Religious Discrimination Bill 2021 Response from a concerned citizen 17 December 2021

 

Commonwealth of Australia   Religious Discrimination Bill  2021

Response from a concerned citizen

Author: Andrew Smallman

My interest in the bill  is that of an independent 78 year old citizen having  no affiliation with any religious or anti religious or political entity.

Brief summary: 

* Beliefs.  Beliefs are personal, private and no business of any law in a liberal democracy. We are no longer in the middle ages. Laws can only pertain to behaviour. 

* Freedoms.   A person or group should be free to engage in activities in relation to politics, social policy, religion, philosophy or any other matter as part of a general freedom of expression and conduct about anything provided the conduct is lawful and does not infringe the freedoms of others.  There is nothing special about religious expression. It should have the same status in the public place as activities related to politics, philosophy, surfing, flying model aeroplanes or anything else.

The Bill will not enhance the freedom of any person or group to engage in religious practice.  It will not make discrimination against any person or group less likely. 

It will in fact have the opposite effect by granting special privilege to quasi-religious  entities  to discriminate against people in ways totally at odds with the anti discrimination principles enunciated in the objects of the Bill.

* Religious body. Real religious bodies engage in the  expression of religious practice and teaching religious doctrine. These organisations are not mentioned in the definition of religious body in the Bill. Instead the bill seeks to proclaim schools, hospitals and other entities to be religious bodies which is disingenuous and manifestly incorrect.

 * Cult of fragility versus  culture of diversity.  The Bill invokes the notion of “religious susceptibilities”. This is an expression of the idea that people holding to certain doctrines are fragile and need to be “protected” from association or congress with those who hold to different notions. This is toxic, false and the stuff of cults.

In his second reading speech the Prime Minister the Honourable Scott Morrison said this bill offers “protection” for persons of faith. But he did not specify from what entity or influence persons of faith need protecting.

* Indivisibility and universality of human rights.  In its Objects The Bill clearly states the importance of these concepts.   But much of the actual substance of the text consists of  particulars, exceptions and exemptions which operate against both indivisibility and universality.

* The elephant in the room   with this bill is that we have no comprehensive national approach to codification of freedoms, rights, responsibilities and discrimination.  I ask members of the House of Representatives and the Senate to set this bill aside and turn their considerable energies to tackling the larger issue.

 

Exposition:

Beliefs

The Bill disqualifies itself right on the front page by seeking to create an Act of Parliament which deals with people’s beliefs.

Laws can only deal with actions, not beliefs. Beliefs are personal, private and no business of any law or government or administration.

Any attempt by any law to enter the realm of personal  beliefs would take us back a thousand years to the middle ages when the religious sought to control the  thoughts, beliefs, and behaviour of ordinary people.

The Bill further attempts to concern itself  about  whether beliefs are “genuinely held” or not. This is impossible to define or express in administrative action.  People will tell you they “genuinely” hold one belief today and a different one next week.

The Act refers repeatedly to the idea of beliefs held by various organisations. This notion has no validity at all.    Beliefs can only be held by individuals. They are personal.   Organisations can have policies, procedures, mission statements and the like but not beliefs.

Protected attributes and general freedoms

Many anti-discrimination laws rest on the concept of  protected attributes.   These usually include date and place of birth, ethnicity,  parents, skin colour, gender, body morphology, disease and disability.   These are attributes rendered unto us. We do not get to choose them.

A person’s religious belief, practice, affiliation or proclamation is not an attribute at all.  An individual can change his or her religious affiliation at will and many do. Religious belief or affiliation is not an intrinsic property or attribute of the person.

Freedom to hold and express religious beliefs and to engage in religious practices is a subset of the general right of all citizens to hold any beliefs of any kind about anything and to express their beliefs about anything, be it religion, politics, philosophy, agriculture, animal husbandry or anything else.

We do not suppose that a person’s beliefs, views or proposed actions about politics or global warming or the management of water resources be deemed a protected attribute. 

We do not need some kind of law to protect the right of individuals and groups to engage in religious practice. They are doing it already with no impediment.

Religious organisation or body

I think we can readily agree that some types of organisation are “religious”. These would include churches, mosques and  synagogues which people attend for religious ceremony, monasteries, theological colleges, bible colleges, religious camps, retreats and the like together with the administrative structure required to operate these activities.

But the definition of religious body  in section 5 does not mention these types of organisations at all  which is an astounding omission  given the title and objects of the bill.

Instead, the bill wants to put the view that certain types of schools, hospitals, health care organisations, accommodation and care facilities and  benevolent organisations are “religious bodies”.

This is disingenuous and contrary to facts available to anybody.

I had my right hip replaced at North Shore Private Hospital which is operated by Ramsay Health Care, a secular for-profit organisation.

