It's Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform - Softcover

Langton, Marcia; Davis, Megan

Softcover

ISBN 10: 0522869939 ISBN 13: 9780522869934

Publisher: Melbourne University Publishing, 2016

Synopsis

Why should Indigenous people have a direct say in the decisions that affect their lives? Australia is one of the only liberal democracies still grappling with such a fundamental question.

The idea of constitutional recognition of Indigenous Australians has become a highly political and contentious issue. It is entangled in institutional processes that rarely allow the diversity of Indigenous opinion to be expressed.

With a referendum on the agenda, it is now urgent that Indigenous people have a direct say in the form of recognition that constitutional change might achieve.

It's Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform is a collection of essays by Aboriginal and Torres Strait Islander thinkers and leaders including Patrick Dodson, Noel Pearson, Dawn Casey, Nyunggai Warren Mundine and Mick Mansell. Each essay explores what recognition and constitutional reform might achieve—or not achieve—for Indigenous people.

About this title

About the Author

Megan Davis is a Professor of Law and Director of the Indigenous Law Centre at the University of New South Wales.

Marcia Langton AM is Foundation Professor of Australian Indigenous Studies at the University of Melbourne.

Excerpt. © Reprinted by permission. All rights reserved.

It's Our Country

Indigenous Arguments for Meaningful Constitutional Recognition and Reform

By Megan Davis, Marcia Langton

Melbourne University Publishing Limited

Copyright © 2016 Melbourne University Publishing Limited
All rights reserved.

ISBN: 978-0-522-86993-4

Contents

Foreword by Fred Chaney, 
Introduction Megan Davis and Marcia Langton, 
1 Finding a resolution to constitutional recognition of Indigenous Australians Marcia Langton, 
2 Through black eyes Harold Ludwick, 
3 Building our house Tony McAvoy, 
4 Telling our story, owning our story, making our story Josephine Bourne, 
5 The opportunity and the challenge of constitutional recognition Eddie Cubillo, 
6 Minding each other's business Geoff Scott, 
7 Ships that pass in the night Megan Davis, 
8 Building a new, better legacy Kirstie Parker, 
9 Constitutional recognition: a case for less is more Asmi Wood, 
10 A place at the constitutional table Nolan Hunter, 
11 Refugees in our own country Dawn Casey, 
12 Unfinished business Nyunggai Warren Mundine, 
13 Constitutional recognition is not a feel-good exercise Sean Gordon, 
14 Is the Constitution a better tool than simple legislation to advance the cause of Aboriginal peoples? Michael Mansell, 
15 Keeping the fight alive Teela Reid, 
16 There's no such thing as minimal recognition — there is only recognition Noel Pearson, 
17 Navigating a path towards meaningful change and recognition Patrick Dodson, 
Notes, 
About the contributors, 
Acknowledgements, 

CHAPTER 1

FINDING A RESOLUTION TO CONSTITUTIONAL RECOGNITION OF INDIGENOUS AUSTRALIANS

Marcia Langton

THE EXCLUSION OF ABORIGINAL people from the nation's Constitution took place in the nineteenth century, and it began with a speech by Henry Parkes, the Premier of the Colony of New South Wales. In 1889 at Tenterfield, he called for the colonies to unite and create a great national government for all Australia. At that time, Australia was six colonies. Each colony reported directly back to the Home Office in London on matters of state and was, in most important ways, governed from the Home Office.

Parkes wrote to the other colonial premiers proposing a meeting to discuss a constitution for the new nation, at which he famously remarked, 'The crimson thread of kinship runs through us all.' By this he referred to common racial and British heritage of the colonists as the basis upon which the new nation might be founded.

Parkes initiated a decade of conventions and public debate that culminated in Australian Federation and the Constitution in 1901. The Constitution was drafted at two constitutional conventions. Most people interpreting the Constitution today read about those conventions and the debates to look for the spirit of what was meant in the actual drafting. The convention transcripts and speeches are quite powerful in their impact on Australian society today. The main issues were the financial and trade issues arising from Federation.

