The Constitution, Federalism and Indigenous Australians: Essay

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Introduction This essay sites the historic and current relationship between the Constitution, Federalism and Indigenous Affairs as a case study of the transformation and evolving nature of Federalism in Australia. It will briefly outline the original intent of the Australian federal system and discuss its early impact on Indigenous Australians, then identify the changing nature of Federalism alongside the changing approaches to Indigenous Affairs, arguing that despite significant developments no clear evidence of improvement in the plight of Indigenous Australians could be demonstrated.

Through an analysis of this relationship, between Federalism and Indigenous Affairs the essay will argue that the current phase of federalism, described as Rudds collaborative cooperative federalism, combined with a maturing approach to Indigenous Affairs, if maintained, could see significant benefits to Indigenous Australians. The Constitution designed to protect rights In designing the constitution, the framers drew on the constitutional arrangements of both Britain and the United States (Saunders 2002: 85).

They adopted the principles and institutions of responsible government but rejected a comprehensive Bill of Rights. Some features of Australias federation include a high degree of autonomy for the government institutions of the Commonwealth and the States, a division of power, and a judicial authority to determine whether either level of government had exceeded its powers (Fenna 2007: 176) Supporters of the this federal system argue that this division of power provides greater security for individual freedoms and liberty (Fenna 2007: 178).

The intent to protect the rights of citizens unfortunately did not extend to the First Peoples of Australia. Aboriginal and Torres Strait Islander people are the First Peoples of Australia and have special rights arising from that status. To this end the writer supports Farleys (2003) observation that the relationship between indigenous and non-indigenous Australians deserves special attention. The Constitution, Federation and Indigenous rights an overview At the time of European settlement Australia was deemed to be terra nullius.

The Indigenous legal system was ignored and with it Indigenous interest in land (Saunders 2002: 87). More than one hundred years later, at the time of federation, the Indigenous people were expressly excluded from Commonwealth power. Social Darwinism was in full flight and Indigenous Australians were considered inferior people who were doomed to extinction (Federation Story 2001). Their interests and welfare remained entirely with the States. The State Constitutions contained little, if anything to protect them. Indigenous people were left in a political no-mans land.

The exclusion of Indigenous Australian rights would set the scene for continued disadvantage. As a result, throughout most of the 20th century Indigenous Australians were treated very badly. Until relatively recently there was no recognition of their law and little of their culture. Many groups lost their languages and except for the far north, they were they had lost their land too. They suffered extreme social and economic disadvantage. They were politically powerless to remedy their own situation. (Saunders 2002: 87) The Commonwealth and Indigenous Affairs 1901-1949.

The relationship between the Commonwealth and the States over the first 25 year period could be described as coordinated federalism, where the Commonwealth and State governments were each co-ordinate and independent in their respective spheres. The States relationship with Indigenous Australians was largely based on a Protection and Control Policy which dominated during the period from the 1880s to 19030. The Commonwealth had little influence over these policies, but played a secondary role through legislation which limited access to citizenship and welfare rights.

Indigenous people were largely excluded during this period. During the next quarter of the 20th century, a cooperative federalism was pursued. This approach is illustrated by the Financial Agreement in 1927 which saw cooperation between the Prime Minister and the State Premiers during the 1930s in formulating budgetary and economic policies in response to the Great Depression. During this period Bleakleys report on the Aboriginals and Half-Castes of Central Australia and North Australia (Dow & Gardiner-Garden 2011: 4) was released with recommendations for improved living conditions.

In response the Commonwealth convened a meeting of groups interested in Aboriginal welfare to at which many of the delegates argued for increased Commonwealth involvement in Aboriginal Affairs but this was rejected (Dow & Gardiner-Garden, 2011; 5). Later in April 1937 the Conference of Commonwealth and State Aboriginal Authorities was held to exchange ideas on the administration of Aboriginal Affairs. At this conference the assimilation policy was sanctioned. This policy intended to advance and protect welfare but quickly became one which further alienated Indigenous people.

During this period the removal of children from Indigenous parents became a strategy agreed on by all government; state and federal (Commonwealth of Australia 1997). Federal and State cooperation and a shared policy led to action, but unfortunately action which led to further Indigenous disadvantage. The winds of change (1947 1992) In the latter part of the 20th century the situation began to change, as world opinion on discrimination changed. The Menzies Government presided over a period that saw growing support for a policy of greater Commonwealth involvement in Indigenous Affairs.