My left hip was replaced at the Mater Hospital St Leonards, Sydney operated by St Vincent’s Health, a functional entity within the overall control of the Roman Catholic Church in Australia.

My experience as a patient was for all practical purposes exactly the same in each facility. The doctors, nurses, physiotherapists, catering staff, cleaners and administration all did the same jobs to the same standard in each hospital. I was not treated to any kind of religious experience and did not observe any kind of religious activity which might have affected any patient at the Mater.

In no sense is the Mater a religious institution just because it comes under the overall control of the Catholic Church.

Neither is the manufacture and sale of Weetbix a religious activity just because it comes under the overall control of the Seventh Day Adventist Church of Australia.

When I visit Vinnies or the Salvos I see no evidence of religious activity whatsoever. These organisations operate a recycling programme. There is nothing religious about it.

To obtain a license to operate a school religious organisations  have to meet the requirements of the State Education Authority which are about educational standards not religion.

So-called “religious” schools have to teach the same syllabus  as any other school and meet the same educational and professional standards as any other school.  Mathematics taught in a “religious “ school is exactly the same as mathematics taught in any other kind of school.

But wait, it gets worse.

The definition of  a religious body in Section 5 of the Bill specifically includes “any other type of body”  (other than a body that engages solely or primarily in commercial activities).

This is totally unacceptable. The bill is giving carte blanche to somebody (not specified) operating a religion (not defined) to declare anything to be a “religious body” as long as it is “conducted in  accordance with the doctrines, tenets, beliefs or teachings of a particular religion”. These doctrines could consist of  anything at all.

Why does it matter ?   Because religious bodies are eligible for preferential taxation treatment and because they are granted by this bill a license to implement discriminatory practices not permitted to any other groups.

Cult of fragility or culture of diversity

Part 2, Section 7 subsection (1) Note 1 of the bill states

“…it is not discrimination for a religious primary school to require all of its staff and students to practice that religion, if  such a requirement is necessary to avoid injury to the religious susceptibilities of the people of that religion.”

This is an expression of the idea that people and their beliefs are fragile. This is a  toxic and false notion which has gained some popularity in recent years. Some groups of people claim that they will be harmed in some fashion which is never explained merely by proximity to or association with persons who have different beliefs about some things.

This attitude is typical of cults, religious or otherwise, the leaders of which proscribe any contact with or interaction with people in the non-cult world.

The alternative and vastly more robust approach in an egalitarian, multicultural society which I hope Australia can continue to be is cultural diversity, which embraces the reality that people can have and express a range of views on any subject and that we all gain in wisdom, strength and tolerance by allowing ourselves to hear and interact with people whose ideas challenge our own.

Statement of belief

Statement of belief is defined in Section 5 and further referred to in Section 12. 

In the absence of this bill any person can state any belief about anything and act in accordance with the belief at will  provided that  in so doing:

The person has regard for the rights of others and does not break the law.

The effect of this bill is to restrict, constrain and limit the right to statement of belief.

It requires somebody, presumably a judge at some stage to decide whether a statement is “malicious” (by what criterion we have no idea) or that a “reasonable person” (whoever that might be) would consider the statement would “threaten, intimidate, harass or vilify a person or group…..” (where these terms are nowhere defined or in any meaningful way capable of definition).

Definitions like this get us absolutely nowhere. They just kick the can down the road to the courts with no useful guidance to judges as to how they should rule in any particular case.

Indivisibility and universality of  human rights

The objects of the Act contain several statements which recognise the “indivisibility and universality of human rights” and “the principle that every person is free and equal in dignity and rights” and that “everyone has the same rights to equality before the law, regardless of religious belief or activity”.

But the remainder of the bill proceeds by means of 50 or so pages of convoluted verbigeration  to subvert those principles.

Rights are divided up and parcelled out in little pieces with different rules depending on variations in workplace, type of organisation and other factors.

Universality is lost in the profusion of exceptions and exemptions.

The result is a tangle of words the net effect of which is to invite  the reader to wonder what the authors of the bill are trying to achieve.  It is certainly not clear to me as I read through the actual words.

In Part 4 Division 2 Section 19 the Bill states

“ It is unlawful for an employer to discriminate against another person on the ground of the other person’s religious belief or activity”…. And goes on in similar sentiment for the rest of the section.

But then it appears that in Division 4 Subdivision A Section 34

“Certain conduct by religious bodies is not discrimination under division 2 or 3 of this part and it is therefore not necessary for the conduct to come within an exception of this division”

So the bill sets out rules in one part then entitles some people in some kinds of facility to ignore those rules for no particular reason given in the bill.

No argument or explanation  is offered as to why some organisations and facilities should be subject to rules which are different from those which apply to other organisations and facilities.

The problem of meaning is further confounded by legalese prose the meaning of which is difficult to ascertain.   

