When it was my turn, I took him through my argument about the Mabo case. An exchange ensued. Noel had some contrary points. As the conversation progressed, I grew less scared. ‘You can’t say the High Court in Mabo got it wrong,’ Noel said. ‘But they did get it wrong,’ I countered. ‘They perpetuated discrimination. They should have given full ownership.’ It was a robust discussion, and though Noel’s knowledge exposed the vastness of my ignorance and idealism, there were also moments where I felt my logic had him. Mike told me he’d never seen Noel so stuck for a response. Ever the diligent student, I was pleased I’d done a good job. The internship came to an end.
I headed straight off to another one, at the NSW Law Reform Commission in Sydney. After the vibrancy of Cape York Institute, it was tedious. At CYI I had been able to pursue intellectual questions and think creatively about solutions. I could write and argue with personality and express original ideas. The Law Reform Commission had me doing data entry from other people’s submissions. On fines or something. It didn’t light my fire.
A few weeks in, Mike called. ‘Noel wants to offer you a job,’ he said.
Noel called some days later. I could barely hear his grumbly voice down the line, but was too timid to say so. From the snippets I gathered, he wanted me to move to Cairns to work on constitutional reform. I didn’t know what it was all about and was wary of being sucked in as some kind of boring secretary. Just to be clear, I said, ‘I’m not interested in being a PA and doing admin. I want to do something challenging and interesting.’ I don’t know where my impudence came from.
‘Yeah,’ Noel rumbled distantly. ‘No, I think it’ll be really good.’ I decided to believe him.
I gave immediate notice to the Law Reform Commission and escaped home for Christmas. By February, I’d moved up to Cairns. Two law subjects still to go.
I was an outsider to the struggles of Cape York people, but began to learn of the challenges they faced.
I travelled to the four Cape York Welfare Reform communities: Mossman Gorge, near the resort town of Port Douglas; the former Lutheran mission of Hopevale, where Noel Pearson grew up; the mixed town of Coen; and the former mission of Aurukun on western Cape York. I’d fly over in tiny light aircrafts, gazing down at the Australian landscape as the plane bumped and ducked over puffs of wind. A new life, suddenly.
The foreignness of these communities was startling at first. The barbed-wire shopfronts and dilapidated houses were often strewn with junk and had broken or taped-up windows. Some seemed like a scene from a dated communist movie, more like my visits to torn-up Albania or Fiji than life in Australia. I visited Yarrabah, another former mission hidden away outside Cairns, by the sea where the skeleton of an old ship was lodged in the mud (from colonial times, I imagined). I marvelled at the secluded nature of these communities. Out of sight, out of mind.
I also saw germinating change. The Welfare Reform programs championed by CYI were having some good impact. There were houses with burgeoning gardens and some industry. Hopevale would get a banana farm. Parents could save money for their children’s education through programs encouraging financial planning. Alcohol Management Plans (AMPs) had increased community stability. The local Family Responsibilities Commissioners were instilling a sense of local leadership and decision-making to address social problems, and the community-led quarantining of welfare was, for some, a welcome restriction to cease the flow of cash to booze, gambling and drugs. Distinct from the Northern Territory Intervention, community decision-making power was key. Later, I saw the impressive Direct Instruction schools championed by Pearson—Aboriginal kids chanting words in both English and their traditional languages, faces alight and attentive, were uplifting to behold.
But I also got a sense of the Indigenous position of powerlessness in government decisions made about them. It hit home with Aurukun. If you understand the tragedy of Aurukun, you understand the tragedy of Indigenous affairs in Australia.
Aurukun remained the most unstable Welfare Reform community. It was still afflicted with violence and volatility. Here the hopelessness, despite best efforts at reform, remained palpable. It felt similar to Hopevale, but with deeper scars. Deeper welts in women’s faces. Deeper distress in some of the children’s eyes.
As I furthered my learning, it became clear that the imposed and discriminatory decisions of successive governments had led to the Aurukun community’s current dysfunction and disadvantage. My comprehension of the challenge of Indigenous constitutional recognition was informed by my growing understanding of the history of Cape York communities, and especially the plight of the Wik and Wik Way peoples of Aurukun.
