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Constitutional change that will improve indigenous quality of life

Frank Brennan |  30 June 2015

Cover of No Small Change Before 1967, the Australian Constitution contained two references to Aborigines. It is no surprise that these references dating from 1901 were removed by the Australian people at referendum because they were negative and outdated.  

The Founding Fathers did not see the Constitution as a means of recognising Aborigines, respecting their history and culture, or acknowledging their rights to land and the protection of their heritage.  Since 1967, the Constitution has not mentioned Aborigines or Torres Strait Islanders, the two indigenous peoples for whom Australia is home.  

After the High Court’s 1992 Mabo and 1996 Wik decisions, the Australian Parliament needed to recognise land rights from the Torres Strait to south-west Western Australia.  Governments of all persuasions have learnt to accommodate native title. We Australians pride ourselves on extending equality under the law to all persons.  Most of us accept the need for special laws recognising Aboriginal land rights, cultural heritage, and contemporary traditions.  We also accept a distinctive national obligation to preserve Aboriginal languages.

Some Australians think equality under the law would be best maintained by ensuring that the Constitution is ahistorical and colour-blind, making no mention of Aborigines and Torres Strait Islanders.  They think a Constitution could be drawn up using a Google template, not including anything distinctively Australian.  So they see no need to amend the Australian Constitution as it has been since 1967.  

Others think equality under the law can be enhanced by providing recognition of that which is uniquely and vulnerably Australian – our Aboriginal culture, heritage, traditions, and relationships with country. They think that all Australians could walk taller if their Constitution graciously acknowledged the distinctive place of Aborigines and Torres Strait Islanders.

I am a strong advocate for Indigenous recognition in the Constitution.  But what might that look like? And how is it to be achieved?

We Australians have been talking about this issue for a long time now.  In 1997, the issue came into focus when the Howard government was wanting to amend the Native Title Act without Aborigines enjoying the same place at the table as they enjoyed when Paul Keating first formulated the Native Title Act.  At that time, the Australian Parliament also legislated to ensure that its heritage protection legislation would no longer cover the heritage claims of the women from Hindmarsh Island.  Since then, Aborigines have also been understandably upset at the mode and content of law making in relation to the federal intervention on communities in the Northern Territory.

The Gillard Government set up an expert panel to advise a way forward.  The Abbott government has just received the final report from the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. The committee was co-chaired by Indigenous members from both sides of the political aisle.  On 6 July Tony Abbott and Bill Shorten will meet with 40 Aboriginal and Islander leaders.

I am neither Aboriginal nor Islander.  I do not envy Indigenous leaders deciding the best way forward for their people enjoying equality under the law.  I am a non-Indigenous Australian who thinks history holds some good lessons on the way forward.  In No Small Change, I trace the history of the big policy changes which occurred after 1967 – from terra nullius to land rights, and from forced assimilation to self-determination.  A modest constitutional change carried overwhelmingly by the Australian people provided the momentum for change.  The creation of a competent Council for Aboriginal Affairs was the catalyst for change.  The members of the Council were constantly frustrated that they were not given a statutory charter with the result that public servants would often be dismissive or obstructionist when the Council was seeking policy changes.

Any constitutional change with a real chance of success has to tick three boxes: it has to match indigenous aspirations; it must be workable and not throw out of kilter the basic structure of the Constitution; and it must be in harmony with popular sentiment, not causing fear or uncertainty.

There are presently four options on the table for the Indigenous leaders preparing for their meeting with the Prime Minister and Leader of the Opposition.  Other options may emerge.  But it is useful to add a word about each of the four options presently on the table.

• The Indigenous leaders can opt for a modest, largely symbolic change so that the Constitution contains an acknowledgment by the Australian people that we recognise Aboriginal prior occupation of the land, we acknowledge the continuing relationships with land, and we respect the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.   The Commonwealth Parliament could be given power to make laws with respect to these things acknowledged by the Australian people.

• The Indigenous leaders can insist that any referendum include a constitutional provision banning all racial discrimination. This was the cornerstone of the expert panel’s report. Noel Pearson recommended this provision to the expert panel of which he was a member. Once the expert panel report was published, Pearson abandoned the non-discrimination clause conceding that it was very problematic and that it would have no chance of winning support both from the major political parties and from the Australian public. He was right. The Joint Select Committee reported that a non-discrimination clause would be ‘technically and legally sound’ though they did quote the leading QC Neil Young who advised that the Committee’s preferred option ‘is really quite a complicated dynamic and is fertile for lots of litigation’. If our politicians are serious about going down the difficult path of constitutional non-discrimination, they should first clear away two big legislative brambles. They should amend the Hindmarsh Island Bridge Act, making it subject to the Racial Discrimination Actand they should amend the Native Title Act making it subject to the Racial Discrimination Act in the exact terms proposed by Bob Brown and the Greens in 1998. If the Liberal, National and Labor Parties are not prepared to make these changes, we will all know that there is absolutely no chance of having parliament agree to a non-discrimination clause being put in the Constitution.

• The Indigenous leaders can insist that any modest, largely symbolic change be complemented by the addition of a new body in the Constitution which would advise Parliament when new laws for Aborigines and Torres Strait Islanders are being considered.  Noel Pearson recommended this provision when he abandoned the non-discrimination clause.  The Joint Select Committee decided not to run with it.  It makes good sense to have such a body.  In the past, there have been bodies such as the NACC, the NAC, and ATSIC.  Now there is the National Congress of Australia’s First Peoples.  I don’t think there is any way the Australian people would agree to put such a body into the Constitution unless it were first road-tested.  The Congress or some new body could be given a statutory charter to do this job.  If it proved successful, enjoying the trust and confidence of local Aboriginal communities, there would be a strong case for putting it in the Constitution down the track, but not during the life of the next Parliament.  That would be too soon.