Menzies approach to federalism could be described as coercive federalism and was characterised by bitter disputes over finances (Cranston 1979: 121). In 1962 the Commonwealth Electoral Act amended the Commonwealth Electoral Act 1918 by giving the vote in Commonwealth elections to all Aborigines. It was not compulsory for Aboriginal people to register, but once they had, voting was compulsory. This growing pressure for the Commonwealth to intervene in Indigenous Affairs culminated in the referendum of 1967 when the Constitution was changed to give the Commonwealth concurrent power in relation to Indigenous people.

Indigenous people were hopeful that this would introduce a new era of non-discrimination (Behrendt 2010); however these expectations were not met. The last quarter of the 20th century saw a return to a coordinated federal model with the introduction of cooperative planning to reduce the conditions attached to section 96 grants and to introduce tax sharing arrangements. During this period the Whitlam Government created the Department of Aboriginal Affairs, ushering in a period of significant Commonwealth expenditure and programming and in 1973 initiated a Royal Commission into Aboriginal land rights under Justice Woodward (Hocking 2008).

The Whitlam Government introduced self-determination as a key guiding principle in Aboriginal Affairs policy making. The Commonwealth used increased special purpose grants to as its main weapon to encourage cooperation by the States. The self-determination policy was later described as one of the most revolutionary policy changes ever enacted in Australian government policy (Altman & Sanders 1991: 214). Accompanied by a proliferation of programmes through the 80s, the Commonwealth also began to implement land rights legislation where it had more complete legislative power.

In South Australia, some public lands were given to Indigenous people, but in general the States resisted the lands rights movement at this stage. Despite these developments Indigenous people remained largely disadvantaged. Reports such as the Toomelah Report (Einfield 1988) and the interim report on Black Deaths in Custody (1988) confirm this. Commonwealth Indigenous policy had evolved significantly, however States attitudes and commitment to improving the wellbeing of Indigenous Australians was not that clearly demonstrated.

The stage had now been set for more significant developments. Keating, Howard and Reconciliation (1992 2004) The Keating Governments response to the Royal Commissions report on Aboriginal Deaths in Custody (1991), a shocking report, was to set up a national inquiry into the separation of Indigenous children in an effort to encourage recognition of past injustices (Gardiner-Garden 2011: 2). Thus began a policy approach of reconciliation.

The Keating Government encouraged cooperative federalism as evidenced by the establishment of the Council of Australian Governments (COAG) in 1992 which endorsed a National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders (Gardiner-Garden 2011: 2) In 1992, in the landmark decision in Mabo V Queensland (No. 2) the High Court of Australia (1992) held that the common law of Australia would recognise Indigenous land title.

While the Mabo criteria were difficult for Indigenous groups to meet, it was a symbolically important decision. The Commonwealth enacted legislation to control the claims process and the States were unable to nullify the effect of the Mabo decision, because of supervening Commonwealth law. In the scheme of things, these changes were important, but minor; Indigenous Australians were still struggling for land, equal economic opportunity and recognition of law and culture.

Nevertheless, their bargaining power, however small, enabled them to make the federal system work better for them. More States began considering the return of lands to Indigenous peoples; some States began experimenting with Indigenous court systems; some entered into agreements with Indigenous people to provide a greater measure of self-government and economic development. The Howard Government failed to capitalise on Hawke and Keatings commitment to improving conditions for Indigenous Australians.

Howard dropped the terms social justice and self determination, and withdrew support from many of the associated initiatives and institutions declaring the new priorities to be accountability, improving outcomes in key areas and promoting economic independence (Gardiner-Garden 2011: 7). Establishing a Special Auditor, reducing Aboriginal and Torres Strait Islander Commissions (ATSIC) funding, amending the Native Title Act and perceived inaction on reconciliation placed a strain on relations with the Indigenous community.

