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Posted August 05, 2016


I acknowledge the Gadigal people of the Eora nation and celebrate their elders past, present and emerging.

Given we are from Western Sydney and celebrating a Western Sydney Institution I also acknowledge the Darug nation and celebrate their elders.  We thank them for 40,000 years of stewardship of our country and, as alternative treasurer of Australia, I commit myself to the urgent national task of eradicating the scourge of indigenous disadvantage in Australia.

Chancellor, Vice Chancellor, Dean, Your Honours, Ladies and Gentlemen.  Thanks for the invitation to be guest speaker at your annual dinner.

I was happy to accept David’s invitation to be here as I’m always keen to support the important institution of Western Sydney University, including the Law School and the alumni.  Alumni are an important part of the fabric of any university but particularly I would argue for a relatively young university in the greater scheme of things.  Providing inspiration and intellectual nourishment to waves of fresh students, most of whom are the first in their family to attend university makes your role as Western Sydney University alumni particularly important.  You do it well and am more than happy to assist your endeavours in a small way by speaking to you tonight.

In my experience, graduates of the Western Sydney University are particularly passionate advocates of social justice, opportunity and the power of education. And that’s another reason why I was happy to accept your invitation tonight, because as Western Sydney kid who was the first in my family to attend university, we get each other.

There has been a debate this week about reforms which have seen many more young people attend university on recent years, with a call to scale back these reforms by a group of universities which does not include this one.  I won’t be engaging in that debate in detail tonight, other than to say I regard the argument between excellence and equity in tertiary education to be a completely false one.

WSU proves this point. 65% of the students at WSU are the first in their family to attend university.  15% of the students actually attain their entry through TAFE scores.  And WSU makes the grade under most metrics as being in the top 2 or 3% of universities in the world.

Equity and excellence is not a choice, they are essential partners in a successful system.

The university’s achievements, including but not limited to the success of the law and medical schools underlines the seriousness of the institution and its blending of a passion for equity and striving for excellence.

I’m biased when it comes to the law school: because my own lawyers are graduates. Robert Ishak, Bill Pertrovski and Carlos Jaramillo, the principals of William Roberts lawyers, are all alumni. I’ll embarrass them momentarily not only by revealing that they are my lawyers, which means they listen to all my interviews, debates and speeches with one ear on vetting my comments for any defamation action which might flow (although I think they were relieved when the incumbent treasurer replaced his predecessor, who had a greater penchant for commencing defamation action).

But also because they are a reminder of the power of education and the success of this Law School. Three boys from Western Sydney, two of whom started their own law firm and a third who joined it. A firm which is now eleven years later extremely well regarded, not to mention large, employing 55 people with offices in Sydney, Melbourne, Brisbane and Singapore. A result of their hard work and skills but, as they would acknowledge, built on the foundations provided by this law school.

I should mention, that the University alumni also had a milestone in recent weeks which went unremarked in the media but is worth mentioning tonight.  A couple of weeks ago, my friend and colleague Ed Husic became the first graduate of this university to join the Federal front bench of either political party, having become the first UWS graduate to join the Federal Parliament in 2010. Ed was chosen on his merits because of his ability.  But just as his elevation as the first person of Muslim faith to be a Minister or Shadow Minister in Federal politics is worthy of note so, it’s also a reminder that this university’s alumni have well and truly integrated into the front line of Australia’s professions and body politic of the nation and is worthy of note and celebration.

Well the instructions I got from David and Jonathon for tonight’s speech were, and I quote: “choose a topic of your liking. The guests are looking for something of intellectual interest but the address should not be overly turgid or academic given it is a light evening of social engagement”.  Well  there you go: stimulate intellectually but do so in a light hearted fashion.  I’m sure David will be quick to give me full and frank feedback afterwards that I was either not intellectually stimulating enough or not light enough!

But, be that as it may, I will talk tonight about a serious issue. A vital issue to us as a nation that can take pride in our egalitarianism and in fact in our decency as a nation. A matter that as graduates of a university that believes in equity and social mobility and as passionate believers in the power of education and mobility you are also interested in and a matter that as lovers of the law you can all as many of you do, play a role in.

Tonight, I want to talk about the status of our nation’s first peoples, our indigenous citizens, particularly two topics that I would have thought are of interest for a room full of lawyers: the interactions of indigenous Australians with the legal system and also the constitution.

This is important to us as believers in social justice and also Western Sydney residents.  Of course, while the issues of remote indigenous people are important, but in fact one-third of indigenous Australians live in major cities and Western Sydney is home to almost 2 per cent of Australia’s indigenous population.

