Why The Preamble Is A Hollow Gesture

With international condemnation of Australia’s approach to asylum seekers and the intervention in the NT, Prime Minister Julia Gillard may not be well known for her support for human rights. Still she agreed to the Greens’ request for recognition of indigenous peoples in the Australian constitution.

Gillard has established an expert panel to develop proposals and report to her by the end of 2011. Given her bad polls Gillard may find constitutional reform a good distraction. So far the suggestions from the Law Council of Australia, respected constitutional law reformer George Williams and the expert panel are consistent: clean up archaic provisions and seek non-discrimination clauses.

But are there bigger questions that should be considered?

Constitutional recognition of Aboriginals is not as easy as it sounds. High Court Chief Justice Murray Gleeson pointed out in 2007:

"The Australian Constitution was not the product of a legal and political culture, or of historical circumstances, created … [ to] protect the rights of individuals. It was not the outcome of a revolution, or a struggle against oppression. It was designed to give effect to an agreement for a federal union, under the Crown, of the peoples of formerly self-governing British colonies."

In other words, it is no Bill of Rights, unlike its American counterpart.

Nevertheless, religious freedom is recognised. Although there is no express reference to free speech in the constitution there is an implied right of free speech on political and government matters. The rationale for this rather limited form of free speech is that the system of representative government established by the constitution could not properly operate without such freedoms. Consequently it was lawful for a man in Townsville to protest "police corruption". Burning of the Australian flag may be protected — but not duck shooting protests in prohibited areas.

The Constitution is both a source and a limitation of power. It establishes Federal and State legislatures and provides demarcation lines for each jurisdiction. It establishes the High Court to adjudicate disputes and determine limits of power for bickering governments. The Constitution is the political manifesto of the nation.

It is by virtue of the potency of the Constitution that recognition of Aboriginal rights must be so carefully approached: reshaping the essence of the existence of a nation to properly recognise the history of dispossession, and the hurt suffered — while providing a future for Aboriginal people — requires some intense deliberation.

The form of recognition must naturally be advantageous to Aborigines, otherwise there is little point to the exercise. The lessons of the most successful referendum of 1967 also need to be kept in mind. An overwhelming number of Australians voted to alter the constitution to include Aboriginals in the counting of citizens and to thwart the State’s neglect of Aboriginal people by vesting power in the Commonwealth to pass laws "for Aboriginals". As Michael Kirby commented, "the dregs of the cup of that victory were not anticipated".

Armed with a previously denied power, the federal parliament passed a raft of laws dealing with land rights and heritage, set up ATSIC and other health and legal services. It came as a complete shock to some that in 1998 the race power was relied on by Canberra to authorise the destruction of secret Aboriginal women’s business in South Australia. The Court ruled that the race power did not restrict laws to being good ones: the power included laws that caused harm to Aboriginal people. That the 1967 referendum could be used to deny Aborigines protection would no doubt come as a shock to those who championed the change. It is not what they fought or voted for.

If the constitution is to "recognise" Aboriginal and Torres Strait Islanders, the key issue is this: What is the relationship between the indigenous peoples and the nation of Australia? If recognition is to acknowledge the wrongs of the past then what indigenous peoples had prior to invasion must be taken into account.

Take the submission by the Central Australian Aboriginal organisations to the Two Hundred Years Later enquiry. It stated:

"We have never conceded defeat and will continue to resist this ongoing attempt to subjugate us. The Aboriginal people have never surrendered to the European invasion and assert that sovereignty over all of Australia lies with them. The settler state has been set up on Aboriginal land. We demand that the colonial settlers who have seized the land recognise this sovereignty and on that basis negotiate their rights to be there."

We are vaguely familiar with freedom of speech in Australia but the concept of the freedom of a people is unrecognisable as either an idea or an aim. The report of the black deaths in custody inquiry concluded that for 200 years Aboriginal people had been dominated to such an extraordinary degree that disadvantage was a product of that domination. The NT Intervention laws stigmatise Aboriginals as being unworthy of trust. They allow for even more domination over individual and collective choices and make those Aboriginals affected even more dependent.

