Confronting the Past and Present: The Persistence of Australian Colonialism and the Legalization of Indigenous Oppression

Central to Australia’s national mythology is its identity as a multicultural democracy. Indeed, even a cursory search of the country’s Department of Home Affairs website will produce a 16-page document entitled “Australia’s multicultural statement.” The first sentence of this document confidently proclaims: “Australia is the most successful multicultural society in the world.” [1] While alluring, statements like these conceal a darker reality that lurks beneath Australia’s self-proclaimed multiculturalism. Under the guise of a multicultural democracy, Australia has advanced a postcolonial national narrative and image. Nevertheless, an inquiry into the lives and legal statuses of Aboriginal and Torres Strait people—that is, the original, indigenous inhabitants of the land—reveal that this façade of liberal democracy is, at best, a gross mischaracterization. Through various federal,state, and territorial laws, as well as legal structures, I argue that the Australian legal system00 and Australia as a whole—continues to exist and function as a colonial entity. As such, the only viable pathway for Australia to truly undergo a process of decolonization is through a massive overhaul of its legal system, in which Aboriginal and Torres Strait People are granted the right to freely and autonomously practice their customary laws, in which they are paid reparations for the historical and modern violence inflicted upon them by colonial forces, and in which they are granted unconditional ownership of their indigenous lands.

Defining (and Dismantling) Multiculturalism

Prior to our inquiry into Australia’s contradictory identity as a “multicultural democracy,” it is first necessary to arrive at a singular definition of multiculturalism. Political theorist Sarah Song defines multiculturalism as “part of a broader political movement for greater inclusion of marginalized groups”; Song expands upon this definition, arguing that “a politics of recognition” is central to the aforementioned inclusion of marginalized groups “as equal citizens” [2]. From this definition, we are thus able to turn a critical eye to the state of affairs—both historical and contemporary—of the Australian state vis-a-vis its indigenous inhabitants.

Systematic Disenfranchisement

Introduced in October of this year, the “Electoral Legislation Amendment (Voter Integrity) Bill,” if passed, would require all eligible Australian voters to provide proof of identification (in the form of a driver’s license, passport, age card, birth certificate, a utility bill, a credit/debit card statement, etc.) in order to cast their ballots [3]. While, at surface level, this bill does not appear to target Aboriginal and Torres Strait people, the Australian Human Rights Commission argues that such measures would disproportionately impose obstacles upon Indigenous Australians, especially those who “do not possess a birth certificate and face difficulties obtaining subsequent formal identification [4].”  By imposing such restrictions, a large proportion of Aboriginal people may be inhibited from voting due to the disproportionate lack of valid government IDs among Indigenous communities, which are largely concentrated in remote and rural areas of the country. As such, Aboriginal people are further propelled into continuous cycles of abject poverty by putting up barriers to their participating in the elections that will determine their future status under the law.

Returning to the question of Australian multiculturalism, the voter ID bill contradicts Australia’s multicultural narrative in that it fundamentally discounts—intentionally or unintentionally—issues of accessibility faced by indigenous communities. With more than 60% of Australia’s Indigenous community living in remote or semi-remote areas of the country [5], access to government services and practices of recordkeeping are severely limited [6].  Coupled with the fact that the “Australian Electoral Commission has found [past] instances of voter fraud were ‘vanishingly small’,” the so-called “voter integrity” bill appears to only accomplish the task of preventing rural voters—who are overwhelmingly Indigenous—from voting in elections. As such, we observe an instance of Australian legislation indirectly targeting and excluding minority groups from participating in the broader democratic process, thus contradicting the “multicultural democratic” nature of the state.

Illegalization of Native Status

Turning to the Australian judiciary, further negations of the multiculturalist narrative can be found within decisions regarding the legal status of Aboriginal and Torres Strait people. Central to the modern discussions of the status of native people in Australia is the case of Love v. Commonwealth (2020). This case specifically concerned the status of Aboriginal, non-citizen residents of Australia who had criminal records. In this High Court decision, the court ruled that Aboriginal and Torres Strait people—regardless of citizenship status—could not be deported from Australia [7]. Prior to this February 2020 ruling, Australian law allowed for the extradition of native people and their subsequent classification as “aliens.” [8] 

While this was certainly a landmark case regarding the recognition of Indigenous claims and connections to the land, there is currently a large-scale movement among parliamentary incumbents to challenge the results of the ruling [9]. If the movement succeeds in reversing the ruling, the Australian government would once again be able to deport Indigenous people. The mere notion that the rights of Aboriginal and Torres Strait people to inhabit and exist upon their Indigenous lands are even considered as a matter of debate reveals that colonial tactics of minority exclusion and dispossession are still pervasive in the modern era. Moreover, it is clear from the emerging movement to reverse the law that Australia might not be the unified multicultural democracy that it claims to be: certainly, within a multicultural society—and more specifically, within Song’s classification of “a politics of recognition”—Indigenous residents, regardless of whether they formally hold citizenship or not, should be allowed at the very least to continue to inhabit their ancestral land [10]. The negation of such, as has emerged in the aftermath of Love, thus contradicts Australia’s idealized assertion of multiculturalism.

