A revival meeting at the Espy

Labor’s new National Cultural Policy

by Jennifer Mills

Policy announcements are a peculiar kind of theatre, and Labor’s launch of its new five-year arts plan, Revive, was a strong example of the genre. It was held at Melbourne’s iconic Espy in St Kilda, a venue where arts audiences were treated to words of encouragement from Minister Tony Burke on his speaking tour to spruik the submissions process in 2022, and where ‘DJ Albo’ once entertained a modest crowd.

I watched it on the livestream, along with more than sixteen hundred others from around the country. Onscreen, the name Revive was superimposed on an ochre horizon under a pale sky. Someone in the design department understood just how parched the Australian arts and culture sector had been feeling after a decade of cuts and compounding crises.

Like a big-ticket book launch, numerous speakers and performers were invited to pad out the announceable material (concrete policy changes and budget figures). Opera singer and composer Deborah Cheetham let her voice soar. There was a poetry reading by Sarah Holland-Batt. Music and literature were a clear focus. This was fitting, given that these two areas have been worst served in recent years. With scarce government funding increasingly skewed to protected major performing arts companies such as The Australian Ballet and Opera Australia, and to the bare survival of our biggest institutions, music and literature have often been left to the private sector, with little incentive for big publishers to support local content. Australia Council CEO Adrian Collette has called literature ‘our most under-funded art form’.

For many years, the arts has been a site of ideological combat. Each incoming federal government has trampled on the previous government’s approach. Creative Australia, the last attempt at an arts and culture policy, was announced in 2013 after a long and arduous process of consultation, but was torn up within months when Tony Abbott took office. Creative Nation, from 1994, fared little better, lasting only two years before it was shredded.

Revive is a five-year plan from a government that clearly expects to remain in power for at least two terms. It is also a government that is willing to allow arts and culture to take centre stage for a moment, with a policy launch from the PM himself –introduced, of course, as ‘the artist formerly known as DJ Albo’.

Labor likes to celebrate its legacy. There were numerous references to Gough Whitlam’s vision for the arts, the contribution of Paul Keating’s ministry and Creative Nation, and Creative Australia

(Simon Crean, arts minister at the time, was in the audience). Albanese was not shy in referring to the past ten years as ‘a decade in which opportunity wasn’t so much missed as thrown away’, characterising the Coalition’s approach as one of ‘calculated neglect’.

The prime minister skipped the internally divisive parts of that legacy, describing his own era as ‘a political culture of building common ground’. Tellingly, he also explicitly sought to recruit artists and arts workers to the Voice campaign, perhaps the first great test of his leadership. In doing so, he acknowledged the power of arts and culture to strengthen positive messaging and national unity. Artists’ fortunes might rise and fall with the whims of governments, but they need us at least as much as we need them.

Burke, a seasoned performer and a charming speaker, let the emotional affect show, as Albanese often does. He, too, made claims of unity, of ‘the culture wars disappearing in cultural policy’. But Revive is a firmly Labor policy, and the arts remains intensely partisan. Burke’s personal passion for the arts is both good and bad for a sector that has been traumatised by successive ministerial whims. Music and literature have been neglected, but they may also be getting more attention simply because Burke enjoys them. The announcement that Australia will appoint a poet laureate from 2025 was clearly overdue, but it was also performative: an emotive, highly visible gesture that will pay dividends in good optics.

For at least a decade, arts advocates have had to choose between two forms of value: the warm, fuzzy aura of intangible social benefit and the cold hard numbers of economic worth. Burke made it clear that these two facets should not be in competition. He emphasised both cultural value and economic contribution. ‘You touch our hearts and you are a $17 billion industry,’ he told the room, emphasising the conjunction. ‘You are entertaining and you are essential.’ As the poet did in Holland-Batt’s moving poem, ‘The Gift’, I hated myself for noticing Burke’s poetry, for enjoying and being moved by the repetitive phrasing. There is such a thirst for statements like Albanese’s ‘arts jobs are real jobs’, or Burke’s ‘you are essential workers’, you could almost hear the dust hiss as they landed. Intangible things do matter: worth, care, value, meaning. But you can’t live on that stuff alone.

