Victorian Aboriginal Child Care Agency Co-Op. Ltd
www.vacca.org
VACCA Submission to the YouMeUnity Expert Panel on
Constitutional Recognition for Aboriginal and Torres Strait
Islander Peoples.
Muriel Bamblett,
Chief Executive Officer
Enquiries:
Dr Peter Lewis,
Manager – Policy, Research and Communication
PO Box 494, Northcote Plaza,
Northcote
VICTORIA 3070
Phone: (03) 8388 1855
Fax: (03) 8388 1898
Email: peterl@vacca.org
The Victorian Aboriginal Child Care Agency (VACCA) welcomes the opportunity to make a
submission concerning constitutional recognition of Aboriginal and Torres Strait Islander
peoples. For VACCA, the safety of Aboriginal children, and particularly their cultural safety, is
paramount. At VACCA much of our work is involved in overcoming centuries of governmental
and dominant culture abuse and neglect of Aboriginal children, their families and communities.
The Stolen Generations tragedy highlights the need for effective human rights protection. If
the rights of Aboriginal children and communities had been recognised and respected it is likely
that our communities would have had greater forms of legal protection and redress in the face
of the on-going process of colonisation and racial discrimination and far better wellbeing and
health outcomes. It is our contention that the lack of recognition of the status and rights of the
First Peoples in the Constitution and Australian polity has consequences for Aboriginal and
Torres Strait Islander children, youth and families.
We have arrived at our position on these issues both through our own organisational
deliberations but also based on a forum we co-hosted with other State-wide Aboriginal
community controlled organisations on the 1st September which was attended by Expert Panel
Co-Chair Mark Liebler and Executive Officer, Gary Highland. Documentation from the meeting
will be provided to the panel separately from this submission.
In this submission we recommend

That the Expert Panel should recommend to Federal Parliament that not only changes
to the constitution be made to recognise the status and subsequent rights of the First
Peoples but that an ongoing and resourced process is put in place to ‘re-set’ the
relationship so that First Peoples status as the traditional sovereign custodians of the
lands and waters and self-determination rights and self-management responsibilities
as First Peoples is established and protected in Australian polity.

The inclusion of the following statements either in a preamble or in the body of the
Constitution.
That the nation
o recognises the many Aboriginal and Torres Strait Islander peoples as the
traditional, sovereign custodians and owners of Australia’s lands and waters
and that they therefore have particular rights as First Peoples,
o recognises in some form the injustices that have occurred as a result of the
British occupation and colonisation of Australia’s lands and waters,
o recognises that Australia was colonised without consent or treaties and
2
o recognises the contribution of Aboriginal and Torres Strait Islander peoples and
their cultures to Australia’s cultural landscape.

That s25 of the Australian Constitution be repealed in its entirety, due to its operation
as an overtly discriminatory measure that can be utilised by any State enacting racially
discriminatory voting laws.

That the constitution is amended so that it ensures laws cannot be made to the
substantive detriment of First Peoples and also prevents racial discrimination, either
through removal of the ‘race powers’ or the insertion of an equality clause.

The insertion of a new provision, similar to section 105A of the Constitution, providing
a commitment to Constitutional conferences and processes to discuss Indigenous
rights and vest in the Commonwealth power to make agreements with First Peoples of
Australia could create a constitutional protective framework for agreement making.

A process to further discuss unresolved Indigenous rights issues and through the
above amendment create a potential constitutional platform for agreement making
and treaty/ies.

The incorporation of key principles of the Declaration on the Rights of Indigenous
Peoples such as self-determination, self-management, return of land or compensation
as a consequence of dispossession and that consent of First Peoples be required for
actions that affect Aboriginal and Torres Strait Islander peoples.

An additional amendment to establish reserve seats for Aboriginal and Torres Strait
Islander peoples as per the New Zealand parliamentary system.
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About VACCA
VACCA is an Aboriginal community controlled organisation established in Melbourne almost 35
years ago, in 1977. At the time (as today) there was concern for Aboriginal children being
placed away from their family and community and the need for an Aboriginal placement
agency. The organisation emerged from social and political activism and was informed by the
developments occurring in the US with Native First Peoples. Initially unfunded, VACCA was
funded by the Commonwealth in 1978.
