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September 2011

NSW Reconciliation Council Submission  To: You Me Unity Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians  prepared by Alex Kilpatrick

 Contact:

Leanne Townsend 11-13 Mansfield Street, Glebe NSW 2037 Tel: 02 9562 6355 leanne.townsend@nswreconciliation.org.au, www.nswreconciliation.org.au


NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians



About the NSW Reconciliation Council

The New South Wales Reconciliation Council (NSWRC) is the peak representative body for Reconciliation in NSW. The Council is made up of Indigenous and non-Indigenous Australians working through a range of groups and organisations to promote united communities and to address the ‘unfinished business’ of Reconciliation. This means promoting recognition of rights, economic independence and social justice for Indigenous people. NSWRC has been working towards ‘A Reconciled Australia’ since its inception; believing that relationships between Indigenous and non-Indigenous people at the community level have a vital impact on Indigenous people’s socio-economic status, health, culture and well-being. By advocating for a ‘sharing of cultures’ approach to Reconciliation, the NSWRC seeks an increase in mutual (cross cultural) understanding through the ‘promotion of equitable and just communities that acknowledge and respect Aboriginal and Torres Strait Islander peoples, cultures and values’. NSWRC believes the reconciliation process can be advanced by building a peoples’ movement; raising awareness and understanding; and promoting and supporting social justice, equity and human rights. For the life expectancy gap between Indigenous and non-Indigenous people to be reduced, Indigenous peoples’ culture (customs, practices, perspectives, values, beliefs) and position as the First Peoples of Australia must be recognised, respected and valued.

The NSWRC sees Constitutional Recognition for Aboriginal and Torres Strait Islander people as a significant step in the realisation of a Reconciled Australia. 

About this submission

The position the NSWRC presents in this submission has been determined by the executive and grassroots community members of our organisation. The NSWRC hosted a community information forum and a series of workshops on Constitutional Recognition on 4 August, 2011. The information session was presented by Dr Sarah Pritchard and followed by workshops. Around 30 people (Indigenous and nonIndigenous) from across NSW participated. Further to the public workshops, the NSWRC provided the opportunity for its members to contribute to this submission.

The recommendations in this submission are guided by the views of our members.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

Contents

 About NSWRC and this Submission

2

 Introduction

4

 NSWRC’s position

5

 Preamble

6

 Statement of values

8

 Statement in the body of the Constitution

10

 Removal of Section 25

12

 Removal of Section 51

13

 Agreement making power

14

 The referendum

15

 A successful referendum

17

 Conclusion

19

 Summary of recommendations

20

 References

21

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

 Introduction

Changing the Australian Constitution to recognise and acknowledge Aboriginal and Torres Strait Islander people in a meaningful and respectful way moves us all further along the road to Reconciliation. It contributes to healing past injustices and to building an authentic foundation for us as a nation to look to as a source of pride. We have before us the rare opportunity to consider our collective values and identity, and to participate in an important act of Reconciliation. We recognise with pride that our shared history is rich with the acts of Australians who have fought to redress racism and injustice over centuries, resulting in significant gains for Indigenous Australians. In 1901, when our current Constitution was drafted, the writers had a particular vision for this land and its people. Guided by the prevailing values of the time, their vision did not recognise a place for Aboriginal and Torres Strait Islander people in the new nation. Today we know that this vision was limited and unjust, and that it no longer represents the values of Australians. We have the unique opportunity to rectify our founding document by embracing a vision that reflects who we are as a people and as a nation. The Council for Aboriginal Reconciliation (CAR) recommended in its final report to the Australian Parliament in December 2000 that:  Recommendation 3 The Commonwealth Parliament prepare legislation for a referendum which seeks to:  Recognise Aboriginal and Torres Strait Islander peoples as the first people of Australia in a new preamble to the Constitution; and

 Remove section 25 of the Constitution and introduce a new section making it

unlawful to adversely discriminate against any people on the grounds of race.

 Recommendation 5 Each government and parliament:  Recognise that this land its waters were settled as colonies without treaty or

consent and that to advance reconciliation it would be most desirable if there were agreements or treaties; and

 Negotiate a process through which this might be achieved that protects the

political, legal, cultural and economic position of Aboriginal and Torres Strait Islander peoples.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

 NSW Reconciliation Council’s position

The NSWRC has considered the significant challenges in changing the Australian Constitution in writing our submission, and include the recommendations we see as desirable, leaving the task of what is achievable and legally sound to the Expert Panel.

