A job half undone
Constitutional recognition for Indigenous Australians must be more than just tokenism
By June 2017
I am sitting on a verandah on Thursday Island, where the last of 12 First Nations dialogues on the constitutional recognition of Australia’s original peoples is taking place. Each dialogue in the series involved around 100 First Nations representatives, as well as organisations and influential individuals.
The process was unprecedented. The Indigenous political world, while not without strong women, has long been dominated by men. This process was led by two Aboriginal women: veteran health advocate Pat Anderson and law professor Megan Davis.
There were no black faces at the conventions with the colonial founding fathers, when power in Australia was divided up. The absence of native voices meant the Constitution of 1901 did not allocate any power to those who had occupied and owned Australia for at least 53,000 years prior to the formation of the new Commonwealth.
Each colony had its voice heard, but the colonised peoples had none. While the colonies were each guaranteed equal representation as states in the compact – regardless of population – the Indigenous peoples went unrecognised and unrepresented. Indeed, constitutional provisions ensured Indigenous exclusion.
In 2017, the contemporary First Nations of this country are having their say on how the Constitution might best recognise and protect their rights and interests. This is a crucial moment in the story of our nation. It is an opportunity to right a great wrong.
By the time this issue of the Monthly is printed, the dialogues will have culminated in a constitutional convention at Uluru. If Redfern is the political capital of black Australia, then Uluru is our spiritual centre. First Nations leaders from across the country will have met to form a consensus position on the constitutional reforms they want.
There is no more fitting location. If Uluru succeeds, it will be the opportunity for all Australians to hear the voice of the First Nations. And for real reform to ensue.
I write these words with Uluru still in prospect. The themes that have come out of the dialogues are, however, clear.
All agree that the system is not working and needs reform.
This is why every dialogue rejected a minimalist or purely symbolic model in favour of practical and substantive reform. The dialogues decisively demonstrated that Indigenous Australians will not accept tokenism and will actively oppose any minimalist “politician’s model” that might be pushed through against their wishes. Michael Madigan of the Courier-Mail aptly captured the blackfella view there is zero appetite for Kumbaya-singing sentimentalism. People want real reform, or nothing at all.
The idea of a constitutionally mandated First Nations voice to parliament gained consistent support. Blackfellas want to be empowered in their affairs. They want to influence political decision-making about their rights and the future of their people. They want grassroots local voices to be heard. And they don’t want any such representative institution abolished at government whim.
Agreement-making is also an important priority. Every dialogue saw contemporary agreement-making as a mechanism for forging stronger partnerships between First Nations and governments. Many felt Australia would benefit from a truth and reconciliation process to help resolve the past and bind up the wounds of history.
The Uluru convention, on 27 May, will coincide with the 50th anniversary of the 1967 referendum. That was Australia’s most successful referendum, passing with a 90.77% “Yes” vote, and provides important lessons for achieving constitutional recognition today.
In 1967 Australians voted to shift Indigenous affairs from being solely a state matter to being a Commonwealth responsibility. The Commonwealth eventually used its new power to give legislative recognition to some Indigenous rights, enabling legislation such as the Native Title Act in 1993. Australians also voted to remove section 127 of the Constitution so that Indigenous people could be counted in the census.
But 1967 only removed the negative constitutional exclusions of Indigenous people. It did not implement any positive recognition or protection of rights. The 1967 reforms left the job half undone.
The transfer of power to the Commonwealth to legislate with respect to Indigenous affairs included the power to discriminate. It incorporated Aboriginal and Torres Strait Islander peoples within the ambit of the discriminatory race power, which was inserted by the drafters to control and exclude the “inferior” and “coloured” peoples. Indigenous inclusion under the race power in 1967 enabled positive legislation in relation to Indigenous peoples, but any legislative recognition of Indigenous rights can just as easily be legislated away. Apart from the race power, the Commonwealth can also still use its many other powers to effect discrimination. The Northern Territory Intervention relied on section 122 – the territories power.