VACCA is the largest Aboriginal child and family welfare service in Victoria and delivers services
across the State in all areas except Mildura. VACCA delivers a range of preventive, early
intervention, family preservation and reunification and out of home care services to Victoria’s
Aboriginal children and families. VACCA provides case consultation to CP on all Aboriginal
children, through its Aboriginal Child Specialist Advice Support Service (ACSASS). VACCA also
has a small but active research and program development section.
VACCA recognises that history and circumstances have affected the ability of some Aboriginal
families to provide strong and positive family relationships. Across successive generations, a
cycle has developed of broken family relationships and of individuals who are alienated from
their culture and vulnerable in society. We see the connection between this cycle and the
many social problems our community faces. VACCA believes that families who are strong in
their culture and connected to their community will be more successful in raising resilient
children who are proud of who they are and where they come from.
The importance and meaning of constitutional recognition
Australia was both colonised and established as a national entity without the consent and
recognition of the over-four hundred First Peoples of the lands and waters. At Federation no
Aboriginal or Torres Strait Islander person was consulted or involved, no recognition was given
to Aboriginal and Torres Strait Islander sovereignty or polity. The myth of terra nullius – empty
land – prevailed. At Federation, the constitution’s only mention of Aboriginal and Torres Strait
Islander people specifically excluded them from being counted as citizens and one of the early
acts of Federal Parliament in 1902 denied Aboriginal and Torres Strait Islander people voting
rights.1 Aboriginal and Torres Strait Islander communities have suffered from a series of
culturally inappropriate impositions and policy arrangements ever since, including policies of
‘protection’ and assimilation. These impositions have denied the reality of Aboriginal and
Torres Strait Islander communities, ignored and inhibited the practice of their culture, laws and
customs and, ultimately, failed to recognise these communities as sovereign political and legal
entities.
1
William Deane, Opening Address at the Indigenous Governance Conference, April 2002, Canberra, p. 3, available
at www.reconciliation.org.au. The original intention of the bill as introduced was to confer voting rights but the
bill was amended to exclude rather than include Indigenous persons.
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From the point of view of Aboriginal and Torres Strait Islander peoples, the ‘foundation’ of
nationhood which the constitution represents is one built on sand. Without consent or treaty
the nationhood of Australia is built on the injustices practiced and lands and waters stolen from
the First Peoples. In many respects a more appropriate process to deal with these foundational
issues would begin with recognising the sovereignty of the First Peoples and then entering into
processes of consent seeking and treaty making. However, we recognise that such a process is
unlikely in the context of modern Australian politics and that it is possible that the conversation
around constitutional recognition of the First Peoples and various subsequent changes to the
constitution, assuming the appropriateness of the referenda questions and the success of such
referenda, could be the next stage in the long-term journey of establishing just relationships
between the First Peoples and the non-indigenous population. Our view is that constitutional
recognition is a pathway to justice, not the end point. We strongly contend that the Expert
Panel should recommend to Federal Parliament that not only changes to the constitution be
made to recognise the status and subsequent rights of the First Peoples but that an ongoing
and resourced process is put in place to ‘re-set’ the relationship so that First Peoples status as
the traditional sovereign custodians of the lands and waters and self-determination rights
and self-management responsibilities as First Peoples is established and protected in
Australian polity.
While there have been changes in the recognition of rights for Aboriginal and Torres Strait
Islander persons, particularly as a result of the 1967 Referendum, these rights have primarily
focused on the rights of Aboriginal and Torres Strait Islander persons as individuals and not on
Aboriginal and Torres Strait Islander peoples as self-determining communities. Therefore, even
today, the practice of Aboriginal and Torres Strait Islander affairs by governments in Australia
has been determined by non-Aboriginal and Torres Strait Islander forms of governance.
