Hear Professor Mick Dodson AM as he delivers the 2015 Kenneth Myer lecture on a topic close to his heart. Drawing on his years of community and government engagement, he offers his thoughts on creating social change and solidarity for our country.
2015 Kenneth Myer Lecture
Professor Mick Dodson AM
27 August 2015
National Library of Australia
Speakers: Anne-Marie Schwirtlich, Professor Mick Dodson AM
Anne-Marie Schwirtlich: Distinguished guests and dear friends, good evening and welcome to the National Library of Australia and to the 26th Kenneth Myer Lecture. I’m Anne Marie Schwirtlich, Director General of the National Library. As we begin I would like to acknowledge the traditional owners of this land, I thank their elders past and present for caring for the land that we are all now privileged to call home. This lecture which began in 1990 as a major annual event was named in honour of Kenneth Baillieu Myer, Chairman of the National Library Council from 1972 to 1982 and an ardent and wily advocate for the Library. Ken Myer was a visionary Australian philanthropist and businessman; he contributed to an extensive range of institutions and causes through significant personal donations, enthusiastic participation on boards and his involvement in the Sydney Myer Fund and the Myer Foundation. A long-time friend and generous supporter of the National Library Ken Myer was a founding member of the National Library Council from 1961 later serving as its chairman for a decade.
The prescription for this annual lecture is simple and it is based on the views of Ken Myer. As a businessman and philanthropist with wide cultural and social commitments he saw the lecture as an opportunity for an eminent Australian to make a significant statement on a broad subject of particular interest to them. The lecture has been presented by remarkable and eminent Australians, the Honourable Gough Whitlam, Sir Gustav Nossal, the Honourable Fred Chaney, Harry Seidler, the Honourable Tim Costello, Professor Fiona Stanley, Professor Tim Flannery, Michelle Grattan, Geoffrey Robertson and Professor Brian Schmidt to name but a few. We are indebted to the Myer family for supporting the Kenneth Myer Lecture for over a quarter of a century and now we are thrilled that the Lecture is being given a new lease of life thanks to the support of the Myer Foundation and we thank the directors of the Myer Foundation for committing to supporting another five years of lectures.
This year we are enormously privileged to have Professor Mick Dodson AM present the Kenneth Myer Lecture. Professor Dodson is a member of the Yawuru peoples, the traditional Aboriginal owners of land and waters in the Broome area of the southern Kimberly region of Western Australia. As an advocate for Australian indigenous rights, human rights and social justice he has played an instrumental role in events of historic importance in Australia and globally. His work has contributed to significant legal reform, for example on the Native Title Act. Professor Dodson’s early career saw him working with the Victorian Aboriginal Legal Service, as a barrister at the Victorian Bar, as senior legal advisor for the Northern Lands Council in 1984 and Director of the Council in 1990. From August 1988 to October 1990 he was counsel assisting the Royal Commission into Aboriginal Deaths in Custody. He was Australia’s first Aboriginal and Torres Strait Islander Social Justice Commissioner. In 2005 he was appointed to the UN Permanent Forum on Indigenous Issues where he participated in the crafting of text for the Declaration on the Rights of Indigenous Peoples in the UN Working Group on Indigenous Populations and Intercessional Working Group of the Human Rights Commission. This declaration was adopted overwhelmingly in 2007 by the United Nations General Assembly. In 2009 Professor Dodson was named Australian of the Year and the National Trust has designated him as one of Australia’s living treasures ... living national treasures. He is Director of the National Centre for Indigenous Studies at the Australian National University and Professor of Law at the ANU College of Law. He is also Chair of the Council of the Australian Institute of Aboriginal and Torres Strait Islander Studies. I ask you to please welcome Professor Mick Dodson to deliver the 2015 Kenneth Myer Lecture on the subject Promoting Positive Change in Australia. Welcome.
Professor Mick Dodson AM: [Aboriginal language]. Ladies and gentlemen, my first duty is to acknowledge the traditional owners on whose ancestral lands we meet and I’d like to pay my respects to their elders past and present. I want to extend my thanks to the National Library for inviting me to deliver this address and to the Myer family and the Myer Foundation for their support. My invitation to this event asked me to address how I would promote positive change in Australia. Of course this is a very broad licence and I hope those responsible for giving it to me don’t regret it. Tackling positive change at a national level is indeed not a ... easy task. And I thought about turning to some of the weighty problems that confront our nation like climate change, health, our ageing population and our inability to beat the All Blacks at Eden Park. Or anywhere else for that matter. And I also pondered trying to address the question as to why we’re incapable of winning the Ashes in England but I decided this was far too big to countenance.