Stronger Futures Act: Colonial Paternalism and the Restriction of Basic Rights

The deprivation of marginalized groups’ rights is central to the fundamental character of colonial entities and antithetical to that of multicultural democracies. Perhaps the most poignant modern example of this paternalistic grip on minority rights is the Stronger Futures in the Northern Territory Act of 2012. 

It is important to note that Australia’s Northern Territory “has the highest proportion of Indigenous residents” among all other Australian states and territories [11]. That being said, this act, which applies to the Northern Territory, specifically targets Aboriginal communities. The act itself uses societal issues faced by native Australians as a pretext to institute unprecedentedly restrictive measures upon the very communities it purports to help.

First introduced in 2007 as The Northern Territory Emergency Response (NTER), the act was purported to serve as an “intervention” to combat what government research had found was a child sex abuse crisis in Aboriginal communities [12]. Nevertheless, to this day, the true motives of the so-called intervention are questionable, as the act itself does not make any reference to the sexual abuse of children [13]. In order to pave the legal path for the massive restrictions imposed upon Indigenous residents, the Australian government decided to temporarily suspend the Racial Discrimination Act 1975 [14], which criminalizes “any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin…” [15]. And, while the law was eventually repealed in 2012, it was immediately replaced by the Stronger Futures Act.

The Stronger Futures Act, which is still in place and enforced to this day, is fundamentally designed to restrict and control the lives of Indigenous people living in the Northern Territory. Stripping natives of their basic rights, the act imposes strict penalties for the possession and consumption of alcohol (punishable by “up to six months imprisonment”) [16],  and the possession of pornography “and violent material on Aboriginal land” [17], as well as the imposition of “compulsory teaching in English for the first four hours of each school day” [18], the withholding of welfare benefits from families of children who miss more than 5 days of school per year, and a prohibition of “the consideration of Aboriginal customary law and cultural practice in bail and sentencing…” [19]. In doing so, the act subjects Aboriginal communities to restrictions faced by no other non-incarcerated Australian citizens. Not only are these policies unreasonably restrictive, to make matters even worse, the imposition of these restrictions has not been found to improve the condition of Aboriginal communities, raising alarming questions about human rights abuses [20]. 

Nevertheless, if we were to assume that the Australian government was acting with only the best interests of Northern Territory Indigenous communities in mind, the Stronger Futures Act is still fundamentally problematic in that the Australian government made minimal attempts to consult with leaders of the very communities that these policies would apply to. While the government made the decision to stage a performative meeting with Aboriginal representatives prior to the implementation of the act, as members of the community would later attest, affected Aboriginal people were not involved “in the design or implementation of the process,” the aforementioned meetings “did not provide any mechanisms for reaching agreement,” and the legal texts being discussed in the meeting “were dense, complex and were not translated into relevant Aboriginal languages [21].”  This absence of Indigenous involvement in crafting the act is reflected in the contents of the policies, as mentioned previously. Moreover, the Australian government’s initiative to attempt to “fix” the problems of native communities—without meaningful consultation with the communities—is based on the historically colonial assumption that native people are inherently unable to remedy their own issues and that they thus require the intervention of a white government.

In the context of the Stronger Futures Act and its predecessor, we see an Australia that falls closely in line with the history of colonial oppression and native erasure that the country so vehemently insists is part of its distant past. However,the Stronger Futures Act is not merely a remnant of Australia’s colonial past; it is part of a larger and ongoing colonial system that began with the arrival of British settlers in the land and which has not ceased to exist since then. As evidenced by the discriminatory and restrictive policies of the Stronger Futures Act, as well as the various other colonial structures—overt or covert—at play, the existence of a true multicultural democracy is made impossible. Specifically in regard to Stronger Futures, the negation of the rights of Aboriginal and Torres Strait people to live freely “as equal citizens,” contradicts Australia’s self-identity as a multicultural democratic nation.

Decolonization: Envisioning a Just Future

With all of this in mind, we arrive at a central question: What can be done? In theory, the answer would be decolonization, but what this process would look like in practice is a far more complex inquiry. With European colonization having controlled the land of Australia for more than 200 years, the possibility of decolonization might appear to be as far-fetched as the notion that Australia has ever been a multicultural democracy. Nevertheless, in an admittedly nonexhaustive and fairly simplistic manner, I will outline three major components that  must necessarily occur in order for Australia to come closer to becoming a true multicultural democracy. Drawing from the writings of decolonization scholars, I present these points not as a panacea to the malignant violence of colonialism; rather, these changes are the modicum starting point for Australia to begin moving away from its colonial past and present. 

