ANTaR (Australians for Native Title and Reconciliation)

Recently, Prime Minister Kevin Rudd revived John Howard’s 2007 pre-election proposal to amend the preamble to the Australian Constitution to recognise Aboriginal and Torres Strait Islander people.

Rudd’s announcement was prompted after Yolgnu and Bininj elders presented him with a Statement of Intent at the Federal Government’s Community Cabinet meeting in Yirrkala, Northern Territory.

Prior to that, constitutional reform had been raised by participants in the Indigenous stream at the Federal Government’s 2020 Summit in Canberra and at the Barunga Festival in the Northern Territory earlier this year.

In fact, it has been the perennial focus of unfinished business between Indigenous peoples and the state.

The task of amending the Constitution is fraught with difficulties, as Australia has a rigid Constitution that is almost impossible to amend. Section 128 of the Australian Constitution requires the amendment proposal to be passed by a majority of people in a majority of states and an overall national majority.

Since Federation in 1901, Australia’s Constitution has only been amended eight times out of 44 attempts.

One of the most important factors in successfully changing the Australian Constitution is manufacturing bipartisan support. Any proposal requires both sides of politics being on side.

The Australian Labor Party has the worst record as a political party when it comes to constitutional change. They have succeeded in only 25 of the 44 amendment proposals and the last time they succeeded was in 1946. 

Many Constitutional lawyers posit that bipartisan support is required because of the poor civics knowledge of Australians, who have a tendency to vote no if they don’t know.

Therefore, where there isn’t bipartisan support, any level of disagreement will confuse voters particularly when ‘Australians have little understanding of how the current system of government works’.

It has been 31 years since the Australian Constitution has been altered and this is the longest period Australia has gone without any Constitutional amendment.

It may be likely that the next attempt to alter the Constitution is on the issue of four year parliamentary terms, which has already attracted support from both sides of politics.

Furthermore, Rudd has also indicated his intention to hold a referendum on the Republic following national plebiscites dealing with questions of whether Australians want to become a republic and what model they want.

It is clear there is growing momentum for Constitutional reform and a sense that the current compact as drafted is ill-suited to our modern democracy. Given the already crowded agenda, Indigenous peoples have to carefully consider how we fit with those proposals.

The problem with pursuing preambular recognition alone

The preamble proposal may get support because the very attractive marketing message for Australians would be that it will provide Indigenous peoples with no rights and have no impact upon their own rights.

The preamble has no legal effect and has virtually no interpretive value in terms of the operative provisions of the Constitution.

In fact, the truth be told, technically you could change the preamble without a referendum.  The only thing that prevents that is that in this day and age popular sovereignty underpins the Commonwealth of Australia Constitution Act 1900 (UK).

Given the presence of section 51 (xxvi) — the races power — in the Constitution it is strange symmetry indeed to have a symbolic showcase like the preamble lauding the first peoples of Australia as being important to the Australian state, yet an operative provision that can in fact permit the federal government to pass laws that discriminate against Aboriginal people because of their race.

After the Yirrikala cabinet, the media comment following Rudd’s comment, seemed to suggest that the Yolgnu and Bininj elders were talking about preambular recognition.

However the communique clearly shows they were talking about recognition of their pre-existing land rights in the body of the Constitution.

Any proposal to have pre-existing Indigenous rights to land recognised in the Constitution will require a more targeted, long-term campaign that must seek to overcome poor civics knowledge, community racism and division.

Perhaps the strongest chance for Constitutional reform is deleting or amending the races power.

It is unacceptable for a modern liberal democracy like Australia to have a races power in the Constitution.

Particularly with nascent discussions about a national Charter of Rights and political rhetoric about Australian respect for human rights and the rule of law, a races power would be at odds with a non-discrimination clause in a statutory Charter.

Thus maybe a more realistic chance of success would be the repeal of the races power and the inclusion of a non-discrimination and equality provision in the Constitution.

Given the universal appeal of a national commitment to non-discrimination and equality as underpinning our popular sovereignty, this proposal is more likely to succeed at a referendum if supported by both sides of politics. 

Moving forward

Any strategy for Constitutional change needs to be well orchestrated and tailored to an Australian polity, with Australia’s history — to Australian conditions.

Also we have to keep in mind that to advocate for constitutional reform is not to assert that addressing disadvantage in remote, regional and urban Indigenous communities is not crucial. It is crucial.  But we need to make clear the causal link between constitutional reform and improving Indigenous disadvantage.

Still, the unsophisticated tenor of public debate on Indigenous issues means that any Indigenous person suggesting constitutional change must also simultaneously and emphatically emphasise the importance of addressing disadvantage immediately and urgently.

Hence The Australian’s newspaper headline after 2020: Kids Trampled in race for Treaty.

