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Paul Keating recognised the significant opportunities – and political risks – the High Court’s Mabo decision presented. National Archives of Australia

Cabinet papers 1992-93: Keating government fights for Indigenous rights on multiple fronts

Paul Keating’s first term as prime minister is often remembered for divisive debates over Indigenous affairs. He sought to pursue his vision of reconciliation between Aboriginal and non-Aboriginal Australians, negotiated passage of the Native Title Act and acknowledged the injustices and cruelties of Australia’s colonial history in his famous Redfern Speech.

However, economic priorities often overshadowed these events. Australia was emerging from recession with high unemployment and a growing budget deficit.

Cabinet documents from 1992 and 1993, released today by the National Archives of Australia, reveal the extent to which the government was torn between concern for fiscal responsibility and a desire to tackle Indigenous disadvantage and pursue meaningful reconciliation.

This tension was clear in the two major issues the government responded to in this period: the Royal Commission into Aboriginal Deaths in Custody report, and the High Court’s Mabo decision.

Deaths in custody

The response of the minister for Aboriginal and Torres Strait Islander affairs, Robert Tickner, to the royal commission unusually ranged across all aspects of Indigenous disadvantage. It recognised the commissioners’ strong argument that incarceration was a symptom of a long history of social, cultural and economic exclusion – one that demanded a more committed policy response.

Tickner had negotiated and co-signed policy measures with counterparts in the portfolios of employment, education and training, health, housing and community services, attorney-general, primary industries and energy, and others.

He proposed an expansion of the Community Development Employment Projects to provide both services and employment, particularly for Indigenous youth and women.

The package also proposed the appointment of an Aboriginal and Torres Strait Islander Commissioner in the Human Rights and Equal Opportunity Commission who would report annually on social justice and human rights.

The policy package was slashed, however, from A$540 million to A$150 million over five years. This was in response to the demands of Treasury and Finance, which insisted that only the policies most obviously related to criminal justice be funded. The rest were to be reconsidered later if offsets could be found elsewhere.

This short-sighted response to the commission’s 339 recommendations is still criticised today. This is especially the case as Indigenous incarceration rates continue to spiral in response to profound and complex disadvantage.

Mabo and native title

The government’s response to Mabo was similarly contested. This time the enemies were outside cabinet.

Keating understood the significant opportunity the decision presented. However, it placed the government in an almost impossible position. It was caught between Indigenous expectations, mining industry demands, fiscal constraints and state government recalcitrance – in addition to heightened international scrutiny.

The Mabo decision was complex. The media and most MPs understood the issues poorly. It was also clear that legislative recognition of native title was more likely to lose the government electoral support than win it more votes. As Keating’s speechwriter, Don Watson, noted:

Designing a legislative response to Mabo was a moral imperative and a political death trap … [with] all the elements of political horror.

Cabinet nominated a Mabo committee, which consisted of Keating and Tickner along with the attorney-general, Michael Duffy. At its meeting on October 27, 1992, cabinet noted the dangers of “uncertainty” for the mining industry and observed:

… the importance of the threshold across which the High Court has taken the nation and the ultimate need for government decision.

At the same time, cabinet prepared itself for potential political disaster. It was aware it could not satisfy all the competing interests, and that there was little chance of support from the Liberal opposition.

Negotiations extended through 1993, following the federal election in March.

Cabinet adopted Keating’s “principles for a response” to the Mabo decision on June 1, 1993, in anticipation of a very tense Council of Australian Governments meeting. State premiers were keen to demonstrate their objections to Commonwealth intervention in their management of land and Indigenous affairs.

The states would test the Commonwealth’s patience throughout 1993. Queensland demanded the Commonwealth pay compensation for any invalidated mining leases. Western Australia passed its own pre-emptive legislation attempting to extinguish native title altogether.

When Keating presented a draft native title bill on September 1, the cabinet minutes hinted at nervousness about the potential political fallout. Ministers were encouraged to “be ready to discuss the proposals with interest groups”. Keating was exhorted to “take whatever action was necessary to advance and protect the Commonwealth’s interests”.

Cabinet saw fit to afford Keating “latitude” in his negotiations. This prime ministerial prerogative would prove critical to the legislation’s ultimate success. Its passage was based on delicate compromises made with state premiers, Greens and Democrats senators, the National Farmers Federation and Aboriginal leaders.

ATSIC’s role

Throughout the year, the Aboriginal and Torres Strait Islander Commission (ATSIC) repeatedly insisted in cabinet submissions that alternative forms of redress be provided for the majority of Indigenous people who no longer enjoyed an unbroken connection with traditional lands.

The government prepared a “social justice and economic development package” within the constraints of the ever-present “fiscal realities” the government faced. Both ATSIC and the Council for Aboriginal Reconciliation requested more time for consultation. The package was thus delayed and disconnected from the Native Title Act, which received royal assent on December 24, 1993.

One notable feature of this period is the role of ATSIC, which the Hawke government created in 1990 as a practical expression of self-determination. As an elected body with administrative responsibility for much of the portfolio of Aboriginal affairs, ATSIC fulfilled both representative and executive functions.

Cabinet documents reveal ATSIC was assertive in advising its junior minister. It commented on all relevant cabinet submissions and made additional submissions on key issues. This ensured the senior ministry took Aboriginal perspectives into account.

The Howard government abolished ATSIC in 2004, amid controversy. The bureaucrats were folded into mainstream departments, and the government abandoned the representative function entirely.

How much has changed?

Cabinet records from this period reveal some constants in Indigenous politics. Indigenous interests confront many powerful adversaries – including state and territory governments, and industries with interests in Aboriginal land.

Proposed expenditure tackling Indigenous social and economic disadvantage remains subject to the hard-headed decision-makers inside cabinet representing Finance and Treasury.

Finally, the task of tackling Indigenous priorities is even more challenging today, given the absence of ATSIC or some other representative body engaging in cabinet-level co-ordination and negotiation.

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