Should we alter our Constitution to recognise Indigenous Australians?

Constitution changes
The Lawyer: Helen Irving
The Councillor: Bev Manton
The Academic: Judith Dwyer
The Leader: Pat Dodson

See Also
Various opinions on the
Constitution Conundrum
Compiled by Ray Jackson

Ray Jackson, President of Indigenous Social Justice Association 4th December, 2010

Ray Jackson

Further to our investigations on the federal government proposal to add Aboriginal and Torres Strait Islander human rights issues, because that is what they are and mean, to the Australian Constitution the following pieces are offered.

Firstly is the recognition of the concerns and the needs that are built-in to any such change by Helen Irving, Professor of Law at Sydney University and specialising in Constitutional Law.

Her contribution tells us that the current preamble breathed life into the Constitution at the behest of the then British government in 1900 and because it is essentially (still) a British act we are unable to change the preamble for that reason.

She believes that the whole Constitutional system needs to be seriously considered for replacement with a better more modern system. a less anglo-centric system.

The second offering comes from Bev Manton, Chair of the NSW Land Council. I am not sure whether this is her personal view or that of the Land Council.

Bev is in full agreement for any positive change but then highlights the sad fact that though the apology was made to the Stolen Generations (and others) no compensation was offered to any group apologised to. This complete lack of moral rectitude bodes ill for any real and substantial wording being added by the federal government of the day, she believes.

The third piece comes from Professor Judith Dwyer of Flinders University Health Care Management.

Judith argues the case of the need for proper improvement in Aboriginal health care. the only way to ensure this, she argues, is to enshrine that need within the Constitution. The current system is piecemeal and is far from adequate for what must be done to protect our health needs.

The final point is made by Professor Pat Dodson who, among many other things, is the Director, UNSW Indigenous Policy and Dialogue Research Unit.

Pat as we know has been a spokesman of note for many years and walked out of the 10 year Reconciliation Council chairmanship rather than allow then-PM Howard to mutate the work of the council under his stewardship. Howard did and shut the council down.

I know there are some Aborigines who decry Pat as a Black Pacifist for assimilation but I disagree and have therefore nothing but admiration for his solid social justice stance over many years.

Pat too is in full agreement with the possibility of change but addresses his words not from a stance of Aboriginal rights but of government responsibility.

I can only concur with all four contributors at varying levels of agreement.

December 4, 2010

Ray Jackson is the President of Indigenous Social Justice Association

The Lawyer

Helen IrvingHelen Irving

Most Australians will embrace the spirit behind the proposed recognition of the indigenous people in the Constitution.

To achieve this, however, will be more complex than many realise. Section 128 of the Constitution requires support from both a national majority and a majority of voters in a majority of states for a referendum to succeed. Success is rare. But we should not confuse the mechanism with the reason for failure.

Referendums fail because the majority of people reject the proposal. The handful of successes attracted not merely bipartisan support, but no organised opposition.

The likelihood of this happening with this proposal seems low. The wording will be highly sensitive, and if indigenous "rights" are invoked, the same objections that defeated last year's National Human Rights Consultation will arise. The celebrated example of the 1967 referendum will inspire hope, but it is often misunderstood. It did not confer indigenous "citizenship" or "rights", but simply gave the Commonwealth power to pass special laws for the indigenous people. Its relevance to the current proposal is limited.

Let's imagine, however, that unity can be achieved among indigenous leaders, political parties and the people. A further difficulty confronts any plan to rework the Constitution's preamble. Section 128 concerns alterations to the Constitution. The preamble is not part of the Constitution. It heads the British act of 1900 that breathed legal life into the Constitution. Whether a referendum can change the preamble remains uncertain. It is unlikely, however, that the British Parliament can simply amend the act. These problems surrounded the failed preamble referendum in 1999, but were never resolved. The preamble is now out of date in significant respects, but it records Australia's federal compact and the democratic steps by which we adopted our Constitution. It should not be discarded, even if this were easy to do. Alternatively, it would be technically straightforward to insert a statement of indigenous recognition in the Constitution itself. There, however, it would be interpreted by the courts, with the potential for outcomes at odds with today's understandings of the statement's purpose.