That history is long and sad. State violence against Indigenous people in the colonisation of Queensland has been well documented. It included state-authorised killing of Indigenous people aided by the Queensland Native Police. There was prolonged discrimination in voting laws. Queensland was the last state to confer equal voting rights on Indigenous people, in 1965.
The remedy for the bloodshed was imposed ‘protection’. The Wik and Wik Way peoples were forcibly removed from their traditional lands and brought to the Aurukun mission in chains. They were put under the protection of the Presbyterian Church, which had been ruled since 1925 by the formidable and often cruel missionary Bill MacKenzie. Mission life was harsh but the community was stable—no murders, which was a change from the massacres of the frontier that had decimated the Queensland tribes.
Protection entailed severe discrimination, however. The Protection Acts empowered appointed protectors to control many day-to-day aspects of Indigenous people’s lives. These laws and policies included unequal and stolen wages, forcible removal of children, and controls on where people could live and who they could marry. The protection era in Queensland lasted until the 1970s—around the time my parents came to Australia to attend university. After that, mission control of Indigenous lives was replaced by government control. The church was moved out, but state-sanctioned discrimination against Indigenous people continued.
Rich bauxite deposits in the land propelled continued subordination and economic exclusion. In 1975, the government seized control of Aurukun’s extensive bauxite reserves and gave it to a French multinational, Pechiney, without consulting with or obtaining consent from the Aurukun community.3 Aurukun people challenged the decision. The case went all the way to the Privy Council,4 and the mine was never developed. Poverty continued.
In the same era, while my parents were full swing into their medical degrees at Monash, the people of Aurukun tried to purchase the Archer River cattle station, which was on their traditional lands. Queensland premier Joh Bjelke-Petersen tried to stop them through a policy to prevent Indigenous people from purchasing large tracts of land. The policy was discriminatory, and Wik leader John Koowarta challenged it under the 1975 Racial Discrimination Act (RDA).
In 1982, the High Court held in favour of Koowarta and found the policy in breach of the RDA. It was a great victory for the Wik people. But the Queensland Parliament swiftly dodged the court’s decision: it declared the Archer River station a national park, which meant it couldn’t be purchased. Years of legal battling proved ultimately ineffective in curtailing the abusive intent of the Queensland government.
The Wik people couldn’t buy land on their own country—the country they had lived on for thousands of years. While my parents, immigrants to Australia, could go househunting in leafy Park Orchards and purchase their very own little piece of Australia on which to start their new life, the original Australians up at Aurukun could not.
In 1985 I turned five years old, and was probably getting called ‘black Shireen’ in kindergarten. But I went home every day to a safe home, in a safe suburb, with plenty of food, to a house my parents owned.
In that same year, the former mission of Aurukun was changed forever by booze: the government introduced a grog canteen though the local people, especially the women, opposed it. The government did it anyway because it needed the revenu
e. It began a decades-long alcohol binge and led to community breakdown for generations to come. Alcohol-fuelled violence became prolific. At one stage, Aurukun became notorious for having one of the highest murder rates in the world.
Kids growing up in Aurukun got nothing like the life chances I got.
In the 1990s, Aurukun people fought to close the canteen. Community leaders asked for AMPs to curb the debilitating flow of alcohol. When the plans were finally introduced, there was a significant reduction in violence across Cape York. Things improved but sly grog, drugs and violence, compounded and perpetuated by inherited psychological trauma, fetal alcohol syndrome and mental illness, plus a lack of jobs and education, remained an ongoing problem.
In 2006, there was a gang rape of an Aurukun child.5 Nine Aboriginal perpetrators pleaded guilty to raping a ten-year-old girl. Despite the accused having lengthy criminal histories, they were initially sentenced leniently and the juveniles’ convictions weren’t recorded.6 Disturbingly the judge, Sarah Bradley, implied during proceedings that the girl had consented—a legal impossibility for a ten-year-old. Professor Marcia Langton, writing in the Griffith Review, put words to the fury I felt reading the judgement: it ‘expressed utter contempt for the girl and basic norms of humanity’.7 Bradley’s judgement was later overturned.
