Constitutional change for Indigenous Australians needs practical outcomes
- Published: 23 October 2011
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23 October 2011
Although 75 percent of Australians already support some kind of constitutional reform, ideas on the practical effects that constitutional change would bring to the human rights of Aboriginal and Torres Strait Islander peoples are more contested, with some commentators noting the disparity between existing legislation and the realities of government policies such as the Northern Territory Intervention, which defy the United Nations Declaration on the Rights of Indigenous Peoples.
After holding public forums across the country and accepting public submissions, the expert panel will now suggest changes to the Constitution of Australia and the government will then decide whether or not to propose these to the nation in the form of a referendum. Only eight out of 44 referendum questions in Australia’s history have been agreed to.
At present, the Constitution includes racially discriminatory laws that allow states to forbid people of “any race” from voting in elections, and also allows the government to make discriminatory laws for “the people of any race for whom it is deemed necessary to make special laws”.
Some believe that legislation like the Racial Discrimination Act of 1975 has only so much power, while these laws are still in place.
In 2007, the Australian Government suspended this act in order to begin the ongoing Northern Territory Intervention, which saw the compulsory acquisition of previously Aboriginal-owned land, the take-over of Aboriginal service providers, mandatory sexual-health checks for Aboriginal children, the prohibition of alcohol consumption and distribution, and the quarantining of 50 percent of social services payments, which individuals work for, onto a ‘BasicsCard’ which can only be spent on food in two supermarket chains located in larger regional areas.
Uncle Don, an elder from the Deerubbin Aboriginal Land Council in Western Sydney says, “When you look at Aboriginal Affairs in Australia, this Constitution is still a racist Constitution …You are living in our circle, but the ‘northern hemisphere-city’ of your thinking is back up there”.
Constitutional recognition of Aboriginal Australians may take the form of a ‘statement of recognition’ or ‘statement of values’ to be inserted into a preamble or in the body of the Constitution; the power to make regional agreements with particular Indigenous groups; or it may involve the repeal or amendment of one or both of the racially discriminatory laws.
Some panel experts such as MP Ken Wyatt have said they support Indigenous recognition in the form of a preamble. Although under the exercise of ‘non-judicial provision’, a preamble alone would have no legal bearing.
Dr Jeff McMullen, a journalist and Aboriginal rights campaigner, feels that constitutional reform may not affect Australia’s policies anymore than current laws do, “Under our law and under International law, Aboriginal people have the legal right to self-determination. And yet over four years of the Northern Territory Intervention, we have clearly broken that trust. We have ignored our own laws”.
Nicole Watson is a lawyer and research fellow at Jumbunna Indigenous House of Learning who believes the creation of an Australian Bill of Rights or a Treaty would afford Indigenous peoples, and other Australians, appropriate legal protection without the risk that their human rights may be undermined.
She says that constitutional recognition may be a “gesture that does not go far enough towards recognising our sovereignty. It does not restore the rights that were taken away by the Howard government’s amendments to the Native Title Act of 1976. It’s a piecemeal gesture”.
Australia was reviewed this year under the United Nations Human Rights Council, leading the UN High Commissioner for Human Rights Navi Pillay, to state, “I would urge a fundamental rethink of the measures being taken under the Northern Territory Emergency Response. There should be a major effort to ensure not just consultation with the communities concerned in any future measures, but also their consent and active participation.”
As Nicole Watson says, “It is disingenuous to even have this constitutional recognition dialogue while we have the Northern Territory Intervention in place. How can you talk about ‘nation-building’ when you have one part of the nation effectively subject to apartheid?”
Unless a proposed Bill of Rights was entered into the Constitution, it too could be easily overwritten by the Government.
Chris Graham, Managing Editor of Tracker, the publication of Australia’s largest Aboriginal organisation NSW Aboriginal Land Council, says that positive outcomes could be reached through constitutional reform: “If they go far enough, constitutional recognition will afford Aboriginal people some more human rights; however, so would a treaty.”
Jerico Mandybur is a Sydney-based freelance writer.