Just by way of example and bearing mind the bill is full of similar gems of verbal obfuscation here is  a quote from Section 5, Part 50, clause 2

(2) A person (the first person) commits an offence if:

a) the first person makes to another person (the second person) a threat to cause detriment to the second person or any other person: and

b) the first person:

1) intends the second person to fear that the threat will be carried out: or

11) is reckless as to causing the second person to fear that the threat will be carried out: and

c) the first person makes the threat because he or she believes a matter mentioned in paragraph (1) (d) …..etcetera…..and on and on for page after page………

I understand that the authors of the bill are trying to clarify certain matters but it appears to me their efforts are likely to have the opposite effect.

The bill is inviting some unfortunate  judge to be a mind reader who can determine the beliefs and fears of various witnesses before a court, each of whom could  have a motive for gaming the act.

The Australian Constitution

It is likely that the Bill as it stands could be subject to challenge by constitutional lawyers

There is reference to religious freedom in the Australian Constitution.

Section 116 states:

“The Commonwealth shall not make any law for establishing any religion or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required for any office or public trust under the Commonwealth.”

The Bill as it stands appears to tangle with the stipulation that “no religious test shall be required as a qualification for any public office or public trust under the Commonwealth”. Given that private and “religious” hospitals and schools are substantially funded by the Commonwealth with taxpayers money I think a good argument could be advanced that these entities constitute a “public trust”  under the Constitution thus rendering sections of the  Bill invalid.

Who really wants this bill and why

The politicians

In the argy-bargy which accompanied the passage of the “same sex marriage” act (the marriage amendment, definition and religious freedoms Act 2017), some religious representatives claimed that the new law would, in some never identified fashion, threaten religious freedom.  This was a fabricated claim based on nothing of substance and the passage of time has shown that religions continue to conduct their affairs unimpeded in any way by legalisation of same sex marriage.  However in order to placate the religious, the government of the day promised to bring on a bill to “protect” religious freedom.

Now ( December 2021) what both major parties appear to want is to get any bill before the parliament for the same reason which is to placate the restive religious.

I very much doubt that politicians care much what is actually in the bill as long as it does not become yet another focus of religious unrest in the lead-up to another federal election campaign.

I note that the bill has been sent to a parliamentary committee for review without a vote in the lower house. This supports my view that neither the government nor  the opposition want this bill subjected to open debate.

The religious

Most of the push for legislation appears to be coming from the bishops of the Catholic and Anglican Churches. It appears to me that some of the other religions such as the Jews, Muslims, Hindus and others are not objecting but neither are they pushing very hard for this bill.

I think it is no co-incidence that the Catholics and Anglicans have a multi level, hierarchical administrative structure within which ambitious individuals can find a career path. This involves achieving status, privileges and a degree of power.   For these people the prospect of exerting control over or at least influence over the government of the day on matters of law might be a seductive attraction.

It’s not about religion, it’s about privilege.

Lobby groups and Influencers

There are several of these. I just point to two.

The Australian Christian Lobby has said it supports the Bill but subsequently threatened to dis-endorse it due to perceived issues with possible proposed changes to the Sex Discrimination Act.

Mr Nick Cater of The Menzies Research Centre said in a piece published in The Australian on 29 November 2021 …

…”Morrison’s bill……confirms that religious faith is a matter for individual conscience not group conformity, and is a matter sacred between a person and their God”.

This statement is  a  brazen falsehood. The bill actually does specifically license the imposition of  group conformity for a range of specified entities.

I just note in addition that we do not need a law which deals with any person’s  individual conscience. Such matters are beyond the reach any law.

The general problem of rights and discrimination

The elephant in the room with this bill is the general problem of how we as a nation deal in law and practice with issues of freedoms, rights, responsibilities  and discrimination. There are Commonwealth and State laws (12 of them according to Part 2 Section 12 of the bill)  which deal in various different ways with issues of discrimination and equal opportunity.  These laws have arisen over a period of 50 years in an apparently ad hoc fashion with little in the way of  unifying conceptual or legal structure. Taken together these laws now look like a patchwork quilt with many missing pieces and many opportunities for conflict, confusion and misunderstanding.

I think the time has come for the Australian people to consider the creation of a single  omnibus law, operating at both Federal and State levels to codify our expectations about the freedoms, rights and responsibilities of individuals and groups and about protecting people from discrimination on the basis of inherent personal attributes or statements or actions about any matter. This could include observance of religious or cultural practices or political activity or environmental protection or anything else.

A proposed alternative Bill

When I peruse the bill before the house it is apparent that it raises more questions than answers. For instance what does “injury to religious susceptibilities” mean?  It is not defined and I would suggest is not capable of definition.  

