A wretched soul bruised with
adversity,
We bid be quiet when we hear
it cry;
But were we burdened with like
weight of pain,
As much, or more, we should
ourselves complain.
Comedy of Errors, Act two,
Scene one.
The Final report of the Yoorrook Justice Commission, the Victorian
Royal Commission into systemic injustice against the State’s First Peoples has
this week handed down its third and final report: Yoorrook: Truth Be Told
(link
here).
The terms of reference can be found in Appendix One; the 148 recommendations
from all three reports are spelt out in Appendix Two of the final report.
In this post, I don’t propose to attempt to summarise or
even distil the broad arguments nor the recommendations in any comprehensive
way. Rather I wish to take as my starting point two articles in The
Australian in recent days (both of which are unfortunately behind a
paywall) which were scathingly critical of the report, its methods and findings.
On July 4, Henry Ergas wrote an article headlined ‘Yoorrook inquiry’s
‘truth-telling’ is an egregious fraud’ (link
here). This was followed the next day by a Janet Albrechtson article titled
‘Tell the truth: we’re a single sovereign country’ (link
here).
Ergas’s argument was to attack the Yoorrook Commission for
adopting flawed historical analysis:
Cavalierly dismissing
conventional evidentiary standards, it replaces them by what it calls ‘a
profound assertion of First Peoples’ ongoing sovereignty over their stories,
knowledge and futures. In its proceedings, it frankly states: ‘truth telling
was not about debate’ — and indeed there was none. Nor was there any testing of
evidence, presentation of contrary views or attempt to engage with critics.
Comfortably ensconced in the realm of naked assertion, the commission found
truth because it knew it.
He proceeds from this rhetorical platform to excoriate the
commission for its discussion of genocide, for inciting ‘unvarnished
arrogance’, and for encouraging further demands from Indigenous interests that
are increasingly extreme and poorly founded. After questioning why it is that the
‘enormous ongoing transfers’ of land, royalties and public subsidies have
failed to alleviate entrenched Indigenous disadvantage, he argues the report
has ignored the possibility that these transfers are enriching a privileged
elite while condemning entire communities to hope-destroying social
pathologies.
Albrechtson using vigorous language zeroes in on a series
of targets that constitute a comprehensive list of ‘woke’ or extreme left
concerns (though she doesn’t use these terms): cultural safety, genocide,
decolonisation of the education curriculum, recompensing publicly funded
Indigenous staff for the ‘colonial load’ they carry, while blaming ‘ivory tower
academics’ for inventing the concept. The core of her argument is the report’s
failure to address or accept the following proposition:
After five decades of failed
policies demanding separate rights with no mention of responsibility, this
report demands that we formally and permanently cement victimhood into
Australian law. … This report ….is a badge of shame…
The shame, in Albrechtson’s view, extends to the Andrews
Government for commissioning the report and framing its terms of reference
around systemic injustice, to the many elites who have ‘indulged a separatist
project’ that leaves children to mull over ‘actionable cultural rights’ rather
than their rights to physical and mental safety and extends to judges who
‘indulge themselves in undermining High Court authority’ when they announce
that Indigenous sovereignty has not been ceded [in acknowledgements of
Indigenous elders and country].
For Albrechtson, the issue of sovereignty is at the core of
her argument. She argues that the Commission’s claims that Indigenous
sovereignty was exercised before the arrival of the British and was never
lawfully acquired by the British under international law, is both wrong and
underpins the ‘entire edifice of separatism’ asserted by the Yoorrook
Commission. In her argument, the 1979 High Court decision in Coe v
Commonwealth is authoritative and not subject to question. She then argues
that the ‘fundamental falsehood’ of Indigenous sovereignty drives a series of deeply
flawed separatist demands that are both undesirable (she uses the term
‘unhelpful daydreaming’) and politically infeasible (‘taxpayers will surely
baulk at having to fund this divided Australia’). This leads to the inexorable
conclusion:
The ultimate tragedy of this
report is that none of this political extremism is conducive to social
cohesion.
