Australia

Cabinet papers 1992-93: Keating Government Fights for Indigenous Rights on Multiple Fronts

Reconciliation with Australia’s Indigenous people was a personal project of Paul Keating. He had given the Redfern speech in 1992 and the high court had handed down the landmark Mabo decision the same year. The Native Title Act passed in 1993 and the native title tribunal (NTT) established, but by 1994 and 1995 the government was focused on getting the states on board with the cause.

Cabinet endorsed Keating’s offer to meet at least 50% of the compensation, legal and administrative costs likely to arise in determining what land was open to native title claim, despite the finance department’s concern about the open-ended commitment.
“By contrast, Western Australia, under Richard Court’s Liberal–National Coalition, was judged ‘implacable’ in its opposition,” Brown said. “Declaring that it would not recognise any NTT decision, WA proceeded to issue more than 10,000 titles under its Land (Titles and Traditional Usage) Act 1993, intended to guarantee land tenure under one system of law.”

Keeping other premiers, developers and industries on side became crucial in early 1994. Cabinet also approved tactics of working with native title claimants to ensure that cases proceeding to the tribunal were credible and would enhance the tribunal’s authority.

Cabinet noted that the body of Australian native title law was “still quite thin” and such processes needed careful management. One area of contention was whether native title survived the issue of valid pastoral leases. The government had generally assumed that it did not.

However, the tribunal was accepting native title claims over land with pastoral leases, which led to pastoralists and miners declaring that intolerable uncertainties now surrounded their assets.

The government was worried about the economic uncertainty and urged all cabinet ministers to champion the government’s view that pastoral leases likely extinguished native title. However, they decided cabinet should wait for an outcome in the high court in proceedings initiated by the Wik people of Cape York, rather than attempt to legislate. Short-circuiting the court by legislation was deemed both politically unwise and likely to fail in the high court on the basis of racial discrimination.

Wik Peoples v the State of Queensland ran until late 1996, eventually overturning the “assumption” that native title was extinguished by pastoral leases.

Through 1995, cabinet considered conflicts with the WA government on native title.

It welcomed the success former governor general Sir Ninian Stephen had in brokering an agreement between the Northern Land Council and Energy Resources Australia over the continuation of uranium mining in Kakadu national park and looked to mediation as an alternative way of resolving native title claims.

At the same time, cabinet considered several submissions aimed at measuring and improving the chronic problems faced by Indigenous communities.

Throughout 1994 and 1995 several submissions sought to increase interagency coordination in delivering and assessing the effectiveness of relevant services.

“Aboriginal people are attaching high importance to the development and implementation of a social justice package,” cabinet was told. “The central message is as understandable as it is unequivocal; without the achievement of true social justice for Indigenous Australians, it will not be possible to achieve lasting reconciliation.”

The Keating government was also busy extending human rights for other parts of the community.

In October 1994, after a couple of false starts, cabinet decided to adopt racial hatred legislation including the controversial section 18C, which the current government has discussed repealing.

“In my view the degree of seriousness of some instances of racism is such that there are strong grounds to enact both civil and criminal prohibitions,” the attorney general, Michael Lavarch, argued in his submission.

“Some groups in the community need special protection from threats, harassment, ridicule and contempt,” he said, noting that the bill had strong backing from both the Jewish and Muslim communities.

He urged cabinet to adopt his preferred stance: to introduce both civil and criminal penalties for inciting racial hatred.

Criminal penalties “would act as a deterrent” and were required to unreservedly meet Australia’s international obligations under treaties it had signed, he said.

Cabinet also dusted off a 1992 parliamentary report, “Half way to equal”, recommending further protections for women in the workplace.

Discrimination on the grounds of potential pregnancy was included in the act for the first time, as was another issue working against women: marital discrimination based on the identity or occupation of a person’ spouse.

Too often women found their careers curtailed because they had married someone in the same firm and employers either insisted they leave or failed to promote them citing conflicts of interest.

The law was also strengthened to address the defence force discriminating against women in combat roles. The onus was put on the defence hierarchy to justify the reasonableness of conditions that blocked women.

The attorney general advised that the amendments were likely to be opposed by employer organisations but would be welcomed by women’s groups and supported by the ACTU.

Source

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