The courts will be left to figure out what some of the convoluted language and un-defined concepts of the bill actually mean. In addition judges will need to be mind readers so they can determine what a person’s belief might have been at some particular time and whether it was genuine (whatever that means).

So here is my little contribution:

Andrew’s Freedoms and discrimination Bill November 2021

The object of this bill is to codify in concise form the expectations of Australian people about freedoms,  responsibilities and discrimination.  

Part 1. Freedom of speech, behaviour and association.

Individuals and groups are free to express views about any matter and engage in activities and practices of any kind including congregation with others provided that in so doing they do not break the law or adversely affect the welfare of others.

These views and activities could be about religion, politics, culture, philosophy, environment, fish farming or anything else.

Part 2. Discrimination

Individuals, groups and organisations shall not discriminate against other individuals or  groups on the basis of

a) Innate or acquired characteristics of a person.

These are  things over which an individual has little or no control.

These include but are not limited to age, sex, ethnicity, country of birth, skin colour, body morphology, illness and  disability.

b) A person’s actions and practices arising out of choice. These include but are not limited to things like religion, politics, culture, dress and social behaviour.

Part 3. Offences.

It is an offence for any person, group or organisation to act so as to prevent any person or group from engaging in lawful activity as described in Part 1.

It is an offence for any person, group or organisation to discriminate against any person or  group engaging in lawful activity as described in Part 1.

Part 4. Penalties.

These need to be spelled out preferably in some adjunct regulation which can be amended as required by administrative fiat.

Part 5. Procedural matters and mechanism for review (not detailed here).

End of response

Andrew Smallman 17 December 2021

 

 

The Indigenous Voice to Parliament is an ill conceived idea 17 December 2021

 

The indigenous voice to parliament is an ill conceived idea which I believe should be rejected by thoughtful Australians.  17 December 2021

This presentation is in two parts.  

Part 1 is my response to the Indigenous Voice Co-Design Process Final Report released in December 2021

Part 2 is a more comprehensive discussion about the concept of a separate indigenous voice and problems raised by the proposal.

At the heart of this matter is a question for all Australians to answer:

Do we want to live in a society riven by sectarian tribalism with laws,  policies, schools, health services  and administrative structures for one ethnic group which are different from the majority ?

Or do we want to live in a society where all citizens are treated equally with laws, policies and services which ensure that all have the opportunity to live as they wish ?

Part 1:  My response to the Indigenous Voice Co-Design Process Final Report December 2021

If the recommendations of the report were to be implemented the only thing we can be sure of is that a new multi level bureaucracy would be created.

The 2018 Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples: Final Report, Recommendation 1 states....."the Committee recommends that the Australian Government initiate a process of Co-design with Aboriginal and......."

The proponents are admitting that after four years and many meetings they have produced zero work product and now want the "Australian Government" or presumably some un-identified entity thereof, to do the work which the various committees have failed to do.

The document presented uses a convoluted jungle of words and diagrams not to convey meaning but to obfuscate. It uses jargon in place of substantive content to camouflage  the real purpose of the exercise which I believe is extension of the separationist aboriginal agenda.

Statements made in  the document lead me believe that the entire proposal is based on a disingenuous mis-representation of reality.  For instance:

The executive summary states that “ Aboriginal and Torres Strait Islander peoples have long called for a greater say in the services, policies and laws that affect their lives to overcome their present level of exclusion from decision-making about matters that affect them”.

Aboriginal people have access to the same representative structures at local, State/Territory and Commonwealth level as any other Australians. In addition many have land councils and other representative bodies giving aborigines a level of representation greater than most other Australians.

It is a myth and a falsehood that aborigines are excluded from opportunities to contribute to decision making processes. It may be a that some aborigines choose not to engage in the opportunities which are available to them, as do many non-aborigines, but that is in no way an argument for a whole new representative/administrative structure on top of that which exists.

Another way to evaluate the document is consider what is not said.  In 269 pages there is:

* Not a single word detailing any actionable plan about anything. I could not find a single thing here that any person could go forth and implement right away.

* Not a single word about the quality of life of any person.

* Not a single word about any kind of actionable plan to reduce aboriginal incarceration rates or improve diet or lifestyle or education and training or jobs or reduce domestic violence.

* Not even the pretence of any kind of argument explaining why Australia needs another set of aboriginal representatives and their attendant  bureaucracy in addition to the many which are already in place.

* Not a single word explaining or even attempting to explain how the proposed new committees and bureaucracy would or could improve the quality of life of any person.

* No definition of “aborigine” or any attempt at same.

* A lot of words but no actionable plan for deciding which persons shall be deemed suitable candidates for the multiple levels of voicing or any actionable plan for deciding who is eligible to decide who should be on the various committees or how this determination is to be made.

* Nothing about improving the effectiveness and accountability of existing aboriginal representative and management groups and structures.

