Historical Justice and Memory Conference 2012

‘Unfinished Business: Historical Justice for Aboriginal and Torres Strait Islander peoples’

Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

Swinburne University
Hawthorn Campus

Wednesday 15 February 2012

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Acknowledgements

With respect and gratitude I acknowledge that we sit on the lands of the Wuradjuri people of the Kulin nation.  Thank you for your generous welcome to country for all of us.

My people are the Gangulu from the Dawson Valley in Central Queensland. On behalf of my Elders I also salute your Elders, both past and present, for their continued struggle for their country and their culture.

Introduction

Thank you for the invitation to speak with you today. My speech today is called ‘Unfinished Business: Historical Justice for Aboriginal and Torres Strait Islander peoples’ and I will talking with you about how the past continues to live on for our people.

I’ll be introducing three areas of experience where the unfinished business of the past continues to impact today:

• • the Stolen Generations;
  • lateral violence; and
  • constitutional recognition of Aboriginal and Torres Strait Islander peoples.

Let me say firstly, I think individuals have power to shape their own destinies. We always have choices – but the problem is that the range of choices facing Aboriginal and Torres Strait Islander peoples is often not the same as the choices that the rest of the population have. Among a range of complex factors, these choices are shaped by our history and our experience of colonisation.

But I will be focusing on the future, not just the past. It is appropriate to be aware of how history impacts on the present but we need to balance this with forward thinking for the future. This is how we resolve unfinished business – with awareness but also action.

Stolen Generations

Any discussion around historical justice for Aboriginal and Torres Strait Islander peoples needs to start with a frank acknowledgement of the injustices done to Aboriginal and Torres Strait Islander communities. I am sure you all know the real history of Australia that was kept quiet until recently – that Australia’s early history is marred with massacres of Aboriginal people and other attempts to deny our humanity and remove us from our land.

As the colony developed, the methods moved onto assimilating Aboriginal and Torres Strait Islander people. This resulted in what we now know as the Stolen Generations. From 1910 to 1970, it is estimated that between 10%-30% of Aboriginal children were forcibly removed from their families, communities and culture. The Bringing Them Home Report that was published in 1997 makes for confronting and tragic reading. The stories of immense pain and suffering, the sheer injustice, expose a dark chapter in Australia’s history.

The legacy that these removals have had on members of the Stolen Generation and their families has been devastating. The Bringing Them Home Report, as well as a range of other reports, documented the trauma that manifests in depression, losses of identity, culture, language, history, family and community. This has caused deep psychological harm and, in many cases, mental illness.

We also know that individual trauma reverberates across the generations. Researchers like Professor Judy Atkinson have argued that many of the problems in Aboriginal and Torres Strait Islander communities, be it alcohol abuse, mental health problems, family violence or criminal behaviour, are symptomatic of the effects of unresolved trauma. 

The dynamic of transgenerational effects of trauma was also borne out in the results of the Western Australian Aboriginal Child Health Survey. Of the survey sample, 12% of the children were looked after by a carer who had themselves been forcibly removed. These children were 2.3 times more likely to be at high risk of clinically significant emotional or behavioural difficulties.

The Apology in 2008 was a monumental occasion for all Australians.

On that day my predessor, Dr Tom Calma said this:

Today is an historic day.

It’s the day our leaders – across the political spectrum – have chosen dignity, hope and respect as the guiding principles for the relationship with our first nations’ peoples.

Through one direct act, Parliament has acknowledged the existence and the impacts of the past policies and practices of forcibly removing Indigenous children from their families.

And by doing so, has paid respect to the Stolen Generations. For their suffering and their loss. For their resilience. And ultimately, for their dignity.

But for all those doubters who thought that the Apology was tokenistic or purely symbolic, you only had to see the emotion, the relief felt by the Aboriginal and Torres Strait Island community, to know how important this was in helping us move forward.

And it wasn’t just important for Aboriginal and Torres Strait Islander people – there was a real sense of pride in the broader community that the Australian Government had had finally done the right thing and articulated a broad community sentiment.

Of course, four years have passed since the Apology and we are still left with a great deal of unfinished business. As I said earlier, resolving unfinished business needs actions. There are still huge gaps in the reparations due to members of the Stolen Generations and their families and there is a great deal of healing to be done.

