the importance of the First Nations Voice to Parliament being first.
Solutions need to be about the culture of power and decision-making itself, not just making limited accommodations within broken structures. Who is in the room? Who is making the decisions? Who wrote the rules? What informed those decisions? Why have they made these decisions? Who is being heard? These are all questions that inform the importance of a First Nations Voice to Parliament protected by the Constitution.
This is also not a question of whether there should an overarching veto or some other similarly ‘hard law’ option for Indigenous peoples in response to these issues. Without deeper structural reform, issues would remain with the culture of power and decision-making that would render localised legal options, no matter how powerful, ineffective and inimical to the greater need to reform the foundation and culture of the relationship between Indigenous peoples and the state. An approach that is a combination of ‘soft’ and ‘hard’ law – a permanent and constitutional reform, but one that is broad and flexible enough to enable Indigenous peoples to be heard and affect the culture of Australia’s constitutional existence that structures and informs decisions – would enable a robust base from which to influence and change those administrative behaviours and attitudes that inhabit ‘public Australia’ (and eventually all of Australia).
We could say here that it isn’t so much that we would be able to intervene in the next Juukan Gorge, but that through these changes there would no longer be situations that result in another Juukan Gorge. This is not simply about changing the rules of the game – but about being equal participants in their making, ensuring that they are fair and transparent, that Indigenous voices are heard and respected and that they provide for the appropriate function of adjudication that isn’t just process orientated, but that is actively engaged in creating a better future for all Australians.
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Eddie Synot is a Lecturer at Griffith Law School, Griffith University and Centre Associate at the Indigenous Law Centre, UNSW. He is a Wamba Wamba First Nations public lawyer and researcher.