Piecemeal Constitutional modernisation is not a solution. A provision acknowledging Australia's first people will sit awkwardly, like a new wing on an unrenovated building. If Australia is to rethink its heritage and core commitments, the whole Constitution - including its placement in a British act - should be re-examined. Indigenous recognition, however important, will not benefit from sidestepping such fundamental issues.

Helen IrvingHelen Irving is professor of law at the University of Sydney, specialising in Constitutional law. Profile

The Councillor

Bev MantonBev Manton

I strongly support the federal government's initiative to consider recognition of Aborigines in the Constitution. It is long overdue.

There is some interesting debate about whether or not the recognition should be in the Constitution itself, or the preamble. That's also a conversation I welcome.
But my support comes with a few words of warning. Aborigines are cynical about the motives of a Labor government in Canberra, and for good reason.

When the national apology was delivered in 2008, Aborigines were grateful. It was a wonderful occasion, and a great moment of healing for my people.

But the goodwill generated soon dried up. While the apology was well received, it didn't change how the Rudd government dealt with Aborigines. It also came without any form of compensation, despite a promise by Labor in opposition it would make restitution if elected.

I understand the broader Australian cynicism towards compensation to Aborigines. I also understand the hypocrisy. Compensation becomes controversial, apparently, only when it involves a blackfella.

Can you imagine the outcry, for example, if the former NSW premier Bob Carr suggested to the victims of the James Hardie outrage that they were entitled to an apology but no compensation?

Recently, I gave a speech in the NSW Parliament to celebrate reform of the state Constitution. As expected, it proved to be a wonderful, healing occasion. But coming together in Macquarie Street was possible because of real runs on the board by NSW in recent years, including a joint $200 million water and sewerage program with the NSW Aboriginal Land Council.

The NSW Parliament has not been engaged in a "race to the bottom" on Aboriginal affairs. That's why the symbolism of Constitutional recognition was so well received in NSW. And it's why federal Labor will have a much tougher sell. The Prime Minister, Julia Gillard, is likely to discover that Aborigines are sick of being used as symbols by a government which gives with one hand, and punches us in the nose with the other. I think our PM has her work cut out in convincing Aborigines that this won't be just another empty gesture designed to secure herself a place in the history books.

I would also remind her of her predecessor's words: "... symbolism is important but, unless the great symbolism of reconciliation is accompanied by an even greater substance, it is little more than a clanging gong."

Bev MantonBev Manton is chairwoman of the NSW Aboriginal Land Council.

The Academic

Helen DwyerJudith Dwyer

There are good reasons to make this Constitutional change, including respect for the people who were here first, and their descendants, and as part of the need for reconciliation after a conflict. But I want to address one practical reason: the need to improve Aboriginal healthcare.

Everyone is aware of the fact that Aborigines live shorter and sicker lives, on average, than the rest of us. Why, you might ask, should attention to these pressing problems be diverted to the "symbolic" question of Constitutional recognition?

Recognition would put the efforts of the health system to provide good care for Aboriginal patients on a more solid footing. I'm not talking about showing favouritism - I'm talking about making sure that Aborigines get an equivalent quality of care, in accordance with their needs. It's not so long ago that Aborigines were excluded from our public hospitals, or were placed in special "back wards". Things have improved, and now some hospitals and health services are engaged in creative energetic work to respond to the needs of Aboriginal patients, from adapting therapies to suit desert life, to finding ways to establish communication and trust across language and cultural differences.

At the same time, the system seems to operate on an underlying premise that "we treat everyone the same, nothing special is happening here". In spite of high-level policy statements about cultural respect and equity, there is a strange lack of the serious operational plans, strategies, quality assurance measures and protocols that you would normally expect for any situation that substantially affects good healthcare delivery. For example, for staff in most city hospitals it is easier to get an interpreter for almost any language on the face of the Earth than for local Aboriginal languages.