However, I think it is very positive that the Aboriginal Healing Foundation is now up and running. The Aboriginal Healing Foundation is a national, Indigenous-controlled, not-for-profit organisation established to support community-based healing initiatives to address the traumatic legacy of colonisation, forced removals and other past government policies.

It is an example of Aboriginal and Torres Strait Islander people taking control of their communities and developing their own solutions. This is both and ends and a means to healing historical injustices.

Lateral Violence

Healing the traumas of historical injustices is an ever evolving and complex area of knowledge. A relatively new concept that I have been trying to bring to light, and it is the topic of last year’s Social Justice and Native Title Reports, is lateral violence.

Lateral violence is often described as ‘internalised colonialism’ and, according to Richard Frankland, includes:

The organized, harmful behaviours that we do to each other collectively as part of an oppressed group; within our families; within our organisations and within our communities.^[1]

Lateral violence, also known as horizontal violence or intra-racial conflict, is a spectrum of behaviours that include:

• gossiping
• jealousy
• bullying
• shaming
• social exclusion
• family feuding
• organisational conflict

Lateral violence arises from a set of historical circumstances created by colonisation and other forms of oppression that have their roots not only in the violent subjugation of groups but also more insidious forms of social control.

Richard Frankland again explains:

[Lateral violence] comes from being colonised, invaded. It comes from being told you are worthless and treated as being worthless for a long period of time. Naturally you don't want to be at the bottom of the pecking order, so you turn on your own.^[2]

Looking back on our history, we see how lateral violence has come about. Aboriginal and Torres Strait Islander peoples have been living together on our lands and with the environment for over 70 000 years. We have strong social structures, rich culture and complex ways of managing a harsh landscape.

However, when the British arrived on our shores, rather than respect our rights, the great lie of terra nullius was created: we simply didn’t exist as fellow humans in the eyes of our colonisers, leading to the cycle of violence, oppression and dispossession.

We know that Aboriginal and Torres Strait Islander peoples did not give up their land without a fight. But we found there was effectively no way to challenge the colonisers as their power and resources were too great. This frustration planted the first seeds of lateral violence.

As large scale resistance became untenable Aboriginal and Torres Strait Islanders were forced onto missions and reserves. The missions and reserves set up the perfect conditions for lateral violence. Aboriginal and Torres Strait Islander peoples were not allowed to practice their cultures or speak their languages. They lived in a system where every aspect of their lives was controlled by the authorities. The missions actively attacked our traditional roles, culture and social structures.

Again, the missions and reserves reinforced the powerlessness of Aboriginal and Torres Strait Islander peoples and the futility of resistance. Based on the necessity to survive, many Aboriginal and Torres Strait Islanders also began to adopt some of the behaviours and values of their oppressors and internalise the negative messages about their own culture and value.

The missions and reserves were the first real attempt to ‘divide and conquer’ Aboriginal and Torres Strait Islander peoples. Again, the Bringing Them Home Report graphically tells the story of how fair skinned Aboriginal and Torres Strait Islander children were forcibly removed from their families.  Fair skinned Aboriginal and Torres Strait Islanders, or those deemed to have been ‘assimilated’, were able to apply for exemptions from the Protection Act, setting up a situation that created social fractures and jealousy. In this way the government tried to control and define Aboriginal and Torres Strait Islander identity.

As we move into the present, we can see lateral violence played out in the many settings. For instance, in the native title system, through organisational conflict, bullying (in particular cyber bullying among our young people), social and emotional well-being issues and conflict leading to involvement with the criminal justice system.

Issues around identity run through all of these manifestations of lateral violence.

Identity and notions of ‘authenticity’ have become powerful weapons of choice in lateral violence, with an Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Research Discussion paper reporting a workshop participant as stating:

Lateral violence comes from identity problems. Identity is the sleeper. If you have a strong spirit all the rest of you is supported. When we don’t know who we are, something else jumps in to take that place.^[3]

While Aboriginal and Torres Strait Islander peoples deal with broader community ignorance and insensitivity about who is a ‘real Aboriginal person’, it is distressing in the extreme that so much of the venom about identity comes from within our communities. The same discussion paper explains:

Words that undermine Aboriginal identity are commonly used as insults and tools of social exclusion (such as “coconut‟, “textbook black‟ or “air conditioned black‟), as are accusations of supposed privilege and favouritism applied to those perceived as (or even accused of being) “real blackfellas‟. In doing so, a sense of division is created between individuals, groups, communities and even geography – thus the language/no language, remote/urban or north/south ‘divide’.^[4]

In this way, Indigenous Australians are labeled yet again – labeled according to their legitimacy; according to whether their behavior and attitudes subscribe to a particular experience or view.