Recognition and Co-Governance

In order for Australia to move towards true multiculturalism, it must first officially recognize (in a codified manner) the legal and social autonomy of Aboriginal and Torres Strait peoples and relinquish its absolute grip on power to allow for co-governance with an Aboriginal Parliament. In order for Australia to reach a point of true multiculturalism, it must first learn to share sovereignty with the original inhabitants and custodians of the land. As has become apparent from the above discussion of Australia’s ongoing and constant negation of native law and culture, it is thus essential that a separate, Indigenous governmental body be established in such a way that it was not subordinate but equal to the current colonial Australian parliament. This Indigenous parliament would hold exclusive legislative, administrative, and judicial control over the governing of Aboriginal and Torres Strait communities as well as Indigenous-majority cities and towns. Representatives of both the Indigenous parliament and the colonial parliament would be nominally included in the parliament of the other, in order to ensure direct governmental lines of communication. As such, Indigenous communities would be able to govern themselves as they see fitting, unencumbered by culturally insensitive colonial control. Such a system, however, would necessitate the existing colonial Australian government to forfeit its legacy of absolute control and sovereignty—a move that would be unprecedented not only for Australia, but for colonial and so-called post-colonial governments, more generally. Despite the absence of precedent, it is imperative that Australia—if it truly aims to achieve the status of multiculturalism—adopts such a revolutionary system and begins its path towards colonial rehabilitation.

Reparations

Essential to the process of righting its wrongs, Australia must pay reparations in monetary and territorial forms. Having been pushed to the remote outskirts of society, systematically discriminated against, and deprived of economic opportunities, Indigenous Australians today are disproportionately faced with poverty and unemployment in comparison to their white Australian counterparts. With nearly 20% of native Australian households living under the poverty line [22], 29% of natives having reported being homeless [23], and the majority of rural native communities living in poor conditions [24], monetary reparations are not only important, they are necessary to dismantling the inherent white dominated power structure that thrives under the current system. Such a program would be entirely possible and feasible, as Australia recently agreed to pay $280 million in reparations to the more than 5,000 indigenous survivors of government-run “re-education” schools [25]. Though on a significantly smaller scale, such initiatives not only act as precedent, but they also show that the Australian government is perfectly capable of managing the logistics of such a program.

Legislative Overhaul

While seemingly the most obvious, this is, nevertheless, an integral part of imagining a postcolonial Australia. With Australian law (both modern and historical) being rife with directly or indirectly discriminatory laws—as is apparent in the impending voter ID bill, the Stronger Futures Act, and many more–the need for a large scale inquiry into and reworking of Australian laws is ever-apparent and central to a shift towards multicultural democracy.

Conclusion

 Indigenous Australians are the original inhabitants and custodians of the land, yet are currently treated as second class citizens. Such mistreatment—whether through systematic disenfranchisement, internal efforts to negate the status of Indigenous peoples, or large-scale deprivations of rights through policies like those of the Stronger Futures Act—reveals a distinctly and pervasively colonial character underlying Australia’s governmental structures. This colonial pattern of oppression and marginalization also stands diametrically opposed to Australia’s self-purported image of being a multicultural democracy. Using the inherent contradictions between Australia’s self-perception and its reality as a departure point, I argue in favor of a systematic process of decolonization. As I have delineated above, this process would include—but would not be limited to—the establishment of a system of co-governance, the payment of reparations, and a legislative overhaul, in order for Australia to begin its long path towards reconciling its dark history and present. While I argue that Australia may never be able to fully make amends for the countless lives and intangible cultural heritage it has destroyed, to eschew such a duty would be to actively perpetuate the centuries-long, violent mistreatment of Indigenous Australians.

References

[1] “Multicultural Australia: Australia’s Multicultural Statement.” Department of Home Affairs, n.d. https://www.homeaffairs.gov.au/mca/Statements/english-multicultural-statement.pdf.

[2] Song, Sarah. “Multiculturalism.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Fall 2020. Metaphysics Research Lab, Stanford University, 2010. https://plato.stanford.edu/archives/fall2020/entries/multiculturalism/.

[3] Electoral Legislation Amendment (Voter Integrity) Bill 2021, Pub. L. No. 46 (2021). https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6811_first-reps/toc_pdf/21155b01.pdf;fileType=application%2Fpdf.

[4] Karp, Paul. “Barriers to Documentation Disadvantage Indigenous Australians under Proposed Voter ID Laws.” The Guardian, November 11, 2021, sec. Australia news. https://www.theguardian.com/australia-news/2021/nov/12/barriers-to-documentation-disadvantage-indigenous-australians-under-proposed-voter-id-laws.

