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QUARTERLY ESSAY 55 A Rightful Place



Megan Davis

I penned this response in the week that I, like many Aboriginal and Torres Strait Islander people, mourned the loss of the “Prime Minister for Indigenous Affairs”, Gough Whitlam. When Noel Pearson delivered the Gough Whitlam Oration in 2013, he spoke of how the Old Man in his short time as prime minister had liberated Aboriginal people: “we were at last free from those discriminations that humiliated and degraded our people.” Yet few Australians appreciate what that humiliation and degradation looks like, let alone feels like. A Rightful Place paints a compelling picture of this. It connects Australia’s colonial history to the contemporary push for constitutional recognition and in doing so reveals why talk of symbolic recognition alone is repugnant to many Aboriginal people. A Rightful Place argues that to truly appreciate the recognition project and the exigency of substantive reform, one needs to understand the colonial project. One needs to be a student of Aboriginal history; Australian history. 

Unbeknown to many Australians, from the late 1890s Aboriginal people were the subject of draconian protection – unfreedom – laws. Protection was required, in part, to prevent Aboriginal people from being indiscriminately murdered. It was the tail end of what we now know as Australia’s first Great War: the frontier wars, as A Rightful Place describes to powerful effect: extermination as Scylla and protection as Charybdis. Yet the contemporary consensus of historians about the frontier wars has gained little traction in our polity. Why? As Pearson laments, “it is not the horrific scenes of mass murder that are most appalling here, it is the mundanity and casual parsimony of it all.” That stinginess and casual indifference to the political economy of killing that built this great nation persists today. 

A Rightful Place is an attempt to recalibrate the current approach to constitutional reform. Yet even before the Quarterly Essay went on sale, Pearson’s potentially complementary proposal was dismissed as “grandstanding” and “unhelpful.” Having served on the prime minister’s expert panel on constitutional recognition alongside Pearson, I found this an exasperating reminder that although black leaders regularly chant “leaders are readers” to our young mob, Australia’s political leaders are in fact, on the whole, not readers. 

In 2012, too, the expert panel’s report was criticised before the text was finalised. It was accused of over-reach for recommending a racial non-discrimination clause, although the historical and contemporary evidence of racial discrimination by the state is unassailable. Leaders remain attracted to preambular recognition despite the panel finding that constitutional thinking had moved on since the 1999 referendum and that stand-alone (second) preambles are too legally risky, apropos the unintended legal consequences of the 1967 referendum, which the current project seeks to correct. 

Like Pearson, the expert panel took as its starting point colonial history. In A Dumping Ground: A History of the Cherbourg Settlement, the Queensland historian Thom Blake wrote:

In the early months of 1901, as white Australians were undergoing their rite of passage into nationhood, another group of Australians were also participating in a rite of passage – but of a different kind. In the Burnett district of south-east Queensland, remnants of the Wakka Wakka tribe were being rounded up and dumped on a reserve on the banks of Barambah Creek. From camps on the fringes of towns and station properties, they had been forced onto an Aboriginal settlement established ostensibly for their care and protection. For the Wakka Wakka, their “rite of passage” was not into nationhood or independence but into institutionalisation and domination. The two rituals were diametrically opposed.

Blake clarifies the divergent paths of the Australian nation and Aboriginal people. He was writing a history of south-east Queensland’s Cherbourg, set up by the Salvation Army member William Thompson in 1899, which in 1904 became a settlement under the Aboriginals Protection Act. My own mob was moved to Barambah reserve in the early 1900s from Warra. My grandfather and his siblings and many of my cousins grew up on Cherbourg.

The Cherbourg community has worked together to reclaim the old discarded Ration Shed – a symbol of the brutal regime of protection and unfreedom – where peas, porridge, flour, tea, sugar, rice and salt were rationed out to people on the mission. The old shed has been restored, together with the dormitories, and today is a thriving cultural precinct that includes an archive where people can research their family history. The Ration Shed’s website proclaims that 121 Australian primary schools have visited the Ration Shed to learn about its history. It was on the verandah of this shed that the expert panel conducted its consultations.

Cherbourg’s journey is an important one for the nation; it reveals – as Pearson, a “third-generation legatee of mission protection,” suggests – that “the colonial enterprise does not tell a simple story.” It is complex. In Cherbourg, they have reclaimed something that was brutal, even as the psychological and social manifestations of such unfreedom linger. This community has turned these dwellings into institutions of memory, survival and reconciliation: Vergangenheitsbewältigung – coming to terms with the past. The panel found moving examples of this all over Australia. A Rightful Place is a powerful argument for an appreciation of the good and bad in our history and that “complexity and nuance should not provide refuge from the truth that our nation’s history includes times of unequivocal evil and times of redeeming goodness.” History is inextricably linked to the recognition project. In the meantime these two groups remain unreconciled and disconnected despite, as Pearson powerfully implores us to see, indigenous culture including “the Iliad and Odyssey of Australia.” 