As you can see, lateral violence is a controversial topic – one which I have thought long and hard about raising in an official capacity. Certainly, when I first did so, I was prepared to be accused of airing our dirty laundry in public. Given the proliferation of bad news stories about Aboriginal and Torres Strait Islander peoples in the popular domain, the last thing that we needed, I would surely be told, was to add lateral violence to the litany of perceived dysfunctions.

However, I am convinced that there will be little progress in improving indicators for Aboriginal and Torres Strait Islander peoples without strong, respectful relationships within our communities, as well as between them and the wider population. In coming to this view, I’ve been heartened by the responses from Aboriginal and Torres Strait Islanders. There seems to be a considerable appetite within our communities to confront and deal with this barrier to our well-being.

Lateral violence is holding us back. Or as Noel Pearson explains:

Paul Keating once told me, the problem with your mob is you're like crabs in a bucket. If one of you starts climbing out and gets his claws on the rim, about to pull himself over the top to freedom, the other mob will be pulling him back down into the bucket. You all end up cooked.^[5]

My 2011 Social Justice and Native Title Reports look at some action we can take to address lateral violence. I don’t have time to go into it today, and there are also some interesting issues around the role of government and human rights that might interest you as well. I have brought some community guides if you want further information.

Let me just say that lateral violence is another way of looking at the problems caused by historical injustices. It is now time to expose this and move towards just and respectful relationships that enable us to take control of our destinies.

Constitutional Reform

Finally, I want to finish by briefly mentioning another historical injustice- the lack of recognition of Aboriginal and Torres Strait Islander people in the Australian Constitution.

You may be aware that early on in my term I publicly called for the Australian Government to formally recognise Aboriginal and Torres Strait Islander peoples and our rights in our Constitution.

One hundred and eleven years ago years ago, Queen Victoria gave Royal Assent to the Australian Constitution, the founding document of our nation and pre-eminent source of law in the country.

However, in drafting the constitution, Aboriginal and Torres Strait Islander people were noticeably absent. We were not afforded the right to participate in discussions concerning the future of our nation. Nor were we afforded the right to participate in the referendum that secured that future and would eventually govern our position and place within the nation.

The only mention in the text of the Constitution was to exclude Aboriginal and Torres Strait Islander peoples.  The Constitution was silent in making adequate provision for us, let alone in protecting our inherent rights as the first peoples of this country.

As a consequence, the Constitution did not – and still does not – make adequate provision for us. It has completely failed to protect our inherent rights as the first peoples of this country.

I believe that recognition has the potential to:

• address a history of exclusion of Aboriginal and Torres Strait Islander peoples in the life of the nation
• improve the sense of self worth and social and emotional well-being  for Aboriginal and Torres Strait Islander peoples both as individuals and communities
• create a societal change where there is respect for Aboriginal and Torres Strait Islander culture and identity
• change the context in which debates about the challenges faced by Aboriginal and Torres Strait Islander communities take place

And

• reset the relationships between Indigenous and non-Indigenous Australians.

I firmly believe the time is right, here and now for the Australian people to formalise at least the recognition of the special and unique place of Aboriginal and Torres Strait Islander people in our nation, in our Constitution.

During the last federal election campaign, Labor, the Coalition and the Greens, committed to a referendum to facilitate such recognition.

The prospect of this referendum recognising Aboriginal and Torres Strait Islander people in the Australian Constitution will provide us all with a great opportunity to reframe and reset our relationship as a nation.

It’s been said to me that such an initiative – a referendum to change the Constitution - will suck up a lot of oxygen and resources and perhaps even goodwill. These resources and goodwill could be put to be better use closing the gap between Indigenous and non-indigenous Australia.

Maybe that’s true.

Certainly, we can’t underestimate the immensity of such a challenge. Because of the double majority needed - an overall majority yes vote, and a yes vote from majority of people in a majority of the States - only eight out of 44 referenda have been passed in Australia’s history.

We also know that bipartisan support at the political level will be absolutely essential and we know just how easy it is to get politicians to agree, especially if either side reckons there’s a possible wedge in there somewhere.