Apolicy launch might be performance art, but policy is also architecture. Fortunately, Revive goes some way to constructing a much-needed material transformation in the arts. Restoring funding to pre-2013 levels to the rebrand- ed Creative Australia (the Australia Council name will remain only in reference to the Board) is a great start, though, as Alison Croggon has pointed out, the new annual budget of around $250 million will remain slightly lower than the $220 million budget of 2013 when adjusted for inflation. Much more money is needed to bring a sense of security to the sector’s long-suffering practitioners and small-to-medium ecosystem. And more is expected from the new organisation, with four new bodies to be set up under its umbrella: a First Nations body to ensure autonomy and resourcing of First Nations arts; a Centre for Arts and Entertainment Workplaces, which will manage pay rates, codes of conduct, and workplace safety; Music Australia, to be set up this year to administer funding and advocate for musicians and the music industry; and Writers Australia. There is $19.3 million earmarked for Writers Australia. This represents a welcome allocation, with little detail about distribution. Nerves are frayed by previous failures like the Book Council of Australia and Writing Australia. Scheduling Writers Australia’s implementation to coincide with the next federal election runs the risk of inflicting another self-destructing gift on the literary sector. However, lasting change takes time, and Burke has promised further consultation.

For published writers, the only immediate change to our incomes is likely to come from the introduction of Digital Lending Rights (DLR), which will expand the existing Lending Rights scheme to include eBook lending from public libraries. DLR is funded to the tune of $12.9 million for the first four years and $3.8 million a year thereafter. DLR is the low-hanging fruit that has taken many years to pluck, a result of long advocacy from the Australian Society of Authors and many others, with strong support from libraries and the Australian Library and Information Association (ALIA). According to the ASA’s latest report, authors average $18,200 a year from their creative work; lending rights contribute ten to twenty per cent of this, and currently provide some income to more than 10,000 writers. EBooks can stay in circulation longer than paper books and are accessible to a more diverse range of readers. With eBook lending accounting for an increasing proportion of library loans, it is past time that the scheme caught up with changing readerly habits.

Taken together, DLR and Writers Australia are the two most significant investments in Australian literature in decades. Literature has been under-served by the Australia Council, often bearing the brunt of funding cuts from which major organisations and other sectors have been protected. There is little institutional support to promote reading or Australian writing. The Australia Council currently spends less than seven per cent of its overall funding budget on literature, with only $1.8 million in project grants distributed to just forty-five authors and organisations last year. The scarcity has resulted in some shocking decisions, such as the notorious 2021–24 funding round, when only one literary journal received funding (it wasn’t ABR).

In the 1970s and early 1980s, with a population half the size, there were a hundred such grants a year, many of them fellowships equivalent to the average wage. Labor has a long way to go before it approaches Gough Whitlam’s legacy.

Two other changes will have an impact on writers’ lives, eventually. The first is the promise of conditional funding on fair pay and other conditions, with pay rates for artists and writers to form part of the Review of Modern Awards later this year. The second is a gesture towards something that was not mentioned in Creative Australia: the consideration of creative work under mutual obligation, potentially making practising artists and writers eligible for unemployment benefits.

The latter is a mere suggestion at present (with a promise to ‘develop information’ about the idea), but the former is a significant and welcome shift in approach, with the new Centre for

Arts and Entertainment Workplaces set up to administer fair pay, minimum rates, and workplace safety. The Centre will provide advice, develop codes of conduct, and ‘refer matters to the relevant authorities’ – presumably with an overhaul to Fair Work also in sight. This will include the adoption of the National Association for the Visual Arts (NAVA) code of practice in the visual arts, and consideration of ASA and Media, Entertainment and Arts Alliance (MEAA) freelance rates. For the first time, we have a commitment to making arts funding conditional on fair pay.