The strategy will need to be tailored to a detail-deficient media and account for the lack of media diversity in Australian democracy.

Dillon and Westbury’s excellent book, Beyond Humbug: Transforming government engagement with Indigenous Australia, refers to Paul Kelly’s lament about the ‘dumbing down’ of public political debate in Australia particularly in the case of Indigenous affairs where media reporting was ‘singularly lacking in penetrating and thoughtful analysis’. 

In fact, many thought they would see the end of the simplistic nature of the false dichotomy between the practical and the symbolic in Indigenous affairs with the end of Howard.  However, the false dichotomy received enormous traction with our (very limited) media and continues today in the language of the federal government.

Thus a strategy for working toward Constitutional reform needs to appreciate the importance of bi-partisan support, the low level of civics knowledge, a limited and detail-deficient media in which these debates must be had and the stamina required for such a long-term project.

In the meantime a magnificent preamble that showcases a racist provision in the Constitution is not something I would advocate for.  Something needs to be done about the races power and that conversation has not even started.

On a final note the Yolgnu and Bininj elders called for the Australian government to make good on its election promise to endorse the United Nations Declaration on the Rights of Indigenous Peoples. 

This is something many people in the Aboriginal community are still waiting for.

Next week I am attending the United Nations Permanent Forum on Indigenous Issues in New York. This year’s topic is climate change. The Indigenous Law Centre has a research project that is examining the human rights implications of climate change for Aboriginal and Torres Strait Islander peoples.

UN meetings on Indigenous issues are always exciting. It is amazing to see so many Indigenous human rights defenders from around the world dressed in beautiful and intricate traditional costumes and gathered together to share stories of success and failure in Indigenous law and policy.

I was once an Indigenous Fellow with the UN Office of the High Commissioner for Human Rights in Geneva. My fellowship group consisted of a Sami Parliamentarian from Sweden, an Indigenous man from the Yakutz republic and a Biak man from West Papua. The two blokes couldn’t speak English very well so we all communicated in French!

The Permanent Forum was created in 2000. Its existence is a triumph of Indigenous advocacy at the UN. Its establishment was one of two main goals of the first UN International Decade of the World’s Indigenous Peoples, the other goal being the United Nations Declaration on the Rights of Indigenous Peoples.

The primary role of the forum is to raise awareness of indigenous peoples human rights issues within the United Nations system and to integrate indigenous issues into the many agencies and programmes of the UN system. It is unique in its structure with its membership being divided equally between eight state members and eight indigenous peoples representatives.

Professor Mick Dodson is the extremely hardworking and dedicated Indigenous representative for the Pacific. Another hard working and brilliant Aboriginal woman working for the UN Secretariat for the forum is Sonia Smallacombe. Sonia is a member of the Maramanindji people in the Daly River region of NT. Sonia has also held the roles of Head of the School of Australian Indigenous Knowledge Systems at Charles Darwin University and was the manager of the Indigenous Cultural and Intellectual Property Taskforce at ATSIC. Sonia is such an inspiration to me and many young Aboriginal women and it’s really thrilling to see so many Indigenous people working in important postings at the United Nations.

One major development Indigenous peoples are expecting in the next two weeks is the Rudd government’s long awaited endorsement of the United Nations Declaration on the Rights of Indigenous Peoples.

The Declaration is a non-binding legal instrument of the General Assembly. It doesn’t have to be signed or ratified. And because it is a declaration of the General Assembly, Aboriginal and Torres Strait Islander communities can use the declaration in their work and daily lives immediately.

And while it doesn’t have to be endorsed to be used, endorsement is important for Australia in signalling its renewed commitment and emphasis on human rights and multilateralism. That should be done contemporaneously with taking office along with other commitments to human rights such as the Optional Protocol to CEDAW.

It is important for the Rudd government to endorse the declaration as it is necessary to make concrete the Federal government’s commitment to Indigenous peoples. Of course their ongoing commitment to the suspension of the RDA and the willingness to support the inadequate legal justification for violating peoples rights on the basis of race (until their annual review of the NT Intervention) sits uncomfortably with an endorsement of a declaration that is based on the right to self-determination and rule of law.

While the federal government is at pains not to break economic promises that will bolster the wallets of many Australians, it will be interesting to see whether this promise to endorse the declaration was real or just hollow words spoken in election time to juxtapose rights “cred” against the Howard agenda.

But before New York, I am off to 2020 … I will be participating in the 2020 Summit in the Indigenous stream.

Murri cricket

Finally, I have to congratulate the victorious Queensland team for their victory in the Imparja cup!! My brother Will was one of the champion Murris who won in Alice - Imparja Cup is being rotated on NITV for those who want to check it out.