Tell the truth: we’re a single sovereign country

It’s a simple truth: the Yoorrook report fails to address basic needs of Indigenous children, but makes outlandish demands in serving the interests of the adults who drove it.

A long list of demands has emerged from the four-year inquiry. Poicture: NCA NewsWire / David Crosling

The final report of the Yoorrook Justice Commission tabled in the Victorian parliament this week is a heartbreaking read.

The long list of demands emerging from the four-year inquiry into “the impact of systemic injustices faced by First Peoples in Victoria” veers from the outlandish to the truly tragic and back to the lunatic.

It is outlandish, for example, for the report to demand that the UN Declaration of the Rights of Indigenous People be embedded into Victorian laws.

Our federal parliament has not incorporated UNDRIP into domestic law and could never do so because it is utterly inconsistent with Australian law and our political framework.

Even a recent Labor-Greens dominated parliamentary committee stopped short of recommending it be made binding.

Among the 100 or so recommendations in the Yoorrook report, in policy areas including education, justice, health, housing and employment, the saddest ones concern Indigenous children.

Even as Closing the Gap data continues to show Indigenous children falling behind in education and suffering physical and emotional harm at higher rates than non-Indigenous children, this report fails to address the basic needs of Indigenous children.

The disadvantaged Indigenous child has been Disneyfied in this report, needing one thing as a priority: cultural safety.

None of the demands in this report will improve the education of a single Indigenous child or protect a single Indigenous child from physical and emotional danger in dysfunctional families.

“Cultural safety” is a term that keeps Indigenous activists and academics in jobs. But this report’s self-indulgent obsession with culture at the expense of everything else – a decent education, a safe and loving home – is beyond disappointing.

RIGHTS SACRIFICED

The individual rights of children are comprehensively sacrificed in pursuit of a collective rights agenda serving the interests of the adults who drive it.

Across more than 20 recommendations in the section headed “URGENT REFORMS: EDUCATION”, the commissioners focus a great deal on culture: on embedding legally actionable cultural rights into the education legislation, on cultural safety programs and frameworks, on culturally safe education, on mandatory cultural safety competency standards.

They focus on decolonising the curriculum, too, and on creating separate and lower expectations for Indigenous children.

The commissioners demand that the Department of Education must, guided by First Peoples, develop separate exclusions for Indigenous children “covering attendance, classroom exclusion, suspensions (formal and informal), modified timetables, and expulsions”.

Under the heading of self-determination, the Yoorrook commissioners demand in recom­mendation 61 that “the Victorian government must transfer control, resources and decision-making power over curriculum, pedagogy, governance and resource allocation for First Peoples’ education to First Peoples, to be negotiated through the treaty process”.

The recommendations will excite ivory tower academic activists who have made careers from the separatist project.

In dismal news for Indigenous children, their parents and their communities, there is not a single urgent demand to ensure that individual Indigenous students will receive a top-class education. None of the Yoorrook recommendations demands rigorous, evidence-based teaching to ensure that Indigenous children, with their current poor educational outcomes, will leave school with high levels of literacy and numeracy.

This omission is an abomination.

Chair of the Yoorrook Justice Commission, Eleanor Bourke. Picture: The Australian/Tricia Rivera

How five highly educated commissioners – professor Eleanor Bourke (chair), adjunct professor Sue-Anne Hunter (deputy chair), Travis Lovett, distinguished professor Maggie Walter and former judge Anthony North KC – could settle on these as the priorities in education tells you a lot about the state of Indigenous activism in this country.

Alas, the Disneyfication of Indigenous children extends into adulthood in this report. There are further demands to recompense Indigenous staff at Victorian universities for the “colonial load they carry” and for the Victorian government to formally recognise the same “colonial load” of Indigenous public servants.

“Colonial load” is another term for ivory tower academics. The term alludes to an assumed heavy load that an Indigenous person faces by explaining their background to a non-Indigenous person. In the real world we might call these normal interactions between human beings. In a multicultural society such as ours, we often share our experiences, our cultural differences, with others. Turning this deeply human connection into a “colonial load” attracting a taxpayer-funded cheque and formal recognition relegates Indigenous people into victims forevermore.

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 – demanding more money, more separatism, ranging from the criminal justice system to education and in many other areas.

There is no mention of a genuinely empowering future for Indigenous people; the vision of living in a free and democratic country where every Australian is bound together by a social contract comprising unifying freedoms and socially cohesive responsibilities is given short shrift in favour of an outdated black-armband view of Australia.

This report, by telling another generation of Indigenous people that nothing good has come to this continent after settlement in 1788 except “genocide”, is a badge of shame. Not just for the Yoorrook commissioners and the Andrews government that created it with terms of reference that ensured this outcome. The shame of this report extends to many other elites across many years who have indulged a separatist project that leaves little children to mull over actionable cultural rights instead of their rights to physical and mental safety, not to mention their right to schooling that actually educates them.

The shame of this report extends to judges who indulge themselves by undermining High Court authority when announcing that “sovereignty has not been ceded” while delivering an acknowledgment of country.

