Constitution Reform to include the 'First Peoples' - Debate

Provided by Ray Jackson, President, Indigenous Social Justice Association

The Australian constitution is a fundamentally invalid document.

Not just because its built on illegal invasion and dispossession (without even a treaty to add a figleaf of legitimacy) but because the whole concept is just a paternalistic, legalistic patch on what remains a feudal system little changed since the middle ages.

Its a document defining what crumbs the centralised power structure deigns to throw to its subjects - and in the case of the Australian constitution what power is devolved from the centre goes mostly to the baronies of the states with sweet FA going to the people of Australia - white or black.

If you're going to have a valid constitution it won't come from our rulers deciding what pathetic scraps of self-determination and rights they choose to let us vote on. It will come from rigorous negotiations with a completely new kind of administration, while the old one is still hanging from the lamp-posts around Parliament House to help focus everyone's mind. But of course any such constitution would pretty quickly be appropriated by a *new* gang of oppressors who would make it into a club to beat the people down all over again. And so it goes.

By begging for a few extra crumbs from our existing constitution you are playing right into the hands of those who try to pretend such a document can somehow legitimise a completely illegitimate power structure.

The only use I can think of for the Australian constitution would be if I ran out of toilet paper.

But lets set all that aside for a minute and pretend that its possible to amend the constitution in some sort of way that might actually improve the situation of anyone other than those it was really designed to serve.

So how might our glorious rulers facilitate this?

First of all they'll split those who want change between minimalists who want something warm, fuzzy and essentially meaningless in the preamble and those who think that something substantial might be gained - such as decent healthcare, basic human rights or just an end to the endless cycle of murder of the original inhabitants by the state followed by the sickening spectacle of the state 'investigating' and exonerating itself.

They'll sit back smugly for a while, watching the minimalists and reformists punch it out, then step in like a referee or parents separating squabbling children and present us with a 'compromise' that will be empty at best or, more likely, something that serves their interests and does nothing to advance the position of Aboriginal people.

If it turns out to be something that suits the people, rather than the rulers, they will then throw it to the shock jocks and tabloids who can be counted on to whip up the sort of ill-informed racist frothing we saw in the wake of Mabo and turn it into an exercise in black bashing with no chance of success at the ballot box. They'll have great fun if a proposed amendment includes rights based on any international treaties Australia has ratified, telling us that we're signing our national sovereignty away to a bunch of foreign bureaucrats (and they'd be right).

And of course the liberal press can be relied upon to chime in with concerned sounding platitudes about how we need amendments that can be used to protect aborigines from themselves.

In the end all it will do is give PR companies another boost with the politicians able to use it as yet another example of why the Australian people 'aren't yet ready for change'.

Am I saying this because I'm against the rule of law? No, not really - though I think the rule of law is vastly overrated.

If we want to change the way we are ruled over I think constitutional amendment should be the last step in the process, not the first.

At least with a treaty we can sit the stakeholders down face to face to thrash it out rather than letting it be run through the media or another farcical 'constitutional convention' of hand-picked sheeplings.

With a treaty at least we'll know exactly how conquered we actually are, and then we'll have some sort of realistic grasp of what sort of concessions we can really expect from the regime. That would be a far more practical base to try to reform Australian law and administrative practice from than anything that would get up in a constitutional referendum.


An honourable land needs a constitution free of racism
Richard Frankland and Peter Lewis Sydney Morning Herald December 7, 2010

Australia is based on an age when First Peoples were no people at all.

In November, the Gillard government announced a process to frame a referendum question to constitutionally recognise Aboriginal and Torres Strait Islander peoples. The announcement was a consequence of the Gillard government's deal with the Greens to gain their support in the hung parliament. The Coalition had also supported a new preamble to recognise Aboriginal and Torres Strait Islander peoples in their last two unsuccessful election campaigns in 2007 and 2010.

The process involves the creation of an "expert panel", which will consult broadly with the community and provide the nation with an opportunity to reflect on questions of identity and vision.

Our constitution reflects an age when the First Peoples were treated as "no peoples" and state governments under section 25 could prohibit racial groups from voting in state and federal elections.

Unfortunately, without constitutional change, this is still the case. Our racist past remains embedded in our foundational document.

When it comes to consultation on these issues, we need to remember that there was such a process a decade ago. In fact, today is the 10th anniversary of the end of that process.

The point of a preamble is to describe the nation; to describe who we are as a people (or in our case, as peoples).

While the US is not always the embodiment of all that is good, at least their founding fathers had a view as to who they were.

It begins: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Ours just talks about five states (yes, five not six) combining to enter into a Federation under the Queen (then Victoria). In other words, it is a political arrangement not a vision of national identity.

So who the bloody hell are we (with apologies to the Tourism Australia campaign)? And then, more importantly, who the bloody hell will we be?

The preamble is not just about who we are now; it is also about who we want to aspire to be as a people. What will be the inheritance we leave to our children and their children? At a recent indigenous policy conference, the father of reconciliation, Professor Pat Dodson, made this very point but in terms of the audience he was addressing. He asked us to interrogate ourselves and our nation with the following questions: Who are you? Why are you here? And how will you get to where you want to go?

At the moment, without a visionary preamble and a rights-based constitution, we are a disparate bunch of descendants of the colonised and colonisers and post-colonisation peoples whose relationships with each other are dependent on power rather than principle.

So who do we want to be? We the First and Second peoples of these lands and waters? We who have either inherited the privileges and proceeds of colonisation or have been dispossessed of all that, for millennia, the creator spirits have provided?

It is now 10 years since 300,000 people walked for reconciliation in Melbourne carrying banners that called for a treaty. It is 10 years since the Council for Aboriginal Reconciliation, after the most consultative process in Australia's history, delivered its final report calling for acknowledgement of the moral crimes of the past, recognition of the special place of the First Peoples and the need for their rights to be protected, action to address disadvantage and treaty-making to address the unfinished business.

What we need is not only a preamble that constitutes a vision for all of us, grounded in respect and recognition of the First Peoples, but a constitution free of the implied racism of the past that protects all of us from the machinations of power and a process to fix our relationships with each other.

Then our children will live in the hope that they will inherit a nation that is honourable, principled and mature. A nation for all of its peoples.

Richard Frankland is an indigenous author, filmmaker and songwriter.
Peter Lewis is national president of Australians for Native Title and Reconciliation.