Time to Re-Think the Nation:
Exorcising the Ghost of
Terra Nullius from
Australia’s Constitution
Dr Peter Lewis
President ANTaR
200 years ago…
•Over 400 nations within this continent
• Each nation had every institution we currently have in
Australia
• Law, belief, occupations, family structures, trade, art,
recreation and systems of ‘Government’
•People have lived on this land for over 60,000 years
The Great Australian Silence
Inattention on such a scale cannot possibly be
explained by absentmindedness. It is a structural
matter, a view from a window which has been
carefully placed to exclude a whole quadrant of
the landscape. What may well have begun as a
simple forgetting of other possible views turned
under habit and over time into something like a
cult of forgetfulness practised on a national scale.
We have been able for so long to disremember the
Aborigines that we are now hard put to keep them
in mind even when we most want to do so.
W.E.H.Stanner, After the Dreaming: The Boyer
Lectures
White Privilege
Peggy McIntosh suggests:
• I have come to see white privilege as an
invisible package of unearned assets
which I can count on cashing in each day,
but about which I was ‘meant’ to remain
oblivious. White privilege is like an
invisible weightless knapsack of special
provisions, maps, passports, codebooks,
visas, clothes, tools and blank checks.
Peggy McIntosh, (1989) “White Privilege: Unmaking the Invisible Knapsack”, Peace
and Freedom, July-August 1989, p. 10.
“We hold [the land] neither by inheritance,
by purchase, nor by conquest, but by a sort
of gradual eviction. As our flocks and herds
and population increase… the natural
owners of the soil are thrust back without
treaty, bargain or apology … depasturing
licenses are procured from government,
stations are built, the natives and the game
on which they feed are driven back … the
graves of their fathers … trodden
underfoot.”
(Godfrey Charles Mundy (1852) Our Antipodes: Or Residence and Rambles
in the Australian Colonies, London: Richard Bentley, p. 226)
Rudd/Gillard Government
Approaches
• Apology to the Stolen Generations and
Welcome to Country
• NT Emergency Intervention tweaked
• UN Declaration on Indigenous Rights
• National First Peoples Congress
• Closing the Gap
• Resetting the Relationship – Constitutional
Recognition
EXAMPLE OF COMMUNITY-LEVEL
INDICATORS AND THEIR RELATIONSHIP TO A
HEALTH OUTCOME –
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).
Re-setting the relationship:
Exorcism at the foundations
• Towards treaty/ies and dealing with the
open question of sovereignty
• Changing our rule book – constitutional
recognition and protection from racism as
the next step after apology
The First Peoples and the
Constitution
•
•
Aboriginal and Torres Strait Islander peoples, or ‘the
First Peoples’, were largely excluded from the writing
of the Constitution.
The result is that Australia adopted a Constitution that
referred to Aboriginal and Torres Strait Islander
peoples only in negative terms:
– Section 127 made it unlawful to include ‘Aboriginal
natives’ when counting the number of ‘people’ of the
Commonwealth.
– Section 51(26) stated that the Federal Parliament
can make special laws for ‘people of any race, other
than the aboriginal race in any State, for whom it is
deemed necessary to make special laws’.
1967
In 1967, a referendum was held on the status
of the First Peoples in Australia.
Australians voted overwhelmingly for ;
1. Section 127 to be removed from the
Constitution, which meant that the First
Peoples would now be counted in the census;
AND
2. Section 51(26) to be changed so that the
Federal Government could now make laws for
Aboriginal and Torres Strait Islander peoples.
However, the 1967 referendum did
not go far enough.
"Our Constitution does not recognise the First Australians. In fact
it enables governments to discriminate against under the 'race
power.' The referendum of 1967, while it resulted in indigenous
people being counted in the census and gave the Commonwealth
the power to legislate on indigenous matters, did not give us
recognition or equality."
Professor Marcia Langton
There are still a number of problems which need to be addressed.
1.
The Constitution does not recognise the prior occupation of
Aboriginal and Torres Strait Islander people.
2.
The Constitution still contains racially discriminatory provisions.
Racially discriminatory provisions
• Section 25- This section contemplates state
governments excluding people from voting on
the basis of their race.
• Section 51 (26) - After the 1967 referendum this
section allows the Parliament to make laws for
the people of any race for whom it is deemed
necessary to make special laws, including
Indigenous Australians. However this section
does not specify that these ‘special laws’ have to
be for the benefit of the people they affect.