Commissioner for Aboriginal Children and Young People, Meena Singh, at the Yoorrook Justice Commission

The shame encompasses academics who, in a coagulating consensus, have ignored clear and unambiguous Australian law to confect a “constitutional legitimacy crisis” that claims Australia is not one nation.

It covers those ABC hosts who bleed on air with more self-indulgent posturing seeking to replace Sydney with “Gadigal land”.

This band of secondary separatists will be pleased with this report.

The rest of the country will recognise it as final proof of the tragic impossibility of reconciliation between Indigenous activists and mainstream Australia.

DUELLING VERSIONS OF HISTORY

How did this happen? Part of the answer lies in duelling versions of history.

The Yoorrook Justice Commission is tolerably open in confessing that it was the story of Indigenous peoples told by Indigenous peoples. What testing of historical claims, including ones about genocide, was done? Was there any show of intellectual curiosity from the commissioners? Like Bruce Pascoe’s Dark Emu, the “truth-telling” part of this report cries out for some careful review of its accuracy.

The gaping chasm between the two camps ultimately stems from diametrically opposite and irreconcilable views about sovereignty. It oversimplifies the issue to say that this really gets down to: who owns Australia? But I trust readers will understand this attempt to reduce complex legal terminology into practical language.

Under a big, bold heading, “The sovereignty of First Peoples in Victoria has never been ceded and continues to exist”, the Yoorrook commission claims “First Peoples exercised sovereignty before the British arrived” and asserts that “First People’s sovereignty has not been lawfully acquired under international law”.

Upon this asserted foundation of Indigenous “sovereignty”, the commission builds its entire edifice of separatism, bolstered by its own version of history, which effectively creates a new divided nation bearing little resemblance to Australia.

The key problem for the new divided nation dreamt up by Yoorrook commissioners and the associated fringe separatist industry is their views have no popular or legal support

Shaun Turner, the street sweeper who successfully challenged his sacking by Melbourne’s Darebin Council for objecting to an acknowledgment of country at a toolbox meeting, speaks for many Australians. Whether born here or having migrated here, millions of Australians dislike being told they need to be welcomed to someone else’s land.

The instincts of these millions of Australians are based on the law of the land.

Whatever spurious claims activists make about international law, the Australian legal position was stated by justice Harry Gibbs in the 1979 High Court decision in Coe v Commonwealth: “The Aboriginal people are subject to the laws of the commonwealth and of the states and territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers except such as the laws of the commonwealth, or of a state or territory might confer upon them. The contention that there is in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible to maintain.”

Whatever your view of history, the High Court is authoritative on sovereignty.

That law on sovereignty, confirmed by courts on very many occasions since, means the recommendations of the Yoorrook Justice Commission built on the premise of Indigenous sovereignty have no legal or practical basis.

This fundamental falsehood of Indigenous sovereignty drives the separatist demands that follow. For example, the second recommendation, which provides that “the Victorian government must acknowledge the ongoing reality of legal and political pluralism in Victoria, engage with First Nations as nations, and provide the resources to support the transition to genuine nation-to-nation relationships” is unhelpful daydreaming.

Child Protection Minister Lizzie Blandthorn at the Yoorrook Justice Commission

Likewise, the third recommendation says “the Victorian government must transfer decision-making power, authority, control and resources to First Peoples, giving full effect to self-determination in relation to their identity, information, data, traditional ecological knowledge, connection to Country, their rights to their lands, waters and resources, in the Victorian health, education and housing systems and across economic and political life”.

Even if they can get past the impossibility, and undesirability, of creating the commission’s secessionist state, taxpayers will surely baulk at having to fund this divided Australia. In the fourth recommendation, the commissioners say “through negotiation with the First Peoples’ Assembly of Victoria, the Victorian government must establish independent funding streams, including through hypothecation of a portion of land, water and natural resource-related revenues, to support the Self-Determination Fund and other First Peoples-led initiatives”.

Further, “The Victorian government must provide guaranteed ongoing funding and support the establishment of independent funding streams at both Statewide and local levels to support healing Country, relationships and connection from the legacy of colonisation.”

The ultimate tragedy of this report is that none of this political extremism is conducive to social cohesion.

The record shows that Australians are only too happy to help any group in Australian society that needs a hand – and has certainly proved that in relation to Indigenous Australians.

But they do so because Australia is one country, with one sovereignty established under one Constitution, which aims to provide equality of opportunity to every Australian. We help each other because we are all Australian.

The Yoorrook Justice Commission’s recommendations are a useful reminder of why defeating the voice proposal was critical to national unity, to maintaining the equality of all Australians under the law of a single sovereign Australia.

Had the activists succeeded in embedding a race-based voice into the Constitution, the sorts of separatist demands made by the Yoorrook Justice Commission would surely have been made of the federal government – with the added constitutional oomph of having the power to challenge and delay, possibly until doomsday, decisions of the executive government, as well as laws proposed by parliament.

With the misguided voice project defeated by the common sense of the Australian people, the Yoorrook report is a truly tragic missed opportunity. The commissioners’ demands will divide Victoria. Well-meaning and sensible people will mourn the good that could have come from a report that encouraged a unifying project to improve the lives of disadvantaged Indigenous people.