Whereas other colonised countries have been prepared to accept a limited Aboriginal and
Torres Strait Islander order of governance within their broader governmental framework, the
debate in Australia has been confined to improving the prevailing government-directed,
welfare-based/community service model. This model emphasises the provision of services to
Aboriginal and Torres Strait Islander peoples by defining them as a category of disadvantaged
Australians. Particularly as a result of the dismantling of ATSIC, itself a non-Aboriginal and
Torres Strait Islander model of governance, funding to Aboriginal and Torres Strait Islander
communities is at the discretion and direction of Commonwealth, State and Territory
governments and agencies. We believe that any form of constitutional recognition and
subsequent policies of engagement with First Peoples must regard Aboriginal and Torres Strait
Islander communities as self-determining peoples and not merely as ‘client-groups’ if we are to
‘close the gap’ and improve outcomes for Aboriginal and Torres Strait Islander peoples.
Recognition in this context and respect for the human rights of the First Peoples is a basis for
respectful relationships and a protection against inhumanity. It is important to realize that
human rights are about principles not ideology. When we don’t have all the evidence about
how to proceed we need to establish fair principles to guide our policies and actions. Human
rights are therefore a meeting place between the narratives of Western culture and Indigenous
cultural narratives. Human rights are based on the principle of freedom and self-
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determination. Recognition of rights can therefore assist in creating the ground rules for crosscultural engagement.
In this way human rights is foundational for addressing disadvantage – through freedom and
empowerment not paternalism. It therefore forms a basis for responsible action and a refocusing of our efforts for the future. VACCA believes that the issue of human rights is not just
a theoretical issue but has practical ramifications. Issues of disadvantage in Aboriginal and
Torres Strait Islander communities are best addressed by taking seriously a human rights
framework which respects Aboriginal and Torres Strait Islander communities’ rights to selfdetermination and self-management responsibilities . Fundamental to providing for Aboriginal
and Torres Strait Islander self-determination/self-management and respecting Aboriginal and
Torres Strait Islander governance, is also working with Aboriginal and Torres Strait Islander
communities to restore their capacity to exercise their rights, freedoms and responsibilities in
the context of the dominant culture. Respecting self-determination and building capacity are
the critical principles which will lead to positive outcomes for our children and families. They
are a foundation through which rights protection can lead to positive outcomes. Hence our
emphasis on recognition of rights as part of constitutional recognition. Also, as Michael
Mansell points out that “certain rights derive from the status of being the original people, few
of which have been recognised by Australia.” It is on this basis that we believe recognition
necessitates an incorporation of a rights framework within the constitution.
International research and practice also demonstrates the importance of culture as a means
through which Indigenous communities can overcome disadvantage. A recent study from
Canada by Michael Chandler and Travis Proulx for the International Academy for Suicide
Research has pointed out that as measures for self-determination, self-management and
culturally-based services increase, youth suicide dramatically decreases. As demonstrated by
the following chart, the more Nation or tribal groups – here referred to as ‘bands’ – have
control over and cultural input into governance, health, education, policing, resources and
seeking title to land, the lower the incidence of youth suicide.
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EXAMPLE OF COMMUNITY-LEVEL INDICATORS AND
THEIR RELATIONSHIP TO A HEALTH OUTCOME –
FIRST NATIONS COMMUNITIES,
British Columbia, CANADA
Rate of youth suicide
An index of ‘‘cultural continuity’’ comprised of six marker variables: degree to which each of
B.C.’s individual bands have already secured 1) some measure of self government; some
control over the delivery of 2) health, 3) education, 4) policing services, and 5) cultural
resources; and 6) are otherwise at work litigating for Aboriginal title to traditional lands.
Suicide rates by number of factors present in the community (1987–1992). (Taken from Chandler
M and Proulx T. Changing selves in changing worlds: youth suicide on the fault lines of colliding
cultures. Archives of Suicide Research 2006: 10: 125-140. 2006).
Being on your own land, having a form of self-government, having Indigenous health services
and policing; all combine to create a sense that there is not only a proud past – but a promising
future for First Peoples/Nations. It is clear from this that self-determination, self-management
and cultural connection has a positive impact on the social determinants that relate to
Indigenous wellbeing and health and can create a platform for better outcomes.