At that time there was no free trade across the colonial borders. Each colony operated independently as a financial unit, thus restricting economic investment. By example, what they were considering was how best to weigh the interests of the small states against those of the more populous states in the new federal parliament that they proposed — how would New South Wales and Victoria stand against the smaller states? Most of the white settlers were in New South Wales and Victoria and very small numbers were scattered elsewhere in the other colonies. A key concern was that those colonies that still had large Aboriginal populations, such as Queensland, South Australia and Western Australia, would disproportionately benefit from the distribution of taxation income collected by the proposed federal government, unless Aboriginal people were excluded from the citizenry.

Customs, duties, tariffs and the capacity of the upper house to veto money bills were of far greater concern to convention delegates than anything else. No Indigenous person attended any of the conventions, nor did any delegates seek to represent their interests. At one point, one of the delegates proposed that New Zealand be a part of Australia, which resulted in complaints about including the Maoris, and the possibility of including Aboriginal people in the recognised population. Hence, New Zealand, the Maoris and Aboriginal people were excluded, the Aboriginal people quite formally so.

There was a long interregnum but eventually they made a fresh start with the 1897–98 Convention, at which they revised the draft. It was endorsed by the 1891 Convention. It was amended again in 1899 at a conference attended by the premiers and it was put to the people of the colonies of New South Wales, South Australia, Tasmania, Victoria, Western Australia and Queensland in referenda held between June 1899 and July 1900. It was supported by the majority of voters in each colony, but large sections of the community were excluded from voting, including most women and many Aboriginal people. Women were able to vote for or against the draft constitution only in South Australia and Western Australia, while Aboriginal people were able to vote only in New South Wales, South Australia, Tasmania and Victoria. However, even where Aboriginal people had a legal entitlement to vote, there is no evidence that they did so.

Aboriginal people played no role in the creation of our Constitution.

In 1899 and 1900 a delegation of the Australian colonies went to London to have the draft constitution enacted by the British Parliament. It was introduced to the House of Commons, completed its passage through the Imperial Parliament on 5 July 1900, and was assented to by Queen Victoria on 9 July 1900. The Commonwealth of Australia Constitution Act 1900 came into force on 1 January 1901. Section 9 of the Act reads: 'The Constitution of the Commonwealth shall be as follows', and thereafter the Act contains the entire text of our Constitution.

It was the great Arnhem Land leader, Galarrwuy Yunupingu, the elder of the Gumatj clan in north-east Arnhem Land, who raised with me in 2007 his desire to see Aboriginal people recognised in the Constitution. He was concerned to ensure that the Yolngu people have a rightful place in the nation.

That same day, lawyer, academic, land rights activist and founder of the Cape York Institute for Policy and Leadership Noel Pearson also visited Galarrwuy and together we talked about how constitutional recognition might be achieved. As far as I know, Noel had never met Galarrwuy face-to-face, but had followed his activities because for much of his adult life Galarrwuy had served as chairman of the Northern Land Council, which was in its day a very powerful organisation. Galarrwuy was the interpreter for Justice Woodward, the Land Rights Commissioner appointed by Prime Minister Gough Whitlam in 1973, and learned from a young age about clan matters, the cultural history, heritage and landscapes. Galarrwuy was trained by his father to be the leader of the clan; his father was Mungurrawuy. It was Mungurrawuy and others who took the first native title case in Australia, Milirrpum v Nabalco. This was the case that laid out the flawed legal fiction of terra nullius. Native title was later recognised in 1992 by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1.

Noel is much younger than Galarrwuy and he believed, incorrectly, that Galarrwuy was on the left, where Noel is a man of the right. Neither is completely true, as both of them are problem solvers with little regard for shibboleths of the parties if they do not advance Aboriginal interests. They came to understand that about each other but it took some time.