* A short note about negative responses to the report which are otherwise ignored.

* No plan for evaluation of the programme.

* Nothing here about what I believe to be the real aim of this “indigenous voice” project.

This is fulfilment of the separationist agenda which would have separate aboriginal lands called “nations”  with separate administrative and legal structures, separate  health, education, housing and welfare services all administered by self appointed indigenous elites and paid for by taxes the burden of which would fall almost entirely on  the non aboriginal population.

I could go through the entire document paragraph by paragraph with comment about each. But to do so would be to agree that  its jargon laden verbigeration is actually worthy of such detailed analysis. It is not.

Part 2  Discussion about the concept of a separate indigenous voice

Brief summary

The push by indigenous activists for a separate voice is part of an ongoing separationist campaign. The proponents of the voice make no attempt to explain how it could improve any person’s quality of life. I believe the voice is yet another step towards the creation of separate aboriginal enclaves calling themselves “nations”.

Some indigenous people do have a poor quality of life. We can help these people by supporting their efforts to engage with the mainstream of society through practical, local initiatives to improve education, health, nutrition, housing and employment.

Introduction

In 2017, 250 indigenous leaders met for four days at Uluru in central Australia and on 26 May delivered the Uluru Statement from the heart.

This one page document puts forward the view that indigenous people lack a voice and power.

The document asks that indigenous people take a “rightful place in our own country”  without indicating what that rightful place might be.

The Statement says that this rightful place can only be achieved by “constitutional reforms to empower our people” and asks the Australian people to agree to  two ideas, a first nations voice enshrined in the Constitution and a Makarrata Commission.

I note that in the four years since the Statement was presented neither of these ideas has been developed into a specific proposal capable of being agreed to or implemented.

The author

I am a retired health professional aged 78 at the time of writing.

I do not identify as aboriginal although I could,  simply by checking the appropriate box in the census which I have just completed.

I have no political or sectarian affiliation.  I consider myself to be just a thoughtful Australian citizen making a contribution to a matter of national importance.

The purpose of this presentation is to

1) Critique the Statement from the heart and its proposed ideas.

2) Discuss some of the paradigms and concepts underlying current debate about Aboriginal policy.

2) Propose an alternative conceptual framework for indigenous policy.

Critique of the Statement from the heart

The Statement makes two assertions, for neither of which is any evidence provided.

1.  Indigenous Australians do not have a voice.

Almost every time I tune in to a current affairs programme on radio or TV there will be a person who identifies as indigenous on the panel or guest list.

Almost every day when I read through the daily news on any platform, public or corporate, there will be an article about some aspect of life presented from the indigenous perspective.

Indigenous representatives have in recent times been offered far more opportunity than people of other ethnic groups to say whatever they wish in the public domain.

The notion that indigenous Australians do not have a voice is entirely at odds with the evidence available to anyone.

What indigenous representatives mean when they say they have “no voice” or are “not really heard” is never made clear by those making such statements.

So one is left to guess and my guess is that these indigenous representatives are frustrated by some of their requests being refused or deferred into limbo.

And if that is the case I have to say…”welcome to the club, guys”. All of us find that our ideas about the best way forward in various situations are frustrated by governments and corporations which have to manage a chorus of differing opinions from many different sources.

2. Indigenous Australians lack power.

In fact indigenous Australians have as much power as they choose to exercise.

Indigenous Australians are entitled to vote at all levels of government, can make representations to their local member in person or by mail, can and do form lobby groups for any purpose they wish, can put up candidates for election to local, state/territory and federal parliament, can mount campaigns and do anything else within the law to advance whatever cause they wish.

So why do indigenous advocates and the Statement from the heart refer to  “the torment of our powerlessness” ?

Neither the advocates nor the Statement clarify what this means so one is again left to guess and my guess is the same as the one above which is that advocates are frustrated by their perceived inability to have some of their wishes met.

My response to this is the same…”welcome to the club, guys”.  Nobody has all or even most of their wishes, requests or demands met.

We live in a pluralistic, multicultural democracy. No group can demand special favour simply by reason of their chosen ethnic affiliation.

3. The Statement draws attention to two problematic issues,

incarceration of aboriginal adults and youth and

removal of children from their families. “Our children are aliened from their families at unprecedented rates”.

The statement offers the view that this removal “cannot be because we have no love for them” but fails to offer another explanation.

These are serious matters which have resisted many efforts at prevention and they deserve special attention at local, State and Federal levels. They are symptomatic of serious dysfunction in some aboriginal communities and their relationship to law enforcement and corrections services.

I take the view that the underlying cause of this dysfunction is the dis-engagement of some groups and communities from mainstream society to which I refer elsewhere in this analysis.

The Statement makes no attempt to present any rationale as to how a voice to parliament enshrined in the Constitution might improve this unsatisfactory state of affairs.