Expert Panel
• In November 2010 the Gillard Government established
an Expert Panel on Constitutional Recognition of
Indigenous Australians.
• The Expert Panel was made up of Aboriginal and Torres
Strait Islander and non-Indigenous community leaders,
lawyers and members of parliament.
• All major parties were represented, and the Panel
included an Independent member.
• The Panel lead public consultations and debate all over
Australia.
• In January 2012, the panel reported back to Parliament,
with a number of recommendations.
What the Expert Panel
Recommended
• Repeal Section 25 which contemplates
State governments excluding people from
voting on the basis of race.
• Repeal Section 51(26) which can be used
to create laws that are to the detriment of
a particular race.
• Both powers described as “a blemish on
our nationhood”.
What the Expert Panel
Recommended
Add a new Section 51A to recognise Aboriginal
and Torres Strait Islander people, including their
prior occupation, their continual relationship with
the land, their continuing languages, cultures
and heritage.
This would preserve the Federal Government’s
power to make laws with respect to Aboriginal
and Torres Strait Islander peoples.
What the Expert Panel
Recommended
Add a new Section 116A that would
prohibit racial discrimination on the basis
of race, colour or ethnic or national origin;
but still allow laws to protect cultures,
languages and heritage or overcome
disadvantage or effects of past
discrimination.
This would protect all Australians from
racial discrimination.
What the Expert Panel
Recommended
Add a new Section 127A that recognises
that Australia’s national language is
English and that, as the original Australian
languages, Aboriginal and Torres Strait
Islander people’s languages are part of
Australia’s heritage.
What are Aboriginal Leaders Saying?
“We're gathered to take a
remarkable step forward.
Forward to a nation that
acknowledges its history, its
heritage in its founding
document. Forward to a
nation who stands up to be
counted as opponents of
racism and proponents of
recognition.”
Patrick Dodson
Noel Pearson
Lawyer, academic, land rights activist and founder of the Cape York
Institute for Policy and Leadership
"What is still needed is a
positive citizenship for
indigenous Australians: a
positive recognition of
our status as the
country's indigenous
peoples and yet sharing
a common citizenship
with all other Australians"
Lowitja O'Donoghue
Constitutional
recognition of
Aboriginal and Torres
Strait Islander People
would be good ''not
only for our own
heads and hearts …
but also for the
nation's soul''.
Marcia Langton
Chair of Australian Indigenous Studies at the University of Melbourne
“We must, I believe, leave our
children with a formal
acknowledgement in our
Constitution of the existence
of the Aboriginal and Torres
Strait Islander peoples, one
that goes beyond the
racialised citizen and
encompasses the explicit
rights of peoples within our
nation state.”
Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
“Constitutional reform is
more than just symbolism.
The positive effect on our
self-esteem, the value of our
culture and history, and the
respect it marshals from
others can make real
differences to the lives of
indigenous
Australians everywhere."
Be part of the change
•
Get informed. Go to: http://www.antar.org.au/constitutional_recognition
•
Organise an event in your home, workplace, school, university, TAFE or
community centre. See ANTaR’s ‘Event Hints and Tips’.
•
Circulate ANTaR’s petition calling on Federal politicians to support changes to
recognise Aboriginal and Torres Strait Islander people in the Constitution and
protect all Australians from racial discrimination. Go to www.antar.org.au.
•
Make a financial contribution to ANTaR’s campaign for Constitutional Recognition.
•
Tweet the Prime Minister and tell her you stand for #ConstitutionalRecognition.
•
Get together with other supporters to lobby your MPs in State and Federal
Parliament and get them to voice their support for Constitutional reform.
•
Ask if you can put up a poster in your workplace, neighbourhood centre, school,
library, university, local cafe or public place. To order a free poster, go to
www.antar.org.au or contact antar@antar.org.au.
•
Volunteer your time at ANTaR’s HQ in your State. Fill out our campaign supporter
registration.
Treatment (Muriel Bamblett)
 Treat each other – foundations: human rights as
meeting place and rules of engagement
o Self-determination and cultural respect
 Healing
o of relationships
– Confronting racism and white privilege
o within Aboriginal and Torres Strait Islander
Communities
– restoring culture and mitigate lateral
violence
 Writing a new story - a new shared narrative, a
new shared identity