The recent Fairfax Ipsos poll said 85% of people supported the constitutional recognition of Aboriginal and Torres Strait Islander people as Australia’s first inhabitants. Hence on the surface a referendum planned for 2017, the 50th anniversary of the 1967 referendum looks like passing. However, indigenous leaders have made it clear that they regard such an outcome as merely symbolic. They want discrimination within the current Constitution dealt with. This is where the trouble begins.
Apparently the Constitution contains a head of power enabling governments to discriminate of racial grounds. This can be dealt with in two ways. Firstly, the discriminatory passages can be deleted. Secondly, the Constitution could go further and prohibit discrimination. Such prohibition seems a sticking point. The LNP Tea Party types see prohibition a bridge too far and a step towards having human rights incorporated in the Constitution.
Ken Wyatt, Liberal backbencher and Australia’s first Indigenous lower house MP, who chaired a parliamentary committee that has already reported on constitutional recognition, sees prohibition as unnecessary and suggests it can be dealt with in other ways. In this he may be out of step with numerous other respected Aboriginal leaders, who want more than symbolism.
A further issue is being promoted by Noel Pearson.
- As part of constitutional recognition, Mr Pearson is pushing for an all-Indigenous body, elected by Indigenous people, to make representations in Federal Parliament.
“I’ve been pushing the idea of a constitutional body to enable us as Indigenous people to talk about our heritage, our communities, our native title and our languages and culture in a way that Parliament can hear us,” he said.
“Indigenous people must choose [the representatives]. I’d like to see eminent elders speaking to our Parliament about issues of concern to them.”
He said constitutional recognition would empower the next generation of Indigenous Australians.
Pearson got his knickers in a twist, claiming that a summit of 40 Indigenous representatives at Kirribilli House on Monday hosted by Tony Abbott and Bill Shorten was “stage-managed” and left a “bitter taste” in his mouth. No doubt it was, but Pearson’s real complaint, I think, is that he wasn’t an insider.
Michelle Grattan says three concrete actions came out of the meeting.
First, “there will be a series of up to 40 community conferences across the country over the coming year, starting in September, to discuss the issues – and before them a parliamentary discussion.”
Second, the parliamentary committee chaired by the Ken Wyatt, with his deputy chair Nova Peris, both of whom are indigenous, will produce a discussion paper on the issues, including various options that have been canvassed.
Third, a Referendum Council, “broadly reflective of the Australian people”, will be set up to look at matters including how the question to be put to the people might be settled, timing, and constitutional issues.
Everyone got to speak. It’s hard to know what more Pearson could have expected.
At least Pearson was invited. Darren Parker, as one of four (perhaps five) Indigenous constitutional lawyers/academics was not. Nor was the NSW Aboriginal Land Council, the largest Aboriginal organisation in the country.
Parker argues strongly for the inclusion of a non-discrimination clause.
In this piece Abbott shows his hand:
- “What none of us really want to see is the ordinary legislation of Government, the ordinary operation of the executive and legislative power too readily subject to second-guessing by non-elected judges, and that’s the difficulty with trying to entrench that kind of a clause in the constitution,” he said.
“It will essentially mean that judges can second-guess much more of the ordinary legislative agenda of governments of both sides than has been the case up until now.”
Liberal Senator Cory Bernardi has pledged to campaign against the referendum if the model is too “ambitious”.
Meanwhile 30 activists met at the Redfern Aboriginal Tent Embassy in the morning, then marched over the Harbour Bridge to Kirribilli House to protest the sham ‘consultation’.
- “The process has only distracted from [the government’s] deeply racist policies and their effects – suicides, mass incarceration and the continuation of the stolen generation.
“From the massive budget cuts through to Abbott’s active support for the forced removal of our people from their lands in Western Australia and beyond, this PM has proved himself to be an enemy of Aboriginal people.
“Meeting with Abbott in this context can only legitimise his actions. He has nothing to offer.”
Auntie Jenny Munro said, “This Recognition sham is a continuation of the racist colonialist, capitalist government policy against Aboriginal people. We don’t recognise the Aboriginal ‘leaders’ that are in the meeting with Abbott. They don’t represent us. They are not fighting the community closures, the second stolen generation or the massive incarceration rates of our people.”
I have the uneasy feeling this train isn’t leaving the station.
4 thoughts on “Indigenous constitutional recognition – will we get more than symbolism?”
Removing the right of governments to discriminate on racial grounds is a two edged sword. It will not only ban legal discrimination against Aborigines but also ban legal discrimination for Aborigines.
For example, if the constitution was changed would this mean that the special features of Aboriginal land rights could be successfully challenged? Or the Aboriginal legal aid system? Or…?
My view is that it is desirable to remove or modify all laws that discriminate for or against people on the basis of race. However, this needs to be done with thought so that, for example the land rights laws are changed after consideration of the implications and that the change may involve allowing all Australians to buy land with these special rights rather than simply taking away special rights.
It is also worth noting that the 1967 referendum gave the Commonwealth the power make special laws that affected Aborigines only:
John, personally I wondered about the wisdom of knocking out the potential for positive discrimination. I don’t know enough about the detail of the law and the Constitution.
One couldn’t miss, however, the strength of feeling about the matter.
BTW this post broke records for being the least read. I think there’s a problem about putting up two posts on a Friday. People only expect one and the earlier one gets missed. I’m hoping that’s the explanation!
The problem is what do you mean by “positive discrimination.” For example, many people would have seen the Brough intervention as positive discrimination. Others saw it as the very reason to remove the anti-discrimination laws.
I think most of the positive discrimination can be handled with a non-discriminatory framework. For example, Aboriginal scholarships could have been replaced with scholarships based on isolation and poverty.
I think that it is more important to ban laws based on race than to leave them in.
My position is that the Law should be blind to race, particularly the highest law in the land, under which all other laws must comply with.
I have a dream…..
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