A more coercive federal approach had now been adopted. A coercive cooperative approach to reconciliation seemed incongruous to those advocating on behalf of Indigenous Australians. In 2004 the Howard Government utilised COAG to drive a new shared responsibility philosophy trialing a whole-of-government approach through Shared Responsibility Agreements and Regional Partnership Agreements. The Ministerial Taskforce on Indigenous Affairs was established to drive the delivery of improved services and outcomes for Indigenous Australians.

Despite these developments, reports on the wellbeing of Indigenous Australians still identified significant disadvantage. An evaluation of the Wadeye COAG site, a whole of government initiative, identified that a lot of money had been provided with very little outcome (Wadeye Evaluation 2006). The Howard governments coercive approach and deteriorating relationship with the States attracted much criticism and calls for federal reform began gaining momentum (Wanna 2007).

Indigenous Policy and debate also entered a new phase when in mid to late 2007, following a series of reports, most notable the June 2007 Little Children are Sacred report about levels of child sex abuse in Indigenous Communities in the Northern Territory, the Commonwealth announced and then legislated for a series of emergency measures in the Northern Territory. Howards Indigenous policies, largely accepted by the next government may have had merit; however the fractured relationships with States and Indigenous communities provided little opportunity to see positive outcomes. Rudds Collaborative Cooperative approach.

The Rudd Government maintained most of the Howard Governments Northern Territory intervention measures, but adopted a different policy language. Key words were now new partnership and closing the gap. These terms were used in the Communique from the Council of Australian Governments meeting on December 2007, where there was a commitment to clarify the roles and responsibilities of different levels of government and to close the life expectancy gap within a generation, to halve the gap in mortality rates for Indigenous children under five within a decade, and to halve the gap in reading, writing and numeracy.

This was the first time targets had been set, which clearly communicated a message of commitment. Rudd issued a national apology, attempted to repeal the previous governments changes to the permit system for access to Aboriginal land in the Northern Territory, endorsed the UN Declaration on the Rights of Indigenous People, oversaw legislation which reinstated the full operation of the Racial Discrimination Act 1976 and promised consultation on a range of issues from the future of the Community Development Employment Projects (CDEP) scheme to the formation of a new Indigenous representative body.

Rudds approach to Indigenous Affairs policy was a reflection of the governments approach to federalism a collaborative cooperative approach. After a COAG meeting in November 2008 it was announced that State and Territory governments were joining with the Commonwealth in major reforms of their financial relations. A new Intergovernmental Agreement on Federal Financial Relations was to be finalised which reduced 90 previous Specific Purpose Payments from the Commonwealth to the States and Territories to just five (COAG 2009).

The Rudd government decided that COAG would take on a paramount leadership role in the federation, including detailed oversight of the implementation of federally agreed programs. An ambitious forward program of reform the COAG reform agenda was developed. The high point of this process was the Intergovernmental Agreement on Federal Financial Relations which from January 2009 changed the way financial affairs of the Commonwealth and States was conducted.

In the first few months of the Rudd Government, particularly immediately after the national apology, a wave of optimism swept through the country and encouraged those who had long advocated for Indigenous Australians. Those who had called for federal reform during 2007 were also optimistic: A new era of cooperative federalism has begun in Australia. This era offers an ideal and rare opportunity to make lasting improvements in the functioning of our federal system ¦ (Wanna, et al, 2009) Conclusion

A number of commentators have identified a form of collaborative cooperative federalism to be the most effective federal model (Cranston, 1979; Uren, 2006; Wilkins 2006: 8 and Glover 2006: 6). Although this essay has not attempted to provide conclusive evidence that a cooperative model is more effective than a coordinate or coercive federal approaches, it does use the case study of Australian Indigenous Affairs to highlight that greater progress on Indigenous Affairs have been made under governments which have adopted a cooperative approach such as the Keating government, and to a greater extent the Rudd government.

Both these governments placed importance on healthy federal and state relationships, as evidenced through the establishment of COAG under Keating and the paramount leadership role played by COAG in the Rudd Government. It could be argued that in the early period of the Rudd Government, Australia witnessed the intersection of a maturing federal system, cooperative and collaborative and a maturing Indigenous Affairs policy of Shared Responsibility and Reconciliation themes which led to good will and a great deal of optimism.