Where do we go from here? Is any form of “recognition” capable of overcoming the extreme economic and social disadvantage and unbelonging of our first peoples? If I return to Whitlam’s incorporation into domestic law of the international norms of equality and racial non-discrimination, I note that this statute and this Old Man delivered more to Aboriginal people and Aboriginal rights than anything or anyone else. The contemporary unravelling of this is the subject of another Quarterly Essay, but Whitlam understood, thirty-five years before the United Nations General Assembly passed the Declaration on the Rights of Indigenous Peoples, that the right to self-determination was, for indigenous peoples, the path out of the devastation wrought by dispossession, decimation and protection.

Thomas Franck, in his watershed article “The Emerging Right to Democratic Governance,” claimed self-determination is “the oldest democratic entitlement.” Yet in modern Australia, the right to self-determination for indigenous peoples is conflated with sexual assault and corruption: an entirely fatuous and mischievous dismissal of a sophisticated political and legal concept. “ATSIC” – the Aboriginal and Torres Strait Islander Commission (1990–2005) – remains a dirty word: discussion of its flaws is well rehearsed, but its many virtues and substantive outcomes remain unstudied by academia and mistakenly conflated with separatism. 

Writing in the Australian, Nicolas Rothwell noted that:

ATSIC was a peculiar beast: undoubtedly skewed towards south-eastern, “urban” Aboriginal interests, flawed and chaotic in its workings. Yet it was both a national indigenous voice and a conglomerate of strongly representative regional councils. Its members knew what services were needed, and delivered them. ATSIC built community houses in the interest of its own people, not outside contractors, and for a fraction of the costs incurred during the Intervention era’s disastrous SIHIP program. The extensive bush infrastructure ATSIC left behind was well targeted and much remains to this day.

Yet on ABC TV’s Lateline, when Noel Pearson announced his idea for an alternative approach, Tony Jones exclaimed: “But isn’t this an ATSIC!” (*clutches pearls*), when in fact there is a crystallising sentiment that self-determination is a far sight better as a model than the ad-hoc, hodge-podge, top-down, paternalistic approach we have today, sustained by a vacuous faux-bipartisanship, as if our mob is undeserving of a contest of ideas when it comes to public policy. 

There is in this current recognition project, as Rothwell rightly identifies, an “urgent desire of the political class for a single answer to the indigenous question … Causes like reconciliation, and its great successor, recognition, have an immediate appeal because they have universal application and promise a new landscape.” The most deficient exhortation is that the cause of recognition is “special” and above politics. Actually it is not. It is complicated and it hurts your head. And globally it is an unremarkable exercise for any state to undertake. Yet it is the desire for a quick fix that is driving current momentum; and it is the urge to resist the quick fix that informs A Rightful Place

One symptom of the quick fix has been the debate on symbolism versus substance: witness the exasperation of the political class at the prospect of a referendum being bogged down in issues of “wording.” The esteemed journalist Michelle Grattan, one of the few apprised of the detail, observed in the Conversation that “for advocates of wide wording – surely it would be better to keep it narrower than have nothing at all? … Remember the apology.” Grattan may as well be talking directly to the indigenous nations of this country, because it is we who are driving the preference for wide wording (substance) over narrow wording (symbolism). But if the injunction to “remember the apology” − a common refrain of advocates of symbolism – is aimed at the Aboriginal and Torres Strait Islander community, the response will not be gushing. A cursory glance at any Aboriginal newspaper since the apology would reveal huge reverence for the act, the day and the prime minister who delivered it, but an equal resentment at the lack of compensation. To not know that is to not know indigenous Australia. We know symbolism because that’s what we usually get.

Another component of the quick fix is the suggestion that you don’t need the votes of Aboriginal and Torres Strait Islander peoples to get this referendum across the line: a crude and repugnant constitutional calculation that requires no further elaboration.

A third manifestation of the quick-fix approach is the creeping cult of positivity that is descending upon any public discussion of indigenous issues. The mantra goes something like this: “only focus on the positive, only focus on the success stories.” When beyondblue recently ran television advertisements identifying racial discrimination as a risk factor in anxiety and depression, there was a public backlash because it was considered to be negative and racist towards white people. “Why be so negative! Why focus on the bad things?” roared Twitter. The cult of positivity threatens this project because it disavows the humanity of the subject of recognition by preventing a conversation about what A Rightful Place is trying to put front and centre: “anonymous, extrajudicial, unreported, mundane.”

