August 21, 2013

Horse 1534 - Aboriginal Recognition In The Preamble Is The Wrong Idea - IT'S NOT GOOD ENOUGH AND DOESN'T GO FAR ENOUGH

There has been talk recently about whether or not Australia's Constitution should be updated to include clauses to recognise both Indigenous Aboriginal and Torres Strait Islander peoples. Personally I think that this in principle is a bad idea and that it should be set aside for more important; real, lasting work.
Now I know that on the face of it, I probably sound quite heartless but the truth is that I don't think that altering the preamble is the best course of action for the simple reason that it achieves nothing of lasting importance.

A preamble to a piece of legislation is either an introductory or explanatory note which sets out the purpose of that legisation. Currently the preamble to Australia's Constitution read thusly:

Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--
- Preamble to The Commonwealth of Australia Constitution Act 1900

In essence, the preamble to the Constitution currently states that the five states mentioned agreed to unite into a indissoluble Federal Commonwealth. (Western Australia isn't mentioned because it had only passed the referendum after the legislation had entered into the British Parliament.)
The preamble basically states that the Federal Commonwealth of Australasian Colonies has agreed to federate and that the act of federation was agreed to by the British Parliament and the Queen (Victoria).
Nothing more; nothing less.

The first and most important thing of note here and why I mainly think that changing the preamble is one giant waste of time is that a preamble doesn't actually form part of the material powers set out in the constitution. The preamble to The Commonwealth of Australia Constitution Act despite stating the purpose of the document because it doesn't really define anything nor empower anything and most importantly it isn't really enforceable by the courts.
What then is the point of changing the preamble if its net result is no real change in the operation of the laws of the nation?
Changing the preamble is a headline grabber for sure and it would give a lot of people a nice warm feeling but after the lights have gone out at the party, what is actually achieved? Not much really.

Of far more import is actually changing the law itself and specifically removing some of the utterly ghastly provisions which quite frankly should shame the people of the Commonwealth of Australia:

Provision as to races disqualified from voting
For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.
- Section 25.

Seriously?! After 113 years we still haven't removed this? This is the law of the land openly disqualifing people from voting on the grounds of race. Specifically it has been used in the past to disqualify Aboriginal people from voting and they only were granted the franchise in 1967; only then by referendum; because the people of Australia finally saw what rot it was to deny anyone the vote, let alone the very peoples from whom you stole the land.
Why has no major party spoken up about this? What is going on here?

Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxvi)  the people of any race , (other than the aboriginal race in any State), for whom it is deemed necessary to make special laws;
- Section 51 (xxvi)

The reason for this provision was steeped in nineteenth century bigotry and racism. Edmund Barton who would later become the first Prime Minister of Australia, argued that such a provision was necessary to regulate and  restrict the legal rights of certain migrant groups like the Chinese who incidentally had done quite well for themselves in places like Ballarat.
The fact that we've retained clauses like this in the constitution now seems like somewhat of an appendix but removing them is also pretty symbolic. Also the Section 51 provisions have actually been used as per the Racial Discrimination Act 1975 and in the case of policies specifically designed to "curb" Aboriginal peoples' behaviour in things like the Wik case, the Hindmarsh case and the horribleness that is the NT intervention.

The question then I suppose is, since I don't intend to include an acknowledgement of Aboriginal peoples in the preamble, what then would I intend to do? For this, I choose to look to the example of New Zealand who by the way have no constitution.
New Zealand with no constitution rather than recognise Maori people through a document which doesn't exist, has in its parliament, Maori only seats in which only Maoris may sit and  which only Maoris may vote for; this is in addition to their normal enfranchisement. The question then is not of recognition but rather representation. 
The thing is though and I freely admit this, that Aboriginal only seats is distinctly unrepresentative and may be construed as being discriminatory. It's one thing for the law to discriminate against people on the grounds of race but few people I suspect would disagree with discriminating in favour of people on the grounds of respect, reconciliation and accrued obligation.
It's not like claims that the Senate is unrepresentative haven't been laid against it before either. Paul Keating once said:

Then you want a Minister from the House of Representatives chamber to wander over to the unrepresentative chamber and account for himself. You have got to be joking. Whether the Treasurer wished to go there or not, I would forbid him going to the Senate to account to this unrepresentative swill over there...
- PM Paul Keating, House of Representatives, 4th Nov 1992

"Unrepresentative swill", a phrase which I think in true Australian style ironically holds so much hope and reason to cheer. I would suggest for Northern Territory to be granted statehood. Statehood for the Northern Territory would be granted with a couple of provisions though.
Owing to the fact that the entire Northern Territory only has a population of 233,300 which is even less than than the City of Blacktown local government area where I live, so giving them full statehood with 12 senators would prove Mr Keating's slur of "Unrepresentative swill" even further. So then, my solution would be that if the Northern Territory was granted full statehood, that six of their senators be selected from, by and for Aboriginal only candidates. As a method by way of balance, I'd also add one Aboriginal only senator from each of the other 6 states to bring the total number of Senators to 93 (being 7 states, 13 per state plus 2 from the remaining territories).

I really do not think that mere words in the preamble do justice or give proper recognition to the real world problems facing Aboriginal people today. The only way that you get proper legislation and thought for people is to give them a proper voice and that in a parliamentary context means placing Aboriginal voices right into the legislature. If politicians had to negotiate with them on real policy, then they might consider enacting proper policy which actually took the concerns of Aboriginal people seriously.
Instead of making policy with "them", "we" should make policy. "We" should be the word here.

If my idea sounds outlandish, dangerous or expensive, then take a think at the outlandishness, dangerousness and expense that the original owners of the land have had to endure for 225 years when a bunch of arrogant white people sailed half way round the world, dumped a load of criminals on their doorstep and the had the sheer gall to stick a flag in it; claiming that the land was "empty" - no flag, no country; you can't have one.

SBS ran an ident a few years back, which contains a few words I think are particularly helpful here:
And I want to suggest three things why you should bother about the Aborigines. Firstly, we belong to great family of God and he had made out of one blood all nations of men. Secondly, why you should bother about the Aborigines, we're a part of the great British Commonwealth of nations. And thirdly, we want to walk with you, we don't wish to walk alone. 
- Sir Douglas Nicholls

I do not like token words. I want proper voices heard IN parliament. I don't want to walk alone either. 

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