01.07.17 A DECADE OF LESSONS: TEN YEARS SINCE THE INTERVENTION
Posted in Pat's Opinion Pieces | August 22, 2018
A DECADE OF LESSONS: TEN YEARS SINCE THE INTERVENTION
A decade on from its dramatic and sudden imposition on Aboriginal communities in the Northern Territory, the Intervention still has much to teach us.
For many, the most visible sign of the Intervention was the sudden appearance of large iridescent reflective blue signs that warned, on any public road, that you were about to cross into the lands of Aboriginal people.
The signs depicted a large warning message, indicating you were entering a Prescribed Area, allowing No Liquor and No Pornography.
A twenty-four hour, seven-day hotline number pointed you to the Northern Territory Emergency Response Hotline for further information.
The signs warned those Aboriginal people living there that those lands, their homes for countless generations, were now restricted areas where different laws applied, that they were communities in crisis, subject to emergency laws and conditions.
For the backpacker tourists, on their way to, say, Palm Valley, dozens of the signs warned they were passing the homes of drunks, of drug takers, of pornographers.
Having previously lived and worked in the Northern Territory, I know well many of these communities. I know the people who live there. I know their families. I have worked closely with their leaders for decades.
The Intervention came to our people as a shock, as a bolt out of the blue from the Federal Government under the direction of Prime Minister John Howard and his Minister Mal Brough.
Despite my total commitment to the need for concerted action on the issues, I opposed the Intervention at the time and I continue to question its foundations in principle and its effectiveness. There was a dishonesty to it that that related to getting votes in the Queensland State election for the Coalition. It tried to hide the fact that it was taking property rights away from property owners, the traditional owners.
The Intervention was built upon a set of assumptions and attitudes that shaped the nature of the Intervention, its ongoing operations and its consequences.
In May of 2006 the ABC program Lateline broke a story of child abuse, based on an interview with Nanette Rogers, a Central Australian Crown prosecutor.
Earlier reports of neglect and abuse of children had been in the public domain, but did not create much in the way of political or media attention. The issues were revealed in two earlier reports: The Royal Commission into Aboriginal Deaths in Custody 1996 in which I was involved; and the Australian Human Rights Commission report Bringing Them Home in 1997. It was also flagged in the ongoing reports of the Social Justice Commissioner.
These reports set out a challenging and disturbing set of truths. They showed that problems of child safety and domestic violence were national problems, requiring a systematic and coordinated professional response from agencies working in genuine partnership with communities in poverty across Australia.
Such findings were echoed by the Little Children are Sacred Report in June 2007 from the Northern Territory Government’s Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, chaired by Pat Anderson and Rex Wild QC.
This report evidenced widespread abuse and neglect of Aboriginal children in the Northern Territory. The findings were based on considerable consultation with indigenous Australians and the wider community. The primary recommendation was for:
Commonwealth and NT governments to establish immediately a collaborative partnership with an MOU to address the protection of Aboriginal children from sexual abuse. It is critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities.
Unlike the earlier reports, the Little Children are Sacred Report was featured on ABC Lateline and became the focus of intense media and political response.
But the primary recommendation of the report that it was ‘critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities’ was entirely rejected.
Over the following days, and without any form of consultation with the Aboriginal communities of the Northern Territory, a new regime was legislated into existence.
It became an intervention of military scale, military style and authoritarian intent.
It used the powers of the Commonwealth to legislate on behalf of the territories to create a new regime that went beyond intervening to protect children from child abuse into domains of land tenure, compulsory town leasing, local government, school attendance and alcohol management.
It is a fact of history that the Labor Opposition ten years ago cooperated with the Government of the day to pass the rushed and complex legislation. There were voices within the Opposition – then, now – that understood the issue but took a different view on the right response.
In my own view, there are learnings from the experience of the Intervention that would point now to a different, more nuanced, less one-size-fits-all, top-down approach, including when we consider issues such as the Cashless Debit Card.
Firstly, we recognise the great importance of international laws and obligations that should have guided the design, implementation and carriage of the Intervention.
As Indigenous peoples, we are recognised in a range of international agreements to which Australia, as a State Party, is a signatory. The international community can judge the integrity and quality of Australia’s responses as a sovereign State Party member of these conventions.
First amongst these is the United Nations Declaration on the Rights of Indigenous Peoples. Australia voted against the Declaration when it was adopted by the UN General Assembly in 2007. In 2009, the Australian Government, under Prime Minister Gillard, formally endorsed the Declaration. This international obligation requires the Australian Government to seek the free, informed and prior consent of the Indigenous communities involved.
The Declaration on the Rights of Indigenous Peoples requires States to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them (article 19).
This did not happen a decade ago, and Governments of all persuasions have struggled to implement effective processes of meaningful consultation in line with the Convention.
Instead of building on local cultural strengths and cultural values, the Intervention denuded and disempowered local leadership and frustrated any attempt to exercise self-determination.
I argued at the time for:
“... investing in the reconstruction of Indigenous society through traditionally based governance structures, customary land ownership and internal reconciliation and healing are critical to ensuring social cohesion through the interconnected obligations and responsibilities on which Indigenous societies are based.”
Instead, at the local level the Government Business Manager (often known locally as the Ginger Bread Man) was parachuted in and stepped into the role of the olden days Mission Superintendent, or Welfare Manager on the settlements of the 1960s.
He (rarely she) was able to evict any person from the community, a power the traditional owners did not have under the previous legislation.
There was no attempt to engage with local community leaders and build their capacity to deal with the issues confronting their community. Instead they were bypassed, disempowered and disenfranchised.