VACCA therefore contends that constitutional recognition which incorporates or at least forms
a pathway for the recognition of the rights of First Peoples has fundamental implications for
improving their material, as well as their spiritual, reality. Recognition also has implications for
the broader cultural landscape of the nation’s peoples. One of the strengths of Aeteora/New
Zealand is its bi-cultural self-understanding through promotion of language and Maori customs.
Australia should work towards a similar self-understanding, acknowledging the greater diversity
of Aboriginal and Torres Strait Islander cultures, and promote more Aboriginal and Torres Strait
Islander symbols and imagery for the general population. Encouragement of Aboriginal and
Torres Strait Islander language use for both Aboriginal and Torres Strait Islander communities
and for the general population through schools and Aboriginal and Torres Strait Islander
involvement in key ceremonies – along the lines of the Welcome to Country for the opening of
parliament – should be expanded and we would particularly suggest similar practices being part
of citizenship ceremonies so that new Australians commence their citizenship with the
knowledge that they are welcomed by the traditional owners. Ultimately recognition is not just
about changing the words in our Constitution, important as that is, it is about changing the way
we think of ourselves as a nation.
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Specific Constitutional Recommendations
Preamble/Statement of Recognition
Currently there is no recognition of prior sovereignty, ownership or even existence of the First
Peoples. The British Act of Parliament which became the Constitution intentionally did not
include the First Peoples (this was made clear in the constitutional debates and commentaries
of the time). A statement of recognition could either be part of a preamble or within the body
of the Constitution. Until the Aboriginal and Torres Strait Islander and Torres Strait Islander
people are formally recognised within Australian legal frameworks, Australia cannot genuinely
proceed towards reconciliation with its First Peoples.
VACCA recommends the inclusion of the following statements either in a preamble or in the
body of the Constitution.
That the nation
 recognises the many Aboriginal and Torres Strait Islander peoples as the traditional,
sovereign custodians and owners of Australia’s lands and waters and that they
therefore have particular rights as First Peoples,
 recognises in some form the injustices that have occurred as a result of the British
occupation and colonisation of Australia’s lands and waters,
 recognises that Australia was colonised without consent or treaties and
 recognises the contribution of Aboriginal and Torres Strait Islander peoples and their
cultures to Australia’s cultural landscape.
Section 25
This section states
“If by the law of any State all persons of any race are disqualified from voting at
elections for the more numerous House of the Parliament of the State, then, in reckoning
the number of the people of the State or of the Commonwealth, persons of that race
resident in that State shall not be counted.”
Clearly the existence of this section is an insult to our values as a nation and a remnant of the
‘White Australia’ policy. S25 is a racist anachronism and has no place in the constitution of a
modern nation.
VACCA recommends that s25 of the Australian Constitution be repealed in its entirety, due to
its operation as an overtly discriminatory measure that can be utilised by any State enacting
racially discriminatory voting laws.
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Section 51(xxvi) and non discrimination
This section states that the Commonwealth has powers to make laws for
(xxvi) the people of any race , other than the Aboriginal and Torres Strait Islander race
in any State, for whom it is deemed necessary to make special laws.
The original intention of this section (the race powers) was to enable actions prejudicial to
racial groups, while the changes made by the 1967 Referendum were meant to give the
Commonwealth Government responsibility for Indigenous affairs for the benefit of Indigenous
peoples. However the mixed opinions of the High Court in the Hindmarsh Case make it clear
that there is, at best, constitutional confusion as to whether these powers prevent the
Commonwealth making decisions to the detriment of Indigenous peoples.
Removal of the race powers could impact negatively on other policies such as native title and
multi-culturalism so caution would need to be taken. There is a clear need for the constitution
to provide protection against racial discrimination and ensure the power can only be used for
benefit. This might be achieved by the addition of a non-discrimination provision. As stated in
the United Nations Declaration on the Rights of Indigenous Peoples, Article 2:
Indigenous peoples and individuals are free and equal to all other peoples and
individuals and have the right to be free from any kind of discrimination, in the exercise
of their rights, in particular that based on their indigenous origin or identity.