Which brings me to the substance of the alternative approach contemplated in A Rightful Place. As Pearson makes clear, Aboriginal and Torres Strait Islander peoples approach the recognition project with history and questions of truth and justice in mind; this explains why sovereignty and a treaty are prominent features
 of discussion, however irritating this may be to the Australian polity. On the other hand, the Australian polity makes a political calculation based on the fact that only 8 out of 44 referendums have been successful since 1901, all under conservative governments. Therefore 8/44 × bipartisan support = minimalism; hence, surely it would be better to keep it narrow than have nothing at all? These are two very different starting points. One asks: what is just in the historical trajectory of invasion/settlement? The other: what is the compromise in the forty-fourth parliament?

The question of consent remains central to A Rightful Place, as Pearson contemplates the five permutations of the historical problem. When we went to Aboriginal communities during the expert panel consultations, most of us were struck by how alive and present this very complex question of sovereignty and a post-colonial settlement was. It was also clear to the panel that one of the reasons for the current movement towards recognition was not a burning desire to be recognised by Australia – a state-conceived project salvaged from the ashes of the failed 1999 referendum and arguably already achieved in 1967 – but to ameliorate the unintended (or intended) consequences of the drafting of the 1967 amendment. A corollary to the adverse use of the races power by the federal parliament is the suspension of the Racial Discrimination Act 1975 on matters of importance to indigenous peoples, foremost among these land, heritage and culture. 

Communities had vivid memories of Wik and Kartinyeri and the suspension of the Racial Discrimination Act, although they attract little media attention. Leaders still smarted that the Wik amendments had no input from Aboriginal people in the end. As Mick Dodson commented at the time, “What I see now is the spectacle of two white men – John Howard and [Senator] Brian Harradine – discussing our native title while we’re not even in the room. How symbolically colonialist is that?” When ATSIC was abolished and a journalist asked Minister Vanstone what indigenous peoples would do now for representation, she replied that they had the ballot box. Not much comfort for 3 per cent of 22 million people. People still say they have no voice, no representation.

Here there is one problem – that of the elephant and the mouse – and two possible and equally valid solutions: one legal and one political. The recommendation for section 116A – a broad prohibition of racial discrimination – is a legal solution. It is aimed at disciplining the federal parliament. The second one, as implied in A Rightful Place, is a political solution not captive to short-term politics. A Rightful Place was unfairly portrayed by some as adversarial to the expert panel. It is not. There has not been any real debate on the section 116A proposal. Instead there is an oft-repeated, rarely questioned claim: conservatives won’t accept it. They are not asked to come out and explain why. Even the interim report of the Joint Parliamentary Committee failed to give a plausible explanation for why it is problematic. We hear only vague mutterings about judicial activism and unelected judges. Is this a tacit admission by the political elite that changes to the constitution are for conservatives alone and that the people are a rubber stamp?

Yet the intuitive response of the people in 2011, at the end of the expert panel process, was – without prompting – 80 per cent in favour of a national commitment to racial non-discrimination: the only truly popular option of ours. Is this Australia, that 80 per cent? We may never know. The bottom line is this: the Racial Discrimination Act already has quasi-constitutional status and binds the states and territories. Section 116A aimed to bind the federal parliament. People quite like that. 

On the other hand, as A Rightful Place pointed out, this runs counter to the Diceyan devotion to parliamentary sovereignty that dominates our political elite: that our parliamentarians can be trusted to do the right thing by the people and that the power of our parliament, unlike most in the world, should be completely untrammelled. Moreover, elected politicians should have the final say on the limits of their own power. Unsurprisingly, in our consultations, we found few Aboriginal people who subscribe to that Diceyan dogma. When we made the frank admission to them that a court applying section 116A is likely to defer to parliament, which could result in discriminatory legislation being enacted against the wishes of a community, they still had more faith in High Court than parliament: because it is expert, independent, unelected. 

It seemed people felt the presence of section 116A might create a pause; an institutional tension or brake; a requirement to take time and consult; a requirement to go on country and talk to people before doing. That institutional pause is missing from our current political arrangements, at least when it comes to
3 per cent of the people. There is no compulsion for parliament to consult or take into account the views of the Aboriginal and Torres Strait Islander communities on any legislation or policy. The most uncomfortable flash-points in Australian history, when discriminatory legislation has been passed, have occurred without much media or popular attention. 

