This week the Prime Minister delivered the latest (not) Closing the Gapreport, which again shows how little progress has been made in the 12 years since the “Gap” targets and process started.
It was interesting that the Closing the Gap report was delivered the same week the High Court took the rather radical step of recognising (or more accurately creating) a new category of person: an Indigenous non-citizen non-alien, who it seems has an undefined right to remain in Australia notwithstanding the operation of the Migration Act.
This shows the clear divisions at the heart of Indigenous policy in Australia.
The aim of Closing the Gap is to create unity between Indigenous and non-Indigenous peoples. However it’s hard to think of an action more likely to be divisive than creating a vague legal entitlement enjoyed exclusively by a subset of people with Indigenous heritage, which operates completely outside our system of government.
There are a number of practical problems with this.
First, it is surprising that so soon after Indigenous activists were up in arms about the appropriateness of government inquiring into whether a person is or is not Indigenous, so many would be cheering a decision that has at its heart the need to prove indigeneity to government.
Nor is the Mabo land rights test – which is ultimately about whether particular residual land rights had been extinguished – an appropriate test of said indigeneity.
It has other problems as well, which should have been obvious given the High Court itself did not determine whether Daniel Love, one of the men facing deportation, is in fact Indigenous.
However, this did not stop the court determining that, as if by osmosis, a person who claims to be Aboriginal or has a single Aboriginal ancestor somewhere in the family tree has a deep spiritual connection to Australia as a land mass.
They do not have to know their language, perform traditional cultural practices related to land connection or live by traditional cultural rules to have this invisible spiritual connection to the land. And some who do have all those factors may not meet the required test if, say, they annoy the wrong people in their community.
Clearly, the approach that has governed Indigenous affairs for a number of years, focusing on symbolic gestures and separatist thinking behind the Voice to Parliament and this recent High Court judgment, is not working.
These decisions and policies are supposedly aimed at upholding the rights of Indigenous Australians and improving their lives. So far all that has transpired is a struggle for power within Indigenous communities, further complications, and further division of the nation along racial lines.
As can be seen in the Closing the Gap statement, it has not translated to positive outcomes for marginalised Aboriginal Australians in remote communities. There has been no shortage of money, but there is no evidence that this money has been spent effectively.
The issue is one of sovereignty, but in the deepest sense of the word: the fusion of authority and ownership on the one hand with responsibility and accountability on the other.
The Uluru Statement from the Heart asserts Indigenous sovereignty co-exists with the sovereignty of the Crown.
Justice Stephen Gageler argued that “Australian courts … have consistently rejected the existence of Aboriginal or Torres Strait Islander sovereignty”. Chief Justice Susan Kiefel concurred, in her dissenting opinion claiming the effect of this decision is “to attribute to the group the kind of sovereignty which was implicitly rejected by Mabo … and expressly rejected in subsequent cases.”
This judgment opens the door to a separate Indigenous sovereignty at law.
Yet Indigenous people already have sovereignty. Sovereignty ultimately lies with the people of Australia, a group that includes Indigenous Australians. That sovereignty is manifested in electing a Parliament and a government who will act in the name of the Crown, in accordance with the rule of law under the careful watch of the High Court.
This is the biggest error in the High Court judgment. To the extent that Indigenous sovereignty can co-exist with the sovereignty of the Australian people – and it’s not at all clear that it does or should – it can only be the choice of the people that makes it so.
Sovereignty is not a gift the High Court has to give. The court made a decision that should have been made by the people of Australia.
As the Chief Justice said in closing, her statement of dissent that the source of the new rights “bear[s] the characteristics of a higher principle of which natural law might conceive. But such conceptions are … regarded by some as antithetical to the judicial function since they involve an appeal to the personal philosophy or preferences of judges.”
In the race to attribute Indigenous poverty and disadvantage to the alleged absence of Indigenous political rights, it is important to remember that these Indigenous people are Australian citizens. They deserve the rights and opportunities of other Australian citizens. If their connection to land and culture is lived and in need of no proof, they do not need additional rights on the basis of race.
There is a growing concern in the wider Australian community about this push towards creating separate rights and special benefits for Aboriginal Australians, unequal to those of other Australians.
The government should be very hesitant to endorse further moves towards Indigenous separatism. Especially to the extent it will reduce responsibility for falling outcomes and accountability for those spending taxpayer dollars.
To accept the claim that Indigenous people are not represented at the table when decisions are being made is to ignore the sovereignty they have as Australian citizens. On the contrary, progress towards closing the gap requires us to reject the idea that different standards and expectations should apply to Indigenous communities.
We must combat Indigenous disadvantage because Australians are suffering disadvantage, not because those being disadvantaged are Indigenous.