Why is this so? I suggest it is part of a larger denial at the centre of our national life. When you look at health services for indigenous people in Canada, New Zealand and the US, there are still lots of problems, but there is a sense that special measures are on a sounder policy footing, and the system thus finds it easier to enact and sustain good ideas.

Judith DwyerJudith Dwyer is professor of health care management at Flinders University, and a research program leader for the Lowitja Institute. Profile

The Leader

Pat DodsonPat Dodson

The Prime Minister has announced a process of consultation and discussion leading to a referendum, which will ask others whether recognition for indigenous people incorporated into the Australian Constitution. I welcome the announcement.

If this process is done with an open heart and recognition that this is a matter of justice, not special benefit, then what the Prime Minister has described as a once-in-50-years opportunity can become the first page in the promised "next chapter of new history of this great nation".

If we face our history with courage, and if we pledge the integrity of our improving relationship firmly within our Constitution, then a real dialogue between us can proceed secure in the knowledge of our shared commitment to the nation and its future. Not incidentally, we can also address the task of ensuring that education, economic and health outcomes for Aborigines reach parity with all other Australians.

There is much work to be done and there are tasks aplenty for all of us. It cannot be left to governments alone to determine the solutions to the problems confronting our communities and people. In that model resides further paternalism, assimilation and welfarism, when what we all want is well-being.

As long as even one such regime of social oppression remains in place in this country, we remain a subjugated people. As long as a Parliament is able to remove some of our most basics rights on a political whim, we remain a subjugated people.

The spurious discourse over symbolism versus practical outcomes, over rights versus responsibilities, and the notion that a collective or a community is somehow at odds with the rights and aspirations of individuals, still remains on the lips of many well-intentioned Australians.

The place of Aborigines in the Constitutional and institutional frameworks of our nation has to be approached from the point of understanding what our greatest fears are about such a discussion and its outcomes. This should not daunt us. We have seen that indigenous ceremony and symbols can be incorporated into the Parliament, and that change to institutions is possible.

The creators of the Constitution were men of their time, and they delivered to the new federation a document reflective of the political and social imperatives of their day. But the writers of the founding document of the nation always imagined and incorporated a capacity for the nation to adapt to new times and changed circumstances.

Pat DodsonProfessor Patrick Dodson is founding director of the UNSW's Indigenous Policy and Dialogue Research Unit. Profile


first peoples and the foreigners constitution

treaties or contractual arrangements internationally scrutinized must underpin the invaders laws, consent has never been given nor sought, without a Treaty the war continues, Treaty now

Can Australia afford not to be reconciled?

Patrick Dodson Online Opinion 03 December 2010

The referendum announced by the Prime Minister offers Australia an opportunity to take matters addressed in the United Nations Declaration on Indigenous Rights and cement them into our domestic law. Indigenous peoples’ rights and interests can be enshrined in the constitution in a way that goes beyond symbolism, by actually recognising and embracing the rich and vibrant nature of Indigenous cultures while ensuring that our rights and interests are forever protected.

As ever, the devil will be in the details and, in this case, in whether the bipartisanship promised on the day of the Prime Minister’s announcement will be maintained. I strongly counsel that the referendum be held on a day not connected with a general election, which would destroy the bipartisanship critical to a positive outcome for Indigenous, and indeed all, Australians.

Perhaps the vote should be held on or near the anniversary of the 1967 Referendum, 27 May, so as to take the resounding demand of that earlier generation “for a just relationship between our peoples” to its next logical step: a proper recognition of the Indigenous people of Australia as the First Peoples, and an acknowledgement of our culture, our languages, and our economies within the Australian constitution.

This process should be undertaken with an open heart, recognising that this is a matter of justice, not special benefit. If we face our history with courage, and place the integrity of our improving relationship firmly within our constitution, then a real dialogue between us can proceed, secure in a shared commitment to the nation and its future. Not incidentally, we can also address the task of ensuring that educational, economic and health outcomes for Indigenous people reach parity with those of other Australians.

There is much work to be done. It cannot be left to governments alone to determine the solutions to the problems confronting Indigenous communities and people. There is, pardon the expression, a place at the coal face for all who choose to engage, and there is no rational justification for any Australian to stand apart as an observer in this journey of dialogue – every Australian has something to contribute.