Even today, I hear reports that the Minister, the Hon Nigel Scullion, says:
“I think it would have been far better to do some of the same things with the full compliance of the community rather than the community having the sense that it was imposed on us, so yes of course we could have done it better.”
It is a long way between “free, prior and informed consent” and “full compliance”, but the understanding that what was done was ill-judged by the benchmark of today is now accepted as self-evident, even to the Minister.
I have argued further that the forced social and cultural changes imposed on communities living on their ancestral lands, to which they held (usually) full, inalienable freehold title, was tantamount to a return in full force to a committed ideological approach of assimilation, dispossession and disempowerment.
The Intervention was also plainly a breach of Australia’s commitments under the Convention on Racial Discrimination. By suspending the Racial Discrimination Act for the purposes of the Intervention, as a nation we floated the fiction that the ends, saving the children, justified the racist means.
Make no mistake, this was a throwback to the forms of ideology that gave rise to the notion of terra nullius. It is to some credit of the Labor Party that when they took office they reinstated the Racial Discrimination Act, even though they maintained the Intervention’s methodology and processes.
The lessons of the Intervention resonate with Aboriginal and Torres Straits Islander peoples across Australia in the current time as Constitutional Recognition debates are taking place.
We still today have a problematic, deeply ingrained stain in our constitutional fabric that allows Governments, of any persuasion, to persist with legislative interventions on the basis of race.
It remains my view that we can be a truly reconciled nation – if, having learned from the Mabo decision, having been inspired by the 1967 referendum, we act together to remove the last vestiges of the racism inherent in our founding documents.
In 2012, the Expert Panel (Expert Panel on Constitutional Recognition of Indigenous Australians) which I co-chaired with Mark Leibler made a series of recommendations including:
- a statement of acknowledgment;
- a modification to the wording of the Commonwealth’s law-making power in Indigenous affairs;
- a constitutional prohibition on racial discrimination; and
- the removal of a provision that contemplates states disqualifying people from voting based on their race.
These recommendations recognise that the Government has the power to make laws about Aboriginal and Torres Strait Islander people, but that such a power must be used in a way to ensures the laws made are beneficial and give the Parliament clear, positive guidance.
If this had been in an amended constitution a decade ago, the Government could never have ventured down the path of the Intervention, including suspending the Racial Discrimination Act.
The ABC recently also reported on the views of someone who initially supported the Intervention:
A member of the Commonwealth’s “emergency response taskforce”, a resident of the Naiyu community, Miriam Rose-Baumann, said at first, she thought the intervention was an opportunity for change but then lost hope. “It felt like it was more top-down rather than grass roots level ... and there was no suggestion that they were going to take the community with them in trying to sort out what was needed in the community,” she said.
In my view this is a necessary pre-condition to efforts by Governments to correct what is wrong in our communities. It cannot be forced, against our will, imposed from Canberra.
It must be grounded in our community, bringing the community along in the process of change. This did not happen a decade ago. As a direct consequence, with the possible exception of increased investment in housing, there has been little to show in terms of positive results from the Intervention.
In recent evidence to the Royal Commission into the Protection and Detention of Children it was revealed that the rates of child protection cases and notifications have more than doubled in the 10 years since the intervention.
Separately, NT budget estimates revealed the number of children in out of home care had tripled, while the proportion in Aboriginal kinship care had dropped 20%.
Olga Havnen, a former Coordinator General for remote services in the NT, said:
“It’s not enough to pay us the cursory privilege of being consulted, where our voices are not listened to and where we have no role in decision-making. We couldn’t do any worse than what’s being done today, surely.”
But this was not the only issue of governance confronting our remote NT communities at the time.
In 2008, I was commissioned by the NT Government to organise a consultative process that set out to reform local councils and associations. It ran parallel to the Intervention. At the time it added to the confusion and disquiet of Aboriginal peoples.
The Northern Territory government reduced the number of councils, community government councils and community associations from 61 to 16 bodies. In terms of reduction in council numbers, this was "easily the largest scale, forced local government amalgamation in Australia".
While the local community councils had suffered for some time as under-resourced, poorly managed, badly staffed, they were still a voice for the local community, a vehicle for governance that could guide decision-making and community development.
Small, remote communities had nothing in the way of community control and direction but a distant and disconnected Shire Government, with responsibility for essential services for an area the size of some European countries.
As the Chairman of the Northern Territory Local Government Advisory body at the time, working closely with the Northern Territory Local Government Minister, I saw the tensions and challenges of this structural reform at first hand. For remote communities, the Advisory Committees they had to rely on were not empowered to manage and direct resources, nor make decisions on behalf of their community. They certainly did not have the power or authority to be a local buffer for the kinship-based networks of the community to withstand the surging force of the Intervention.
It was a double whammy of disempowerment. Many communities were left with their sporting teams as the only identifiable community controlled organisation left intact.
In the decade since the Intervention, thinking has shifted. There have been lessons learned from the Intervention. But no one should deny the damage that was done. It is apparent that both political parties, in hindsight, see that the Brough-Howard military intervention was "over the top", and indeed harmful. More importantly, there is a general and widespread recognition that, without consent, without genuine deep level engagement, directly involving community leaders and elders, the only expectation can be failure and further harm.
This recognition needs to be applied to all dealings by Governments with our Aboriginal communities. However, the thinking and the policy around the Cashless Debit Card and its impact gives caution to any sense of optimism that the lessons of the Intervention have been truly learned.
This Opinion Piece was first published in the July 2017 edition of Land Rights News.