5_ê_o) Australia's Commonwealth Self-determination Policy 197 2'1998: The Imagined Nation and the Continuing Control of Indigenous Existence Stephen Jenkins Thesis submitted for the degree of Doctor of PhilosoPhY The Politics Department University of Adelaide September 2002 Dedicated to the memory of my beloved Grandmother Katherine MarY Thomas September 191 1 - JulY 2002 Time held me green and dYing Though I sang in my chains like the sea. D.M.T. ll Table of Contents Acknowledgements Abstract vi Introduction T Section One 11 1 Indigenous self-determination and its loss through British possesslon 2'settlers' and aculture of control 1788-1972 37 Section Two 3 Nation and culture: the development of the nation-state 74 4 The imagining of White Australia and its impact on t19 Indigenous people 5 The rise and 'demise' of the white nation: controlling the t4'l Indigenous other Section Three 6 The V/hitlam Government's policy of Indigenous self- 175 determination: the continuation of control 7 The Fraser Government's policy of Indigenous self- 203 management: the retreat from "self-determination" 8 The Hawke Government's policy of Indigenous self- 227 determination: ATSIC as the vehicle for "self- determination" 9 The Keating Government's policy of Indigenous self- 260 determination: in the big picture 10 The Howard Government's policy of Indigenous self- 292 management: back to the Past Conclusion 326 Bibliography 336 111 Declaration This work contains no material which has been accepted for the award of any other degree or diploma in any university or other tertiary institutions and, to the best of my knowledge and belief, contains no material previously published or written by any other person, except where due reference is made in the text. I consent to this copy of my thesis, when deposited in the University Library, being available for loan and photocopying. Stephen Jenkins May 2003 1V Acknowledgements I would like to thank Greg McCarthy and Clem Macintyre for their excellent supervision, encoufagement, and support, they were always available and offered valuable advice and critiques on the thesis. Many thanks also go to Chris McElhinney and Tina Esca for their valued administrative and technical support. Equally thanks to the academic staff and post-graduates of the Politics Department for their friendship and support, in particular David Olney and Margaret Macilwain. Thanks also go to my good friends Michel Adams and Roxanne Leunig for all their valuable IT support, interest and encouragement. I also want to acknowledge Margaret Priwer and the staff of the University of Adelaide Law Library for their assistance in my research through seemingly endless volumes of Hansard. Thanks also to Kerrie Round for her final editing advice. Finally the completion of this thesis would not have been possible without the encouragement and full support of my long-suffering family to whom I owe the greatest debt. Thanks to my wife Claire and daughters Meryl, Alys, Sally and Julia. 2. Abstract The central argument of this thesis is that the Australian nation is the primary obstacle to the granting of self-determination to Indigenous people. It will be argued that this is because the Australian nation is imagined and constituted as a monocultural entity, one that resists any divisions within the national space on the basis of culture or 'race'. In the Iate eighteenth-century the British used contemporary English and international law to justify their possession of the Australian continent and never engaged with Indigenous people in any form of treaty, negotiations or purchase of their land. The doctrine of terra nulliu.s came to be the central justification of possession, meaning that Australia was legally considered to be a continent without a people or law. From the earliest days of British colonisation Indigenous people began to lose their sovereignty and self-determination because a culture of control developed towards them by the colonisers. Since then they have been subjected to a succession of government policies that have sought to control almost every aspect of their lives. It will be argued that Indigenous people have been dealt with in this way because of how the Australian nation developed. It will be demonstrated that Australia adopted the classical European model of the nation, which resulted in the dominant Anglo-Celtic culture imposing its cultural values, norrns and practices throughout its territory to the exclusion of Indigenous cultures. In IgjZ as a response to Australia's changing views on its history and relationship to Indigenous people, demonstrated in the success of the 1967 refetendum, the Whitlam government instituted what was seen a radical shift in Indigenous policy away from assimilation to one of self-determination. Thus acknowledging the need, and right, of Indigenous people to be able to determine their own lives. V1 Nevertheless, the thesis will argue that the change was more cosmetic than substantial and will through an analysis of five governments show that control has remained a primary concern. This was demonstrated when the 1992 High Court Mabo judgement overtumed the doctrine of terra nullius, but failed to fundamentally alter the exercise of power over them. As a result of this continuing control and disempowerment Indigenous people remain unable to determine their existence according to their own cultural values, nonns and practices. The thesis will further argue that the Australian nation needs to be re-imagined and reconstituted in an inclusive way that will accommodate Indigenous self- determination. v11 lntroduction fThroughout Australia's post-1788 history Indigenous people have been denied the recognition and accommodation within the nation of their inherent right to self- determination as distinct peoples. Instead, they have been subjected to a succession of overt, as well as more subtle, forms of control. This control over Indigenous people has ranged, in the extreme, from violence perpetrated by settlers and govemments,l through to policies that purport to be restoring their "lost power of self-determination".2 For most of Australia's colonial history the assumption was that Indigenous people would become 'extinct' and thus resolve the Indigenous 'problem'. 'When it was realised that they would survive 'settlement' a policy of assimilation was adopted whereby they would have to conform to Non-indigenous modes of living. In the early I97Os there was undoubtedly a shift in government attitude that gave recognition to the right of Indigenous people to control their own existence. However, despite the shift from a policy of assimilation to one of self- determination there remains a sense of apprehension on the part of governments, irrespective of their ideology, about what the Australian nation would become if Indigenous people were empowered to determine their own futuret It is argued in this thesis that in order to accommodate substantive Indigenous self-detetmination there needs to be a paradigm shift in the dominant conception of nation, or a re- imagining of the nation, to one that inclusively recognises the legitimacy of the original and sovereign rights of Indigenous people, Nevertheless, the policies of the major parties remain entrenched in a 'white Australia' paradigm of nation, one that 2 assumes the 'superiority' and dominance of Anglo-Celtic culture. As a consequence, there has been a demonstrable attitude of ambivalence towards Indigenous people. This attitude is evident in the informed and seemingly genuine desire on the part of Commonwealth govemments to resolve the Indigenous 'problem', but which is negated by the overwhelming 'need' to perpetuate control over them in the interest of national unity and social cohesion, as though the integrity of the nation would somehow be threatened by the accommodation of Indigenous self-determination. The origin of the Australian nation began at a significant time in the development of modern 'Western national polities. The colonisation of Australia in 1788 corresponded with the formation of nations that had developed out of such significant events as the French and American revolutions. The decline of religious institutions and monarchic dynasties made way for new forms of governance based on humanistic and enlightenment principles, out of which developed the ideas of nations and nationalism. In parallel there also developed a body of international law that defined the rights and obligations of nations, including the concept of self- determination. It will be argued that Australia developed in the form of a classical European nation, that is, as a hegemonic mono-cultural polity. The inevitable consequence of this was the exclusion of Indigenous people from the nation, while nevertheless absorbing these people into the territory of the nascent nation. It will also be argued that a presumption of the 'superiority' of the national culture is embedded within the idea of the Australian nation, which consequently implies the 'inferiority' of Indigenous culture. The co-existence of two diverse cultures on the Australian continent resulted in conflict and the subsequent dispossession of Indigenous people by the dominant European colonisers, depriving them of their J means to self-determination. It will further be argued that culture is the formative material out of which national institutions emerge, inclusive of legislatures, executives, judiciaries and bureaucracies; and out of which defining national documents also emanate, such as constitutions,