I hate the way we so often slavishly follow whatever fashion is currently gripping the American people. But I make an exception for the protest movement that has taken to the streets prompted by the Black Lives Matter demonstrations in the United States.
Prompted by, and in sympathy with what is happening in the US. But dominated by our own domestic concerns, particularly the woeful, tragic, shameful history and currency of Aboriginal deaths in custody.
Yes, I know that the rate of Aboriginal deaths in custody is about the same (per head of the prison population) as that of non-Aboriginals. But the chances of an Aboriginal or Torres Strait Islander dying in prison are at least 10 times higher than non-indigenous people because their rate of imprisonment (per head) is incredibly higher.
Thanks to the work of the Royal Commission into Aboriginal Deaths in Custody a generation and more ago (it reported in April 1991), we know why this is so and we know what can and should be done to ameliorate and then correct this appalling situation. But governments, of the Commonwealth, the States and the Territories, have failed to fully implement the recommendations of the Royal Commission. They have done the relatively easy bits, made changes to physical characteristics of prisons and so forth.
They have not satisfactorily addressed, let alone changed, the circumstances that result in such huge numbers of Aboriginal youths, and men and women, being incarcerated. (And not all of the necessary changes are so difficult – if you missed it, you should read the contribution by acting (sometimes) magistrate Jim Coombs, in Pearls and Irritations this Wednesday – ‘Less Aboriginals in Gaol? How can we do it?’)
Similar failures are evident in the whole ‘closing the gap’ exercise.
The marches we have witnessed in the past two weeks won’t directly change anything. But they will revitalise the campaigns for Aboriginal advancement that have been thwarted in the past year or so. The way forward provided by the Uluru Statement from the Heart three years ago has been blocked by the federal government, first by the misleading and deceptive characterisation by then Prime Minister Malcolm Turnbull of the proposal for a first nation’s voice as a ‘third chamber’ of parliament, and now by the nobbling of Minister for Indigenous Australians Ken Wyatt by current Prime Minister Scott Morrison who is hamstrung by the promised opposition of Liberal MPs to any race-based legislative or constitutional deal to give an effective voice to indigenous people.
I remember the extraordinary success of the referendum to change two sections of the Constitution back in 1967. Then, as now the cause was advanced by Australian interest in events in the United States. Many Australians were motivated by the huge advances being made by African Americans, thanks to the 1964 Supreme Court’s decision in Brown v. Board of Education (where it ruled ‘separate but equal’ educational facilities violated the constitution), the passage of Lyndon Johnson’s Civil Rights Act (which banned discrimination on grounds of race and segregation in public places) and the freedom rides and challenges to segregationists in the remnants of the old Confederacy.
Those events encouraged activists in Australia to push for changes to our Constitution that would remove disabilities that discriminated against Aboriginal people. There were two: the first removed a prohibition on ‘aboriginal natives’ being counted in the population (section 127); the second removed an exception (‘people of the aboriginal race’) to the power given to the parliament to make special laws in relation to the people of any race (section 51(xxvi).
It took time and there were false starts with the legislation to enable the referendums. It helped, though, that the changes didn’t appear to affect the rest of the population. These changes were gestures of little consequence, or so it seemed at the time. No-one in the federal parliament voted against the proposal for a referendum, so there was no ‘no case’ circulated to voters.
Not that everyone favoured the changes. I remember the Victorian Premier, Sir Henry Bolte, boasting to me and several other journalists after the Premiers Conference that year that he had voted ‘no’. But he didn’t speak against it before the vote was taken, because the Liberal Party had introduced the legislation. In the end, over 90 per cent of voters approved the two changes to the Constitution.
And in the end, one of the changes turned out to be extremely important. The Keating Government’s Native Title Act, giving legislative effect to the High Court’s decision in the Mabo case and providing the way native title claims would be determined, relied for its constitutional validity on the change to section 51(xxvi), allowing the Parliament to make special laws for the people of any race.
That was then. The political scene is very different now. Racists no longer hide or disguise their toxic views. Some parts of the mainstream media provide them with platforms to reach into the community. That’s in addition to their use of that new uncontrolled and powerful medium, the internet.
Advancing the proposals of the Uluru Statement from the Heart will be difficult. Spreading awareness of aboriginal disadvantage through Black Lives Matter can only help.
David Solomon is a former legal and political correspondent. He has degrees in Arts and Law and a Doctorate of Letters. He was Queensland Integrity Commissioner 2009-2014.
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