Indigenous Environmental Health: Report of the Fifth National Conference 2004

Keynote Address - Australian Indigenous Policy: A Personal Perspective

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Hal Wootten¹

Thank you for your welcome, and to the Darkinjung people for the invitation to their land. I am honoured and humbled to be invited to deliver the keynote address at your conference. I am, after all, a whitefella, and one who has no expertise in environmental health. What should I talk about? Obviously I can’t tell you how to be an environmental health worker or how to be an Indigenous person in Australia. One thing I do have a bit of experience in is being a whitefella in this country, nearly 82 years of experience in fact. I worked out the other day that I have been in this country more than a third of the time since Captain Cook sailed up the east coast. You may think this shows how very old I am; perhaps it shows what a short time white people have been in this country.

So I will talk about being a whitefella in a country where whitefellas arrived uninvited 217 years ago, taking what they wanted without paying much attention to the effect on the displaced Aboriginal people. We have still not found a solution to how the two peoples can live together, in reasonable equality and with good lives available to everyone.

I grew up during the Great Depression and the second World War that immediately followed it. That may not sound a very promising beginning, but the post-war world into which I emerged as a young man was a time of great hope. We had just defeated the evil regimes of Nazism and Fascism, and would now set about ridding the world of racism, colonialism, war, inequality and poverty, and establishing international security and universal human rights. In Australia the government appointed a 40-year-old economist, Dr Herbert Cole ‘Nugget’ Coombs, as Director of Post-war Reconstruction. Interestingly his detailed plans for a more just society did not mention Aboriginals. It was to be another 20 years before he became sensitive to their situation, and went on to be a champion of their interests.

So perhaps it’s not surprising that I didn’t know anything about Aboriginals either. As a child I had gladly given my pennies at Sunday school to ‘help the good missionaries care for the poor Aboriginals’, but beyond that I knew nothing of their position. I assumed good people were attending to the issues. My own minor involvement in remaking the post-war world was in the context of preparing Papua New Guinea for independence. I made some close friendships among the Indigenous people of that country, which left a nagging feeling in the back of my mind that it was strange that I knew so little of those in Australia.

As a barrister in Sydney working in industrial relations, I was briefed in 1965 to appear for pastoralists in the equal pay case, which was about bringing Northern Territory Aboriginal workers under the Pastoral Industry Award. However, there were no Aboriginals involved in the case, not even as witnesses, and no one thought to ask them what they wanted.

The graziers, who knew them as their employees, predicted that introduction of equal pay without any other measures being taken would have disastrous consequences for Aboriginals. The union, the Commonwealth Government and the Arbitration Commission showed little interest in this prediction; they considered equal pay must be introduced as a matter of principle, the human right to be free of discrimination. So equal pay was introduced without preparing for it, and in a few years Aboriginals were gone from the cattle stations on their traditional land, into settlements in towns on other tribes’ land, where they could settle down to generations of unemployment, and unfettered use of another human right recently granted to them, the right to drink alcohol.

It was about that time that the 1967 referendum was passed, after years of campaigning by Aboriginals. Today it is seen as a great event, but at the time it was a rather empty gesture. It did not confer citizenship or anything else on Aboriginals. By removing discriminatory provisions from the Constitution it helped the Commonwealth Government avoid embarrassing criticism overseas. It gave the Commonwealth new powers that would allow it to take over Aboriginal administration from the states and territories; but Cabinet had agreed beforehand that it would not use those powers. Protection and assimilation were out of fashion, but nothing had taken their place.

It was to be some years before I finally got my chance to get to know Aboriginals. The University of New South Wales asked me to set up its new law school, and while there in 1970 I was approached by young Aboriginals who were angry about the way police treated Aboriginals in Redfern [in Sydney]. They soon convinced me of the justice of their claims, and we worked together to establish the first Aboriginal Legal Service. I didn’t have any difficulty in finding a way to think about this question. A group of citizens were being denied their rights, and the rule of law, which as a lawyer I cherished, was not being applied.

It never occurred to us to ask for government funding. The Service started with no office of its own, no employees, a big panel of lawyers who had agreed to take cases without fee, free messaging offered by a commercial answering service, and a body of Aboriginals and whites who had agreed to do all the legwork and serve on the committee without fees of any sort. It was a wonderful time that everyone who was there remembers. There was interracial warmth and cooperation and friendship, and everything seemed possible. Some of our Aboriginal members, elated by what had happened, went off and formed the first Aboriginal Medical Service, and in the ensuing years a great network of Aboriginal community organisations spread out across Australia.
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I persuaded the University of New South Wales to adopt the first program for the special admission of Aboriginals in any Australian university. The law school opened with two Aboriginal students in its first year, and later produced the country’s first Aboriginal magistrate and first Aboriginal judge.