A Rightful Place issues a challenge to conservatives who do not want their constitution encumbered by a right: you can’t just be spoilers. What is the alternative to addressing the problem of the elephant and the mouse? In most comparable states there were treaties, and therefore indigenous peoples gained some form of “public” legitimacy from the outset. As we know, in Australia no such treaties were entered into. Instead, after Mabo we have this uncomfortable settled/conquered story, arrived at through litigation, which retrofitted invasion with a well-established land-tenure system. A Rightful Place suggests an alternative that seeks to preserve parliamentary sovereignty while providing the mouse with a place within the current political arrangements. 

How have other jurisdictions dealt with the elephant and the mouse conundrum? They have reserve seats or designated parliamentary seats, indigenous parliaments, constitutionally entrenched rights, treaties made long after colonisation (post-colonial treaty-making) and other constructive arrangements. In my role in the United Nations Permanent Forum on Indigenous Issues, I am always struck by the creative ways in which almost all nation-states with indigenous populations have accommodated their voices in domestic political arrangements. It is the subject of much literature. As Pearson suggests, it is domestic political arrangements that accommodate indigenous peoples’ voices and give full expression to the right to self-determination. If you perused some of this literature, you would see that self-determination is no symbolic, wishy-washy idea. It is about giving people control over their lives. It is not viewed as separatism, but as a way of enhancing democracy.

Pearson’s alternative proposal is strategic too, because at the very moment they – the Joint Parliamentary Committee or the government – formally abandon section 116A, they will have a fight on their hands. Deleting the word “race” is simply preserving the status quo, maintaining the structural disadvantage. And the option proposed by the Joint Parliamentary Committee for a qualified race power (but not so as to discriminate adversely against Aboriginal or Torres Strait Islander peoples) is a poor trade-off for section 116A’s broad prohibition. Pearson’s catapult approach is not to wait for committees or leadership or a lacklustre national debate that waxes and wanes. Rather, he has offered up a still-to-be-debated alternative. He hasn’t rejected racial non-discrimination. He has resigned himself to the fact that conservatives won’t give an inch. No rights, right! 

At the same time as we have seen resistance to the recognition project from conservatives, there has been a less publicised, yet surging resistance from our own mob – and it is not just about sovereignty and treaties. There are comp-eting narratives that make the recognition task difficult: the right to bigotry, “unsettled or scarcely settled,” severe funding cuts under the federal budget, especially in the justice sector (we are 3 per cent of the population but 27 per cent of the prison population), and the fact we are going backwards on some indicators in closing the gap. People have no voice. 

The transcripts of the Joint Select Committee from public consultations in places such as Halls Creek, Broome and Fitzroy Crossing are solid evidence of this and well worth reading. People wanted to talk about the Commonwealth budget cuts, the impact of which were acutely felt in the Aboriginal and Torres Strait Islander communities, and spoke of insecurity, discontinuity, lack of autonomy and uncertain futures. In some locations, it seems, they wanted to talk about everything but recognition. It is apparent that in communities struggling to survive, recognition of recognition is low. The government-funded campaign Recognise has an unenviable task; it has no model, only a feeling. Through no fault of its own, Recognise has raised the suspicion of mob who dismiss such vagueness as “poetry,” code for symbolism or the minimalist approach of deleting the word “race” without any regard for institutional racism: a disingenuous act of recognition by a nation of a community lagging behind its affluent counterparts. 

A Rightful Place is a corrective to the path we are moving further down, the path of unfreedom. As Amartya Sen has argued, “development consists of the removal of various types of unfreedoms that leave people with little choice and little opportunity of exercising their reasoned agency.” Rothwell similarly asks: “Do you, in fact, empower people by giving them the reins, and asking them to have a hand in shaping their own fate?” Will this constitutional recognition project
bring a change in direction back to self-determination? As Pearson states: “no discourse can lean one way for too long. No wind can blow from one direction without restraint.” Can Pearson win over a rights-reluctant conservative polity to a political approach acceptable to both the elephant and the mouse: the mouse taking the reins? And in all of this, will Australia accept that one possible outcome is that Aboriginal and Torres Strait Islander peoples might politely decline the offer of recognition? There must be room for us at least to have our voice heard on that: thanks but no thanks. Or maybe they’ll forge on ahead as a nation without us. They always have.


Megan Davis is professor of law at the University of New South Wales, where she is director of the Indigenous Law Centre. She was a member of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples.


This correspondence discusses Quarterly Essay 55, A Rightful Place. To read the full essay, subscribe or buy the book.

This correspondence featured in Quarterly Essay 56, Clivosaurus.


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