There are also  precipitating and perpetuating causes analysis of which is beyond the scope of this short discussion

4. No reason is given for the Voice.

The idea of a separate aboriginal Voice is a declaration  for which no argument or reason  is offered.

Neither is any  argument or  line of reasoning  offered to support the call for this Voice  to be enshrined in the Constitution.

No line of reasoning is presented which might link the idea of the Voice to the health, welfare or quality of life of any person.

5. Aborigines already have as much opportunity to express their views as any other Australians

The Voice is proposed as a form of representation for aborigines. But aborigines already have more than enough avenues for representation through local, state/territory and federal government and the many aboriginal representative bodies, land councils, lobby groups and peak bodies which already exist.

No argument is presented to support the need for yet another representative body.

6. The concept of an aborigine cannot be defined for legal purposes.

In the 233 years since the First Fleet landed in 1788 the processes of miscegenation and immigration have resulted in the majority of people who identify as indigenous being of mixed ethnic origin.  Actually the majority of all Australians are of mixed ethnic origin.

The Australian Law reform Commission has published a detailed historical analysis of attempts to define who is an aborigine.

It appears that most of the many definitions which have been attempted involve the concept of  “a person of Aboriginal or Torres Strait Islander descent”. But this gets us nowhere. It just kicks the can down the track.

Who decides and on what basis shall any person be deemed to be of aboriginal descent ?

As far as I can tell nobody has been able to provide a satisfactory answer to this question.

Most people who elect to identify as being of aboriginal heritage are also of non-aboriginal heritage.

Perhaps more to the point it appears that aboriginal advocates are not interested in answering or even asking the question.

The matter is not academic. If we are to establish some kind of new bureaucracy presumably consisting of aborigines with the task of speaking for all other  aborigines and write the basis of this into the Constitution  then at a basic minimum we should be readily able to determine which of us is and which of us is not an aborigine.

As it stands anybody can tick the [Aboriginal or Torres Strait Islander] box in the census and be counted as an aborigine. It appears that increasing numbers of people are deciding that they “feel” as though they are aborigines so they tick the box.

When author Bruce Pascoe claimed to be an aborigine this was accepted without question by the federal Minister for Aboriginal Australians, Mr Ken Wyatt.

Minister Wyatt is saying, in effect,  that anybody who so nominates can be an aborigine.

Minister Wyatt complained that people of other ethnic groups (he used the example of people of Italian heritage) do not have to prove their ethnic identity. True but they are not demanding special services, special representative bodies and a change to the Constitution.

7. Policies are part of the problem not part of the solution

Some aborigines have a poor quality of life with reduced life expectancy, high levels of chronic illness, self harming behaviours and suicide.

This is not because they are aborigines but because they are people who have been displaced from their traditional lands and culture, dispossessed of their significant place in society and who for various reasons have not yet managed to engage with the mainstream of modern society.

Problems of this kind were described in the latter part of the 19^th Century by the French sociologist Emile Durkheim, who used the term “Anomie” to summarise the various manifestations of the state into which some displaced people can lapse.

It has nothing to do with any particular ethnic group but can and does occur to any individuals or groups subjected to prolonged environmental deprivation of sufficient severity.

Many people who self identify as indigenous have a very good quality of life. They mostly live in large towns and cities, have at least a basic education, an employable qualification, regular work, stable accommodation and a sense of meaning and purpose in life.

They are engaged with the mainstream of modern society.

My thesis is that most policies which over the years were intended to improve the quality of life of aborigines are themselves the problem and have made the condition of some aborigines worse, not better.

The road to hell is paved with good intentions.

Paradigms and concepts

Any matter of public importance finds itself embedded in existing paradigms, influenced by a range of concepts and argued by people with a range of pre-conceived ideas, assumptions, beliefs and prejudices.

In this section I will highlight some ideas which I think are relevant to the discussion about aboriginal policy in Australia.

Aborigines deserve special treatment.

The principal bases of this view appear to be mainly historical, in particular:

a) Aborigines got here (Terra Australis) first and have a long history of continuous occupation.

b) Aborigines were displaced from their lands and dispossessed of their heritage.

These things are true but we cannot live in the past and cannot turn back the clock of time.

In the event the Australian Government has agreed that aborigines do deserve special treatment because of their historical dispossession. This has been expressed in laws about aboriginal land rights and native title. The effect of these laws goes some way towards recompense to aborigines for past mistreatment.

This does not mean that any person deserves special treatment just because he or she elects to self identify as belonging to a particular ethnic group.

It also does not mean that this special treatment should continue indefinitely.

Quality of life

This presentation takes the view that the primary aim of any kind of policy or programme or agreement between groups of people should be enhancement of the quality of life of those involved.