• The Indigenous leaders can opt for no change to the Constitution, not being satisfied with a modest, largely symbolic change, and being unable to get up the proposals for a non-discrimination clause or a constitutional advisory body.  They will be left with a Constitution which does not mention them, and which contains two outdated references to ‘race’.  For example, Indigenous law professor and expert panel member Megan Davis has said, ‘Symbolic change is not better than no change.’

My advice, for what little that is worth, would be for the Indigenous leaders and our parliamentary leaders to opt for the modest, largely symbolic constitutional change together with a statutory charter being given to the National Congress of Australia’s First Peoples or to some new representative body.  They should also agree to commence the consultations with the Business Council of Australia, the National Farmers Federation, the Minerals Council of Australia, and the state governments to see if the Native Title Act could be made strictly subject to the Racial Discrimination Act.

Constitutional change alone will not change lives for the better.  But a good Constitution is a better complement to other measures than a bad one.  Espousing modest, symbolic constitutional recognition for Indigenous Australians, I am heartened by President Obama’s line in his Charleston eulogy for the late Reverend Clementa C. Pinckney: ‘Justice grows out of recognition’.  I dedicated No Small Change to a young Aboriginal man from Daly River in the Northern Territory who took his own life in 2009.  My dedication is to him and others like him caught between the Dreaming and the Market.  Those Aborigines who are most at home in modern Australia tend to be those with a secure foothold in both the Dreaming and the Market. Those who are most alienated and despairing are those with a foothold in neither.  I hope the journey to constitutional recognition can enhance the foothold in each.

Frank BrennanFrank Brennan SJ is professor of law at the Australian Catholic University and author of No Small Change: The Road to Recognition for Indigenous Australia. This is an edited version of the guest editorial written for the forthcoming July issue of the South Sydney Herald available here.



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Submitted comments

Thanks Frank for helping us negotiate the tumult of opinion and the challenge faced by those unable to stand with one foot in the Dreaming and the other in the Market. My work with First Peoples brings me in contact with a new generation of activists who seem determined that there is no place where they can be "most at home in modern Australia". Their language is that of "Warrior" and they can appear to stand in confrontation rather than conciliation. I suspect this conversation is being downed out in our community by the culture of fear and suspicion promoted by the current Government. I have heard very little from our Church Leaders and even less from my local members of Parliament. So, I will post this around my social media network and hope that the level of comment here proves me wrong and that this is a lively and engaging conversation emerging about Indigenous recognition in the Constitution.

Tony Robertson 30 June 2015

In the preface of "No Small Change" you state that "I come with fewer answers than I had 30 years ago." Your book is testimony to the fact that you continue to search for answers. Indigenous leaders have to decide the way forward and need the interest and support of all Australians. This is so important for our country.

Pam 30 June 2015

Frank, with respect I don't think its the place of non-Indigenous people to lower legitimate Aboriginal and Torres Strait Islander expectations for substantive reform - especially days out from the meeting of Aboriginal and Torres Strait Islander leaders with the PM and Opposition Leader. Instead, we should be creating the space for that conversation to happen, especially given that government never responded to the Expert Panel's Report which had demonstrable support from Aboriginal and Torres Strait Islander people for its recommendations. The message from Aboriginal people to the Expert Panel in the 250 consultations held around the country in 2011 was that they wanted something substantive and they wanted discrimination dealt with. It would be perverse to put forward a proposal without overwhelming support from Aboriginal and Torres Strait Islander people. I look forward to hearing what comes from the discussion next week and the discussions with Aboriginal and Torres Strait Islander people in the months to come, rather that hearing from non-Indigenous people about what's best for Aboriginal and Torres Strait Islander people.

Andrew Meehan 30 June 2015

Good morning, Fr Frank. Is not the inclusion of any particular people, regardless of whether or not that recognition is based on race, creed, skin colour, place of birth, country of origin or any other discriminator, not in itself discriminatory? Perhaps such inclusion in a country's constitution is best avoided. Perhaps an all-embracing treaty with the Aboriginal people might go a lot further towards recognising their unique rights and attachment to this country and would certainly identify the migrant origin peoples as not the prime "owners" but simply as, hopefully, welcome guests of the Aboriginal people rather than invaders.

john frawley 01 July 2015

option one is the way to go,
but the removal of the race references should be able to be done at the same time

bernie treston 03 July 2015

I agree with Fr Frank Brennan. Indigenous recognition in the constitution is the necessary first step. Then, there needs to be a consultative committee of indigenous leaders set up to negotiate on issues of land rights & also on all social justice issues. In the fear-orientated climate engendered by some politicians in Australia today, steady & consultative progress is the only realistic goal. We need less grandstanding in the media by political leaders & by government Ministers. Instead we need more steady achievements by all indigenous citizens in the vital areas of social equality under law, practical employment initiatives, indigenous cultural recognition by non-indigenous citizens, and the recognition of the basic human rights of indigenous communities, whether remote or not. Education, or more often re-education, of non-indigenous citizens is both the challenge and the necessary corollary to achieving a fair & just outcome for indigenous citizens. A happier & more culturally vital Australia will then be a big reward for all citizens.

John Cronin, Toowoomba Q 06 July 2015

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