The NSW Reconciliation Council’s recommendations: Recommendation 1:  The insertion of a preamble to the Australian Constitution that recognises Aboriginal and Torres Strait Islander Australians Recommendation 2:  The NSWRC does not support the inclusion of a Statement of Values Recommendation 3:  The insertion of a Statement of Recognition within the body of the constitution Recommendation 4:  The removal of Section 25 Recommendation 5:  The removal of Section 51 (xxvi) ‘The Race Power’ Recommendation 6:  The inclusion of a new power to allow the making of agreements between governments and Indigenous peoples. The NSWRC believes that in recognising Aboriginal and Torres Strait Islander Australians in the Constitution we are building an authentic national identity which encompasses a shared past and creates a united future. ‘The power of a people to say who they are, to define their own identity and to relate to their history is fundamental to their existence.’ Eleanor Bourke, a descendant of the Wergaia and Wamba Wamba peoples1

Eleanor Bourke, a descendant of the Wergaia and Wamba Wamba peoples, in Colin Bourke, Elaine Bourke and Bill Edwards (eds), Aboriginal Australia, UQP, p.1

1

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

Constitutional Recognition: Supported Models 

Preamble

The NSW Reconciliation Council supports the insertion of a new preamble to the Australian Constitution. The creation of a preamble which acknowledges Aboriginal and Torres Strait Islander peoples prior ownership and custodianship of the land and waters, their unique histories and ongoing cultures is essential to the Reconciliation movement. A preamble that openly embraces and respects Aboriginal and Torres Strait Islander people creates a lens through which we can be seen as a nation of people who value equality, truth and justice.

A preamble recognising Aboriginal and Torres Strait Islander people should:  Acknowledge the custodianship of Indigenous people of this country prior to the arrival of Europeans  Recognise the continuing cultural connection and practices of Aboriginal and Torres Strait Islander peoples  Acknowledge the true history of this country by erasing the myth that Australia was an empty land prior to European arrival (terra nullius)  Affirm an inclusive positive national identity for all Australians  Include significant consultations and contributions by Aboriginal and Torres Strait Islander people in its creation

 The current Preamble

The Australian Constitution does not currently contain a preamble, although there is a preamble to the Constitution Act. Whilst this was written in Australia, it exists solely as part of an Act of British Parliament and not as part of the Australian Constitution itself. The existing Preamble to the Constitution Act is of little value to the Australian nation and its people. It states that: ‘…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…’

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

The current Preamble serves to enshrine the notion of terra nullius in the Commonwealth of Australia’s founding documents. There has never been any agreement, makarrata or treaty made between Aboriginal and Torres Strait Islander people and the British Parliament. When the Australian states federated in 1901, they did so without consideration or inclusion of Australia’s Indigenous population who were neither consulted about the new federation, nor allowed to vote for its conception. The passage from the Preamble written above therefore serves to discredit Aboriginal and Torres Strait Islander people’s claims to citizenship rights in Australia and ignores the existence of the First Australians completely.

 A new preamble

The insertion of a new preamble within the Australian Constitution itself would allow the Australian state to define itself in a way which is inclusive of all its citizens, with acknowledgment of the true history of the country by erasing the myth that Australia was an empty land prior to European arrival. Whilst legally the notion of terra nullius was erased by the Mabo decision2, statements like that which is found in the Preamble to the Act enshrine the principle of terra nullius in the way that Australians think about themselves and their history. Principles of inclusive democracy and equality, which are now considered so fundamental to our modern Australian identity, are contradicted by the values inherent in the current wording of the Preamble. An acknowledgment of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia in a preamble would ensure that the Australian story would be recognised as beginning prior to the arrival of the First Fleet in 1788. This is of critical importance to the Reconciliation movement as we believe that by acknowledging the past we can address the ongoing effect that past attitudes and polices continue to have in modern Australia. By confronting and addressing the exclusionary and discriminatory nature of Australia’s past with regard to citizenship, Australians can look forward to a future that embraces Aboriginal and Torres Strait Islander culture and heritage as essential characteristics of our national identity. The insertion of a preamble has the potential to have substantive positive impact for our national identity. In this regard the preamble could be presented in the form of a statement of intent, or Statement of Reconciliation. Although most legal experts have suggested that a preamble has little legal value, it may operate as a medium through which ambiguous parts of the Constitution can be interpreted. If it were to express a national commitment to Reconciliation or the intention to protect and value Indigenous culture and heritage, then this may provide some credence to arguments against laws which conflict with these principles.

