Closing the Aboriginal gap
At a time of much uncertainty about indigenous affairs Frank Barbaro spoke with Elliott Johnston QC (pictured below) who in March 1991 concluded the report of The Royal Commission into Aboriginal Deaths in Custody. The report was very lengthy with 339 recommendations (virtually all agreed by all Commissioners).
How did it explain the enormous number of deaths which clearly was the reason why the ALP had appointed the Commission?
EJ: In September 1989 the position became clear - the proportion of Aboriginals who died in custody was virtually the same as non-Aboriginals but the proportion of Aboriginal people in custody (gaol and police custody) was 13-14 times the proportion of non-Aboriginal people in custody. That knowledge profoundly affected the work of the Commission.
What success has been achieved in the reduction of Aboriginals in custody?
EJ: Very little, in point of fact, in the years following the report of the Commission the disproportion of Aboriginals in custody actually increased. Until very recent times there has been a failure to realize that the Aboriginal people were mistreated in every respect and that this mistreatment is bound to lead to breaches of the law, in exactly the same way as the mistreatment of whites often leads to offences, but the treatment of Aboriginal people has been infinitely worse than the mistreatment of whites.
On June 3,1992 the High Court told us in the Mabo decision what could no longer be denied, that the concept of Australia being “terra nullius” was utter rubbish. This led to the passage, by the then ALP government, of The Native Title Act, which provided that where any pastoral lease had been established by an Australian authority that lease would not be interfered with by an Aboriginal claim.
EJ: That was certainly the effect of the Act, but at least it did provide that the Aboriginal claim could be made and could, if proved to be genuine, be granted provided that the claim was not inconsistent with the essential operation of the pastoral lease. But in 1998 the Howard Government passed the Native Title Amendment Act which had quite drastic consequences for the operation of the legislation. The effect of the 1993 Act was to create a delicate balance between the rights of Aboriginals and the rights of pastoralists, but the 1998 Act created certainty for governments and third parties at the expense of indigenous titles.
The Rudd Government has made a public commitment to “close the gap” of indigenous disadvantage. The UN’s Special envoy on indigenous peoples’ rights, James Anaya, said after a visit last August that historical forces are still producing serious discrepancies between indigenous and other Australians in a whole variety of issues. What is necessary to overcome the problems?
EJ: The problems relate to life expectancy, basic health, education, unemployment, incarceration, children, under care, access to basic services and perhaps other matters which only the Aboriginal people can tell you about. There is, in my opinion, a broad answer to these questions. It is not for our governments to say what the answers are, but to consult with the Aboriginal people and the reference here is to local people. Who constitutes “local people” is not an easy question. Undoubtedly the Aboriginal people can help with this question. But, I add this. I think there are big changes taking place in our community. No longer is it the point of view that the Aboriginal people will die out. We can and should reach agreement with them and such agreement can be a great step forward for our society. Today we have many Aboriginal people who are important artists, many who are becoming, or who have become, doctors, footballers , university professors, teachers, students, employees etc. Around the whole country we have Reconciliation organizations which are very active. In SA we have just had a conference of school students to discuss the question of making good the relations between Aboriginal and other school students. It was excellent. In short the question of “terra nullius” is entirely dead, we are on the way to making good our relations between our original Aboriginal inhabitants and our colonists and their followers. It depends partly on our governments, but not wholly. It depends partly on our people also.
Patrick Dodson, considered by many as the father of reconciliation, recently said that the indigenous people may have something to offer in terms of climate change and sustainability. Do you agree?
EJ: It may well be that he has something to offer on this question. Patrick is of enormous ability. When Mr Muirhead, then living in WA, resigned from the Royal Commission on Aboriginal Deaths in Custody, it was suggested to the WA premier that a similar person be appointed as a Commissioner; he refused and suggested Patrick Dodson with whom the Federal authorities agreed. He became a wonderful commissioner, and added greatly to the final report.
Source: Australian Options, Issue 58, Spring 2009, pp. 11-12.