Standing on the sacred land at Gulkula in Galarrwuy's estate, Noel picked up a very large branch and asked Galarrwuy to hold the other side of it and push it with him, and they pushed it backwards and forwards. Noel said, 'This is what we have to do; you have to push from the left and I have to push from the right, and then we'll arrive at a solution that combines our ideas.' This idea of the dialectical relation ship and its effect in allowing creative synthesis of apparently conflicting ideas has long been a source of intellectual inspiration in Noel's work. Noel thus began his friendship with Galarrwuy.

Following this, Galarrwuy gave two lectures at the University of Melbourne on the topic of constitutional recognition of Indigenous Australians and how the future of Australia might accommodate us with honour. He envisaged an Australia in which our legal, constitutional, economic and cultural aspirations could survive and flourish. The fates favoured his ideas during the final months of the Howard Government in 2007. Galarrwuy's visit to our University House staff club coincided with Kevin Rudd's visit and a brief discussion in the entry hallway sparked some interest from Rudd in the challenge of accommodating Aboriginal concerns. Jenny Macklin, who later became the Minister for Indigenous Affairs under the Rudd and Gillard governments, attended one of his lectures and was very interested in what Galarrwuy had to say. Some years later, Prime Minister Gillard appointed an expert panel to investigate the recognition of Indigenous Australians in the Australian Constitution.

I have worked with both Galarrwuy and Noel to ensure that Aboriginal perspectives on constitutional recognition of our peoples are on the record. As Noel and Galarrwuy do, I have my own personal views on constitutional reform: I believe that any idea of race and the ability of the parliament to use race in its law making should be removed from our Constitution. Because of the way that the notion of 'race' has been historically applied to Indigenous peoples in Australia, our rights to peoplehood have been undermined. I believe that our peoplehood should be recognised.

I am arguing that defining Aboriginal people as a 'race', as the Constitution does, sets up the conditions for Indigenous people to be treated not just as different, but also exceptional and inherently incapable of joining the Australian polity and society. The history of legislation and policy applied to Indigenous peoples demonstrates this in a number of ways: not citizens until after the 1967 Referendum, the shameful effects of the nearly half-century-old Community Development Employment Program (a work-for-the-dole scheme), the NT Emergency Intervention — and this is only to name a few of the exceptional initiatives that have isolated the Aboriginal world from Australian economic and social life. In response, many Indigenous peoples have developed a sense of entitlement and adopted the mantle of the exceptional indigene, the subject of special treatment on the grounds of race. My experiences across Australia over the past fifty years have impressed upon me how this exceptional status, to which many Aboriginal people have ascribed unwittingly, involves a degree of self-loathing, dehumanisation, and complicity in racism. Further, while continuing to be regarded in this way, Indigenous people are not required to be 'normal', which includes doing things such as attending school regularly, or competing in a meritocracy (except in the AFL and NRL and some other sports codes).

In the slowly building campaign for constitutional recognition of Indigenous people, it is vital that we broaden the understanding that the constitutional tradition of treating Aborigines as a 'race' must be replaced with the idea of 'first peoples'. By this I mean simply what is proposed in the United Nations Declaration on the Rights of Indigenous Peoples — recognising that 'Indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such'. The next part of the Declaration states:

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.

The problem is not race, but racial discrimination. Indigenous peoples define themselves according to their lineages and cultures that tie them to places and ways of life that existed long before colonisation. If we accept these principles of defining the status of Australia's Indigenous peoples, then the power that nineteenth-century race theories have had on our society through our Constitution and scores of legislative Acts becomes null and void. Not immediately, of course, but over time. This would not be a simple task, I need to say.

After the recommendations of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples were presented to Prime Minister Gillard and published in 2012, Prime Minister Abbott then made an unequivocal commitment to supporting recognition of Indigenous Australians in the Constitution. Several arguments were mounted against the panel's recommendations, and a 'No' case was threatened. If a 'No' case is formalised and included in the question to be put to a referendum, constitutional recognition of Indigenous peoples will almost certainly fail. In the history of Australian referenda, most of the questions that have had a formal 'No' case have been voted against by the majority of Australians.

