Dangers of Indigenous referendum

John Warhurst Eureka Street December 01, 2010

The debate about the Indigenous constitutional referendum proposed by the Gillard Government is heading in a familiar but dangerous direction. There are potentially alarming parallels with the unsuccessful 1999 republic referendum.

General disagreements have already surfaced about the proposed process and content. The most dangerous of these, with parallels to the republican debate, is the disagreement between so-called minimalists and maximalists (the same terms are even being used).

That is, between those who advocate recognition only in the Preamble to the Constitution and those who advocate legal recognition in the body of the Constitution itself.

The conflict is between symbolic change and constitutional change with potentially substantial legal consequences.

The Opposition supports change to the Preamble only. But some senior Indigenous activists, like Professor Marcia Langton, insist that there must be substantive change. Others scorn symbolic change as 'all talk no action', while some, like Patrick Dodson, warn against division.

In the absence of agreement among advocates of change, nothing happens. The status quo is the only winner. The logic is that division among constitutional reformers spells defeat.

Professor A. J. Brown of Griffith University has already issued such a warning on the basis of his Australian Constitutional Values Survey 2010.

Conducted by Newspoll, the survey polled attitudes to five potential constitutional reform referendum issues: whether to recognise local government in the Constitution; whether Australia should become a Republic; whether to recognise the history and culture of Indigenous Australians in the Constitution; what levels of government Australia should have; and which level of government is responsible for doing what.

Brown has warned that reformers must work hard to achieve success because support for change is so fragile and ignorance so widespread.

In the case of the Indigenous referendum 75 per cent of Australians consider it either very or somewhat important to hold a referendum over the next few years. On the face of it that is a very encouraging figure. But less than half (43 per cent) consider it very important and the figure in Western Australia and Tasmania is below 40 per cent (compared with a high of 49 per cent in Victoria).

So the passage of the referendum, especially gaining the necessary support in four states, may eventually depend on the support of many people with only a lukewarm interest.

Green voters are very supportive of the referendum's importance (62 per cent) but they are only a small minority. Labor voters are quite strongly supportive too (55 per cent think it very important). But Liberals are not (only 26 per cent consider it very important). The Nationals' opposition (only 24 per cent very important) goes some way to offsetting the Greens.

Those voters with only a lukewarm level of support or interest need a very encouraging environment in order to be convinced to vote Yes at this referendum. They need to believe that they should jump on a bandwagon of widespread community support.

Realistically they need at least an Opposition Leader firmly behind an enthusiastic Prime Minister. To ensure success Tony Abbott will have to encourage his Liberal base to get behind a referendum initiated by a Labor Prime Minister.

The community has so far heard a lot of static and murmuring about dangers and caveats. That is fine initially. Any serious disagreements must be aired and the pros and cons debated.

There also needs to be an accompanying basic education campaign. And it must be a creative education campaign, almost certainly web based, that reaches deep into the community. It would best be an interactive campaign that appeals to young people. Young voters will reject a paternalistic top-down education campaign.

But from the end of next year onwards, when the Expert Panel reports, until the referendum in 2013, the stars will need to be in alignment for this referendum to be successful. There will be naysayers but they will not defeat it. What may defeat it is division among those who are supporters in principle but not supporters of the particular proposal that eventually goes forward.

John Warhurst is Emeritus Professor of Political Science at the Australian National University and a columnist with The Canberra Times.


Two more contributions on the possible changes

By Ray Jackson

Two more contributions on the possible changes to the constitution to allow for the proper recognition of the aboriginal and torres strait islander peoples and their unique place in the history of this country.

There are, of course, two main views, the minimalist view and the maximalist view. arising from these two views are many sub-views of what should/must be left out or what to put in.

Do we settle for only the preamble or do we want to be in the body of the constitution? do we seek sovereignty, treaties and social justice? what of our lands? in my opinion if any change does not encompass any of the major points listed above then forget any change as it is not worth having.

Remember the republican referendum? the bulk of Australians wanted a republic headed by a president elected by us, the people. the maximalist change. this absolutely horrified the royalists, including john howard who rorted the system to give us a president appointed by the politicians. we wuz robbed, as they say. badly.

The wording is all important and that is why i argue that we Aborigines and TSI's must come up with the wording to be presented to the people of Australia.

I know the federal government has set up an expert panel but that is a referendum of the 'expert' not a referendum of the people. the wording of the 1967 referendum was minimalist, after 10 years of discussion, and we only got a minimalist change.

We must have real socio-political change, not motherhood statements.

I agree with George Villaflores in the article below that we do not understand the Australian constitution as it stands now. I certainly do not remember learning of the constitution when i went to school (1946 - 1956). my children cannot remember being taught it (1971- 1989 collectively) and only one of my 5 granddaughters has heard it mentioned. very few people would have even read it! the constitution is a mystery to most of us. I have read it, several times, arising from my interest in the 1967 referendum.

George is an Aboriginal Barrister working out of the A.C.T. A search found that he seems to have spent a lot of his time protecting himself and his clients from the judicial system itself. His mob is the Wagiman in the N.T.

I disagree with George that 'common law native title' is enough to protect some of our rights. the term 'native title' is a misnomer that allows for criminal government actions to be forced upon us.

Native title is not land rights George. And common law can be twisted by the courts or the politicians to advantage their society, not ours.

Ray Jackson President of Indigenous Social Justice Association

Preamble in the Constitution

By George Villaflor, Canberra

I have been following the confusion and perceptions that the Australian Constitution Preamble has "no kick" or meaningless unless it is stated in the "real provisions" of a specific section of the Constitution. Without diving to deep in how a Constitution is to be "interpreted" there are some basics to bear in mind. The Australian Constitution should not be approached as you would any ordinary Act of Parliament. One very obvious approach is to "read" and interpret the Constitution "as a whole" than depend entirely on any single expressed provision. The Constitution is no ordinary Act of Parliament and should be interpreted broadly because our country depends on it maintaining both social and legal cohesiveness. If the Preamble had "no kick" the mention of "relying on the blessing of Almighty God" would be in doubt and "have agreed to unite in one indissoluble Federal Commonwealth under the Crown" would be under threat.

The real issues are not about where "this something" is to be put but what that "something" actually says and is meant to mean. The Reconciliation period ended (the formal 10 year statute period as "reconciliation" was meant to be ongoing with a broad reality check that our future was to be "within the life of this nation." And so it should be.

We may desire something else and are entitled to because of who we are but in reality we are to hammer out our future within this nation. That is what could be obtained with some constitutional "kick". My simple approach is to delete the "race power" in s51(26) and replace it with a new section (by referendum) s51(26A) which says:

s56(xxviA) :"existing common law native title is recognised and protected".

Reason being, as common law native title is held only by us, the Indigenous Peoples, specific mention of "race" etc does not need to be expressed; and as common law native title is not sourced from the common law of Australia, by expressed mention in the Australian Constitution, ensures that (1) Parliament can make valid laws about our sui generis (unique- one of a kind) native title rights over our lands and waters (meaning also our future will be secured within the life of this nation) and (2) our common law native title rights over our lands and waters will be fully protected by the Australian Constitution – instead of what is happening now with the changing whim of political ideology.

So lets debate and educate to get an understanding of what the Australian Constitution is and how it has the ability to accommodate common law native title instead of the deliberate silence from government to keep everyone confused. "Experts" did not frame the original Australian Constitution alone because as its Preamble states "Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania…agree to unite" (and don’t bother asking Aboriginal Peoples). So for at least a chance of success, unless, we the Aboriginal Peoples agree- it will just be a dead duck on a plate disguised badly as a "vision for the future" to move forward.

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