Conditional funding will be transformative – if it can be achieved. At present, impoverishment is the norm in literature, a field that relies heavily on unpaid and underpaid work. If every publication that receives funding has to pay industry standard rates, total funding will have to rise significantly. It is understandable, then, that Writers Australia will not be established for two years; there is much detail to consider, and organisational budgets will need time to catch up.

Writers Australia will also be responsible for directly funding writers, conducting research and advocacy, determining the Prime Minister’s Literary Awards (no longer subject to prime ministerial intervention), and appointing the poet laureate. Like Creative Australia as a whole, it will be expected to work across public, commercial, and philanthropic streams. It will have to balance the demands of publishers, authors, readers, and institutions fairly; there will be questions about its independence and the power differentials inherent in these relationships. Structural change is expensive, so it’s unlikely that there will be a significant increase in grant funding to writers in the short term.

When Revive was announced, many arts organisations were finalising their expressions of interest for the 2025–28 funding round. Budgets may not have been affected by the proposed changes, but the eternal flux of policy is unsettling, and even good news can be destabilising. When the relief and celebration die down, few in the arts will find that they can muster the confidence that Labor seems to have in its own longevity.

To have a policy of any kind so soon after the election is encouraging, and this one has more detail than many were expecting. It is hoped that the May Budget will bring further relief and greater detail, with the National Library’s Trove and the National Archives under particular threat, both essential resources for the creation and preservation of literary works. Importantly, Revive begins with an understanding of the inherent value of arts and culture. It acknowledges that ‘culture permeates every facet of the human activities and economies which it is government’s role to enable, manage, and regulate’, and reiterates the need for a whole-of-government approach.

In an encouraging attempt to break what has become a mendicant mindset in the arts, Burke left his audience not with an expectation of gratitude, but with a carefully pitched invitation to make a contribution. ‘Over to you, typewriters loaded, a blank page ready to write the next chapter,’ he said, sounding like someone’s dad at a graduation dinner. Missy Higgins sang the outro: a stirring version of The Triffids’ ‘Wide Open Road’.

Indigenous Studies

Reckoning with the truth

Indigenous sovereignty and Australian law

David Kearns

Black Lives, White Law: Locked up and locked out in Australia

by Russell Marks La Trobe University Press

$34.99 pb, 360 pp

Brendan Thoms was born in New Zealand in 1988. He lived permanently in Australia from 1994 but never applied for Australian citizenship. Thoms had long-standing familial connections to Australia. His maternal great-great-grandmother, grandmother, and mother were all born in Queensland. They were Australian citizens and recognised members of the Gungarri People. Thoms’s brother had also been living in Australia since 1994, while his sister was born in Queensland in 1995. She was a citizen and, like Thoms, identified and was recognised as Gungarri.

Daniel Love was slightly older. Born in 1979 in Papua New Guinea, Love lived in Australia from 1984. Like Thoms, although not a citizen, Love had close familial connections in Australia. His paternal great-grandparents were born in Queensland and were descendants of First Nations people. Love’s paternal grandfather was born in Queensland and served during World War II in the Australian Military Forces in the Middle East, New Guinea, and Papua, settling in Papua following the war, where he met Love’s paternal grandmother. Papua was, at the time, under Australian authority, and she became an Australian citizen in 1961. Love’s father, too, was a citizen, as was his sister. Love identified as a member of the Kamilaroi People, and was recognised as a member by one Elder.

Thoms had not left Australia since 2003, nor had Love since 1985, but in 2018 both were convicted of assault occasioning bodily harm, receiving eighteen- and twelve-month prison sentences,

It was a calculated blend of nostalgia and possibility. Albanese had his picture taken with Higgins, then turned for a selfie with the crowd. The photos were up on his socials within the hour, and we were left blinking in a sudden stillness, bodies still braced against the wind. g respectively. Section 501(3A) of the Migration Act 1958 required that the then Minister for Home Affairs, Peter Dutton, cancel the visa of anyone sentenced to imprisonment for twelve months or longer, triggering their removal from Australia. Thoms and Love appealed to the High Court, arguing that the Mabo judgment recognised the ‘connection which Aboriginal people have with land and waters in Australia’, and accordingly had ‘recognised that Aboriginal persons “belong” to the land’.

