June 01, 2017

Horse 2279 - Indigenous Recognition In The Constitution: Get On With It!

Deputy Prime Minister and world champion at putting his foot in his own mouth, Barnaby Joyce, has weighed in on the discussion of the Aboriginal constitutional convention which was being held at Uluru. Among other things, the convention recommended several things including an advisory body of some sort, which would present an Aboriginal perspective on legislation before the parliament, which is fine but there were calls for it to be included within the four corners of the Constitution. Mr Joyce said that this was overreach and that such a thing would never be agreed to by the Australian people and the it doesn't really belong in the Constitution anyway.

Naturally this caused all sorts of waves and sabre rattling, with many people suggesting everything from Mr Joyce not really have a handle on the issues facing Aboriginal people, to direct accusations of racism. The furore leaked across the pages of the Daily Telegraph, the Courier-Mail, the Herald-Sun, the Sydney Morning Herald, The Age and The Australian; with many column inches devote to the apparent racism on both sides of the argument that is and isn't being displayed, whether real or imagined and​ Barnaby Joyce himself was questioned by TV and radio to clarify how thoughts but that hasn't made anything clearer at all.
In all of this, the actual issue of what should be done inside the Constitution if anything appears to have been lost entirely and while I think that there should be significant recognition, reparation and a plan to improve the lives of Aboriginal people who have faced systemic displacement and degradation from successive governments, what the Constitution is expected to do and should do is an entirely different issue.

This comes on the back of the fiftieth anniversary of the 1967 referendum which changed one status of Aboriginal populations within the Constitution and included them for the purposes of census and records keeping. The truth is that the 1967 referendum did not extend the franchise to Aboriginal people as they already had it in all states, it did not change their status from flora and fauna as many people at the time and today still mistakenly believe, and it did not improve the lives of Aboriginal people. Important issues such as land rights wouldn't be recognised until cases through the High Court like Wik and Mabo for another quarter of a century.
Although the only thing 1967 referendum did do in reality was change one minor clause in the Constitution, symbolically it stuck a post in the ground and drew a boundary line. With more than 90% of the vote nationwide, the 1967 referendum demonstrated a wish in good faith that the Australian people wanted to start to make amends for the mistakes of the past. Unfortunately, it wrote cheques that it couldn't cash and 50 years later, Australia remains the last nation within the Commonwealth which hasn't formally entered into any treaty arrangements with its first peoples.

I have previously expressed my opinion that there shouldn't be recognition of Aboriginal people in the preamble to the Constitution because I see that as merely a token that would short circuit any further dialogue. The preamble to the Constitution doesn't really have any weight of legislation because it only serves to set out what the Constitution is intended to do and doesn't bind the nation or the parliament to doing anything. Having said that, I will change my position on what should be included in the Constitution because I've seen plans for a framework which actually might start to make good on the promises of oh so long ago.
In 2010 the Gillard Goverment already held a consultation process and received thousands of submissions on this very subject. Why they weren't already put forward for adoption is totally beyond me and the fact that we did already go to the polls on Saturday just been, which coincided with the 50th anniversary of the 1967 referendum to adopt these changes, is totally beyond me and as far as I'm concerned a direct betrayal of good governement by both sides of the political divide:

There would have been three new inserted sections, thusly:

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples
Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;
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 Aboriginal and Torres Strait Islander peoples.

Section 116A Prohibition of racial discrimination
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Section 127A Recognition of languages
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

I also very much like the idea of a treaty with the first peoples of Australia. Many opponents to this will argue that a sovereign state can only enter into treaties with other sovereign states but I think that that is utter rot. When boiled down, a treaty is an agreement between two entities and in the case of Australia, those two entities are the nation state and its own people. In principle we already have one treaty between the nation state and its people and that is the Constitution itself. Under the Constitution, by very definition the government's​ and parliament is bound by a set of rules which defines what its legal scope actually is; to be honest, another set of rules and agreements isn't that conceptually different. In New Zealand, the idea of "the spirit of Waitangi" is often aired within its parliament and they've even gone one step better by including Maori voices inside the parliament.
I have written about this previously (see Horse 1534) but I can't see why a similar sort of mechanism can not be employed here. I like the idea of Aboriginal only seats in the Senate, not as a supplementary body but rather as a functional part of it. Part of the reason why I think that although Barnaby Joyce had all the tact and grace of a kangaroo with a chainsaw but was still at the kernel, absolutely correct, is that the Constitution at no point defines any statutory authority other than the Governor General, the Cabinet, the House Of Representatives and the Senate. Precisely zero government departments, councils, regulatory bodies and what not are ever defined and nor should they be. All of these things are created by and defined by the parliament. Not even the office of Prime Minister is defined and within the scope of the Constitution there doesn't really need to be one either. Barnaby Joyce is 100% correct that forcing the Constitution to define an Aboriginal council in whatever form it might take is overreach because that is not what the Constitution is supposed to do.

I think that there should be further dialogue from Aboriginal people about their own destiny and determination, there perhaps should be changes to the Constitution which make some changes to what the Constitution does and I personally think that there should be Aboriginal voices speaking into the parliament which are included but not separate from it. There should also absolutely be continuing dialogue and discussion because if this Aboriginal constitutional convention held at Uluru has proved anything, we've done a disgraceful job at listening the voices of our first peoples since the day that Captain James Cook stuck a flag in and called it British; that original injury remains as a scar across this nation and I think it's time we actually attempted to heal it.

Just Get On With It

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