[5] Australian Institute of Health and Welfare. “Profile of Indigenous Australians.” Accessed November 12, 2021. https://www.aihw.gov.au/reports/australias-welfare/profile-of-indigenous-australians.

[6] Karp, Paul. “Barriers to Documentation Disadvantage Indigenous Australians under Proposed Voter ID Laws.” The Guardian, November 11, 2021, sec. Australia news. https://www.theguardian.com/australia-news/2021/nov/12/barriers-to-documentation-disadvantage-indigenous-australians-under-proposed-voter-id-laws.

[7] Love v Commonwealth of Australia; Thoms v Commonwealth of Australia, No. 3 (High Court of Australia February 11, 2020).

[8] “Aboriginal Australians Born Overseas Cannot Be Deported, Court Rules.” BBC News, February 11, 2020, sec. Australia. https://www.bbc.com/news/world-australia-51455256.

[9] Karp, Paul. “Australia Seeks to Overturn Landmark Ruling Preventing Deportation of Aboriginal People.” The Guardian, October 13, 2021, sec. Law. https://www.theguardian.com/law/2021/oct/14/australia-seeks-to-overturn-landmark-ruling-preventing-deportation-of-aboriginal-people.

[10] Song, Sarah. “Multiculturalism.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Fall 2020. Metaphysics Research Lab, Stanford University, 2010. https://plato.stanford.edu/archives/fall2020/entries/multiculturalism/.

[11] Australian Institute of Health and Welfare. “Profile of Indigenous Australians.” Accessed November 12, 2021. https://www.aihw.gov.au/reports/australias-welfare/profile-of-indigenous-australians.

[12]  Korff, Jens. “Northern Territory Emergency Response (NTER) - ‘The Intervention.’” Creative Spirits, February 17, 2021. https://www.creativespirits.info/aboriginalculture/politics/northern-territory-emergency-response-intervention.

[13] Northern Territory National Emergency Response Act 2007, Pub. L. No. 129, C2010C00521. Accessed November 13, 2021. https://www.legislation.gov.au/Details/C2010C00521/Html/Text, http://www.legislation.gov.au/Details/C2010C00521.

[14] Perche, Diana. “Ten Years on, It’s Time We Learned the Lessons from the Failed Northern Territory Intervention.” The Conversation. Accessed November 13, 2021. http://theconversation.com/ten-years-on-its-time-we-learned-the-lessons-from-the-failed-northern-territory-intervention-79198.

[15] Racial Discrimination Act 1975, Pub. L. No. 52, C2016C00089 (2015). https://www.legislation.gov.au/Details/C2016C00089/Html/Text, http://www.legislation.gov.au/Details/C2016C00089.

[16] “Stronger Futures in the Northern Territories.” Social Policy. Northern Territory, Australia: Australian Government Department of Social Services, July 2012. https://www.dss.gov.au/sites/default/files/documents/09_2012/stronger-futures-booklet-jul2012.pdf.

[17] Schokman, Ben. “‘Stronger Futures’ Is Disempowering, Damaging and Doomed to Fail.” Indigenous Law Bulletin 7, no. 30 (June 2012): 17–21.

[18] Harris, Michele, ed. A Decision to Disriminate: Aboriginal Disempowerment in the Northern Territory. Notting Hill, Victoria: Vega Press, 2012. http://www.concernedaustralians.com.au/media/A_Decision_to_Discriminate.pdf.

[19] Schokman, Ben. “‘Stronger Futures’ Is Disempowering, Damaging and Doomed to Fail.” Indigenous Law Bulletin 7, no. 30 (June 2012): 17–21.

[20] Ibid

[21] Alastair Nicholson. “Listening but Not Hearing: A Response to the NTER Stronger Futures Consultations.” Sydney, Australia: University of Technology Sydney, March 2012. https://www.uts.edu.au/sites/default/files/ListeningButNotHearing8March2012_1.pdf.

[22] “Poverty in Australia 2014.” Strawberry Hills, Australia: Australian Council of Social Service, 2014. https://www.acoss.org.au/images/uploads/ACOSS_Poverty_in_Australia_2014.pdf.

[23] “National Aboriginal and Torres Strait Islander Social Survey.” Survey. Canberra, Australia: Australian Bureau of Statistics, April 28, 2016. https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4714.0~2014-15~Main%20Features~Housing~9.

[24] “Chapter 13 - Indigenous Australians.” Text. Canberra, Australia: Parliament of Australia, 2004 2002. Australia. https://www.aph.gov.au/parliamentary_business/committees/senate/community_affairs/completed_inquiries/2002-04/poverty/report/c13.

[25] Pannett, Rachel. “Australia to Pay Hundreds of Millions in Reparations to Indigenous ‘Stolen Generations.’” Washington Post, August 5, 2021, sec. World. https://www.washingtonpost.com/world/2021/08/05/australia-indigenous-school-reparation/.