Various opinions on the Constitution Conundrum

By Ray Jackson, President, Indigenous Social Justice Association

Lots of reading here but people are replying to the Constitution conundrum and it is important, for me at least, that their contributions are heard.

We have yet to be offered any alternative view that there should not be any change at all and, really, Aboriginal and Torres Strait Islanders should just accept assimilation, forget our history and just move on. rest assured that those views will be put and I await their arrival with much interest. Absolute racist crap will be summarily deleted but if the alternative view can be in a nonabusive and well argued form then it will be distributed. All are entitled to their view.

The first offering comes from philip who for some 10 years or so has been putting his view that all the nations parliaments are based on patriarchal law and structure and this needs to be changed to reflect a more customary law that recognises that there must be both male and female legislatures, courts and corporate committees.

First Australian customary law recognises a women's jurisdiction and a men's jurisdiction. 'The men never used to boss over the women, the women were their own bosses'. Common and Statute law recognises a men's jurisdiction only. All women in all fifteen legislatures which govern Australia can be removed, including the Prime Minister, two state Premiers and all first Australian women as with Linda Burney, Marion Scrymgour and Carol Martin, simply with majorities rescinding legislation which granted women franchise in the first place. All women, including all first Australian women, would also be prohibited the vote under the terms of Australia's sham Constitution and its state counterparts. Men can't be removed in the same way, or in any other way, since legislation which enabled all fifteen legislatures assumed male privilege. First Australian 'experts' could do all Australians a favour by asserting tradition rather than bedding down with the whitefellas blatantly sexist rule of law. The remedy is reform of the Constitution to provide for governance conducted by agreement between women's and men's legislatures, courts and corporate committees.
Anything less is codswallop.

The second short piece comes from Tony Reeves. He has strong views on what should occur when we eventually become a republic and that is to seriously discuss and consider whether we need a president at all. A thought worthy of being looked at.

Tony gives us some words that he feels will settle the opening of our inclusion in the constitution.

... While being a "white fella", I share your concerns and interests seeking long overdue justice and recognition for the peoples.

I have also long held an interest in this country becoming a (real) republic, and I despair that the most weighty issue being argued between the so-called Republican Movement and the royalists is whether a head of state should be elected or appointed.

For goodness' sake! Can we not widen the issue a bit, even question whether or not we NEED a "head of state", which I believe would be a permanent relic of the present system.

There is also a clear need to discuss changes to the constitution (this brings me to one of your points of issue). I have long believed that a revised constitution should begin with words like: "We the people of Australia ...." If to that, we add words like "... and all those who have taken this nation as their homeland ...", it could be a fine way of introducing people to the idea that indigenous people are really "We the people of Australia" and the rest of us have come here to settle with you.

This would in no way provide all the references that may be sought for ATSI people in the remainder of the document, as you and your network is discussing, but it could become a starting point for a long overdue re-write of that anachronistic document.

Best wishes and kind regards
Tony Reeves

The third longer piece is from that Yawuru man from Broome, Professor Pat Dodson.

Pat's piece seems to be, at least to me, a heartfelt cry and call for the un declaration on Indigenous rights to become real law, to be cemented into our common domestic law. Whether in the constitution or just in law seems to be immaterial. As long as our rights and interests are enshrined in the process.

Do these rights and interests include Sovereignty, Treaties and Social Justice? Pat is silent on these issues. what he is most passionately vocal about is the need for proper reconciliation to take place.

His arguments put on why this is needed is, I believe, clearly directed at non-Aborigines, for it is recognised that that is where the major change must come from. parliaments must change the way they work with our communities and elders.

Non-Aboriginal Australia must accept our pre-history and the black-white history of the previous near 223 years. Working together we can cure the ills of the rape and misuse of the lands, the rivers and the seas. Capitalism must become more user-friendly in how these environmental resources are utilised.

Our role of subjugated citizens must end. This is a real chance to become one people in one country.

But our rights and responsibilities must be acknowledged. Reconciliation without that acceptance it is just not possible.

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."

About the Author
Professor Patrick Dodson is a Yawuru man from Broome in Western Australia.

The final piece (Wisdom of Customary law) is more an explanation of the difference of common law and that of a constitution. the wisdom of customary law by Ross Drake does not address our British constitution but looks to the English constitution and explains, in a legal fashion, that common law is stronger and more important than that of the King, the Parliament and any Constitution.

Our common law and our Constitution came from British sources just maybe we should restructure our Constitution at least.

pdfWisdom of Customary law (pdf file) by Ross Drake

The wisdom "strength, honour and estimation" of the common law sprang from the foundational principles of the test of time: whereas time is wiser than judges, wiser than the parliament, even wiser than the wit of man. When the common law is of a reasonable usage, throughout the whole realm, approved as time out of mind (Dreaming) (Leges non Scripta) in the King's court of record which has jurisdiction over the whole kingdom, it is to be as good and profitable for the commonwealth. Immemorial customs, common to the realm and induced into maxims, gave the common law its wisdom, strength, flexibility and continuity. Custom grew to perfection by continual usage from time out of mind (Dreaming) and was more "perfect" and "excellent" than any written law. The principles of equity became from the local nature of customs ... Read More


Ray Jackson
Indigenous Social Justice Association