Back in 1970 the histories by Rowley, Reynolds and others were not yet written, and I learned what I could about the way Aboriginals had been treated from my newfound friends and the families and communities they took me to visit. How did I think about my position as a whitefellas in this wider context?

Looking back I have found a submission that I made to a Senate Committee, in which I referred to an Aboriginal population (then officially counted as 140 000). I concluded:

If 140 000 of our countrymen were prisoners of war in a foreign country, we would not rest until they were released. Yet within this land a large part of 140 000 of our countrymen are prisoners of an historical injustice and its consequences—ignorance, malnutrition, poverty, discrimination, disease, lack of opportunity, destruction of their individual personality and their social fabric. Many live in conditions that would be considered appalling in a prisoner of war camp, and are subjected from birth to a brainwashing about their inferiority that no military power has yet attempted on its captives. To liberate these our countrymen we have only one enemy to overcome—ourselves—our apathy and indifference, our selfishness, our turning of the head. ²

The great post-war optimism about making a better world had melted away under the influence of the Cold War abroad and comfortable complacency at home. Suddenly it came rushing back with the election of the Whitlam Government at the end of 1972, but this time Aboriginals were included. In February 1973 Whitlam told the newly established National Aboriginal Consultative Council:

If there is one ambition my Government places above all others, if there is one achievement for which I hope we shall be remembered, if there is one cause for which future historians will salute us, it is this: that the Government I lead removed a stain from our national honour and brought back justice and equality to the Aboriginal people. ³

The Whitlam Government policies included a separate Ministry for Aboriginal Affairs, the outlawing of racial discrimination, land rights through grant and purchase of land, heritage protection, incorporation of Aboriginal organisations and communities, copyright for Aboriginal art, provision of legal aid, self-determination and achievement of equality in health, education, housing, and employment. The succeeding Fraser Government continued most of the Whitlam policies, although sometimes in a less generous or less favourable or more limited form.

Despite these differences, the Whitlam Government ushered in a new approach to Aboriginal policy that was to provide the basis for a broadly bipartisan framework of policy for the next two decades.

In 1973 I became a judge in the Supreme Court of New South Wales and lost continuous contact with Aboriginal issues. I was comfortable with the Whitlam way of thinking about how we should treat Aboriginals. Without following what was happening in detail, I assumed that the bipartisan policy consensus was working to improve the situation of Aboriginals and that, albeit more slowly than one would have liked, they were moving to a more equal place in Australian society. There was a fair degree of complacency—one of the major disappointments coming in the mid-1980s when the Hawke Government squibbed implementing the long-standing Australian Labor Party policy of national land rights in the face of an outrageously misleading campaign by the mining industry. Nevertheless it remained an article of faith that if the bipartisan policy continued, Aboriginal disadvantage would ultimately disappear.

A major challenge to the complacency came in mid-1987, when the issue of deaths in custody surfaced in alarming form. In just six weeks—between 24 June 1987 and 6 August 1987—there were five Aboriginal deaths in custody, all by hanging, and four in police cells. This followed 11 deaths earlier in the year, five by hanging. I was bewildered. How could people hang themselves unaided in a police cell? Was it credible that so many people, mainly young Aboriginals, were taking their lives?

The following year I was appointed as one of the members of a Royal Commission investigating these deaths, and found answers to these questions. First, it is very easy, and very common all over the world, for prisoners to hang themselves unaided. All they need do is make a loop from clothing or bedding, hang it over a doorknob, light switch or other support, put their head in the noose and lean their weight on it, and in a few minutes the interference with the flow of blood and oxygen to the head will make them unconscious, and unless they are found they will be dead in a few minutes.

Second, Aboriginal prisoners actually hanged themselves slightly less frequently than did other prisoners. The reason so many Aboriginals were dying in custody was not that they died at a greater rate than other prisoners, but simply that so many Aboriginals were in custody.

The big question was, why were so many Aboriginals in prison? The major reason was, we believed, the disadvantaged state of the Aboriginal communities. Severely disadvantaged people invariably have a high rate of conflict with the law, much of it as a result of drunkenness and the violence, disorder and petty crime that goes with it. The appalling figures for imprisonment sat alongside equally disturbing statistics of disadvantage in health, education, housing, employment, and alcohol and drug misuse.