Time will judge the effectiveness of this approach, but in theory these approaches have gone some way to meet the calls for federal and Indigenous policy reform. Although the current data on overcoming Indigenous disadvantage does not reflect significant change, there is some evidence for optimism. Of the 45 indicators in the Overcoming Indigenous Disadvantage: Key Indicators 2011 report (Australian Government 2011), available data shows improvement in outcomes for 13 indicators, including employment, educational attainment and home ownership.

For 10 there has been no real improvement, while for seven outcomes have deteriorated minimally. This is not a bad report card, compared to reports delivered in the past. There is still a considerable way to go in closing the gap, but progress is being made. References Altman, J. C. & Sanders, W. 1991 From Exclusion to Dependence: Aborigines and the Welfare State in Australia DISCUSSION PAPER No. 1/1991, ANU, viewed on 22 September 2011 Australian Government 2011, Overcoming Indigenous Disadvantage: Key Indicators 2011 viewed on 22 September 2011 < www.

pc. gov. au/__data/assets/¦ /key-indicators-2011-overview-booklet. pdf > Behrendt, L. 2010, A Constitution for all Australians transcript of ABC radio interview on 11 July 2010, view on 23 September 2011, Cranston, R 1979, From co-operative to coercive federalism and back? , Centre for Research on Federal Financial Relations, ANU, Canberra. Commonwealth of Australia, 1997, Bringing Them Home Report Human Rights and Equal Opportunity Commission, viewed on 20 September 2011.

Council of Australian Governments (COAG), Meeting Outcomes, viewed 30 September 2011, http://www. coag. gov. au/meetings. htm. Dow, C & Gardiner-Garden, J 2011 Overview of Indigenous Affairs: Part 1: 1901 to 1991 Parliamentary Library, viewed on 28 September 2011, Einfield, M (Justice) 1988, Toomelah report: report on the problems and needs of Aborigines living on the New South WalesQueensland border, Human Rights and Equal Opportunity Commission, Sydney. Family, Community Services and Indigenous Affairs, 2006, Wadeye COAG Site Evaluation, Internal Departmental Report.

Farley, R, 22 January, 2003, Australia A Bit Lost, Australia Day Address from the Sydney Conservatorium of Music, viewed on 25 September 2011 Federation Story, 2001, Aboriginal Australia: The Unfinished Business Australias Centenary of Federation, viewed on 24 September 2011, Fenna, A 2007, The Division of Powers in Australian Federalism: subsidiarity and the single market, Public Policy, vol 2, no. 3, pp. 175-194 Gardiner-Garden, J 2011 Overview of Indigenous Affairs: Part 2: 1992 to 2010 Parliamentary Library, viewed on 28 September 2011, Glover, R 2006, Collaborative Federalism:

Getting More from the Competition of Ideas, Public Administration Today, April, pp. 4-7. Grewal, B & Sheehan, P 2003, The Evolution of Constitutional Federalism in Australia: An Incomplete Contracts Approach, CSES Working Paper No. 22, Melbourne Hocking, J 2008, Gough Whitlam: A Moment in History, Melbourne University Publishing, Carlton High Court of Australia (1992) MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1 Matthews, R. L. & Australian National University.

Centre for Research on Federal Financial Relations 1979, The changing pattern of Australian federalism, Centre for Research on Federal Financial Relations, Australian National University, Canberra Royal Commission into Aboriginal Deaths in Custody, 1991, viewed on 23 September 2011, Saunders, C. 2002 Protecting Rights in Common Law Constitutional Systems: A Framework for a Comparative Study in D Carter and M Palmer (eds), Essays in Honour of Sir Ivor Richardson, pp 83-112, Victoria University Press, Wellington Uren D, 2004, Howards big bogy.

The Australian, 25 November (PSM Manual pp.139-143 reproduced under licence, in PSM Program 2006, Orientation Assessment and Referencing Guide (Version 10), 10 May. Wanna, J 2007, Improving federalism: drivers of change, repair options and reform scenarios, Australian Journal of Public Administration, vol. 66, no. 3, pp. 275-279 Wanna, J, Phillmore, J, Fenna, A and Harwood J 2009, Common Cause: Strengthening Australias Cooperative Federalism, Final Report to the Council for Australian Federation, May 2009 Wilkins, R 2006, A New Era In Commonwealth-State Relations? Public Administration Today, April, pp. 8-13.

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