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Back You are here: Home Social Justice People Constitutional change for Indigenous Australians needs practical outcomes

Constitutional change for Indigenous Australians needs practical outcomes

Australia is the only colonised nation that has never signed a treaty with its Indigenous Peoples, and the only Western nation without a Bill of Rights. An expert panel set up by the Australian Government to gage public support for the constitutional recognition of Indigenous Australians, will spend the next few months finalising its recommendations, writes Jerico Mandybur.

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.

Comments   

0 #1 philip 2011-10-22 23:16
Australia's Colonies signed up to the Commonwealth of Australia Act 1900, becoming States on 1 January, 1901. After a campaign led by legendary Aboriginal activist Oodgeroo Noonuccal which culminated in a referendum in 1967 that achieved overwhelming support, Aborigines came under the auspices of the Constitution of Australia. Subsequently, the Australia Act 1986 (Cth) severed all ties with the Westminster Parliament and the Queen in her capacity as the British Monarch, but not as the Australian Monarch. Unless Aborigines have superior force of arms, which is not the traditional way anyway, negotiations with the Crown to restore Aboriginal Sovereignty to the governance of the nation will occur appropriately under the terms of the Australian Constitution.

First up is the requirement for a women's jurisdiction consistent with Aboriginal protocol. The international Courts are of no assistance since international law doesn't recognise a women's jurisdiction. The Constitution will need to be reformed to provide for a women's legislature to enable a women's jurisdiction, a simple task since there's hardly anyone left in Australia who doesn't support equality between women and men, such that a referendum on the provision of a women's legislature, embedded in governance conducted by agreement between women's and men's legislatures, presided over by a Council of Governors-Gener al, accompanied by Courts of women's and men's jurisdiction, in the Aboriginal tradition, would receive overwhelming support if conducted this weekend. The Queen can use her reserve power to reject a Referendum Bill on the provision of a women's legislature, but to do so would invoke the ghost of Magna Carta and incite major political turmoil and a severe backlash against her reign. Alternatively, she can accept the extraordinary legacy of passing her sovereignty to senior citizens presiding over the first women's legislature of the modern era, which, in all probability, would be her preferred approach. Global recognition of a women's jurisdiction will occur once Australia takes the lead, consistent with the depth and extent of the Aboriginal tradition.

With a women's jurisdiction alongside the men's a genuine Treaty can be negotiated, the piece of paper often sought, after which all Australians can move forward together and lead the world in governance of global peace and sustainable prosperity in perpetuity. I know this because I've been working on it since the Black Power days of the 1970s when I used to stand outside the Builders Arms Hotel and look down Gertrude Street, Fitzroy at Royal Exhibition Building in Melbourne, which hosted the opening of the first Parliament of Australia in 1901, and considered the options. The way forward is perfectly clear and relatively free from obstruction.

* In recognition of Aboriginal and Torres Strait Islander peoples, do you agree to an amendment to the Constitution to enable equal rights between women and men?

1. The Constitution of Australia is a foundation legal document.

2. In order to preserve the integrity of law, recognition of Aboriginal and Torres Strait Islander peoples in the Constitution must accommodate recognition of customary Aboriginal and Torres Strait Islander foundation law, where such law can be found to exist.

3. Justice John von Doussain in the Federal Court recognised customary foundation law with the view he was "not satisfied on the evidence before this Court that the applicants have established on the balance of probabilities that restricted women's knowledge as revealed to Dr Fergie and Professor Saunders was not part of genuine Aboriginal tradition". [Chapman v Luminis Pty Ltd (No 5) (21 August 2001):400]

4. Customary foundation law enables governance by agreement between women's and men's legislative assemblies.

5. Recognition of customary foundation law in the Constitution rebadges the Senate a women's legislature with members elected by women and the House of Representatives a men's legislature with members elected by men, each with the same powers to initiate, review, amend, accept or reject legislation enacted with passage through both.

6. A Cabinet of an equal number of women, appointed by a majority of the women's legislature, and men, appointed by a majority of the men's legislature, reconciles the business of the Parliament and provides leadership.

7. Sovereignty transfers from the Crown to a Council of Governors-Gener al comprising an equal number of senior women and men, with Royal assent.

8. The Courts recognise women's and men's jurisdictions.

9. Customary foundation law and equal rights between women and men are one and the same.

10. A referendum question on equal rights between women and men in recognition of Aboriginal and Torres Strait Islander peoples would receive overwhelming support since equal rights between women and men at law has received overwhelming support, other than foundation law where the opportunity has yet arisen, since the Constitution was enacted.


23 October, 2011


philip mckeon

406/43 morehead street redfern eora
sydney australia 2016
mob: +61 0404 254 328
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