This state of disadvantage was of course the very thing that government policies for the previous 20 years were supposed to be changing. Why hadn’t they worked? In his five-volume report, the National Commissioner, Elliott Johnston, did not challenge the general thrust of policy, but argued that it had not been applied adequately, with enough determination and resources, and with enough regard for self-determination. He carefully examined each head of policy and made recommendations for improvement and greater effort.

The Royal Commission Report was well received, and for a time governments busied themselves with the recommendations and provided extra funding. But 13 years have passed since the Royal Commission, and appalling disadvantage remains. Life expectancy is most frequently cited, but there are many other statistics that have failed to improve. In many communities the tragic impacts of alcohol, domestic violence, child abuse or neglect, poor school performance, poor health and other dysfunctional features have become worse, or at least more widely known.

What should a whitefella think about this?
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Rednecks say, ‘It’s all their own fault. They deserve everything they get. You mustn’t give them special rights because we should all be equal. ’ I don’t have any trouble rejecting that point of view, because I know the history, and how cruelly Aboriginal rights were denied for so long, and I have seen the brave struggles of many Aboriginal friends over the years against tragedy and adversity, and their attempts to build better communities.

Another right wing view says that the problem lies in attempts to cling to an Aboriginal culture that has no place in the modern world. We should stop treating Aboriginals as different, and tell them to embrace modern culture, get off welfare and live like other people.

I believe a basic flaw in this position is that it just doesn’t recognise the importance of Aboriginal identity. Most Aboriginals I know, even those who have university educations, who have succeeded in professions, and who have had little contact with communities—and including those who have married whites—fiercely value their Aboriginal identity. It may mean different things to different individuals, but it is important to nearly all of them. However we whitefellas envisage the future, it must allow Aboriginals to go on being Aboriginals in ways that are important to them.

Then there is a range of views among people sympathetic to Aboriginals who want to help them. They say that the history of dispossession is responsible for everything, that Aboriginals are being denied their human rights, their right to health, their right to education, their right to an economy, their right to preserve their culture and language. Often they speak as if nothing has been done or tried in the last 30 years, which is not only silly, in view of all the money that has been spent, but rather insulting to the many thousands of Aboriginals and whites who have worked hard to change things. They don’t suggest that Aboriginals do things like sending kids to school, stomping on the drunks who keep the kids awake and beat up their mothers, taking exercise and giving up grog, tobacco and fast food. They fear they would be ‘blaming the victim’ if they talked about such things. Instead they encourage Aboriginals to see themselves as victims of history who should be out campaigning for apologies, amendments to the Constitution, treaties, reconciliation, sovereignty and the grant of self-determination. The trouble with these policies is not that they are bad or harmful in themselves, but that they send the wrong messages to Aboriginal people. Those who advocate these policies tend to be very nice people who have had very little contact with ordinary Aboriginals. They often get very romantic about preserving Aboriginal culture and Aboriginal communities, without knowing what these things mean to individual Aboriginals battling to find a decent life for themselves and their families.

Aboriginal advocate Noel Pearson, has criticised ‘progressivists’, along with the Labor Party, the Royal Commission, Aboriginal Legal Services, and drug and alcohol experts. I don’t think Noel’s criticisms are always fair or helpful, but he has some good ideas about how we should think about the future. I admire the way he gave up the chance of a comfortable career as a lawyer or politician, and went back to his home in Cape York to grapple with grassroots problems in communities that face enormous internal problems.

Noel’s basic statement, ‘Our Right to take Responsibility’, argues that the starting point has to be individual Aboriginals taking responsibility for themselves, and then their families. It is no use asking government for rights or resources, or trying to reform communities, until individuals take responsibility for their own behaviour and the effect it has on their own lives and the lives of those around him. Noel went on to identify alcohol as a key obstacle to any improvement in the Aboriginal situation. His main criticism of the Royal Commission is that it did not face up to the key role of alcohol and place the control of addiction at the forefront of its recommendations.

Noel’s views about how one should deal with alcohol remain controversial, but I believe he has done a great service in breaking through the taboo on blaming the victim and insisting on the threshold need to break the devastating grip alcohol has on many Aboriginals and communities. This is of course only his starting point. Other important ideas are the need to bring Aboriginals into the real economy instead of the gammon welfare economy in which so many are trapped; the need for government to find ways of delivering services and resources in ways that empower Aboriginals to take responsibility instead of disempowering them; and the critical need to see that children are educated, even if they have to leave their communities to get good secondary and tertiary educations.

Noel isn’t always tactful, but this shouldn’t stop us recognising that he has had the courage and wisdom to say a lot of things that needed saying. Certainly many of them would have been very difficult for a whitefella to say.