2

http://www.mabonativetitle.com/tn_23.shtml

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

The NSW Reconciliation Council considers the insertion of a preamble into the Constitution to be of great value to Reconciliation in Australia. A preamble that is widely understood and known by all Australians, that is taught in schools and includes recognition for Aboriginal and Torres Strait Islander people will serve as the first national institution that is genuinely inclusive.

 Statement of values

The NSW Reconciliation Council does not support a Statement of Values within a preamble to the Constitution or in the body of the Constitution. We consider it challenging to articulate a shared set of defined ‘core values’. Whilst some worth may be found in the process of developing a Statement of Values that could encourage unity and embrace inclusivity, identifying and defining ongoing and enduring core values of Australian society is difficult. Defining our ‘core values’ and not understanding the relevance these values might have in the future, (say in 200 years time), puts an unnecessary limit on the ability of Australia to progress and develop its identity as a nation. We need not look further than the attitudes and beliefs held by the drafters of the Constitution to understand how national values change over time and the difficulties which may result from enshrining the values of the day in our Constitution. The NSWRC considers it important to continue exploring the issue of a Bill of Rights in Australia. We believe a Bill of Rights is required and is preferable to a statement of values. As argued by Professor Larissa Behrendt, a Bill of Rights would:  “…give better protection to recognised international human rights standards. It

would bring our legal system up to agreed international standards and would meet our obligations under international treaties.

 Other jurisdictions have one – all comparable jurisdictions – Canada, the United

States, South Africa, New Zealand and the United Kingdom – have all modernised their legal systems with a Bill of Rights in some form. It is time that Australia provided the same level of rights protection.

 A Bill of Rights would protect the sectors of Australia’s community who have been vulnerable to rights violations in the past– in particular, women, Indigenous people, refugees and people from non-English speaking backgrounds.

 It would create a community more aware of the rights of its citizens, would create a culture of rights, and thus would be a more tolerant society.”

Larissa Behrendt

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Larissa Behrendt (2009), ‘Constitutional and Human Rights Reform’, NSWALC Conference Paper, Hunter Valley, NSW. p.46 3

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

We believe the Reconciliation process is intrinsically linked to the improvement and enhancement of respect, recognition and protection of rights of Indigenous peoples. A Bill of Rights will create a common language and legal framework upon which Reconciliation can be based and measured against, unlike a statement of values. “It is not possible to talk meaningfully about Reconciliation, and the transformation of relationships between Indigenous and non-Indigenous Australians that it aims for, without reference to human rights…The treatment of Indigenous peoples throughout Australia’s history has not respected these basic principles of humanity.” Dr William Jonas, (former Aboriginal and Torres Strait Islander Social Justice Commissioner)

With a Bill of Rights, Australia would be bound to address the clear differences between the experiences of Indigenous and non-Indigenous people in Australia across all indicators of quality of life. We know that:  The life expectancy of Indigenous people is around 12-15 years lower than that of the Australian population4  In 2010, the unemployment rate for Indigenous people was 18% compared with only 5% for the non-Indigenous population5  In 2008, 25% of all Aboriginal and Torres Strait Islander people aged 15 years and over (adults) were living in overcrowded housing6  Indigenous people are more likely to experience homelessness than other Australians. In 2006, the rate of homelessness for Indigenous people was three times the rate of other Australians7  Indigenous prisoners represented 26% of the total prison population in Australia in 2010, 14 times higher than the rate for non-Indigenous people8  Indigenous people have also suffered from the limited recognition and protection of their cultures, languages, rights and ownership of land and resources.

http://www.hreoc.gov.au/social_justice/statistics/index.html#Heading136 http://www.abs.gov.au/ausstats/abs@.nsf/Products/6287.0~2010~Chapter~Unemployment 6 http://www.abs.gov.au/AUSSTATS/abs@.nsf/lookup/4704.0Chapter865Oct+2010 7 http://www.abs.gov.au/ausstats/abs@.nsf/0/09E0A0709D2AEC35CA2574390014A850?opendocument 8 http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/F5D94ECD1E7BA768CA2577440022EC2D/$File/45120_mar%202010. pdf 4 5

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

The NSWRC considers a Bill of Rights as being key to advancing Reconciliation in Australia. A Bill of Rights engenders our nation as one that takes seriously its responsibilities in the international community and preserves and values human rights for all its citizens. 