Policies and programmes should be able to demonstrate their effectiveness in improving quality of life.

It is clear that while many people who identify as aboriginal have improved their quality of life over the last 200 years some have not. Those doing worst are people living in isolated remote communities.

Justice and compensation

Much of the discussion around aboriginal policy is about justice and compensation. I think most humans instinctively understand basic concepts of justice, retribution and compensation.

The relevance of the justice paradigm to the Australian context is that the indigenous inhabitants of the land were subjected to wide ranging abuses affecting every aspect of their life and culture.  So it is natural that many aboriginal activists feel  outraged  about the  wrongs which have been done and the  people who have been hurt and that a process of justice and recompense should be undertaken.  In fact efforts have been made in that direction in various ways including aboriginal land rights and native title. People of the “stolen generation” have been belatedly offered compensation.

But the justice paradigm only works properly when the immediate protagonists are to hand. The miscreant can be outed and required to make amends to the person wronged.

There are two main situations in which the justice paradigm is not effective even though it is obvious that wrongs have been committed.

The first is when the wrongs are mainly historical, the direct protagonists having died, sometimes long ago.  We are left with the descendants of the wronged people fuming in anger at historical injustice but without any extant perpetrators to blame.

The second is after major conflicts including wars when whole nations are potentially perpetrators or victims or both.

In both these cases it is often better for all those involved to acknowledge with regret that wrongs have been done and to then press on with policies and strategies designed to improve the health, welfare and quality of life  of all concerned.

The Marshall plan in Europe and the Australia/Japan trade agreement of the 1950s are examples of this approach following world war two with mutual benefit to all concerned. Even Germany was a substantial beneficiary of Marshall plan funds.  By way of contrast the USSR extracted large reparations from some Eastern Bloc countries with deleterious effects to all the countries involved.

The history of almost every place on earth settled by humans is of successive waves of new arrivals. With each wave come conflicts between the established inhabitants and the invasive ambitions of the newcomers. In due course the two groups reach an accommodation aided by the effects of miscegenation and the practical realities of daily life.  Most people eventually figure out that improving their quality of life is more important than demanding reparation for wrongs perpetrated by previous generations.

The Uluru Statement calls for

“the establishment of a Makarrata, the coming together after a struggle. It captures our aspirations ……..for a better future for our children based on justice and self determination.”

I want to raise three issues about this:

1. We are long past the time when the justice paradigm is the most appropriate one within which to find a way forward.  Of course justice must be done when one person wrongs another in the here and now. But there is no way to roll back the march of time and re-run history for a different result.

2. Aborigines already have as much “self determination” as they wish to exercise. The repeated statement by activists that aborigines lack self determination is disingenuously untrue.  Nobody is preventing aborigines from doing whatever they wish.

What is true is that children, many of them aborigines, who live in small, isolated remote settlements have very limited opportunities for personal development as they grow into adulthood, particularly if they do not speak English and have limited formal schooling.

When indigenous activists talk about self determination they do not clarify what they mean. But I think the course of events gives us a pretty good idea. I think that the proponents want separate  aboriginal services and  separate aboriginal legal and administrative structures all run by self appointed aboriginal elites.  And of course all paid for by  Australian taxpayers. They don't menton that bit either.

3. The activists who seek a Makarrata Commission present no evidence of any description that might demonstrate how such a body could improve the health, welfare or quality of life of any actual person of any ethnic affiliation.

Engagement vs separationism

As indicated in the opening paragraphs of this discourse I take the view that the key issue for aborigines and aboriginal policy in Australia is engagement vs separationism.

For many years after the arrival of the first fleet aborigines were driven from their lands and persecuted. Their basic human rights were abrogated.

It is hardly surprising therefore that groups of aborigines sought to retreat from the reach of the invaders to a hopefully more protected existence on their own lands. It is also entirely understandable that aborigines sought to establish and administer their own services for health, housing, education, social and cultural interactions. I call this separationism.

But, with the very best intentions, they got it wrong.  As I noted above, the road to hell is paved with good intentions.

The incoming colonialists and their descendants were not the only people who made and continue to make  serious mistakes. Aboriginal activists and representatives also made and continue to make big mistakes in the exercise of advancing the cause of their chosen constituency.

In my view the biggest and most enduring mistake made by aboriginal advocates has been their promotion of separationism.

It is my view that the much more productive approach is encapsulated by the old adage “If you can’t beat them, join them.”  I call this engagement.

The evidence supporting this view is overwhelming and available for anyone to see.

People who identify as aborigines who live in cities and larger towns, have employable qualifications and regular paid work, live in stable housing, are not welfare dependent, attend mainstream education and health services and adopt a lifestyle conducive to good health, generally have a good quality of life. They are engaged with the mainstream of modern society.