It is pretty clear from these discordant voices that Australia hasn’t yet found a shared vision about the future of Aboriginals to replace the bipartisan consensus that we lived with for 20 years after Whitlam. Looking back, the Royal Commission was the last great ‘hurrah’ of that consensus; it has been slowly falling apart ever since.

There is, I believe, still the latent goodwill in the non-Aboriginal population that brought them out in hundreds of thousands to walk over bridges a few years ago. What they lack is any credible vision of a way forward, a policy framework they can believe in as a way of removing the inequality and disadvantage of Aboriginals that continue to shame and plague the country. The vacuum was very clear at the last election when Aboriginals barely featured in the campaigning of the main parties.

I have no golden key to the future; indeed I don’t believe there is such a key. But I owe it to you at least to say in conclusion how I now see the situation.

I think it is remarkable how Aboriginals survived the combination of neglect and destructive policies of the first 180 years. It is remarkable how many of them lived dignified if poverty-stricken lives with footholds in the rural economy or unskilled work in the cities. The great irony is that, just when national policy was about to become sympathetic to them, economic conditions changed and neither their rural skills nor their unskilled labour were in demand. Government policies did not address this situation and Aboriginal communities were left to a lethal mix of unemployment and newly available welfare and alcohol.

The well-intentioned bipartisan policies had some fatal contradictions and ambiguities. Aboriginals were expected to make the cultural changes needed to compete in a modern, capitalist and highly technological world while at the same time preserving an ancient culture. They were expected to gain education, vocational skills and jobs that are available only to the mobile, yet cleave closely to their traditional land, which usually lacked the economic viability to support their rapidly expanding populations. Although recognised as having been marginalised from education and administrative and business experience, Aboriginals were expected to be instantly capable of managing large institutions and budgets by the mere fact of their Aboriginality. On the one hand Aboriginal society was expected to act as a nation with impersonal institutions like the Aboriginal and Torres Strait Islander Commission (ATSIC), but on the other hand to cherish its local and kinship-based character.
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There was great confusion about what self-determination could mean. Aboriginal people were encouraged to speculate about all kinds of imaginary collective futures while overlooking Noel Pearson’s point that the first step in self-determination must be for individuals to get back control over their own lives, so often eroded by alcohol and welfare dependency.

I think one of the most important things to realise is that self-determination is not something government can give Aboriginals; it is something Aboriginals must do. They must do it in their own lives, in their families and, if they want to live in communities, in their communities. It involves, and depends on, a lot of elementary things that only Aboriginals can do, like getting grog under control, eating good food, taking enough exercise, sending kids to school with a good night’s sleep and a good breakfast. Many Aboriginals of course do these things, but too often their efforts are undermined by those who do not.

When Aboriginals want and are ready to make use of a national organisation, they should build one, working up through their communities and regions. Such an organisation, built by themselves, could be a real instrument for whatever form of self-determination they choose, and they might want government to help with resources and legal powers. It would be a totally different thing to leaving it to government to set up an organisation, as it did with ATSIC, which was built on the assumption that self-determination was something government granted to Aboriginals, not something Aboriginals did for themselves.

I am very happy to be giving this keynote address because I am talking to many Aboriginal people who are really engaged in self-determination. You are not asking what government can do for you, but what you and your fellow Aboriginals can do for yourselves and your communities. You and your non-Aboriginal colleagues work on the basic infrastructure on which all communities depend: shelter, water, waste disposal, power, pest control, pollution control and so on. Of course it is sometimes part of your job to fight to ensure the government does its share in supplying funds and resources, but you also work to ensure the people in communities take control of these important parts of their lives. On this can be built many other things, not least a generation of children who are healthy, well-fed, well-educated and proudly Aboriginal, ready to go out and seize the opportunities the world offers them, instead of falling victim to alcohol and drugs, crime and institutionalisation.

I salute your efforts. All power to you.


For further information
Hal Wootten
Email: hwootten@bigpond.com

Footnotes
1. Hal Wootten was the founding President of first Aboriginal Legal Service (1970-73), a Judge of the New South Wales Supreme Court (1973-83), a Royal Commissioner into Aboriginal Deaths in Custody (1988–90) and a Deputy President of the National Native Title Tribunal (1994-97)
2. Commonwealth of Australia Official Hansard. Standing Committee on Constitutional and Legal Affairs, 18 August 1972. Statement by Professor J H Wootten QC, pp 10-75 at 32.
3. Whitlam, G February 1973, address to Aboriginal Consultative Council, quoted in Whitlam, G (1985) The Whitlam Government 1972-75, Penguin Books, Melbourne.

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