Draft paper on constitutional recognition of Indigenous Australians


G.P.O. BOX 569, P.O. BOX 531, PO. BOX 536, HOBART TAS. 7001
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Email: hobart@tacinc.com.au Email: launceston@tacinc.com.au Email: burnie@tacinc.com.au

Glen Ferguson
Law Council of Australia

15th November 2010

Dear Sir,

Re: draft paper on constitutional recognition of Indigenous Australians

We are pleased that the Council has continued its commitment to promote reform that may benefit Aboriginal people and we are grateful for the opportunity to comment on your draft paper.

In essence, we understand the Council proposes:

a.the Constitution be altered to provide enforceable rights for Aboriginal people;

b.those rights should not be catalogued but can be wrapped up as guaranteeing equality;

c.consistent with the notion of equality, the basis for distinction on race be removed from the Constitution and replaced with words describing Aborigines as having a special place in Australian history;

d.any support for preambular reform is conditional on force being given to the preamble statements. The form suggested is a general guarantee of substantial racial equality;

e.and that, subject to indigenous peoples giving their free, prior and informed consent, a realistic approach be adopted to the timetable for amendments being put to referendum. There should not be unnecessary delay.

It is not at all clear why the LCA adopts the notion of equality as a policy position underlying its constitutional reform approach. Equality of opportunity hardly deals with dispossession, disempowerment and the distinct institutions of Aboriginal people (and Torres Strait Islanders).

The concept of equality assumes the legitimacy of the relationship between Australia and Aborigines whereby the former has the right to decide and Aborigines the right to comply. I would have thought constitutional reform, dealing as it does with the political relationships between institutions that administer the peoples sovereignty, would in turn deal with the political relationship between those institutions and Aboriginal people.

There are two different approaches to dealing with Aboriginal injustice. One approach is to deal with the collective rights of a people, the other to individual rights of people within the group. The right of Aboriginal individuals to seek equal access to goods and services of the Australian nation can be dealt with through the various anti-discrimination laws whereas there is no current forum or mechanism (absent a treaty) for dealing with Aboriginal collective rights. It is far more appropriate to deal with the broader rights in the body of the Constitution in preference to statements calling for equality.

The legal cases of Coe v Commonwealth [1979] HCA 68; Coe v Commonwealth [1993] HCA 42; Buzzacott v Queen [2005] HCA Trans 151; Thorpe v Commonwealth HCA [1997]Trans 147 are examples of Aboriginal assertions of continuing Aboriginal sovereignty. The assertion before the court was that the relationship between the Aboriginal people of Australia and the Commonwealth was as political equals, not Aborigines subservient to the Commonwealth cf Mabo [1992] HCA 23; Walden v Hensler [1987] HCA 54 et al where legitimacy to make laws for Aboriginal people was accepted, not challenged. The distinction in the legal cases should, we suggest, be understood and applied for the purposes of constitutional reform.

The Australian Constitutional provides the political and legal framework for the existence of the Australian nation. Altering the arrangements contained within the framework of the constitution is rightly seen as being more fundamental than in any way insubstantial. If the issue warranting reform is substantial enough then reform should be accorded the seriousness it deserves. Constitutional reform to deal with Aboriginal rights should focus on the rights of Aborigines as a people, not as citizens of Australia.

The right to self-determination that applies to all peoples is declared to also apply to the indigenous peoples of Australia in the Declaration on the Rights of Indigenous Peoples. The relationship between Aborigines and Australians has never formally been debated, and certainly not formally decided. There has been an assumption that Aborigines should be politically assimilated into the Australian nation without Aborigines ever being accorded the right to decide otherwise, or to formally agree with that policy. Unfortunately, the Council seems to have assumed the decision has been made.

By referring in its paper to overseas experiences where Indigenous peoples have “(re) established new Constitutional relationships” and referring to the need to renew relationships between Indigenous and non-Indigenous peoples (par 3), and of forging new relationships (para 17), the Council seems to be well aware of the political relationship being a core issue.

That awareness ought to lead to a more progressive response, particularly when it comes to constitutional matters. Accordingly we make the following comments.

1.Aboriginal people are the original people of the land, not the original people of the nation of Australia, which was not formed until 1901. Certain rights derive from the status of being the original people, few of which have been recognised by Australia. We support the Council’s efforts for recognition of Aboriginal rights within the constitution depending on what those rights are. We do not support the Council’s qualifying words that limit those rights to equality.

Quite apart from other reasons, it is hard to justify why final recognition of the rights of Aborigines must be limited to those of “fellow citizens”. Far better to simply state that Aboriginal people have rights including, but not limited to, those (to be) enshrined in the Constitution.