Some people who identify as aborigines live in remote areas, do not speak English, do not obtain basic education, are welfare dependent, have a poor diet, attend aboriginal services rather than mainstream services (if any) and have little hope that their circumstances will improve.. They are dis-engaged  from the mainstream of modern society. They have a poor quality of life with reduced life expectancy as do their children.

The proponents of  The Voice and the Makarrata have not presented the slightest evidence that either of these initiatives would improve the quality life of dis-engaged aborigines.

Race

All humans are members of the same race. There are minor differences in body morphology and skin color between people of different ethnic groups but there are no substantive biological differences between the groups.

Nation

Over the last few years indigenous people have taken to calling themselves “first nations people”. 

Australia is one nation with no option for sectarian or secessionist sub-nations.

Indigenous elites and the end game

The proponents of The Voice do not identify at what point in the cultural, social and political history of Australia it will no longer be necessary for activists to agitate for aboriginal causes.

To explain my meaning by example:  In the early part of the 20^th Century the suffragettes campaigned for women to have equal voting rights with men. They achieved this and no longer need to campaign. They had a clear objective and reached it.

The indigenous elites do not articulate any clearly stated objective beyond which further campaigning will no longer be required.

So I must speculate.

I think that most ordinary humans of all ethnic groups just want to have a decent life, engaged with a supportive family and community.  They want to feel they are adding to the greater good even if their individual contribution is modest. I think most Australians including aborigines and immigrants  want to engage with the mainstream and function as productive citizens of our egalitarian multicultural society.

But those modest ambitions do not appear to suit some people at all.

There is a cadre of mostly self nominated  indigenous elites who  I believe want to carve out a separate aboriginal nation or nations with themselves holding the reins of power.

I think they are well on the way to achieving their ambition.

We have separate aboriginal lands, aboriginal land corporations, separate aboriginal schools, separate aboriginal health services and separate aboriginal social welfare services.

Now the indigenous elites want separate aboriginal representative bodies consisting of aborigines representing aborigines.

I think the separationist agenda of the indigenous elites is cynical and self serving. I believe it has nothing to do with the quality of life of any person or group and everything to do with the indigenous elites desire for power and control over separate aboriginal groups which they want to call nations.

If the indigenous elites do get their way I believe it will be to the great detriment of the quality of life of those unfortunate aborigines who get caught up in one of these “nations” disengaged from the mainstream of multicultural society.

My alternative proposal for aboriginal policy

My thesis is that the best aboriginal policy is no policy at all.

I take the view that we should not treat any people separately in law or policy by reason of their chosen ethnic or other sectarian affiliation.

To do so would be completely at odds with the concept of Australia as an egalitarian multicultural society.

My proposal is:

1)  Incorporate existing aboriginal services into local mainstream services.

2) Remove the census question asking whether the respondent is an Aborigine or Torres Strait Islander.

3) Establish an aboriginal land and native title commission to manage new claims and administrative issues arising from existing land rights and native title legislation.

4) Repeal Part 26 of Section 51 of the Australian Constitution and review Section 25.

Brief Discussion about my proposal

1) I worked as a clinician and director of a health service for most of my professional career. I found that division and fragmentation of services greatly reduces their capacity to offer the best possible diagnostic and treatment services to clients.

To be maximally effective health services need breadth, depth and integrated operation.

There is no point in having services which are culturally sensitive if they are unable to make the right diagnosis or offer the best care and treatment which is available to people accessing mainstream services.  Mainstream services can be responsive to the cultural nuances of different ethnic and religious groups by adopting multicultural hiring policies and training programmes.

2) The effect of the census question is to promote separationism and sectarian division. As it is no longer possible to decide for practical purposes who is and who is not an aborigine the question should be removed.

3) The first law recognising aboriginal land rights was the Commonwealth Aboriginal land rights (Northern Territory) act of 1976. This was followed by other legislation granting aboriginal land rights across Australia.

The Commonwealth Native title act was passed in 1993.

Repeal of Section 51(26) of the Constitution could render the status of laws about land rights and aboriginal title invalid or at least unclear.

So I propose a Commission to operate as a transitional authority to manage and administer land rights and native title under the existing (2021) rules for a limited period of time.

This Commission would need to consider new applications for a period of say, ten years, then assist aboriginal land title holders and native title holders over the next period of say, fifty years to help them manage  the many issues left unresolved by the initial legislation.

4) Section 51 opens with …”The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

Part 26…” the people of any race for whom it is deemed necessary to make special laws.”

The Constitution was drafted over a period of years in the 1890s and came into effect on 1 January 1901. At that time it was thought that people of some ethnic groups were of different races and that some were superior to others.

We now know that all humans are of the same race and that all have equal potential for personal development and contribution to a multicultural society, so references to ‘race” should be removed.

 

End of discussion