The will of the people must prevail, surely. "Allowing" Aboriginals to decide their fate must be a right, not a privilege to be granted by government. What greater statement could the people of Australia make to Aboriginal people than this: "Here is your freedom"? Expressing that freedom in the Constitution binds the parliaments for it is in the hands of the people of Australia to alter their Constitution.

It is unrealistic to expect elected officials to apply their minds to these bigger human rights issues while they have one eye on the polls. It is for the people of Australia to place their mark on the type of society they wish to live in and be renowned for. Altering the Constitution to provide for the freedom of Aboriginals to choose frees the nation of guilt for the past by taking responsibility for the present and giving Aboriginals a future.

The constitutional amendment could be: "Aboriginals and Torres Strait Islanders are sovereign peoples with the right of self determination".

Those words do three things: first, they acknowledge the sovereign status of the people of Australia before invasion by the British. Second, that the indigenous peoples of Australia, like all other peoples of the world, "freely determine their political status". And third, negotiations between government and Aboriginal people about their relationship is for the first time, equal.

From such an acknowledgement political representation for Aboriginals would either be through an Aboriginal government — the argument that there cannot be two governments in Australia ignores the fact there are six State, two Territory and 560 local governments in addition to the Federal government — or through guaranteed seats in the parliaments.

Land is central to any agreement. One of the Articles in the Declaration on the Rights of Indigenous Peoples calls for return of ownership of all traditional lands but where that is not possible, other lands be offered in substitute.

Retention of culture and language would be high priorities. Reinstating the authority of the Elders in traditional areas may reinvigorate law and order where confusion about whether white or traditional law now prevails. Lines of demarcation will only be sensibly reached through negotiation, not dictation.

Such arrangements could be written up in a document authorised by the constitutional amendment already suggested. It could be a treaty. The basis for a treaty is justified by the extent of the dispossession, the domination and its consequences for the recovery of Aboriginal people so devastated by lack of redress. Alternatively, the constitutional amendment authorises self-determination which provides equality of standing for the Commonwealth and the indigenous peoples to sign an agreement.

Self determination is controversial. What does it mean? A working definition has proved elusive both within Australia and in international law. Groups to whom it applies may freely determine their political status — but which groups?

The official Australian position on indigenous self determination is that it means "internal" self determination only. An Australian definition of internal self determination is even harder to pin down than is its international counterpart. The election in Quebec of the Parti Québécois led to two referenda, one in 1980, the other in 1995, for Québec to secede from Canada. Both referenda were defeated, the second only very narrowly. Most French Canadians had lived in Quebec for hundreds of years, spoke French and had a different culture to English-speaking Canadians. Many French Canadians still thought of themselves as French, not Canadian. Eventually the issue was put to the Court for its opinion on the right of Quebec to break-away.

In 1998 the court decided that:

"a right to secession only arises under the principle of self-determination of people at international law where ‘a people’ is governed as part of a colonial empire [such as Australia breaking from Britain]; where ‘a people’ is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part."

There would be a powerful argument that Aboriginals could claim the third test applies to Australia’s treatment of Aboriginal people. However even where the criteria for self determination is satisfied, no group has been successfully able to break away from a state without the state eventually agreeing or significant international support forcing the issue. Neither of those practical steps apply to Australia — yet.

Prime Minister Gillard’s call for recognition of indigenous peoples raises ideas and concepts not previously taken too seriously in Canberra. The US acknowledges Indians as nations, Canada installed recognition of aboriginal rights in its constitution and NZ signed the Treaty of Waitangi with the Maori.

Australia’s reputation in the area of human rights generally and relations with indigenous peoples specifically, could do with a boost. Preamble recognition of Aboriginals exists in the Queensland, NSW and Victorian constitutions. These are hollow gestures that create no rights or obligations. In each case, the States’ recognition of Aboriginals "honours" and "acknowledges" their existence and contribution they have made to each of those States. Could just as well have been a reference to sheep. We can do better than support a new preamble in the national constitution.