2.We agree with the Council that recognition in the preamble trivialises the discussion, and should not be supported. The Council put the case against preamble reform well. We believe any inclusion of the preamble, whether incidental or not, tends to confuse that which is ultimately sought. If fundamental change is required then go after that alone: keep it simple.

3.The topic of recognition of Aboriginal people in the Australian constitution raises the fundamental question of the relationship Aborigines have with Australians. Words have particular meaning, as lawyers well know. The Council’s policy or practice of describing Aborigines as “Indigenous Australians” reflects the Council’s assumption that the relationship between Aborigines and Australians has already been decided as master and servant, politically speaking.

4.There are many people, including many Aborigines, who advocate that Aborigines are indeed “Indigenous Australians”, or “Aboriginal Australians”. The basis of the view is that it is too late now to turn back the clock. Therefore, the argument goes, as Australia is an established nation Aborigines should want to fully participate in it, and if so, rights of Aborigines are framed on notions of equality of jobs, housing, education and so on. This point seems to have been adopted by the Council in its paper at page 6 dealing with “equality”. But should Aborigines legitimately lose a range of political, cultural, economic and legal rights in order to participate in Australian society? Have Aborigines not already given up enough?

Those in favour of the political assimilation argument do not miss out if their quest for better opportunities is not the reason or basis for constitutional reform. Constitutional reform for Aboriginal citizens who want the same rights as other citizens, John Howard’s very astute point, hardly requires constitutional recognition. The aim of assimilation through citizenship on a non-discriminatory basis is more appropriately provided through anti-discrimination and human rights laws, without requiring changes to the constitution. Constitutional change should be reserved for more fundamental matters.

5.The deaths in custody Royal Commission made the point about Aborigines being dominated to such an extraordinary degree for 200 years and that the disadvantage suffered is a product of that domination. It is impossible to conceive that under such circumstances Aborigines have freely exercised our minds in an informed way to decide our political status as mere citizens. If we have not had that opportunity it is wrong for others to decide for us.

With those preliminary views in mind we make the following particular comments on the draft paper.

1.We acknowledge the Council’s reservations about an extensive bundle of rights being written into the constitution (presumably because the Council fears that the list may be taken as exhaustive), but something of substance does need to be put in the body. As a suggestion, the meaning and intent of the Declaration on the Rights of Indigenous Peoples could be reduced to a form of words capable of summarising the real issue (and giving Aborigines both a shield and a constitutional basis for suing).

Article 3 of the Declaration on the Rights of Indigenous Peoples, to which Australia is a signatory, states: “Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Articles 10, 26 and 27 of the Declaration deal with dispossession of land. Article 27 is framed as imposing a positive duty on the State to return ownership of lands or pay compensation where that is not practical.
Another possibility is adopting former ATSIC head Geoff Clark’s argument that the consent of Aboriginal people should be required for actions that affect Aboriginal people.

Placing the type of provision(s) suggested above in the constitution could provide the legal foundation for Aborigines suing for recognition of the rights enshrined.

2.With respect, “cleaning up” section 25 and promoting the proposed new wording for 51 xxvi are peripheral issues and detract from the task of getting a simple but fundamental alteration to the constitution that accords proper recognition of the rights of Aboriginal people. We urge the Council not to take its eye off the ball. Section 25 and the wording of 51 should be left to another day, or be treated incidentally.

3.The call for racial equality is another side issue and a potential for further distraction. Legislation can deal with racial equality. The waters should not be muddied by a range of constitutional reforms substituting for a single focus. Section 56 xxvi did nothing anyway to protect Aborigines in the NT from blatant racial discrimination under the NT Intervention laws.

We welcome the Law Council’s intention but believe the suggestions in the paper are overly moderate. The risk of any constitutional reforms coming to nothing can be increased where respectable bodies expected to lead the debate on fundamental reform end up advocating for token gestures.

The paper does not deal with Aboriginal political representation, dispossession (emphasising Mabo does nothing for the 90% of Aborigines left without redress) or domination that leads to disadvantage. There will of course be many supporters from within the Aboriginal communities of the Law Council’s unfortunate conservative approach. That is more a sign of desperation of circumstance than a principle.

We urge the Council to have another look at its proposal before airing it too publicly. The Council needs to deal with the matter from a highly principled position, leaving the more pragmatic compromises to others. The paper needs to be strengthened to show leadership in the debate.

It is hoped our comments about the approach proposed by the Council is taken in the constructive spirit in which they are offered.

Michael Mansell
Legal Director