The arguments advanced by both Ergas and Albrechtson are,
in my view, intellectually flawed and compromised by their own ideological preconceptions.
Ergas sets up a strawman built on principles derived from classical
historiography to bolster his argument that the Commission’s processes could
not amount to ‘truth-telling’ and thus should not be seen as credible. Yet the
perspectives of those affected by government policies, whether those documented
and considered by the recent royal commission into disability, or the royal
commission into the robodebt fiasco, have not been criticised for their
illegitimacy. Clearly the perspectives of citizens (whether right or wrong,
refutable or irrefutable) matter in a democracy and it seems to me that governments
have the right to establish a royal commission which inter alia seeks to
ascertain and interrogate those perspectives.
Nevertheless, there is a distinction between the views and
perspectives of citizens on policy matters generally and the need for objective
criteria and rigorous analysis in determining effective policy. For example, The
Australian has been an active participant in the debate on the nation’s
‘cost of living’ crisis driven in large measure by citizens with young families
facing ever increasing house prices and high mortgage repayments. However determining
appropriate policy responses requires consideration of broader macroeconomic
factors, medium and longer term implications, impacts on other segments of the
community, and indeed a broader comparative assessment of what is meant by
‘crisis’ in one of the top twenty wealthiest economies on the planet (link
here),
none of which detract form the legitimacy of the views of families under
financial pressure. In other words, contra Ergas, I would argue that the
Yoorrook Commission’s high-level narrative should not be dismissed as without
value or as intellectually compromised; it is akin to an expression of widely
shared concern. It serves some purposes very well, but not necessarily all
purposes. For example, the concept of Indigenous ‘truth telling’ is clearly
also a rhetorically or ideologically loaded term aimed at building or
sustaining group solidarity and a sense of shared interests. Importantly it
gives Indigenous citizens a sense that their voice extends beyond their own
domain into the wider community and that voice is seen both symbolically and
substantively as legitimate. Like advocacy from any interest group, it is not
however necessarily a detailed roadmap for optimal policy reform in the
public interest.
Albrechtson’s focus on the Australian legal system’s
forthright refusal to recognise the existence of Indigenous sovereignty within
Australian law is tendentious insofar as it ignores the possibility that forms
of Indigenous sovereignty continue to exist within the Indigenous domain albeit
without legal recognition at law. A parallel might be the example of native
title: our legal system held that it didn’t exist (eg In the Milirrpum Case)
until the High Court changed course and determined in Mabo No.2 that it
could be recognised under various conditions. Once determined, native title
over a tract of country is legally acknowledged to have always existed.
Moreover, while the focus on legal determinations is
convenient, there are real world indications that Australian Governments have
at times voluntarily diminished or compromised Australian sovereignty to
achieve wider policy aims. The increasing encroachment of international trade
agreements and trading rules is one case in point; the headlong expansion of
the US presence in Australia (including arrangements that ostensibly enable the
Australian Government to not be advised when the US brings nuclear weapons into
Australia) are cases in point. In our 2019 Policy Insights paper Overcoming
Indigenous Exclusion (link
here),
Neil Westbury and I provided an extended discussion on these issues, along with
an analysis of the concept of shared sovereignty, a term used in The Uluru
Statement from the Heart.
In other words, the High Court’s categorical legal
assertion of absolute sovereignty is not necessarily inconsistent with the
existence of coexisting forms of sovereign powers within the Indigenous domain,
albeit only recognised by those Indigenous citizens who choose to do so. Nor is
it inconsistent with the potential for the Australian Parliament to effectively
delegate elements of the Crown’s sovereign powers. The possibility of future
legal recognition of the exercise of such authority is both possible (but
clearly not certain) and a matter which is legitimately able to be advocated
for by Indigenous citizens.
