The culture wars and petty feuds obscure the seriousness of indigenous education

The recent public spat between Larissa Behrendt and Bess Price was deeply unfortunate. But it has brought the public's attention to a fracture within the Aboriginal community in relation to the Northern Territory Intervention. By virtue of Behrendt's appointment to a committee to review Indigenous higher education it also indirectly brought that subject to national prominence. Regrettably, the public's focus on those important issues is now being sidelined by (yet) another outbreak of the culture wars between the left and the right.

Behrendt's comments on Twitter in relation to Bess Price obviously cannot be defended. In her appearance on the ABC's Q &A program Price came across as sincere and informed. She spoke directly about Indigenous disadvantage in rural and remote communities and she identified a number of the benefits provided by the Northern Territory Intervention. Whilst many may disagree with Price's views on the Intervention it was inappropriate for Behrendt to then compare Price's Q & A appearance to an obscene subplot on a television program that she was watching. But Behrendt has since apologised.

There have been suggestions from some quarters that Behrendt should be removed from her appointment to the Indigenous Higher Education Committee. This is quite an over-reaction. Unless it can actually be shown that Behrendt would be biased against Aboriginals from rural and remote areas there are no legitimate grounds for her removal from the Committee. Her seeming dislike for an advocate of the Intervention, no matter how distastefully expressed, does not on its own amount to bias.

Over the past ten days The Australian has run a series of articles that have generally impugned Professor Behrendt. The Australian has published pieces by Marcia Langton,  Chris Kenny and Professor Gary Johns which have been critical of Behrendt and her Twitter remark. Miranda Devine also criticised Behrendt in the Herald Sun.

It is difficult to see what else Behrendt could have done other than to apologise – which she did.

Though remarks on Twitter are obviously public, it is worth pointing out that the original audience for the tweet was quite limited.

The Australian has also reported that Behrendt once sought to prevent a newsletter from publishing the work of Hannah McGlade.

Taking these two things into account it should be apparent that if all Behrendt has actually done wrong is to send one narky email and make one obnoxious Twitter remark, then she hasn't done anything really scandalous by the standards of Australian public life.

A recent article in The Australian, written by Keith Windschuttle, effectively questions Behrendt's credentials in relation to her studies at Harvard University. Windschuttle also points out that the late Roberta Sykes was important in 'showing her how she could also get into Harvard.' Never mind that there are in fact a large number of books written on that exact subject or that Harvard is a private university and is entitled to make its own admission decisions.

Behrendt has thus far maintained a fairly dignified silence on the matter.

It is very unclear as to why this whole saga has warranted such a prolonged degree of coverage from a national newspaper.

But Behrendt has had her defenders. Michael Brull wrote an opinion piece on the ABC's website The Drum in which he criticized Bess Price, the Bennelong Society and the Intervention.

In response Gary Johns wrote a piece on The Drum in which he attacked human rights (?!) and the political views of Brull and Behrendt.

Brull's piece suggested that Bess Price and her views on the Intervention are compromised because she once received an award from the Bennelong Society. Brull pointed out that both Philip Ruddock and Kevin Andrews have presented awards for the Society. Both Ruddock and Andrews have checkered records on controversial matters. Ruddock's pursuit of tough conditions for asylum seekers actually cost the Australian taxpayer quite a bit of money and also resulted in some compensation litigation. Andrews' handling of the Haneef affair and his comments on Sudanese refugees left a lot to be desired.

But it is hard to see how Bess Price's standing could be diminished by association. Her work and commentary surely extends beyond the mere receipt of an award from a public think tank.

Brull also attacked the basis for the Intervention by highlighting some of the flaws in the way in which it has been carried out.

Professor Gary Johns then responded to Brull and proceeded to attack the Racial Discrimination Act. Johns wrote that the RDA was in force at the time when the circumstances of violent crime that gave rise to the Intervention were occurring. Professor Johns seems to misunderstand the application of the RDA. The RDA can provide a complainant with an avenue of recourse where they have been subjected to racial discrimination in relation to matters of employment, housing or public services and the like or in relation to racial vilification. The RDA was never intended to be a crime-fighting tool.

Professor Johns then questioned where the race discrimination commissioners were during the events that lead to the Intervention. The current Race Discrimination Commissioner, Graham Innes, is a very remarkable and highly intelligent man and there have been several capable Commissioners in the past. But fighting crime is not within the remit of the Commissioner. A cursory glance at either the RDA or the Australian Human Rights Commission Act 1986 (Cth) would make that obvious.

Brull then responded to John's article with a piece that titled 'always was, always will be Aboriginal land.' Presumably, he was referring to Australia. If so, whilst one can empathize with his sentiments it is worth pointing out that the High Court of Australia clearly held in the 1992 decision of Mabo v Queensland that the Crown had acquired both sovereignty and radical title to all the land of Australia at the time of colonization.

Brull again criticised the Intervention and cited a Report by Australian Indigenous Doctors Association as evidence that the Intervention was failing. The Report does warn that the benefits of the Intervention may be undermined by risks to psychological health associated with the policies of compulsory income management and external leadership and control. But the AIDA did concede that the Intervention would likely lead to gains in physical health within Indigenous communities. Moreover, the risks identified by the AIDA are potential risks.

Brull also quoted excerpts from a study by Paddy Gibson, researcher at Jumbunna House at UTS to criticise the Intervention. However, Gibson very clearly states that he is opposed to the Intervention. That at least casts doubt on the neutrality of the study.

Another piece written by Jeff Sparrow puts the whole matter into perspective. In essence, it has been a storm in a teacup with competing pieces from The Australian and the ABC.

