OPINION: Despair. In a word, this is the universal sentiment of the Aboriginal and Torres Strait Islander leaders I have spoken to about the state of Aboriginal policy in Australia. The gentleman of Australian politics, former Aboriginal affairs minister Fred Chaney, put it this way when he spoke to The Australian before Malcolm Turnbull’s coup: “I’m despairing, quite honestly. In a way I think the war is lost, because I think politicians are so f . . king stupid.” Make no bones about it, deep funding cuts and uncertainty about government plans have created, as Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda suggested, “one of the largest-scale ‘upheavals’ of Aboriginal and Torres Strait Islander affairs”.

A cursory glance at the papers wouldn’t suggest much is wrong. Cut-and-paste government press releases routinely masquerade as analysis; “bipartisanship” is the technical term for “move away, nothing to see here”; and a prime minister visiting an Aboriginal community for a few days – a seriously unremarkable thing for a prime minister in days gone by – is conflated with policy. There is a taxpayer-funded campaign to bestow settler recognition on Aboriginal and Torres Strait Islander peoples in the Constitution, while the purported subjects of that recognition are ambivalent, at best, because they are overwhelmed with what Marcia Langton has labelled “the most incompetent and damaging experiment in Indigenous Affairs in many decades”.

Meanwhile, oblivious to the greatest upheaval in decades, earnest folk retweet support for recognition while the manifestations of the ancient culture that such an act would reify face obliteration around the country.

Since being elected, the government has overhauled its policy approach to Aboriginal and Torres Strait Islander peoples’ affairs, creating the Indigenous Advancement Strategy. It’s a strategy that, according to Gooda, has a “lack of clarity” and is “causing widespread uncertainty and stress”. The “advancement” involves, among many things, the streamlining of some 150 programs into five streams. These five streams are not decided by Aboriginal people, mind you. The funding for specialist agencies is now siloed in a single department. The first application process for funding was a circus. The selection procedure, as only The Australian newspaper uncovered, was defined by lack of transparency, no clear guidelines and no empirical evaluation of what works. Consequently, important grassroots community initiatives had their funding reduced or received nothing.

June Oscar, a Bunuba woman who fought for alcohol restrictions in Fitzroy Crossing and was an early advocate of work on foetal alcohol spectrum disorder, said the “disastrous” policy had brought child welfare and family centres to the brink. The Secretariat of National Aboriginal and Islander Child Care deputy chairwoman, Geraldine Atkinson, told the Australian, “Our funding went into one huge big cauldron with the consequence that closures could impact on generations of Aboriginal children.” While Aboriginal children will bear the brunt of the cuts, that swelling cauldron became paydirt for not-for-profits and corporates with Reconciliation Action Plans, whose missionary zeal of “philanthrocapitalism” has replaced self-determination as the path to modernisation – and all on taxpayer coin. Noel Pearson refers to these beneficiaries as “parasitic”. He is rightly frustrated that, as he told the Australian, “most Australians have no idea that the greatest beneficiaries of investment of indigenous funds are non-indigenous organisations not based in the communities in whose name the expenditure has been justified by parliament”. Yet the narrative fed to the media was that those who were not funded were undeserving. If you were not funded, you were not effective. Simple.

Of course, no one is suggesting that Swimming Australia, Athletics Australia, the Australian Rugby Union, the Australian Football League and the New South Wales Rugby League, nor in fact the Australian Human Rights Commission, the Australian Sports Commission, the Bureau of Meteorology, CSIRO, the Australian Taxation Office, the federal departments of health, education and training, and the attorney-general’s office – which all received funding under the Indigenous Advancement Strategy – did not deserve their share of the cauldron. The salient issue here is whether the nation can disabuse itself of the notion that somehow the bulk of indigenous spending is being wasted away in Aboriginal communities. As Patrick Dodson told the Australian, “How do we expect to see growth, development and independence in the Aboriginal community if they are not part of how resources are being expended?”

I’m despairing, quite honestly. In a way I think the war is lost, because I think politicians are so f . . king stupid.