The Yoorrook Commission was in my view entitled to reflect
the views of those Indigenous citizens who aspire to see such reforms, and to
recommend reforms consistent with those views. In this account, the oft-cited
statement that Indigenous lands were never ceded can be interpreted both as a
claim to the continued existence of an Indigenous sovereign status, and
simultaneously as an argument for formal recognition of such status (on terms
yet to be negotiated).
Albrechtson is on stronger ground in my view in relation to
her concerns regarding what she terms ‘separatist demands’. It is not that I
agree with her febrile rhetoric on the issue of separatism, rather it strikes
me that the Yoorrook Commission has failed to contextualise and adequately
account for the reality of the daily existence of Victoria’s Indigenous people.
Indigenous Victorians invariably lead modern lives, live in
modern housing, drive cars or use public transport, use roads, and access
government provided services such as garbage disposal, sports facilities, communications
networks. They routinely engage in commercial behaviour either as consumers in
private markets or as entrepreneurs. I could go on at length. As Noel Pearson
has observed we all have layered identities, and Indigenous citizens are no
different. While Indigenous citizens are inextricably entwined and
interconnected with mainstream Australia, their Indigenous identity is crucially
important. It would be misguided and morally unjustified for the nation to seek
to erase that element of their identity, just as it would be inappropriate for
the nation to seek to erase elements of non-Indigenous citizens’ identity.
While Indigenous citizens are not separate, neither are they assimilated or
uniformly mainstream. Unfortunately, the Yoorrook Commmission in my view gives
inadequate attention to this reality, thus skewing the emphasis of its
recommendations towards emphasising separateness over interconnectedness.
Of course, these issues are devilishly complex. Since
colonisation occurred, Indigenous citizens have experienced violence, coercion,
social and economic and cultural exclusion. These experiences have led to (or
accompanied) loss of languages, poor health, discrimination and more. These
consequences are in many respects ongoing and inter-generational and raise
serious issues regarding how Governments (with their much-vaunted sovereign
powers) should respond, how any such response should be framed, and what policies
might be adopted to address those consequences. These are the issues that are
encompassed by the term systemic injustice, the core element in the
terms of reference of the Yoorrook Commission.
Where I part ways with Albrechtson in relation to
separatist policy approaches is that it seems both morally unjustified and
practically unwise to seek to prevent or avoid any open discussion with
Indigenous interests about systemic injustice and its consequences. Her
argument frames Indigenous concerns as politically extremist and then argues
that such extremism undermines social cohesion. In turn, this justifies
silencing this type of public policy advocacy. My view is that ongoing
exclusion (structural and tangible) leads unsurprisingly to frustration and
ultimately to more extreme views, and the politically astute remedy is to
engage and include Indigenous interests in an open and transparent way
regarding the way forward.
In essence, I am arguing for dialogue and mutual
deliberation rather than unilateral silencing and suppression of legitimate
perspectives which are the source of ongoing and widespread pain, trauma and
social dysfunction. I am not arguing that Indigenous citizens deserve a blank
cheque nor for a process that raises expectations that will never be met.
Arguably the current approaches of Labor Governments in establishing what are
effectively one-sided pre-treaty processes such as the Yoorrook Justice
Commission (or the Morrison Government in establishing a Senior Advisory Group
on the Voice Referendum) raise the expectations of Indigenous interests beyond
what our political system is currently prepared to deliver. To the extent that
this is the case, it is my view that the approach is misguided.
In relation to systemic injustice affecting Indigenous
citizens, and given the reality of layered identities, the question of whether
governments should focus specific policies and programs on those who identify
as Indigenous or instead focus on wider need encompassing both mainstream and Indigenous
constituencies comes to the fore. This will not always be a clean binary
choice; often it will be clear which side of the line the answer falls, but in
many cases, there will be legitimate arguments that the public interest will
best be served with a dual approach. In many cases, the appropriate answer may
be unclear.
My own perspective on how the nation should build on the
work of the Yoorrook Commission and address these issues of systemic injustice can
be summarised in seven propositions:
First, whether policies relevant to
Indigenous citizens should be focussed on past events or present consequences is a legitimate subject for policy dialogue, debate and
consideration. Given the reality of finite fiscal capacity within governments,
there will always be trade-offs involved.