Langton is a respected anthropologist, geographer and Indigenous advocate, and the Foundation Chair of Australian Indigenous Studies at Melbourne University. I first met her at Pearson’s bidding in 2011, before moving to Cairns to start work. With her luminescent silver hair and pale blue-grey eyes, Langton was a striking and powerful presence, about as scary as Noel—perhaps scarier—but with a screen star’s beauty. Our chat began well. Then I inadvertently said something she didn’t like about the concept of race. She transformed in an instant and slammed the desk. ‘There’s no such thing as race!’ she snapped. ‘Don’t you get it?!’ I jumped, but instinctively adopted my Zen-like calm. ‘I think you misunderstood me,’ I said. ‘I agree with you about race.’ Her fury abated like a hurricane subsiding. Meeting Marcia Langton was like coming face-to-face with a force of nature.
I want to be a woman like her when I get older, I thought. Powerful. Feminist. Ferocious.
Langton’s commentary was an authoritative indictment on the injustice of that Aurukun rape sentencing, and highlighted the ways in which unwarranted leniency towards Indigenous perpetrators can result in discriminatory disrespect for the Aboriginal victims of crime.8 Pearson reiterated the analysis, explaining to the ABC how well-meaning judicial leniency, accounting for cultural, historical and social factors underpinning Indigenous disadvantage and offending, could in fact compound the problem. ‘In my view, the best service that the judicial system can do to help Aboriginal society is to make sure that high standards and low tolerance of abuse [are] maintained,’ he said.9 Reading their commentary, I felt intense solidarity with Pearson and Langton. They were undoubtedly correct.
It was largely from Pearson and Langton that my appreciation of both left- and right-wing racism was gleaned. To me, discriminatory double standards in the form of leniency seemed as unjust as its opposite. Initially it was discriminatory oppression by government: the hard bigotry of racist control. This had morphed into discriminatory leniency and non-intervention, driven by white guilt—often well intentioned but equally damaging. The soft bigotry of low expectations, to borrow the phrase coined by George W. Bush and given new life by Pearson. Both approaches were unjust.
Aurukun was still troubled when I got to CYI in 2011. Sly grog was still a scourge. The situation was not helped by the Liberal-National Queensland premier, Campbell Newman, who in 2013 irresponsibly tried to make the Aboriginal equal ‘right to drink’ an ideological issue.10 I thought of the right to drink as against the right of children to be safe. Under what warped logic could an imagined right to consume alcohol be considered worth a mention?
In 2016, the Direct Instruction school in Aurukun got temporarily closed down after youths outside it rampaged, threatening a teacher and community safety. That school had been a glimmer of hope for the scarred community, and the Aurukun women for months had been pleading with police to crack down on the violence perpetrated by disengaged Aboriginal youths. Their pleas were ignored.
Reports of horrific police reticence emerged. Police stood around overseeing so-called ‘fair fights’ between community members, it was reported. They handed out lollies to bystanders watching the violence, with children looking on, it was alleged. The community had asked for zero tolerance on violence and grog, but the police preferred ‘cultural appropriateness’ and ‘cultural sensitivity’—a light touch.11 In other words, letting the people of Aurukun break the law and beat each other to a pulp.
Is the state now so desensitised to tales of Indigenous suffering that it knows not how to intervene, I wondered? Has the violence become acceptable, so now we in the broader community avert our eyes and do nothing? I haven’t figured out whether it is deliberate racism, a calculated effort to keep people down, or just bad policy- and decision-making, coming from a good place but resulting in perpetuated misery nonetheless. Maybe it’s both.
But the facts tell the story. Aurukun people wanted to own their land—government stopped them. They asked for economic development rights—government prevented them. They said no to the grog canteen—government imposed it, then later, when AMPs were in place, politicians promoted the right to drink. Aurukun people asked for strict enforcement of laws and a crackdown on violence—police handed out lollies.