Meanwhile, oblivious to the greatest upheaval in decades, earnest folk retweet support for recognition while the manifestations of the ancient culture that such an act would reify face obliteration around the country. Sydneysiders routinely cycle and stroll across rock engravings because the protection framework is unenforced and underfunded, and vandalism – yes, vandalism – has become a threat to Aboriginal cultural sites nationwide.

Amendments to the Western Australian Aboriginal Heritage Act threaten ancient rock art, and the decision to protect or not lies in a narrow definition of “sacred” – devoted to a religious use but not subject to mythological belief. As WA silk Greg McIntyre SC put it to Radio National’s Background Briefing, “There has to be something which a whitefella can see.” More than 20 years after Mabo, a case he acted in, McIntyre laments, “You’d hope that we’d become a bit more sophisticated than that.”

Given that heritage is mostly the responsibility of states and territories, how does recognition of indigenous culture in the Constitution lead to its protection? Through the vibe? Herein lies two problems of the recognition project. First, what is the problem the nation is trying to fix? And second, how is the upbeat and hyperbolic narrative of “recognition” related to the chaotic public policy and the facts on the ground? Recognise, the taxpayer-funded campaign for constitutional change, recently went into a PR frenzy, demanding Prime Minister Turnbull announce a referendum council. The mainstream media, true to form, dutifully reprinted the accompanying polling and press releases. But in the community of the recognised? 

This has got to be worrying.

If we put to one side Tony Abbott’s description of the current policy framework as the “new paternalism”, having replaced self-determination in 2005, the present phase is also distinguished by “bipartisanship”. Bipartisanship has been essential for the Council of Australian Governments’ closing-the-gap agenda. Intuitively, bipartisanship makes sense – it promotes coherency and continuity. But it does not always sit well in a parliamentary liberal democracy, where institutions function on the mediation of disagreement. Bipartisanship has limited, and on occasions excluded, Aboriginal and Torres Strait Islander participation in policy development.

A handpicked group of indigenous and especially non-indigenous advisers cannot be a proxy for that input. This is not the farming sector, the business sector or the science sector. The first peoples of Australia are polities. Each polity comes from a very different and distinct geographical location. Each polity is at a different stage of economic development, often dependent on the pattern of killing that was the political economy of Australian settlement. There is no overarching narrative to provide powerless, impecunious communities with a sense of direction (or hope) from one government to the next. Recognition is not that narrative, although it could be. But in the absence of an attendant framework providing for participation in and scrutiny of decision-making between ballot boxes, it is all gesture politics.

The exclusion of Aboriginal polities from decision-making and the alarming levels of unfreedom that define communities have, however, animated complex and hard-headed proposals for structural reform. The 2011 expert panel recommendation for a racial non-discrimination clause in the Constitution is one of those. Australia’s first Aboriginal silk, Tony McAvoy SC, has developed a complex proposal for settlement between the first nations and the Australian governments. It acknowledges and settles past grievances, and makes provision for appropriate engagement in legislative and administrative decisions and suitable levels of self-determination. Voicelessness and despair have animated other models. One example is the Empowered Communities model, developed by leaders from eight regions across the country to increase autonomy in communities – but this is unsurprisingly resisted by the bureaucracy.

The despair and voicelessness are being channelled into clever and thoughtful law reform ideas, which the state has not been prepared to countenance.

Speaking on constitutional reform in the 2014 Nugget Coombs Memorial Lecture, Marion Scrymgour, Australia’s first indigenous female minister, argued for a “special advisory body made up of Indigenous representatives” that would have input into government decisions affecting Aboriginal people. Similarly, in his Quarterly Essay ‘A Rightful Place’, Noel Pearson argued that effective recognition means giving indigenous peoples a better say in processes with respect to Aboriginal and Torres Strait Islander affairs. Pearson’s concrete proposal for constitutional reform, aimed at formalising the participation of Australia’s 3% indigenous population in parliamentary processes, has had some of the best constitutional minds provide critical advice and suggest improvements on crafting and execution. Yet media commentators dismiss it outright, without any analysis, as too complex (a truism, one would think, when it comes to constitutional law). But the media did the same with the racial non-discrimination clause. Not even the bare minimum: Why has this proposal emerged? What is it that Aboriginal and Torres Strait Islander peoples are trying to say about our democratic system?