Jennifer Mills’s latest novel, The Airways, was shortlisted for the Aurealis Awards and longlisted for the Miles Franklin Award in 2022. She is a current director of the Australian Society of Authors.

This article, one of a series of ABR commentaries addressing cultural and political subjects, was funded by the Copyright Agency’s Cultural Fund.

In international law, the status of non-citizen is generally considered coterminous with ‘alien’. But Thoms and Love contended that the relationship between First Nations people and land in Australia was incompatible with alienage; each was a ‘non-citizen, non-alien’, precluding their removal. To establish indigeneity, the plaintiffs proposed a test based on Justice Gerard Brennan’s Mabo judgment: Aboriginal or Torres Strait Islander descent; self-identification; and recognition by an Elder or person holding traditional authority.

The last of these criteria worried the High Court’s judges. For Chief Justice Susan Kiefel, in a statement echoed by Justices Stephen Gageler and Patrick Keane, determining legal status by reference to the authority of Elders was tantamount to ‘attribut[ing] sovereignty to Aboriginal groups’. Since Mabo, the judges claimed, Australian courts had consistently rejected Indigenous sovereignty. The High Court has, in fact, rejected it for even longer: in Coe v Commonwealth (1979), Justice Harry Gibbs held that ‘[t]he contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain’. Instead, as Chief Justice Murray Gleeson and Justices William Gummow and Kenneth Hayne put it in 2002: what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty … that is not permissible.

Judicial assertions of the Crown’s exclusive sovereignty and the concomitant denial of First Nations sovereignty provide the impetus for Russell Marks’s Black Lives, White Law: Locked up and locked out in Australia. In the past decade,

First Nations activists and scholars, including Professor of Law and Tanganekald and Meintangk woman Irene Watson, and Palawa activist and lawyer Michael Mansell, have asserted the importance of recognising First Nations people’s continuing sovereignty. Similarly, Teela Reid, a Wiradjuri and Wailwan lawyer and activist, has demanded that Australia ‘embark on a reckoning with the truth of its past’ through recognising the violence experienced by First Nations people and their unceded sovereignty.

Marks frames his contribution to this argument as a response to the over-representation of First Nations people in Australia’s prisons. As he writes, thirty-one years after the Royal Commission into Aboriginal Deaths in Custody sought to reduce First Nations people’s incarceration rate, Indigenous incarceration has increased colossally. As the Uluru Statement from the Heart put it, First Nations people in Australia ‘are the most incarcerated people on the planet’. Marks presents the statistical evidence:

If you’re an Indigenous man, you are now more than fifteen times more likely to be locked up than a man who isn’t Indigenous. If you’re an Indigenous woman, you’re more than twenty-one times more likely to be locked up than non-Indigenous women. Even more glaring are the disparities among children. In Western Australia, for instance, an Indigenous child is more than fifty times more likely to be locked up than a non-Indigenous kid.

Black Lives, White Laws argues that following the violent and illegal implementation of Crown sovereignty in Australia, settler Australia has subjected First Nations people to a criminal justice system that denies their sovereignty with devastating results. Marks presents his case in two parts. The first focuses on the historical implementation of criminal law jurisdiction over Indigenous people – the establishment of exclusive sovereignty. The second looks at the current practice of Australia’s criminal justice system, focusing on the Northern Territory, where Marks has worked as a defence lawyer for the North Australian Aboriginal Justice Agency (NAAJA).

For Marks, the key features of Australia’s criminal justice regime were established early: the asymmetrical governance of settlers and Australia’s first people in courts that practised ‘settler law’; and the denial of a parallel Indigenous legal system. Settlers tried for murdering First Nations people were typically acquitted on the basis that Indigenous people were not Crown subjects, as the defence counsel argued in the 1827 acquittal of Nathaniel Lowe. But crimes against settlers by First Nations people were punished with incarceration and execution.