Second, whether particular policies
should be designed as mainstream or Indigenous specific is a legitimate subject
for policy dialogue, debate and consideration.
Third, the design of policies to
address systemic injustice impacting Indigenous citizens should involve both
mainstream interests and Indigenous interests and should focus primarily on the
public interest broadly defined. To be clear, I am suggesting (perhaps controversially)
that responsibility for resolving these issues and designing reforms should be shared
between mainstream and Indigenous Australians, and therefore must be resolved
by negotiation, not fiat.
Fourth, the usual processes of
policy development for these high-level Indigenous policy frameworks have not
worked and should be reconfigured to ensure a level of deep transparency. In my
view, the existing practices of governments operating behind closed doors, and
engaging with selected interlocutors in private will not find the compromises
necessary to ensure durable solutions. We should not expect Indigenous
interests to spend years developing policy proposals (four years in the case of
Yoorrook) only for Governments to exercise a unilateral veto on whether to
implement what has been proposed.
Fifth, governments, mainstream
interests, and Indigenous interests should accept that the likelihood of a once
only grand bargain (treaty) that solves all the issues encompassed by the existence
of systemic injustice is a chimera. What will be required is a general
commitment to a process that incorporates and engages with both the wider
mainstream community and Indigenous communities as well as the interests that
are most directly affected on both sides. This will take time but once
initiated will engender trust and reduce the likelihood of backsliding by
future governments. It also will allow for the iterative accretion of policy
successes in relation to the more straightforward issues thus building the
capability and experience necessary on all sides for addressing the hardest
issues.
Sixth, the Commonwealth must be
engaged in any such process, even where state-based processes are identified
and set in motion. Our federal structure is too entwined for one level of government
to resolve these issues on its own. Moreover, the Commonwealth has a
responsibility, arising from the powers granted to it by the 1967 referendum.
This suggests too that the Commonwealth lead agency should be a central agency (other
than NIAA) able to take a holistic perspective of Commonwealth interests.
Seventh, it strikes me that the
Coalition of Peaks and the framework established by the National Agreement on Closing
the Gap should comprise the starting point for engaging with Indigenous
interests in establishing such an ongoing process, although there might be
grounds for expanding and modifying that framework to ensure greater
inclusiveness. There is no reason why Indigenous interests could not reform
their internal processes to enhance their negotiation capability themselves
without government action.
Conclusion
I am sceptical that the Victorian Government has the
capacity to engage substantively with the Yoorrook Justice Commission’s 148
recommendations, nor with the evident pain and concern that pervades the
Victorian Aboriginal community. Without Commonwealth leadership and impetus,
the most likely result will be the creation of further process, further delay
and ultimately stagnation leading to irrelevance.
The process to date has clearly been worthwhile for
Victorian Aboriginal interests, but to take the Commission’s work to a new
level, there will be a need for Aboriginal interests to synthesise and
prioritise the policy reforms that will have most impact and consider carefully
their strategies going forward.
The lesson I draw from The Australian is that their aggressively
critical perspective is a forerunner of what is to come and lays down a roadmap
that more conservative interests will use to seek to suppress and prevent the
greater social, economic and cultural inclusion of Indigenous interests.
The lesson from the Voice referendum for both mainstream
and Indigenous interests is that strategic considerations, preparedness to
compromise, and a unified and professional advocacy capability will be crucial
in grasping the opportunities that flow from the work of the Yoorrook Justice
Commission.
Finally, the stark choices facing both the Victorian
Government and Indigenous interests in taking the Yoorrook Commission report forward
are either win/win or lose/lose. There is no halfway house. Whichever outcome
is chosen will have long term national implications, and shape not just
Victoria, but the nation as a whole for generations to come.
11 July 2025
Addendum:
A reader brought to my attention the Victorian Government's response to the Yoorrook Commission's second report (link here) which provides a template for the likely response to this third report.