I don’t intend to talk about any of those issues today. What my presentation is about is the possibilities for constitutional reform and I’m going to get there in somewhat of a circuitous route. So this is how I intend to proceed to get to the constitution. There are a number of pertinent issues that bear on the health and wellbeing of Aboriginal and Torres Strait Islander peoples in this country that bear examination. The first is really two issues but I’ve locked them together, reconciliation and social justice. And that’s followed by the right to self-determination which in spite of some hoo-ha in the 1970s has never been public policy in this country so far as indigenous affairs is concerned. Then I wish to say a few things about the right to equality, a close stablemate of the right to non-discrimination. And finally I’ll finish off by pondering how the opportunities for constitutional reform might positively bring the realisation of these ambitions.
When we were negotiating with Prime Minister Keating over the then government’s response to the High Court’s decision in the Mabo case one of the outcomes that the government agreed to deliver was a social justice package to indigenous Australians. That promise like many other things we’ve been promised, that promise was never kept. And I think it remains a necessary issue for the conversation that we must have regarding the future of reconciliation and it’s also inextricably interwoven with the right to self-determination and the right to equality and the possibility of constitutional reform, all of which are arguably the foundation upon which we can together achieve substantive positive change.
Reconciliation of course has as a word an ordinary everyday meaning which invokes interpersonal relationships but it’s also about accommodating different ideas the beliefs and implicit within that is a preparedness to move or shift our opinions and our attitudes both personally held and collectively held. And that’s the way I would like to think about it. But I also see it very much as a process that perhaps continues through generations because belief, ideas and situations change, not just between generations but within generations. And what is acceptable to us now may not be acceptable to our children, our grandchildren or indeed our great-grandchildren. Reconciliation therefore is a bit like social change over generations or what we might call social justice.
I see social justice in very practical terms, I think. Social justice to me is what hits you when you get up in the morning. Do you wake up in a place that is secure and safe? Does it keep you and your family comfortably? Is there food in the house? Can you provide your kids with breakfast and lunch to take to school? Does that school honour and value who they are despite their socioeconomic circumstances, their ethnicity or their cultural background? Are you able to adequately provide for them? Is your work rewarding and your workplace free of discrimination? Are you and your family embraced by the community in which you live? Embraced as equals, enjoying the rights and fundamental freedoms everyone else does? And does that society in which you live care for the poor, the sick, the disabled, the elderly and those seeking refuge? Do the laws of that society apply equally and fairly to all its citizens including you? Do you feel you have a say in the social and economic development of your country? Do you feel you can effectively engage politi ... in the political life of your country? Are you the primary decision-maker in what happens in your life?
Herein then lies the dilemma and this is where the heart of reconciliation lies because what I’ve described is not the reality across Australia because that’s not the social justice I wake up to every day so far as it applies to the first Australians. When I look through the Aboriginal lens I see something other than social justice and reconciliation, I see inequality, discrimination, unfairness and isolation. I see marginalisation, dispossession and ostracism. I see denial, ignorance and enmity. I see bureaucratic and political blundering and interference with our daily lives and sadly I feel despair. I despair because I feel powerless to do anything about it. Indeed, yes, I’ve spoken out, I’ve been politically active. I raise my voice when I can and so have others, black and white. And occasionally we’re listened to but it seems sadly we’re rarely heard. So why are we struggling so? You know it’s been about three decades since we embarked on this journey of reconciliation. So what have we achieved if I still feel this way? Or perhaps more importantly where have we gone wrong and can we set it right?
Part of the answer I think is in the fact that we haven’t put enough energy into dealing with what I call the unfinished business. We are still a people of two opposite beliefs, ideas and from very different situations. And any move to accept different beliefs, to share ideas and to understand the situation of others is too often met without grace, compromise or understanding. We seem content to persist with the status quo and the elephants in the room are blissfully ignored. Status quo gives us more of the same. It gives us intervention without free prior informed consent. It gives us community closures without notice. And it denies recognition. And the tired, worn-out, oft-repeated rebadged failed public policy of the past remains.
Now, folks, I don’t want to create the impression that over the past few decades the relationship between black and white Australia has not improved, it certainly has ‘though we still have a bit of a way to go. And I can say we’ve managed to raise awareness and lift the level of cultural competency amongst nonindigenous Australians which makes us better-placed than we were a quarter of a century ago. But what gnaws away at me is the apparent lack of movement on unmet fundamental issues, issues that simply will not go away whilst we are busying ourselves with other things. And that’s something I alluded to earlier, the unfinished business.