Violence between First Nations people progressively came under settler jurisdiction through the nineteenth century. The standard justification was that Indigenous people were too backward to meet the threshold for sovereignty, and thus required governance by settler law. As Justice William Burton put it in R v Murrell (1836), ‘the various tribes have not attained … amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own’.

Courts gradually recognised the difficulties inherent in applying settler law to Indigenous people who rarely understood it, often didn’t speak English, and lived their lives predominantly in terms of the laws of their own communities. The solution, according to Marks, was the judicial maxim ‘sentence, but leniently’. Courts would make a symbolic show of sovereignty – the trial and conviction of the accused – before a performance of clemency: a suspended sentence, justified either because the crime was an act required under tribal law or would otherwise be punished under tribal law.

Sentence, but leniently was an imperfect solution, and it relied on an imperfect understanding of Indigenous law. Defence lawyers representing First Nations clients accused of sexual assault or domestic violence would often attempt to excuse the violence on the basis that Indigenous society was violently patriarchal. Courts accepted these claims. But as Marks points out, this ignored contrary evidence about First Nations cultures. According to Women’s Business: Report of the Aboriginal Women’s Task Force (1986), ‘settler courts’ punishments for very serious crimes like rape and murder were “significantly milder” than punishments offenders would receive under Aboriginal law’. Where violence occurred, First Nations women argued that Indigenous law was not to blame, but the introduction by settlers of ‘a standard of violence and a culture of abusing alcohol’.

The resulting backlash against lenient sentencing ignored this evidence. Instead, it began from the premise defence lawyers argued and courts accepted – Indigenous communities were inherently violent – and proceeded to justify the aggressive implementation of settler law. This backlash, ostensibly motivated by concerns over the safety of First Nations women and children at the hands of a violent Indigenous culture, is exemplified by the 2007 Northern Territory Emergency Response (NTER). But direct implementation of exclusive sovereignty hasn’t made First Nations women and children safer. It has locked them up. By 2017, the number of First Nations women imprisoned in the Northern Territory had tripled; for children it had doubled.

Marks draws a direct line between the logic of early cases such as R v Murrell and the NTER. Again, First Nations people in Australia were adjudged incapable of sovereignty. The result has been the implementation of a settler sovereignty expressed through a legal system that actively discriminates against the country’s first people. The criminal justice process remains a key front in the extension of this colonial regime across Australia; stereotypes of violent (or drunk, or drug-addicted) First Nations people are among the principal weapons in this cause.

The Royal Commission into Aboriginal Deaths in Custody recognised that the Australian history of Indigenous dispossession, removal, and forced assimilation was a key cause of the rate of incarceration of First Nations people. Among its proposals was self-determination. As Marks argues, empirical research demonstrates the human need to be self-determining. The more people perceive that they have some measure of control over their lives, the healthier they tend to be – and the less often they experience or perpetrate violence, self-harm, suicide, mental illness.

But First Nations people haven’t been given this opportunity. Instead, maximum sentences have been increased. The Northern Territory has implemented mandatory minimum sentences. Remand is used to induce guilty pleas. As Professor of Indigenous Health and Mununjali and South Sea Islander woman Chelsea Watego has argued, punitive responses to domestic violence and the expansion of definitions of domestic violence have resulted in skyrocketing convictions of Indigenous women. Traumatised children are sent to violent and authoritarian youth detention centres – when they aren’t sent to adult prisons. Public drunkenness laws allow police to lock up people on the basis that they appear drunk, regardless of whether they have consumed alcohol.

If this is intended to reduce incarceration, it is not working. The Northern Territory has the highest recidivism rate in Australia. As Marks points out, aggressive state intervention is likely responsible: research shows that ‘punishing an already traumatised person may induce more of the unwanted behaviour’. At the same time, police who have killed First Nations people are acquitted. Alice Springs judge Greg Borchers described one defendant as behaving ‘like a primitive person’ and accused a woman of participating in ‘that great Indigenous fashion of abrogating your parental responsibility’, but was found not to have committed serious judicial misconduct. In this context, organisations like NAAJA have a critical advocacy role, but Marks laments the organisation’s reluctance to use its power to speak out against injustice.