Ours is the most difficult Constitution in the world to change. Not only do a majority of voters have to vote positively for a question put in a referendum, each Australian state parliament must vote in the affirmative and in the majority for a constitutional change. There is no other constitution in the world that is so difficult to change as the Australian Constitution. And as a result only eight out of forty-four questions in Australia's history have succeeded.

Some of us who served on the Expert Panel are concerned to ensure that when the proposed referendum question is settled, we have a strategy to avoid failure at the vote. If this question fails at a referendum proposed to be held in 2017, it will not be supported by any government in the future. A negative vote would completely rule out any possibility of this being taken up again in our lifetimes. Those of us who have considered this matter would rather leave it to another generation than have a failure now.

Two constitutional experts, Megan Davis and George Williams of the University of New South Wales, have published a book, Everything You Need to Know About the Referendum to Recognise Indigenous Australians. It includes summaries of 'The Case for Yes' and 'The Case for No'. For the 'Yes' case they write:

1 The Constitution was drafted to exclude Aboriginal and Torres Strait Islander peoples from the political settlement that brought about the Australian nation.

2 It is important that the Constitution, the founding document of the nation, recognises Australia's full history, not just the period from British settlement.

3 We need to remove discrimination from our Constitution; it should prevent rather than permit racial discrimination so that all Australians are treated equally.

4 Recognition in the Constitution would protect against the future loss of Australia's unique Indigenous cultures which are a vital part of our national identity. Recognition will help improve Indigenous health and wellbeing.

5 A successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution would be an uplifting achievement that unites Australians.

The 'No' case is set out thus:

1 There are more important issues to address. Rather than changing the Constitution, Australia's politicians should focus on ending Indigenous disadvantage by way of health and education reforms.

2 Changing the Constitution is expensive; there are better things to spend tens of millions of dollars on.

3 The Constitution has worked well enough for more than a century; it should not be changed or tinkered with unless there is a compelling reason. If it ain't broke, don't fix it.

4 The High Court would be left to make sense of what the changes mean, and judges could bring about unintended consequences.

5 There is no agreement about how the Constitution should be changed. Even Aboriginal and Torres Strait Islander peoples have different views. Until there is unanimity, no referendum should be held.

These are the broad grounds of the debate as it is being conducted today, but there are more details to understand. One of those other matters to understand about our Constitution is that, when it was drafted in the nineteenth century, it specifically excluded Aboriginal people on the grounds of race, and it is this exclusion that lies at the heart of the state-authorised discrimination that continues to this day. Moreover, the Constitution authorised racial discrimination. Ironically, as George Williams points out, 'the change actually laid the seeds for the Commonwealth to pass laws that impose a disadvantage on' Indigenous peoples.

A further matter that is worth mentioning about our Constitution is that it sits in a glass cabinet in Westminster, because it was created by an Act of the British Parliament at Westminster in London. Its preamble is a nineteenth-century concoction of imperial forelock-tugging.

In a more innocent time, Australians understood the proposition about the rights of Aboriginal people, although perhaps in a less sophisticated way. Australians voted overwhelmingly in favour of removing discrimination against Aboriginal people in the referendum of 27 May 1967. They were clear in their intent of removing racial discrimination. That referendum comprised three questions, two of which concerned the specific references made to Aboriginal people in the Constitution.

The first question, referred to as the 'nexus question', was in relation to section 24 of the Constitution, which required that the number of members in the House of Representatives be as near as possible to twice the numbers of members in the Senate. This section has the purpose of preventing the Senate's power overwhelming the lower house in the case of a joint sitting following a double dissolution election. The question was:

Do you approve the proposed law for the alteration of the Constitution entitled 'An Act to alter the Constitution so that the number of members of the House of Representatives may be increased without necessarily increasing the number of Senators'?

(Continues...)

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Edition details

• Publisher: Melbourne University Publishing
• Publication date: 2016
• Language: English
• ISBN 10: 0522869939
• ISBN 13: 9780522869934
• Binding: Paperback
• Number of pages: 208