But to those who doubt the importance of what amounts to a form of words, I say this.

The process around the referendum will give this generation of Australians the opportunity to say ‘yes’ - an opportunity to demonstrate goodwill and innate decency, just like 92% of Australians did in 1967.

There will be debates, speeches, opinion pieces in the press, people prowling the parliamentary corridors, Constitutional lawyers at 10 paces, yea and nay sayers, documentaries, panel discussions, arguments at dinner parties, barbecues and in front bars – all of these things.

And it’s precisely all of these things that will build awareness, focus minds and hearts and help move us all forward as a nation.
The last couple of years have seen the beginning of the process towards this constitutional recognition.

In November 2010 the Prime Minister appointed an Expert Panel which reported to Government on 19 January this year on possible options for change to give effect to recognition of Aboriginal and Torres Strait Islander peoples in our constitution.

The Panel was made up of Australians from Indigenous and non-Indigenous communities and organisations, small and large business, community leaders, academics, and members of Parliament from across the political landscape.

I was fortunate to be asked to be part of that Panel.

We held over 250 public consultations with over 4,600 people in attendance around Australia, papers were translated into 15 languages, and received over 3,500 submissions.  In addition to this, Newspoll was a constant companion continually testing our ideas. 

Whilst we can never claim to have met with everybody, we nonetheless provided ourselves with a great ground from which to develop our recommendations.

In developing our recommendations we used four criteria to guide us. We decided the recommendations must:

• Contribute to a more unified and reconciled nation
• Be of benefit and accord with the wishes of Aboriginal and Torres Strait Islander peoples
• Be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
• Be technically and legally sound.

Overwhelmingly, Australians wanted to remove the races powers in sections 25 and 51 (26). They wanted a guarantee that no one would be discriminated against on the basis of race, color or ethnic origin.

They wanted a statement of recognition that acknowledged Australia was first occupied by Aboriginal and Torres Strait Islander peoples, our continuing relationship with our traditional lands and waters, respect for our continuing cultures, languages and heritage and finally, the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.

I think by any measure, as a Panel we have delivered what was asked of us.

There have been various comments that say the recommendations over reach what was asked of us, that we are asking too much, that there will never be the bipartisanship that will be so important to any success.

However, I am heartened by the announcements in Canberra this morning.  The Prime Minister said there will be a program of Community Conversations undertaken by Reconciliation Australia to raise more awareness of these issues in the public consciousness.

The leader of the Opposition reconfirmed his commitment to reaching a consensus with the Government and minor parties.  But what was really heartening was his commitment not to reach for the lowest common denominator in reach this consensus.

This opportunity confronting us is too tantalising to dismiss.  Because by finally and formally settling and affirming the place of Aboriginal and Torres Strait Islander peoples in our nation, all of us grow in stature. We are presented with another opportunity to resolve unfinished business and address historical injustice. I urge you all to take personal steps to support constitutional reform. After all, this is a battle that will be contested at barbeques, in bars and of course on shock jock radio programs. We need all Australians to help resolve the unfinished business of the Constitution and make it right for all of us.

Thank you.

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^[1] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2011, Australian Human Rights Commission (2011), p 52. At http://humanrights.gov.au/social_justice/sj_report/sjreport11/pdf/sjr2011_Ch2.pdf (viewed 20 December 2011).

^[2] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2011, Australian Human Rights Commission (2011), p 58. At http://humanrights.gov.au/social_justice/sj_report/sjreport11/pdf/sjr2011_Ch2.pdf (viewed 20 December 2011).

^[3] S Gorringe, J Ross and C Fforde, „Will the Real Aborigine Please Stand Up‟: Strategies for breaking the stereotypes and changing the conversation, AIATSIS Research Discussion Paper 28 (2011), p 8. At www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 21 September 2011).

^[4] S Gorringe, J Ross and C Fforde, „Will the Real Aborigine Please Stand Up‟: Strategies for breaking the stereotypes and changing the conversation, AIATSIS Research Discussion Paper 28 (2011), p 5. At www.aiatsis.gov.au/research/documents/AIATSISDiscussionPaper28.pdf (viewed 21 September 2011).

^[5] N Pearson, ‘Individualism versus communalism’, The Australian, 6 August 2011. At http://www.theaustralian.com.au/national-affairs/opinion/individualism-versus-communalism/story-e6frgd0x-1226109346928 (viewed 21 September 2011).