Part of the unfinished business is the myriad of reports, commissions, inquiries, studies that we as a nation at great expense have conducted into indigenous affairs over the decades. We’ve had health reports, housing reports, education reports, welfare reports, community violence reports, law reform reports, economic development reports, employment reports, unemployment reports, Social Justice Commission reports, deaths in custody reports, the taking away of children reports. The list is almost endless. And on top of this we’ve had all the assessments, evaluations, pilot programs, trials and umpteen different policies and policy approaches. And all the paper it’s taken to produce these things would comfortably, would comfortably fill two moderate suburban libraries. And on the shelf is where these things have stayed, most of them. They’ve stayed there unread, unfinished, their recommendations unimplemented and unloved.
For most ... for the most part this unfinished business was conducted rigorously, thoroughly, professionally and in a timely manner and many of them simply reconfirmed what a previous report or inquiry had already discovered. Generally speaking their recommendations and plans for action were sensible, based on robust evidence, implemented ... implementable and very likely to succeed. But too many of these were cherry-picked or misrepresented for political convenience like the Little Children are Sacred report and the rest discarded, sent to the shelves in some darkened room never to see light again. And much of this unfinished business contains the answers we have already recklessly discarded. They must be resurrected along with the social justice package. Indeed many of them spell out the urgency for just such a package.
Folks, there is another piece of unfinished business that we dare not speak of. Aboriginal and Torres Strait Islander peoples were in relatively peaceful occupation and possession of the land mass and islands we now call Australia for between 50 and 60,000 years before 1788. In 1788 the British came and purported to take possession of the place in the name of the British monarchy without the consent of those Aboriginal and Torres Strait Islander peoples. The taking of the land and the resources which has proceeded for over 200 plus years was and is unjust; it’s unlawful and had a devastating impact on Aboriginal and Torres Strait Islander peoples. What the British did and continued under colonial and postcolonial governments was wrong. This wrong and what has flowed from it has never been adequately addressed or redressed. There were no treaties; there was no recognition of indigenous sovereignty.
We were in different situations back in 1788 than we are now. However the stark reality borne out by the litany of unending statistics is that while the situation of the British and those who followed has got stronger the situation of indigenous peoples of this land has got weaker. There can be no doubt.
Our institutions of democracy and power continue to fail us in freeing us from this legacy. Those institutions both arise from and underpin ... and are underpinned by that brutal dispossession of Aboriginal and Torres Strait Islander peoples from our lands because those institutions are an integral part of the western judicial and liberal tradition. The colonial imagination failed to imagine a relationship of equality and coexistence in all its variations. That is the fundamental source of our problems today and my apologies to Tully [? 31:03] and it’s perhaps this failure of imagination that we ought to be addressing. The unsettled issues of past dispossession and our inability to deal with old problems in a new world demands we do things differently. And the one indisputable thread running through many of tragedies in our shared history is that we fail to learn from our past. Or perhaps we don’t want to learn from our past.
As Fitzmorris obliquely observes, the justice of dispossession of indigenous peoples from their lands has become one of the most important political questions of the postcolonial world and that reconciliation cannot be pursued without asking the key historical question of whether and how colonisation was justified. And, folks, if we crave reconciliation and justice we need to collectively come up with an answer to that question.
I want to now turn to self-determination. And I’m not talking about self-determination in its ordinary international legal meaning and its political application, self-determination to me is very closely in a domestic sense aligned to social justice. Social justice gives you that new day and that feeling of wellbeing when you wake up. Self-determination put you and your community in charge of the decision is being made about you and them that day and every day. Self-determination demands that you take responsibility, it makes you accountable, it allows you to make mistakes, it gives you autonomy in controlling your destiny as peoples, to take charge of your culture, the language, your development. It allows you as peoples to determine the status and puts you in charge of your economic future. And it’s not the self-administration of someone else’s agenda; it’s your agenda, your responsibilities.
I think it is this policy approach that provides the answers. And I don’t think the concept’s too difficult to understand or comprehend. It allows those who are most affected in their daily lives by decisions to make those decisions and then to take responsibility and learn from the lessons of implementing those decisions. And many indigenous communities, groups and corporations, particularly community-owned corporations, have already set themselves on the path to self-determination through the way they get their business done. They’re taking charge, they are deciding. They are not waiting for this to happen nor are they waiting for the government to turn up. This is my foundation or my dream for the foundation of policy ... public policy in this country.