Concluding, Marks provides glimpses of an alternative future. The Uluru Statement from the Heart demands recognition of the unceded sovereignty of First Nations people in Australia. Australia’s reliance on incarceration is not ‘a fact of nature’ but a product of choice; First Nations legal systems have never used it. Alternatives to incarceration have positive effects. Marks concedes he doesn’t know the solution; Black Lives, White Law is pre-eminently a demonstration that ‘the status quo offers no solution’. But empowering First Nations people, respecting Indigenous law, and recognising that prison is not necessary, point towards a better future.

Though Marks does not discuss Love v Commonwealth; Thoms v Commonwealth (2020), the case appears to fit into his framework. First Nations men are convicted of crimes and respond by asserting their rights as members of Indigenous communities who have inhabited these lands for tens of thousands of years. They are confronted with a judiciary that denies their rights and asserts the exclusive sovereignty of a Crown that dispossessed them and whose law systematically discriminates against them. But Kiefel, Gageler, and Keane were in the minority; Love and Thoms won.

The majority judgments reveal an account of Australian law that complicates Marks’s story. They did not recognise First Nations sovereignty: their arguments were ‘directly contrary to accepting any notion of Indigenous sovereignty persisting after the assertion of sovereignty by the British Crown’. But they held that Indigenous rights could restrict Crown sovereignty. For Justice Virginia Bell, for example, although the power to determine and expel unlawful aliens ‘was an attribute of every sovereign state … the exercise of the sovereign power of this nation does not extend to the exclusion of the Indigenous inhabitants from the Australian community’. Love and Thoms, as First Nations people, could not be classified as aliens, and could not be removed from Australia. Indigenous rights, in this instance, trumped sovereign power.

Marks claims that ‘settler law doesn’t even recognise First Nations law’. But Love suggests that First Nations law may have more authority than he gives it, as rights attaching to indigeneity – a status determined in part by the authority of Elders –restricted the exercise of sovereignty. Indeed, though native title law does not involve direct recognition of Indigenous laws and customs, as Brennan put it in Mabo, it ‘has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’. In other words, native title is grounded on the continued observation of First Nations laws and customs.

Brennan himself conceded that sovereignty ‘carries the power to create and to extinguish private rights and interests in land’. But High Court judges have contemplated placing native title on a surer footing. In Coe, former Whitlam government attorneygeneral and High Court judge Lionel Murphy suggested that First Nations land rights could only be extinguished by paying compensation. In Mabo, Justices William Deane, Mary Gaudron, and John Toohey all argued that Indigenous consent or compensation was required to extinguish native title. Love’s restriction of sovereign power in the name of Indigenous rights represents both a continuation and an expansion of these earlier arguments.

Black Lives, White Law provides a scathing attack on the failures of Australia’s criminal justice system, highlighting how people from police to politicians have disenfranchised First Nations people, inflicting acute mental and physical suffering on them. But Marks’s treatment of ‘settler law’ as a monolithic institution that upholds a one-sided regime favouring the Crown’s exclusive sovereignty neglects how High Court judges have worked to curtail sovereignty in the name of Indigenous rights.

Marks defines sovereignty as the ‘the power to govern, to make laws, to set the rules about who’s in and who’s out and what happens here’. But Love shows that sovereignty in Australia does not always extend this far regarding First Nations people. If rights based on Indigenous laws and customs are potentially superior to sovereignty, then ‘sovereignty’ may not be the only form of legal authority. Sovereignty, like incarceration, is not natural. It is a term and practice of governing with its own history. In Australia, recent High Court developments have resulted in its reduction. If the use of incarceration is a choice, perhaps the focus on sovereignty is too. g

David Kearns is Lecturer in Legal History and Philosophy at the University of Queensland. His work focuses on the Australian reception of the common law.

This article, one of a series of ABR commentaries addressing cultural and political subjects, was funded by the Copyright Agency’s Cultural Fund.