Conceptually the equality/protection from unfavourable race discrimination issue ties in to
seeing the constitutional recognition as part of removing the ‘white Australia’ echoes in the
constitution as part of a reframing of national identity.
VACCA recommends that the constitution is amended so that it ensures laws cannot be made
to the substantive detriment of First Peoples and also prevents racial discrimination, either
through removal of the ‘race powers’ or the insertion of an equality clause.
Incorporation of agreement making powers
VACCA supports the idea of an Agreement-Making Power in relation to Aboriginal and Torres
Strait Islander peoples being inserted in the Constitution. An agreement-making power would
enable the development of a national agreement/treaty framework as recommended by the
Council for Aboriginal Reconciliation in their final report Reconciliation: Australia’s Challenge.
Aboriginal and Torres Strait Islander leaders and community members have seen
agreement/treaty making as a key aspect of the unfinished business of reconciliation and have
argued for a structure of local, regional agreements, supported by a national framework of
some kind as well as national agreements. Such a framework, protected by the constitution,
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would recognise the self-determination rights and self-management responsibilities of the First
Peoples, create binding long term commitments between our peoples and thereby enhance
relationships ensuring both rights and mutual accountabilities.
As Sean Brennan has suggested in a recent article in the Lawyers Weekly:
We should consider the inclusion of a power to make agreements between
governments and Indigenous people. This is a practical measure, which supports
negotiation as a primary means for resolving complex challenges which arise in areas
like health, education and land. The existing support offered to agreement-making
between the States and the Commonwealth in s 105A of the Constitution offers a good
legal model.
VACCA recommends the insertion of a new provision, similar to section 105A of the
Constitution, providing a commitment to Constitutional conferences and processes to discuss
Indigenous rights and vest in the Commonwealth power to make agreements with First
Peoples of Australia could create a constitutional protective framework for agreement
making.
VACCA also recommends a process to further discuss unresolved Indigenous rights issues and
through the above amendment create a potential constitutional platform for agreement
making and treaty/ies.
Introduction of specific rights for Aboriginal and Torres Strait Islander and Torres Strait Islander
peoples
VACCA recommends incorporation of key principles of the Declaration on the Rights of
Indigenous Peoples such as self-determination, self-management, return of land or
compensation as a consequence of dispossession and that consent of First Peoples be
required for actions that affect Aboriginal and Torres Strait Islander peoples. This would
ensure a more comprehensive protection of Aboriginal and Torres Strait Islander and Torres
Strait Islander traditions, cultures and laws.
VACCA also recommends an additional amendment to establish reserve seats for Aboriginal
and Torres Strait Islander peoples as per the New Zealand parliamentary system.
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Conclusion
It is VACCA’s firm belief that the foundations of nationhood, if they are to adequately reflect
the status, rights and contribution of the First Peoples of these lands and waters which we now
call Australia and if they are to reflect our aspirations as a modern nation, needs a radical rethink and nation-building acts and processes. Constitutional recognition is a necessary step in
redefining our national identity so that we are no longer held back as a nation by the ghosts of
the racist past. Constitutional recognition has the potential to address the wrongs of the past
and the disadvantages First Peoples suffer in the present. In closing we quote our CEO Muriel
Bamblet who in her keynote address to the National Indigenous Policy and Dialogue Conference
last year said
Reconciliation is not just a question of overcoming the legacy of history but overcoming
the current situation of cultural disrespect, racist attitudes and structures and the lack
of cross-cultural understanding. Dealing with the foundational issues of our
understanding of Australia’s nationhood can create a framework through which
‘practical’ issues can be addressed in the context of trust and dignity. In other words –
with acknowledgement of the past and recognition of the rights of the First Peoples we
can address that sense of homelessness, powerlessness, poverty and disorientation that
continues to plague our people. In this sense, achieving reconciliation and addressing
poverty are fundamentally linked. And together we can co-create new shared narrative
and a new sense of national identity can enable the conditions necessary for cultural
safety and enrich the cultural landscape of all of us.
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