Legislating Away Indigenous Rights

From 1996 onwards the former Howard government initiated a number of major reforms to law relating to Indigenous Australians, overhauling native title and Indigenous heritage protection legislation to balance competing economic interests, establishing new funding and accountability regimes and corporation structures to govern Indigenous organisations through the passing of Aboriginal and Torres Strait Islanders Corporations legislation, and removing mechanisms of self-determination by, for example, the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) and changes to the Aboriginal Land Rights (Northern Territory) legislation. The paper gives consideration to the former Howard government's law reform agenda in relation to Indigenous issues and proposes that the different arguments presented to justify this agenda interrelate and operate to implement a particular model of neo-liberal governance. It explores how the deployment of neo-liberal rationalities operated to justify what I refer to as the legislating away of Indigenous rights. The paper commences as a historical, political and reflective piece, stemming from my own experience working for a small legal policy team within the Department of the Prime Minister and Cabinet responsible for drafting the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 under the Howard government. It then moves to a critique of neo-liberal rationalities underpinning reforms to Indigenous heritage protection legislation, as well as reforms to federal law relating to Indigenous Australians more generally.