I’ll assiduously avoid partisanship tonight, as is appropriate for a function such as this and a topic of this importance.  But I won’t be able to avoid politics, as politics is one of the methods by which long overdue advancement of indigenous equity can be achieved.

I’m speaking tonight as the Shadow Treasurer, with responsibility for funding programs and initiatives to improve social outcomes and an interest in ensuring that every Australian contributes to a benefits from our economy to the maximum possible capacity, but equally or perhaps even more importantly as a citizen, with a belief that we are diminished as nation until we comprehensively and determinedly tackle the scourge of indigenous disadvantage and rightfully recognise the first Australians in our national charter.

Just before I talk in detail, I do want to take a moment to acknowledge two fine Australians present who have both played an important role in promoting indigenous advancement.

I first came to know your chancellor Peter Shergold, when he was Australia’s most senior public servant as Secretary of the Department of Prime Minister and Cabinet and I was a young and fresh faced Opposition backbencher.  He was still PMC Secretary when I was a slightly older but still pretty fresh-faced junior Minister.

But even before then, Peter had made his contribution as CEO of the Aboriginal and Torres Strait Islander Commission and I’m sure his decision to accept the chancellorship of this university was guided in part by his ongoing belief in the power of opportunity for our most disadvantaged community.

And I’ve also come to know, admire and respect Danny Gilbert, the principal of Gilbert and Tobin, as a man of enormous integrity who has made and continues to make an important contribution to the cause of practical and real reconciliation.

One of the proudest moments in my public life was sitting a couple of metres away from but in full support of Kevin Rudd as he delivered the national apology to the stolen generations.  In my experience of big and important moments in Parliament, you usually don’t know how significant they are until after they have occurred. In this case, while we all knew the apology would be an important moment but not until I walked into the chamber and saw the galleries full of members of the stolen generation did sitting in quiet contemplation, waiting for the prime minister, did it strike me that it would be one of the most important moments in the parliamentary history of our country.

Kevin was determined that the apology be not only a moment of important symbolic healing, but of practical advancement for indigenous Australians.  His masterstroke was to set national closing the gap standards and set up the requirement that the prime minister of the day annually report to Parliament on their progress, a requirement that of course each of Kevin’s successors has kept in place.

Now those annual reports show mixed progress, disappointing in several areas.  Yet they are a vital measuring tool and spur to action. Of course, it is good that we are on track to meet the target of halving the mortality rate of indigenous children under five by 2018, and to halve the gap of indigenous Year 12 attainment by 2020.  Equally though, it is deeply  disappointing that we are not on track to close the gap in life expectancy by 2031, close the gap in school attendance by 2018 or to halve the gap in employment outcomes between indigenous and other Australians by 2018 and that we will only partially meet the target of halving the gap in reading, writing and numeracy achievements for children by 2018.

It is one thing to say that this outcome is unacceptable. It is completely another to say what we will do, as a nation, to fix it.

Tonight’s not the not for detailed policy prescriptions for each target (I was warned not to be turgid, after all) but I will make some observations.

Firstly, we need much better analysis of what has worked since 2008 and what is not working. In one sense, we have too much  data and in another, not enough. Let me explain.

There is a lot of duplication in closing the gap reporting and analysis, but much is falling through the cracks. There is the Prime Minister’s closing the gap report, the Productivity Commission’s Overcoming Indigenous Disadvantage Report and the National Indigenous Reform Agreement performance report. However, despite this reporting, there are considerable holes: for example there is no data collected annually for the targets for Year 12 attainment and employment.

Now I said before that I would not be partisan.  I recognise in particular the commitment and good will of former Prime Minister Abbott towards this important national undertaking.  However I am obliged to point out that the abolition in 2014 if the Closing the Gap Clearing House, which collated evidence on the effectiveness of all the closing the gap projects, was a backwards step.

As we continue to show little progress on too many of the targets, surely evaluating the effectiveness or lack thereof of programs and a willingness to act on that evidence is more important than ever.

But tonight I also want to talk about how we are failing in one area that is not a closing the gap target, but should be; indigenous incarceration rates.

Our country this fortnight has been shocked to the core by the revelations from the Northern Territory. I was perturbed when reading this week’s “Economist” magazine to turn the page and see a headline which simply read “Australia’s Abu-Graib”.

Now I am not going to comment on the political controversy surrounding the calling of the Royal Commission, but I am going to say, surely this episode can and must lead to a national effort to reduce indigenous incarceration rates.

At this dinner, which celebrates tertiary education and all the opportunities it opens: lets reflect on this point for a moment: a young indigenous male in Australia 2016  is more likely to go to gaol than university.  I repeat: more likely to go to gaol than uni.

I say simply: we cannot let that stand.

