Equality at risk as consequences of recognition are unclear

INDIGENOUS leader Mick Dodson reckons that if the Australian Constitution is to have any relevance to Aborigines, it has to “affirm our basic identity as human beings”.

So, Aborigines are not human beings unless they are recognised in the Constitution. No one else is mentioned in the Constitution, so presumably all Australians are not human beings. Such is the mind-numbing nonsense of Aboriginal recognition.

Noel Pearson recently described a common cultural practice in Aboriginal society — “humbugging” — in relation to grog. He said, “alcohol and strong kinship don’t mix; they drink until nothing is left”. Aborigines ­demand the right to be treated like others, but also the right to be protected from that which others need little protection. Which right should win?

Cultural “safety” is the latest fashion in the Aboriginal industry. The radical Victorian Aboriginal Childcare Agency sets the tone with its report Forever Business: Restoring Cultural Safety. Nowhere in the report is Aboriginal culture defined, or proof that, when “restored”, Aboriginal culture will make any difference. The only beneficiaries are Aboriginal organisations.

The logic of cultural safety is that Aborigines must choose to either live in a self-imposed exile, dependent on others’ money, or break free. What does constitutional recognition seek to deliver: protective custody or freedom?

Aborigines and Aboriginal culture are already well recognised in law. Unfortunately, recognition has been used to seek advantage over others and to ­excuse behaviour tolerated in no other citizens. Aboriginality itself has become problematic.

The Family Law Act 1975 states that, in parenting orders, a child has a right to enjoy his or her Aboriginal culture. Should a child of Aboriginal descent spend more time with the Aboriginal father or the sibling, the child of a non-­Aboriginal mother?

This dilemma faced a Family Court judge in Sydney in 2012. The Aboriginal father lived in the Blue Mountains, west of Sydney. He wanted weight given to his heritage. The mother’s heritage was not considered.

The court ­effected a practical solution. It decided that the child should live with the mother, to “bond with the new sibling”, and visit the father on the weekends, for “culture”.

At present, courts are able to take such matters into account. Should the Constitution include Aboriginal culture, the rights of others may be curtailed.

The Adoption Act 1984 in Victoria recognises the principle of Aboriginal “self-determination”. It makes the dubious assertion that “adoption is absent in ­customary Aboriginal childcare arrangements”.

This ideological statement justifies a transfer of power from the state to Aboriginal agencies. Where an Aboriginal parent wishes their child to be adopted within the Aboriginal community, the parent is to receive counselling from an Aboriginal agency. If an Aboriginal person is not available to adopt, the adoptive parents may be approved by an Aboriginal agency.

In the Supreme Court in Victoria in 2012, a sister of a deceased ­Aboriginal woman applied to take her sister’s body to be buried at Lake Tyers. The Dandenong & District Aborigines Co-Op advised that it would be culturally appropriate to return the body of the deceased for burial on traditional country at Lake Tyers Reserve.

The trouble was that the woman did not wish to be buried among her own. She wished to be cremated at Lake Tyers near her foster parents at Bunurong Cemetery. She considered her foster parents her real parents.

The Coroner’s Act ensures that different cultures should, where appropriate, be respected.

The case was determined on the basis of the hierarchy of claim, which was in favour of the de facto husband. But the lesser claims of the Aboriginal community were heard.

Recognition in the Constitution would lend weight to lesser claims, to which this Aboriginal woman owed ­little allegiance.

An applicant for an Aboriginal benefit such as a housing or business loan, Abstudy, special ­assistance, or the waiver of school or TAFE fees, on most occasions has to produce evidence of an ­Aboriginal lineage.

Each Aboriginal applicant for an Indigenous Business Australia loan must complete a statutory declaration. The declaration requires the applicant to state ­Aboriginal descent and some, or all, of the ­applicant’s ancestors must be ­Aboriginal people.

Universities and schools keen to sign up students for boasting rights and funding do not pay close attention to verification. Children of Aboriginal public servants who have spent their entire lives working in the public service are nominated for “indigenous” graduate positions.

Enhancing recognition of ­Aboriginal people through constitutional amendment is good for the Aboriginal industry, bad for equality.

Gary Johns is editor of Recognise What? To be published by Connor Court in May.