It never seemed to matter which side. Left or right. Whether soft or hard touch. The people of Aurukun were powerless. They’d been treated like dirt by everyone.
3
The Expert Panel
MY JOB AT Cape York Institute was to come up with CYI’s constitutional reform policy. The intellectual challenge was like spark plugs for my brain.
When I began in 2011, Noel Pearson was a member of the Expert Panel on Constitutional Recognition of Indigenous Australians. The panel had been put together by Prime Minister Julia Gillard’s Labor government in December 2010, and was tasked with reporting to government on options for constitutional change, including advice on levels of support for the options among Indigenous people and the broader community. The panel was to report by December 2011.
In that first year, Noel and I had to not only to come up with the reforms CYI would advocate: we had to figure out how to positively influence the panel, and therefore the national debate.
My understanding of the Constitution had, until then, been just theoretical. I’d enjoyed the theory—I got my two highest marks in constitutional law and administrative law. There was something about the neat and logical workings of public law—subordinate rules made under higher rules, higher laws that cancelled out lower laws—that tickled my sense of order and justice. I liked the idea that laws needed the appropriate constitutional authority to be legitimate. Plus, public law cases were most interesting. They involved the struggles of usually vulnerable and powerless individuals and groups against the might of the state.
Cape York Institute was my introduction to the practical, onthe-ground workings of the Australian Constitution. It was my first experience of the Constitution’s adverse human impact. In my first year, I learned four crucial things about the Constitution and what it meant for Indigenous people and their place in Australia.
First, the Constitution created Australia. I’d never thought deeply about the significance of this legal and political fact before. When I did, it was perspective-shifting.
Australia was born when the Constitution of our Commonwealth, part of a UK Act of Parliament, came into force on 1 January 1901. It was an odd revelation. For my first thirty years, I’d attended barbecues in Melbourne and enjoyed the holiday on 26 January feeling vaguely patriotic, while also understanding the complexity of the date that had heralded dispossession for Indigenous peoples. But the historical and moral incongruence didn’t fully dawn on
me until I looked at the Constitution from a different perspective—from way up north in Cairns—and heard firsthand the concerns of Indigenous people about the date of our national day.
I realised then the illogicality of it, too. There was no Australia on 26 January 1788.
Australia didn’t yet exist when Arthur Phillip stuck his flag in the sand at Sydney Cove in 1788 and declared British sovereignty. That moment created the colony of New South Wales. It did not create Australia. No wonder Australia Day evolved to be more divisive than unifying: the date we commemorate presents an incomplete founding reality. As a date to celebrate Australia, 26 January is logically wrong as well as morally wanting.
In years to come I would witness with broadened perspective our annual Australia Day furore, the cyclical history war of a nation spiritually and psychologically uneasy with itself, and begin to see more clearly the reasons behind our unresolved torment. We Australians gather at barbecues to count down our anthems and revel half drunk in the half-told story of our land—never quite knowing whether to celebrate or grieve. We rally in turns proclaiming our patriotism or mourning our loss, sorting ourselves into Invasion, Survival or Australia Day parades. On 26 January, the nation gazes at its own reflection and asks: who are we? What does it mean to be this thing called Australian? We don’t yet have a full answer.
I later came to the view that Australia Day tensions will persist until our nation comes to terms with the wrongs of the past and resolves them through formal reconciliation. I came to believe that Australia Day should be held on the date we finally bring together our Indigenous heritage, our British inheritance and our multicultural triumph. It should be the date the nation votes for Indigenous constitutional recognition, to belatedly include Indigenous people in the Constitution and ensure the injustices of the past cannot happen again. In 2016, I wrote an opinion piece in The Age making the case for a shift in thinking along these lines.1 A comment from a member of the public suggested a brilliantly efficient solution: why not hold the referendum on 26 January, then? Rather than changing the date—plenty of Australians are attached to 26 January in any case—could we transform and redeem it? Could we do that which should have been done in 1788 and in 1901? Sign the treaty. Reform the Constitution. Unify the country.
Radical Heart Page 5