Crucially, the 1967 reforms did not include any constitutional guarantee that Indigenous people would be treated more fairly than in the past. The constitutional problem left unresolved by 1967 is demonstrated by the fact that the Racial Discrimination Act – which is supposed to protect all Australians from racial discrimination – has been suspended three times, each time only in relation to Indigenous people. Our nation has unfinished business. It is the unresolved tension of 1967 that propels the drive for constitutional recognition and reform today.
There are three important lessons to be drawn from 1967.
Lesson one: constitutional rights clauses are not a politically viable solution.
In the lead-up to the 1967 referendum, Liberal MP Billy Wentworth proposed a constitutional guarantee of racial non-discrimination. Wentworth anticipated the problem we still grapple with today: what is the best, and most politically viable, way to constitutionally recognise and protect Indigenous rights? A qualified Indigenous power was also suggested. However, neither form of constitutional guarantee was adopted. The government worried that such amendments would create legal uncertainty and risk parliament’s laws being struck down by the High Court, thus undermining parliamentary supremacy. The proposal fizzled because politicians could not be persuaded to give up any power to the High Court.
That didn’t deter advocates (me included) from pursuing the same reform in 2012. The Expert Panel on Constitutional Recognition of Indigenous Australians proposed a racial non-discrimination clause again, to the immediate ire of the prolific anti–bill of rights advocates, who derided it as a “one-clause bill of rights”.
Notwithstanding this obvious stumbling block, in 2015 a joint select committee chaired by Liberal MP Ken Wyatt proposed three versions of a racial non-discrimination clause. A few weeks later Wyatt told the Australian newspaper that such a clause could not succeed because it was already being opposed within his own party. There was nothing substantive left in the joint select committee’s proposal once the non-discrimination clauses were dumped.
My commentary for the Monthly in August 2015 told the story of this abandonment.
The lesson is now learnt. Any kind of judicially adjudicated rights clause is unlikely to win the widespread political support necessary for a referendum. Just look at the history of constitutional reform. All past attempts at implementing new constitutional rights clauses have failed due to lack of political support. Australia cannot implement a federal bill of rights, let alone a constitutional rights clause.
Lesson two: don’t get duped by slick slogans.
In the lead-up to the 1967 referendum, Indigenous advocates and their allies did a great job campaigning and drumming up public support, but there were not enough legal experts keeping an eye on the constitutional drafting, to ensure Indigenous people were not being duped into accepting substandard reform.
The expectations of 1967 outshone its results. The slogans of the time indicated that the referendum was about protecting Indigenous rights and achieving equality. In reality, the 1967 referendum did not achieve those things. It only conferred upon parliament the power to recognise and protect Indigenous rights if it chose to. It didn’t guarantee our rights or compel fair treatment.
Indigenous Australians are more empowered and educated now than in the 1960s. We have lawyers, judges and academics among us who can properly assess any proposed amendments, but we must still be wary.
Many at the dialogues pointed out the misleading nature of the “racism out, recognition in” slogan, propagated by pollsters and campaigners. The slogan attempts to disguise minimalism as substantive change, but blackfellas are not buying it. In 2017, we know we have to pay more attention to the actual amendments than to slick slogans and jingles.
Lesson three: politicians must negotiate with the First Nations in good faith.
In 1967 there was no formal negotiation process to synthesise Indigenous reform aspirations on the one hand with the concerns of Australian political leaders across the political spectrum on the other. Back then, Indigenous people had their say through their advocacy and activism, but at the end of the day the politicians decided on the way they wanted to proceed and the reforms they wanted to pursue. Without a formalised negotiation process, Indigenous best interests were overlooked and the reform implemented was not as good as it could have been. Nor did it solve the fundamental problem, which is why we are still discussing constitutional reform.
If we want to resolve this issue once and for all, we must do better than 1967. First Nations of Australia must be afforded a formal opportunity to sit down with Australian parliamentarians of all parties, to negotiate a package of meaningful reforms, capable of winning the support of the Australian people.
This negotiation must be conducted in good faith. It must be conducted with the gravitas and honour that belated constitutional negotiations deserve.
The better angels of peoples and nations are ever present even if unseen, and even in times when our rancorous ones are more visible. Better angels need to be conjured from the fog of fear and cynicism. Angel-conjuring requires leadership. If Australian leaders can connect our political heads with our spiritual heart, we will all be richer for it.