Constitutional Recognition of Aboriginal & Torres Strait Islanders
The Need
I believe it is a moral, ethical, and lawful imperative that Aborigines & Torres Strait
Islanders be given Constitutional recognition. Indeed, the declaration of Australia as
terra nullius was not only unlawful but shameful.
We must make amends for this shameful beginning and take responsibility for the
harm, particularly the trans-generational psychological harm that must exist because
that whole race of people was initially treated as if they didn’t exist, and then as if
they were somehow so inferior that they were unworthy of being treated like human
beings.
Because of the need to right this immoral, unethical and unlawful wrong, it makes no
difference how people feel about the Aborigines and Torres Strait Islanders of today.
Therefore it is important to maintain the focus of the issue of Constitutional
Recognition and not let the debate become sidelined by people’s emotional responses
to the problems we are faced with today regarding Aboriginal & Torres Strait Islander
issues.
These issues are very important and as a nation we need to care for all our people
equally. Perhaps these issues exist because of the wrongs in the past, and perhaps
Constitutional recognition will be the key to turning things around by allowing
psychological healing to begin, and thus allowing our Indigenous Australians, as a
people, to feel worthy and capable of healing themselves. However, because it is
such a difficult process to change the Constitution it will be essential to keep issues
separate in terms of the ways in which they need to be dealt with.
I read a local newspaper article1 recently about a forum on this issue which was held
locally, where an Aboriginal woman, Jenny Smith, made three very significant points:
1. That it was her experience that the 1967 Referendum led to the incorrect
understanding in the community that the 1967 Referendum actually gave
Constitutional recognition to Indigenous Australians, which raises the issue of
informed debate.
2. Again it was her experience, that after that referendum the racism was worse,
which raises the issue of lawful equality versus substantive equality.
3. That her biggest fear was for a referendum on the issue of Constitutional
recognition to be unsuccessful, which raises the issue of the framing of
referendum questions, community awareness and unbiased education, and
issue of the “cultural myth” that referendums always say “no”.
At that same forum Rob Oakeshott MP raised the need to repeal or amend s 51(xxvi)
of the Constitution, and to repeal s 25. There is no doubt in my mind that these
sections need attention and personally think they serve no useful purpose and should
be repealed.
1
The Northern Rivers Echo, 1 September 2011, Vol. 17 No. 35 p1.
Informed Debate and Community Education
Clearly there needs to be much community debate and consultation on this issue but I
think that such community involvement needs to be informed debate. As a person
who was very involved in the community consultation process on the question of An
Australian Bill of Rights, I was inspired by the opportunity and I think perhaps that
the need for this national forum on this issue about Constitutional recognition of
Aborigines and Torres Strait Islanders as the first Australians was strongly recognised
by that Bill of Rights debate. Also, the need for education about human rights was
very high on everyone’s agenda and I strongly support the introduction of Ethics
classes in all schools, and not as an alternative to religious studies but as vital to the
health and well being of a nation.
Complexity and Constraints of Constitution and Changes to Constitution:
However, I think that education needs to very much a part of any community
consultative process. Not something that comes after. This is because, the Law and
Constitutional Law is complex and people need to be informed of the implications
and constraints that apply before they can make an informed opinion. When people
are asked for their opinion they usually base that opinion on their own experience, and
while that is good it doesn’t always reflect the issue, merely their emotional response.
Also when something is entrenched in the Constitution, not only is it difficult to
change, but it can become static (or stagnant) in that it doesn’t evolve with the
changing consciousness of society. Already our Constitution is 100 years old and we
can reflect on how very different the world was when it was written. So wording can
be very difficult, and open to unintended interpretation if imperfect, or stagnant if not
farsighted enough.
The Preamble or the Body?
Perhaps then it would be better to have a statement of recognition of Aborigines and
Torres Strait Islanders as the first Australians, and values that relate to all Australians,
in the preamble.
This would be more alive in that it would allow the values and their application, to be
part of an ongoing debate for all time, and able to reflect the changing consciousness
of Australians. We have precedents in Law that have been set as a result of changing
consciousness (any lawyer or law student would know such cases but perhaps Mabo
is the most historical and particularly relevant because it was the first recognition that
Australia was not terra nullius while, at the same time maintaining our sovereignty
and trust in our law).
However, these statements in the preamble to the Constitution would only be enough
if they also gave legal standing. Which I believe it could if applied in the same way
as objectives in zoning laws can be applied as a test for compatibility when
developments are proposed.
The Issue of Compensation
I also think another fear in the community is that Constitutional recognition of
Aborigines and Torres Strait Islanders would open the flood gates to compensation.
However, I don’t believe Indigenous Australians today have unrealistic ideas about
land claims or compensation but I do think that Land Rights cases should still be
heard and that perhaps there could also be some giving of a piece of land to all
Indigenous Nations. I’m not sure as a white Australian how they would want that
determined – perhaps it could be language groups. However, it should not be
determined by family or the need to determine ongoing connection to any piece of
land. For example in urban communities it could be a community centre and the land
it is on, although I would suggest that such land also had vacant land attached so the
people could spend time outside and be close to the land.
The Issue of Framing Referendum Questions
Finally, it is vital that much informed thought is given to the framing of any
referendum questions, and that such questions should be simple. For example, in the
referendum regarding whether Australia should be a Republic or not, the issue was
lost in the referendum’s focus on models. The question put to the people should have
been simply, “do you want Australia to become a Republic?”. If the answer was
“yes” then the development of a model, which is much more complex, would require
extensive work, and much community consultation and education, could be proposed,
and perhaps that is not a referendum question.
Also any referendum must only be proposed after community debate and unbiased
information sharing covering all aspects including the legal implications, the views
and wishes of Indigenous Australians, the causes and effects, the stories, and the
absolute need for Constitutional recognition of Aboriginal and Torres Strait Islander
people as the first Australians because the lack of such recognition is immoral,
unethical, unlawful and shameful and seriously overdue.