Statement in the body of the Constitution

The NSW Reconciliation Council supports in principle the insertion of a Statement of Recognition within the body of the constitution. Recognition for Aboriginal and Torres Strait Islander people in the Constitution should:  move beyond symbolic recognition, allowing for greater protection of rights for Aboriginal and Torres Strait Islander people  not include qualifications or that remove the legal power of the statement  include a statement authored by Aboriginal and Torres Strait Islander people  Recognise the distinct cultural identities and prior ownership and occupation of Australian lands and waters  Acknowledge the living and continuing cultures and identity of Aboriginal and Torres Strait Islander Australians. A statement in the body of the Constitution could go beyond the symbolic value of the preamble, and provide some substantive guarantees with regard to Indigenous rights. In the absence of a Bill of Rights in the Australian Constitution the insertion of a statement which recognises Indigenous peoples’ distinct cultural identities, and prior ownership and occupation of Australian lands and waters and recognises the ongoing importance of this to Australian society could be of significant value. Such a statement could be used to ensure the protection of Indigenous culture, and of the right of Aboriginal and Torres Strait Islander people to practice it for generations to come. Australia is a signatory to the UN Declaration of Indigenous rights which offers the protection of rights for Indigenous people including the right to practice culture and the right to self determination.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

UN Declaration of the Rights of Indigenous peoples:

Article 2

Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Given that Aboriginal Australians have experienced laws that have been contrary to the principles of the UN Declaration of Indigenous rights, (as recent as 2007 with the enactment of the Northern Territory Emergency Response Act) the inclusion of a clause within the body of the Constitution, is highly desirable in order to offer legal protection of rights. If such a statement were to be placed into the Constitution however, it is imperative that it would not include a ‘disclaimer’ clause. Such a clause has been included in the recently amended New South Wales and Victorian Constitutions as an addition to a Statement of Recognition. The ‘disclaimer’ serves to render the recognition statement as purely symbolic and prevents it from offering any substantive legal protection of Indigenous rights. 

Removal of existing sections of the Constitution

 The NSWRC supports the removal of Section 25 of the Constitution  The NSW Reconciliation Council believes that Section 51 ‘the race power’ in its current form should be removed from the Constitution.

The Reconciliation process in Australia involves promoting a united and equal future for all Australians. This cannot be achieved without taking practical steps to remove barriers to equality enshrined in our legal system. The Constitution must be amended to remove discriminatory provisions Section 25 and Section 51. In 1901 when the Constitution was written, Australia was a far different place than it is today. In the 111 years since federation the attitudes and beliefs of the Australian population have changed significantly. As the Australian Constitution was drafted in the 1890s there was no consultation with Aboriginal and Torres Strait Islander people, nor were Indigenous Australians allowed to vote in the referendum which led to the establishment of the new Commonwealth.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

The sections of the Constitution which mentioned Aboriginal and Torres Strait Islander people in its original form served to exclude them from participation in the new nation. Section 127:  disqualified Aboriginal and Torres Strait Islander people from being counted in the census and;

Section 51(xxvi):  prevented the Commonwealth from making laws relating to Aboriginal and Torres Strait Islander people.

Whilst these two provisions were amended in the 1967 referendum in the spirit of equality there remain provisions in the Constitution which continue to embody the discriminatory attitudes of the past. Their removal would further serve to ensure that Australia moves forward in a more equal and inclusive way. The Sections the NSWRC recommends removing include:  Section 25  Section 51 (xxvi) ‘The Race Power’

 Removal of Section 25

The Reconciliation Council of NSW supports the removal of Section 25, “The Provision as to races disqualified from voting”. Section 25 currently reads: “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 people of the State or of the Commonwealth, persons of that race resident in that state shall not be counted.”