Patience, humility, trust and love are required in equal measure. And a large dollop of courage. This is the pathway to true reconciliation, and the Prime Minister’s announcement of the referendum is an important step along the path.

The outcomes of the engagement so far between Australia’s Indigenous and non-Indigenous peoples are beyond dispute. Many of our Indigenous people continue to live in Third World conditions, young Indigenous men are over-represented in jails, and the capacity of Indigenous communities to participate fully in the economy continues to be subjugated to the interests of third parties – either through legislation or political expedience.

Right now – today – some of our greatest living artists, philosophers, spiritual leaders and their families remain subject to the racially inspired Northern Territory National Emergency Response – the Intervention. Against that backdrop, any notion of true reconciliation is farcical.

As long as even one such regime of social oppression remains in place, we remain a subjugated people. As long as any parliament can remove our most basic rights on a political whim, we remain a subjugated people. If governments, newly elected, retain those same impediments to justice – when all available evidence indicates the programs emanating from that oppression are not delivering the asserted outcomes – then reconciliation is no longer a national aspiration, but a ruse to disguise our continued subjugation.

In fact, what remains is simply a manifestation of non-Indigenous people’s impatience with their own inability to accept the scale of the effort required to truly reconcile the nation.

Regardless of the actual intent behind the Intervention, the outcome has been a further breakdown in the stability of remote Indigenous communities, and a vast expansion of bureaucratic intrusion into the lives of our people. The removal of resources sustaining our homeland communities has resulted in population drifts into centralised ‘growth towns’ which themselves are under siege from the impositions of the Intervention. These towns are being expected to soak up these pressures with no additional infrastructure investment – and guess who ends up suffering most as a result of that?

The Northern Territory is simply the front line in this latest assimilation push against Aboriginal people. In other regions of the country, our people understand that Closing the Gap may come to mean Closing the Door – on our culture, our languages, and our right to be uniquely the nation’s First Peoples, with all the rights and responsibilities that go with that status.

Following the 1967 referendum, the nation supposedly set out on a quest for our true humanity. We thought we were moving towards confronting the truth of our history. But we failed to understand what Maya Angelou meant when she said: “History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again.”

As a nation, we chose not to face our past with courage. Rather, we invested heavily, expensively, shockingly, in so-called solutions that further entrenched the assimilation paradigm of the previous 170 odd years. The 1967 referendum turned out not to be much of a step forward at all.

Programs were designed and delivered for our people as though we were still mendicants in our own land. Departments with benign titles were created to replace the old “welfare, native protector agencies,” but still the anchor of subjugation prevented us from moving out into the deep channels where the fish are plentiful, where we could determine our own fate based on access to an equitable share of the resources being enjoyed by the settler society.

And then there was John Howard, who as Prime Minister always considered the notion of reconciliation to be purely a personal matter. Howard believed the resolution of practical matters regarding health, housing and education would ultimately deliver national outcomes from governments, and reconciliation would thus be achieved. This attitude made me despair of national reconciliation ever being achieved. So, in October 1997, I declined reappointment as chair of the Council for Aboriginal Reconciliation.

Reconciliation had been initiated by the Federal Parliament, with the support of all parties. My issue wasn’t with parliament’s good intentions. My immense personal despair was with the direction that the government of the day was taking the reconciliation process.

At the end of 1997, safe in the embrace of my own Yawuru world in my hometown of Broome, I had time to reflect on people’s inability to understand what Gandhi and Martin Luther King had instinctively understood: that while the battle for peace and justice might have a local or regional context, the impact of that battle has global consequences. In other words, we cannot stand in our own land and demand truth and justice when others in the world are being denied the same outcomes.

Today our world is confronted with the consequences of our failed stewardship – the crisis of climate change means our nearest Pacific neighbours are watching their island states literally disappear beneath rising oceans. Or consider the disparity between a minority of the Earth’s people who control the majority of the wealth and resources on this planet, and those who live at the low-water mark of overwhelming poverty. Our responsibilities as Australians – with our great resources and great wealth – cannot be ignored.