At least the most recent and best piece on the whole saga, written by Noel Pearson, is both thoughtful and conciliatory.

At different turns it has been both amusing and bemusing.

But the petty feuding between the left and right obscures the seriousness of the issues raised by the Intervention and the issue of Indigenous participation in higher education. It is sad that the public's attention should be drawn to trivial squabbles and rather flawed opinion pieces and away from the more serious topics at hand.

Whilst, I am not an expert on Indigenous affairs, from a law and policy perspective I would offer the following observations on the Intervention.

First, the need for the Intervention has not been undermined by the flaws in its implementation. The circumstances which gave rise to the need for the Intervention were extreme and as such some action was warranted. As far as I am aware no other community in Australia is subject to the type of circumstances that have been raised in relation to remote and rural Indigenous communities. Even allowing for the fact that not every Indigenous community in the affected area is the same, the weight of evidence in 2007 suggested the need for an intervention. That the Intervention may have been poorly managed by the Rudd-Gillard Government does not invalidate the need for the Intervention in the first instance. It is wrong to conflate the need for a particular policy with the problems raised by the poor execution of a policy.

It is worth bearing in mind that every policy solution, designed to combat a particular problem, will have unintended or unforeseen consequences. This is the reality of applying public policy programs in a dynamic environment made up of numerous individuals and stakeholders. The skill is to monitor the implementation of the program and to identify problems and to respond to them.

Given the poor handling of the 'Education' Revolution and the Insulation scheme it is not entirely surprising that the Government's handling of a complex problem like the Intervention has been imperfect.

Second, placing a fetter on the use of welfare money through the Basics Card is not inappropriate. Welfare money is not individual income in the normal sense of the word. Welfare monies are funds provided by the entire community through the Government to those individuals who are in need. The notion of a social contract informs this process wherein the community is willing to subsidise an individual during a period in which they are unable to obtain a sustainable income on their own. It is not inappropriate that constraints might be placed on the manner in which welfare monies are spent by their recipients. Spending welfare money on alcohol is likely to be inconsistent with the public purpose that lies behind providing that money.

Third, the Racial Discrimination Act can be validly suspended. Further, discrimination can be both positive and negative. For example, affirmative action can be a form of positive racial discrimination. It does depend upon your point of view, but the suspension of the RDA can be seen as an act of positive discrimination in favour of those vulnerable community members affected by violence and poverty. That is, by limiting the rights of some members of Indigenous communities the scheme seeks to advance the rights of other Indigenous people by ameliorating conditions of violence and poverty. Even if the suspension of the RDA is seen as an act of negative discrimination it has been done in the pursuit of a legitimate policy objective.

When Mal Brough first spoke of the Intervention he did so with a very genuine concern for those Indigenous Australians who were affected by the conditions he had seen and who were mentioned in the Little Children are Sacred Report. No statement or action by the Rudd-Gillard Government suggests that they do not share that genuine concern. Regardless of how poorly or otherwise the Intervention has been carried out it is clear that the RDA was not suspended for malicious or improper reasons.

The Higher Education Review will no doubt look at the depth of Indigenous disadvantage in education.

Given that a university degree can very often be a pathway into a middle class lifestyle and a sound career it is very tragic that Indigenous Australians are poorly represented in higher education. No doubt the review will countenance various measures of affirmative action to get Indigenous Australians into higher education. Affirmative action measures are very appropriate in this context.

I doubt very much that any Australian would begrudge those Indigenous peoples affected by the Intervention access to greater levels of education support. Education is vital to eradicating poverty and to stabilizing communities.

But it should be borne in mind by the Committee that access to higher education is only meaningful if the students in question have had access to a strong primary and secondary education.

Similarly, care needs to be taken with affirmative action policies.

If we are to pursue a stronger policy of affirmative action designed to get Indigenous Australians into higher education then that program needs to be targeted appropriately at the people most in need of help. One of the most likely sources of community division on this issue would be the receipt of assistance by people who are not genuinely disadvantaged and the failure to reach those who are seriously disadvantaged.

Affirmative action policies are very contentious. They have generated a considerable amount of controversy in the United States. In that regard nothing is more damaging to the policy of affirmative action than the sight of a qualified candidate sitting on the sidelines having failed to gain entry to a course of study due to quotas.

The matter that arose out of the Bolt case was the suggestion that some individuals with a marginal Aboriginal identity were using that heritage to seek professional and financial advantage. This is a very delicate subject. The legacy of colonization and inter-marriage are that there are a number of Australians with a part Aboriginal heritage.

But in the present context there does need to be a gatekeeper policy with all affirmative action measures, to ensure that the policy reaches those who need it most.

Allowing candidates to self identify as Indigenous in order to receive government assistance is inappropriate. Whilst self-identifying as Indigenous might be fine in a social or political context, it is less appropriate where access to public monies and professional appointments are concerned. In an affirmative action context it is worth considering that if you apply for a benefit under a program and you have an ethnic heritage whereby you belong to both ethnic groups X and Y, where X is the disadvantaged group and where Y is socially and economically privileged, but you identify as belonging only to group X, that you might in fact be misleading the decision-makers who are administering the program. Whether this would be a serious wrong would depend upon the specific circumstances of the matter. But it does raise a question of ethics.

At the very least where a policy of assistance or affirmative action is in place a candidate for assistance should be able to show both a genuine link via ethnicity to the affected community and a genuine economic need.

That said, Aboriginality is a complex topic and there is little to be gained by looking backwards and casting aspersions on others. The key issues now are to tailor the Intervention so that it works effectively and to open the doors of higher education to more Indigenous candidates. The issues raised here are very difficult and delicate. They are not greatly helped by the cultural wars amongst the 'elite'.