I want to also talk about equality as I said at the outset and that also is not a difficult concept to grasp but it’s often misunderstood. The sameness. Sameness might be about being equal but it’s not about equality. I mean we could tax everybody $100 a pay, that’d be the same for everyone, that’d be an equal amount for everyone. Some might even argue that it’s fair. But it’s certainly not treatment on the grounds of equality because we don’t treat the unequal equally because that would not be fair. If people’s circumstances are different we try to account for that hence we have nations of formal and substantive equality and the right to equality demands that. And that’ why our law and international law not only allows but demands that special measures apply to achieve equality. And sometimes it might be necessary to treat people differently in order to achieve equality. And in this country the indigenous peoples have the worst outcomes on the equality scale than any other group in the country.
Pick any socioeconomic indicator and we head the list of the poorest outcomes. You name it, life expectancy, unemployment, heart disease, diabetes, high school completions, infant mortality, literacy, numeracy, liver disease, income levels. Some of our folks even still get leprosy and TB. And the fact that these stubborn statistics have been with us for so long is a national disgrace. And that we seem unable to shift the burden is a testament to our tolerance for inequality. You know equality is meant to affirm that all human beings are born free and equal; equality presupposes that all individuals have the same rights and deserve the same level of respect. All people, all people have a right to be treated equally. And this means ... this includes that laws including our constitution.. It’s a low ... should not be discriminatory.
Now I’m running out of time, I think, so I want to briefly in conclusion to talk about the Australian constitution. As it presently stands it doesn’t guarantee equality for Aboriginal and Torres Strait Islander Australia, in fact it’s totally silent on the question. Our constitution is a cumbersome beast and it’s almost impossible to change. And under its terms Aboriginal and Torres Strait Islander peoples are not full citizens ‘cause our constitution contemplates that some people living in Australia can lawfully be treated differently but not in the sense that I spoke about earlier, not in the sense that sometimes you’ve got to treat people differently in order to achieve equality. No, this is not what our constitution does or what it means.
No, our constitution in section 25 and subsection 26 of section 51 allows people to be treated not just unequally but in a racially discriminatory fashion. Section 25 currently allows the possibility of state laws disqualifying people of a particular race from voting in state elections. Subsection 26 of section 20 ... section 51 currently allows the government to make laws, special laws for the member ... for people of any race. I think it’s absurd in the 21st century that any western democracy should have a section in its constitution like section 25, I think that’s a given you know we should throw it out. But our problem isn’t really with section 25, it’s with subsection 26 and it’s with the question of race. The notion of race is a pretty outmoded and ... term and in biolog ... you know in biological and scientific terms it’s meaningless. And it’s defunct but it’s in our constitution. You know it was said to be the most dangerous myth known to man. We shouldn’t be using these terms in our constitution.
So in subsection 26 which was amended ... subsection 26, section 51 and section 127 of the constitution were amended in 1967 by referendum but they were never meant to apply to Aboriginal and Torres Strait Islander peoples, they were meant to discriminate against coolies from India, Asians or Asiatics is the term they used back then, they were never meant ... and people like Menzies, Don Chipp and others warned us of that in 1967 but we misunderstood what the referendum was going to do. And that section has been used by the federal parliament in at last five occasions to racially discriminate against people by law in this country. And exclusively in all five cases it’s been used to racially discriminate against Aboriginal and Torres Strait Islander Australia and indeed in one case suspended the operation of the Racial Discrimination Act so it couldn’t be available for Aboriginal people in the Northern Territory who complained about racial discrimination. That’s what our constitution allows and we should do something about it.
And I hear you screaming well what’s the good idea? What’s the one thing that he’s going to say that will promote change in Australia? Well the only way we can ... I think the only realistic way presently ... he heavily qualifies ... to achieve equality in our constitution in our law without a bill of rights or without some other massive constitutional change like throwing the old one out and getting a new one in and becoming a republic, the most short-term immediate thing I think we could do to achieve equality ... potentially achieve equality in the easiest possible way because we’d be taking words out of the constitution, not putting them in ... I say we repeal, rescind subsection 26 of the section 51 and of course section 25. That will get rid of I believe the problem we have in our constitution of differentiation on the basis of race. This might be considered a minimalist approach but I think we should dump both those sections and that’ll be easier to achieve I think than ask the electorate to put long and elaborate words into our constitution. Eight out of 44 is a pretty bad score line. The eight that succeeded be primarily about taking words out, not putting them in. So, folks, I’m well over my time. Tally-ho, thank you, I’m finished.
Anne-Marie Schwirtlich: Professor Dodson began his lecture saying that there might be deep regrets at the National Library at issuing him with such a broad invitation but speaking on behalf of the National Library I can say no, there are no regrets and I’m sure I can speak on behalf of all of you.