Some other facts.  Twenty five years ago, we had a Royal Commission into Aboriginal Deaths in Custody, as a result of a national scandal.  It made good recommendations which have made a difference. And yet today, as many young indigenous men die in gaol than when the Royal Commission was called.  Practices in gaol have improved but the sheer numbers of gaoled black men has increased meaning the total death rate is high.

And finally, an indigenous male in Australia is twenty-six times more likely than a non-indigenous male to go to prison.

Can we let this situation continue? I think we would all agree on the answer.

So let’s agree as a nation on a target of remove the gap in indigenous and non-indigenous incarceration rates by 2040 and lets have a much better evaluation of what is working and not working in achieving the other closing the gap targets.  Frankly, we don’t have time to waste on things which won’t work and we can’t put the over-representation of indigenous citizens in prison in the too hard basket any longer.

Another area in which, in my view we don’t have time to waste is recognition of our first peoples in our national charter: the Constitution.  And nor can we afford to get it wrong. 

It is now fast approaching too late to have a national referendum on indigenous recognition to coincide with the 50th anniversary of the 1967 indigenous referendum next May.  That is a pity. And a potential missed opportunity for the nation.

On indigenous recognition, we are so near yet so far.

Most people in the two major political parties support in-principle, indigenous recognition.

Public support is strong, as evinced by all major published polls.

And yet, we know the degree of difficulty is still high.

For this referendum to succeed, there needs to be a model that empowers and engages the indigenous community while gaining the support of the majority of Australians.

Indigenous leaders and the indigenous community rightly, in my view, insist that recognition must be more than just a simply symbolic act. They want recognition to mark a turning point in relations, and to include a guarantee that discriminatory acts and disadvantage will never again receive state sanction.

Constitutional conservatives on the other hand, while recognising the healing potential of an act of recognition, bristle against the insertion of an anti-racial discrimination clause in the constitution as the thin edge of the wedge and the start of an unacceptable march towards a bill of rights.

We all know the odds are stacked against referenda in Australia, with a success rate, or I should more accurately say a failure rate, which reminds us that strong bipartisan support and community consensus is an absolutely essential element for success before a referendum campaign begins.

You can’t rely on s referendum campaign to build the case, you have to consensus first.

That consensus does not yet exist.

But the good news is, that the good will exists that could yet see it emerge.

The recent volume of essays “The Forgotten People” by constitutional conservatives on the topic of constitutional recognition of indigenous Australians gave me heart and hope.  People of a conservative bent who might not naturally support such a provision but who have come to see its merits, indeed its necessity, and are finding innovative ways and suggestions to meet their concerns that would enable them to vote “yes” and recommend a “yes” vote.

This can be done.

But my point is this.  It will require a considerable national effort to reach the required consensus.

I would say, in as non-partisan fashion as I can muster tonight, that this is one the reasons that I would prefer the other issue: marriage equality, to be dealt with by the Parliament, not by plebiscite.

I have a number of reasons for arguing that Parliament should resolve this issue. But this is an important one. As nation, I believe we have what I would call a political bandwidth.

We have a certain capacity as a body politic to deal with a certain number of issues at any given time and I for one would hate to see our national political bandwidth exhausted and progress of these two important issues denied because of political decisions about process.

My preference would be that the Parliament do its job and deal with marriage equality and the people do what only they can do, and alter the constitution to give our first peoples the honoured place deserve in our most important national document.

I have talked about these two issues tonight (in a way that I hope has not been too turgid or academic) because they are challenges and opportunities not just for governments but for all of us. 

And you, as lawyers, who came from a university which has the promoting equity as an important part of its ethos and culture, can play an ongoing part in these debates which, I would argue should be much more prominent in our national political discourse than they are.

I said at the outset that in my experience, lawyers who received their education from Western Sydney University tend to be particularly passionate about social justice.

In many senses our biggest, our most urgent social justice priorities are finding ways to send more indigenous to people to university, not gaol and to give indigenous people the place of pride and recognition they deserve in our constitution.

Politicians and governments alone are not enough to do this.  It can’t happen without government, but it won’t happen with only government.

So my parting request tonight is this.  I hope I have raised some important issues with you that you find important.  I hope as jurists and intellectuals with a passion for social justice and equality, I have spurred perhaps some further consideration from you about what role it is you can play in this important national endeavour, whether it be lending some support in particular case to help an indigenous person in a difficult legal situation or making an intellectual contribution as to how we make indigenous recognition an urgent reality.

Thanks again for the invitation to be here tonight and to speak with you. Long may the Western Sydney University produced first-class law graduates, who will prosper, do well, and who will give back to our society.

Thank you very much. 

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