But as, in twenty-two decades of European intervention, we have managed to destroy or damage almost every forest, almost every river, and almost the entire landscape of the island continent of Australia, perhaps it is time to ask ourselves how the Aboriginal peoples managed for millennia to maintain a balance between sustaining our societies, feeding our people, and living within our lands, sea, and waters without destroying another species of bird, fish or animal.

Perhaps instead of our colonisers focusing on the concept of terra nullius (no one’s land), they should have focused on the notion aut disce aut discede - either learn or leave!

And yet it’s not too late to learn. The great opportunity that exists for Australia, and the industrialised world more generally, is to examine the way that Indigenous cultures managed our environment, our land, seas, and waters, for generation upon generation.

Indigenous knowledge systems need to be incorporated into our pastoral, farming, land and sea management practices to ensure we use this century to restore our ecosystems and improve the balance sheet of our cultural and natural resource assets. We need to start thinking less about nation states and more about nature states.

To achieve this, Indigenous people must be incorporated into planning and decision-making about future land, sea and river management regimes. The whole philosophy of how nations use and sustain their resources needs to be underpinned by Indigenous peoples’ cultural and spiritual relationship to the environment, and our perspectives on what constitutes a successful society. Indeed, a successful economy.

We as a nation have the capacity, the ingenuity and the wealth to work with our neighbours to deal with the consequences of industrialisation and consumption. But first we must truly reconcile with our Indigenous peoples so that we are freed from past arguments and open to learn from the wisdom and richness of Australia’s First Peoples.

When we open our hearts and minds to truth and justice for our Indigenous peoples, then our courage will inevitably lead us into strengthening relationships with our regional neighbours and those peoples beyond.

Perhaps if we achieve that level of global engagement we will not have our diplomats wandering the world in search of votes at the UN for a few minutes game time on the Security Council!

On the occasion of the National Apology, we gave the world and ourselves a brief glimpse of who we, as a nation, might yet become.

Today, I again warn that the journey ahead will be challenging. We must demand our leaders and opinion makers maintain the courage required to imagine a renewed nation, to take the many steps needed for a true renaissance. This must be a renaissance underpinned by Indigenous culture and spirituality, and an Indigenous view of what makes a successful society and economy.

The spurious discourse over symbolism versus practical outcomes, over rights versus responsibilities, and the notion that a collective or a community is somehow at odds with the rights and aspirations of individuals, still remains on the lips of many well-intentioned Australians.

The place of Aboriginal people in Australia’s constitutional and institutional frameworks has to be approached from the point of understanding what our greatest fears are about such a discussion and its outcomes. This should not daunt us. We have seen that Indigenous ceremony and symbols can be incorporated into the parliament, and that change to institutions is possible.

I continue to believe that our nation is capable of developing public policy that recognises the fact that Indigenous society – which draws on thousands of years of cultural and religious connection to Australian lands – has survived. Indigenous Australians define what it means to be resilient, and resilience lies at the heart of how we are all going to survive the shocks of this century, and the next.

In this reconciliation process, we have the liberating potential to forge a unique national identity and purpose for all Australians – one that rises above the tragedy of our colonial and racist history, making respect for cultural diversity a cornerstone of our nation’s existence.

It is vital that our dialogue in the lead-up to the referendum calls upon all of us to participate with wise heads, listening hearts, and the courage to confront our fear of our history.

If, as a nation, we can conduct ourselves in this way throughout this dialogue, then we will be well served, and future generations will not be left wondering why we were so unable to confront the truth of our history and to deal with that truth accordingly.

As the Dalai Lama has suggested:

“When we face problems or disagreements we have to arrive at solutions through dialogue. Dialogue is the only appropriate method. One-sided victory is no longer relevant. We must work to resolve conflicts in a spirit of reconciliation and always keep in mind the interests of others. We cannot destroy our neighbours! We cannot ignore their interests! Doing so would ultimately cause us to suffer.”

It is my belief that we have all suffered long enough. Because, in the words of the great Aboriginal songman Archie Roach, “we have been too far apart.”

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