The despair and voicelessness are being channelled into clever and thoughtful law reform ideas, which the state has not been prepared to countenance. June Oscar nailed it in regard to funding: “While we are expected to meet every compliance requirement, how do we ensure equal accountability on the part of this government?” And this is it in a nutshell. This is the kind of meaty, hard-headed, sophisticated debate the Aboriginal community wants directly with the Australian community. We are not seeking recognition. We are seeking more. We are seeking formal, institutionalised safeguards and the right to be consulted, and to participate actively in decision-making.

Instead, in the place of serious law and policy debates, the polity has adopted contrived rituals of forced attention: a low-hanging hook to sling its hat on. Recognition risks becoming this. Some recognition is better than no recognition, we are told. Or worse, that symbolism is substantive reform, or that any change to the Constitution is more than symbolic; as if the natives aren’t well attuned to settler semantics. When we push back, saying we are seeking reform, not non-reform, something transformative, not decorative, we are described as ambitious; the blacks are taking a hard line. They, on the other hand, routinely and unselfconsciously describe themselves as modest, considered, conservative. The presupposition in the mainstream recognition conversation, that this was only ever about symbolism, is erroneous. It is restraining any sophisticated public debate.

Most of the mob are waiting on a model before they can say which way they would vote. In fairness, this is a position any reasonable person would take before forming an opinion. The uncertainty alone distinguishes this process from the unanimity of 1967. There are a number of camps: a principled-resistance camp, a resistance-to-anything camp, a wait-and-see-camp, a not-yet camp. It is certain that the no-referendum option will also be on the table.

The meeting of 40 Aboriginal and Torres Strait Islander leaders at Kirribilli House last July reflected what is arguably the indigenous middle ground; what symbolism and minimalism constitute. A model that provides only preambular recognition, deletes section 25 (provision for disqualification of races from voting) and moderates the race power does not go far enough, and would not be acceptable to Aboriginal and Torres Strait Islander peoples.

A fourth deliberative process in five years is lined up. The recognised are reduced to the stakeholder position, feeding their routinely unheard aspirations through another entity outsourced with the task of deciding that which the parliament should really resolve. The downside of retrofitting recognition in the world’s most rigid constitution is, after all, the unavoidable sign-off by the masses rather than a negotiated settlement with the Crown.

When we push back, saying we are seeking reform, not non-reform, something transformative, not decorative, we are described as ambitious; the blacks are taking a hard line.

In 2011, I was part of a group that undertook comprehensive consultations across the continent, the likes of which will not be taken again. Australians told us that they did not want tokenism. Australians wanted something that would change people’s lives. I still fervently believe this sentiment exists. It may be transmuted by the time the next process is concluded, as Australians’ instinct for no bullshit and intuition for structural reform is tamed by the simple, the modest, the conservative. No change dressed up as change. The design of this recognition process became incongruent long ago, probably at the moment leaders became committed to being committed. The process has reduced the Australian people in all their colour and texture to a one-dimensional portrait, based on eight referendum successes, the last being almost 40 years ago, in 1977. We are much more than this. Unless something radical is done to reverse the beige path we are treading down, the process will come to a completely unsatisfying conclusion. Still, there is renewed hope among the community that Prime Minister Turnbull, a lawyer, a referendum veteran and a big-picture leader, will exercise leadership and make it more about the reform and less about the sell. At the moment it’s being treated as a numbers game and, as the numbers men have been saying, you do not need the Aboriginal vote to win a referendum. That, my friends, is no basis for reconciliation.

Megan Davis is a Professor of Law at UNSW. 

This opinion piece was first published in The Monthly.