Since 1967, the Constitution has not mentioned Aborigines or Torres Strait Islanders, the two Indigenous peoples for whom Australia is home. After the High Court’s 1992 Mabo and 1996 Wik decisions, the Australian Parliament needed to recognise land rights from the Torres Strait to south-west Western Australia. Governments of all persuasions have learnt to accommodate native title. We Australians pride ourselves on extending equality under the law to all persons. Most of us accept the need for special laws recognising Aboriginal land rights, cultural heritage, and contemporary traditions. We also accept a distinctive national obligation to preserve Aboriginal languages.
Some Australians think equality under the law would be best maintained by ensuring that the Constitution is ahistorical and colour-blind, making no mention of Aborigines and Torres Strait Islanders. They think a Constitution could be drawn up using a Google template, not including anything distinctively Australian. So they see no need to amend the Australian Constitution as it has been since 1967.
Others think equality under the law can be enhanced by providing recognition of that which is uniquely and vulnerably Australian – our Aboriginal culture, heritage, traditions, and relationships with country. They think that all Australians could walk taller if our Constitution graciously acknowledged the distinctive place of Aborigines and Torres Strait Islanders.
I am a strong advocate for Indigenous recognition in the Constitution. But what might that look like? And how is it to be achieved?
We Australians have been talking about this issue for a long time now. In 1997, the issue came into focus when the Howard government was wanting to amend the Native Title Act without Aborigines enjoying the same place at the table as they enjoyed when Paul Keating first formulated the Native Title Act. At that time, the Australian Parliament also legislated to ensure that its heritage protection legislation would no longer cover the heritage claims of the women from Hindmarsh Island. Since then, Aborigines have also been understandably upset at the mode and content of law- making in relation to the federal intervention on communities in the Northern Territory.
The Gillard Government set up an expert panel to advise a way forward. The Abbott Government is awaiting a report from a joint parliamentary committee. On July 6 Tony Abbott and Bill Shorten will meet with 40 Aboriginal and Islander leaders.
I am neither Aboriginal nor Islander. I do not envy Indigenous leaders deciding the best way forward for their people enjoying equality under the law. I am a non-Indigenous Australian who thinks history holds some good lessons on the way forward. In No Small Change, I trace the history of the big policy changes which occurred after 1967 – from terra nullius to land rights, and from forced assimilation to self-determination. A modest constitutional change carried overwhelmingly by the Australian people provided the momentum for change. The creation of a competent Council for Aboriginal Affairs was the catalyst for change. The members of the Council were constantly frustrated that they were not given a statutory charter with the result that public servants would often be dismissive or obstructionist when the Council was seeking policy changes.
Any constitutional change with a real chance of success has to tick three boxes: it has to match Indigenous aspirations; it must be workable and not throw out of kilter the basic structure of the Constitution; and it must be in harmony with popular sentiment, not causing fear or uncertainty.
There are presently four options on the table for the Indigenous leaders preparing for their meeting with the Prime Minister and Leader of the Opposition. Other options may emerge. But it is useful to add a word about each of the four options presently on the table.
- The Indigenous leaders can opt for a modest, largely symbolic change so that the Constitution contains an acknowledgment by the Australian people that we recognise Aboriginal prior occupation of the land, we acknowledge the continuing relationships with land, and we respect the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples. The Commonwealth Parliament could be given power to make laws with respect to these things acknowledged by the Australian people.
- They can insist that any referendum include a constitutional provision banning all racial discrimination. This was the cornerstone of the expert panel’s report. Noel Pearson recommended this provision to the expert panel of which he was a member. Once the expert panel report was published, Pearson abandoned the non-discrimination clause conceding that it was very problematic and that it would have no chance of winning support both from the major political parties and from the Australian public. He was right.
- They can insist that any modest, largely symbolic change be complemented by the addition of a new body in the Constitution which would advise Parliament when new laws for Aborigines and Torres Strait Islanders are being considered. Noel Pearson recommended this provision when he abandoned the non-discrimination clause. It makes good sense to have such a body. In the past, there have been bodies such as the NACC, the NAC, and ATSIC. Now there is the National Congress of Australia’s First Peoples. I don’t think there is any way the Australian people would agree to put such a body into the Constitution unless it were first road-tested. The Congress or some new body could be given a statutory charter to do this job. If it proved successful, enjoying the trust and confidence of local Aboriginal communities, there would be a strong case for putting it in the Constitution down the track, but not during the life of the next Parliament. That would be too soon.
- They can opt for no change to the Constitution, not being satisfied with a modest, largely symbolic change, and being unable to get up the proposals for a non-discrimination clause or a constitutional advisory body. They will be left with a Constitution which does not mention them.
My advice, for what little that is worth, would be for the Indigenous leaders and our parliamentary leaders to opt for the modest, largely symbolic constitutional change together with a statutory charter being given to the National Congress of Australia’s First Peoples or to some new representative body. They should also agree to commence the consultations with the Business Council of Australia, the National Farmers Federation, the Minerals Council of Australia, and the state governments to see if the Native Title Act could be made strictly subject to the Racial Discrimination Act.
Constitutional change alone will not change lives for the better. But a good Constitution is a better complement to other measures than a bad one. I dedicated No Small Change to a young Aboriginal man from Daly River in the Northern Territory who took his own life in 2009. My dedication is to him and others like him caught between the Dreaming and the Market. Those Aborigines who are most at home in modern Australia tend to be those with a secure foothold in both the Dreaming and the Market. Those who are most alienated and despairing are those with a foothold in neither. I hope the journey to constitutional change can enhance the foothold in each.