This elliptically worded passage provides that where a state disqualifies the people of a particular race from voting in its elections, the people of that race are not to be counted as part of the State’s population in determining its level of representation in the Federal Parliament. Although theoretically this section acts as a penalty to those states that would disqualify particular sections of society from voting at state elections by diminishing their representation at a federal level, it does so by acknowledging that states may prevent some sections of society from voting due to their racial background. In this regard, the section continues to embody the racially discriminatory attitudes of those people who drafted the Constitution in the 1890s.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

The provision reflects the reality from the time of federation in 1901 and for many decades afterwards, that some states did in fact deny the vote for Aboriginal and Torres Strait Islander people. Its continuance in the Constitution allows for the possibility of this provision to be misused again. Section 25 is clearly objectionable; it is a racially discriminatory clause and has no place in the Constitution of a modern democracy. It should therefore be removed. ‘…racism remains embedded in Australian institutions, including the Constitution.’9 Sarah Maddison

 Removal of Section 51 (xxvi) ‘Race Power’

The NSW Reconciliation Council believes that the race power in its current form should be removed from the constitution. Section 51. (xxvi) currently reads: S 51. 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 for whom it is deemed necessary to make special laws

In its original form, the race power granted the Commonwealth the ability to make laws with respect to the people of any race other than the Aboriginal race. At a referendum in 1967, Australians voted to have these words removed and to extend the race power to include people of all races. No additional clause was included to ensure that laws made under this power had to be beneficial. Hence the race power in its current form remains within the Constitution, enabling governments the specific ability to make racially discriminatory laws. The outdated notion of the race power has no place in contemporary Australia. Its original purpose was discriminatory in nature. Governments as recently as 1997 have used the race power in order to enact laws which are detrimental to Aboriginal and Torres Strait Islander people (see The Hindmarsh Island Bridge Case10). Its removal is of great importance to the Reconciliation movement. The NSWRC understands that some existing laws which offer protections for Indigenous rights to land and culture may rely on the race power clause. Whilst we

9

Sarah Maddison. 2011, Beyond White Guilt’, p. 169, Allen & Unwin ,

10

Kartinyeri v The Commonwealth [1998] HCA 22

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

support the removal of Section 25 and 51, it must be done in a way which does not jeopardise existing beneficial laws. This may require the insertion of new sections.11  The NSWRC believes:  Parliaments should not have the power to make racially discriminatory laws  The removal of the race power should not be done in a way that threatens existing laws which protect Indigenous rights to land and culture  Ambiguous terms such as for ‘the benefit’ should be avoided as they convey no clear legal meaning, and could leave decisions as to what constitutes a ‘benefit’ largely in the hands of Federal Parliament.12

 Agreement making power

The NSW Reconciliation Council supports in principle the inclusion of a new power which will facilitate the making of agreements between governments and Aboriginal and Torres Strait Islander peoples. No settlement treaty or makarrata13 has ever been made between Australian Governments and Aboriginal and Torres Strait Islander Australians. Australia is alone in the Commonwealth in not having entered into such arrangements. As identified by George Williams:14 ‘the Constitution is not the right place to set out the specific terms of a treaty. The best role that the Constitution can play is to facilitate the making of such agreements in the future.’

Accordingly, a power could be included in the Constitution which facilitates the making of agreements between Aboriginal and Torres Strait Islander peoples and the Australian Government. The inclusion of such a power in the Constitution would mean that such agreements would have the full force of Australian law. We consider this provision to be desirable as it would support the right of Indigenous people to self determination and self governance as set out in the UN declaration of Indigenous Rights. ‘…This would be an important and meaningful recognition of their rights of selfgovernment without compromising any broader aspirations to sovereignty that they may have. The scope of such agreements ought not to be closed off, and might range from symbolic and cultural matters to practical considerations such as governance arrangements and the use of natural resources’. George Williams

George Williams. 2011, Land, Rights, Laws Issues Paper No.1, Native Title Research Unit, p 7. Ibid, p7 13 Makarrata is a Yolngu word which signifies the end of a dispute between communities and the resumption of normal relations. 14 George Williams. 2011, Land, Rights, Laws Issues Paper No.1, Native Title Research Unit, p 10. 11 12

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

The referendum

We regard the success of this referendum as another significant step to take on the path toward achieving the goal of: A united Australia which acknowledges past wrongs and respects the continuance of Aboriginal and Torres Strait Islander cultures. The NSW Reconciliation Council recognises that obtaining constitutional reform is of great importance and consequence for all Australians. We see the road to obtaining change as difficult, but not impossible. In order to achieve change we need to get the process, the model and the timing right. We know that the Australian Constitution is notoriously hard to change; only 8 of 44 referenda have ever been passed by Australian voters. It is imperative that the referendum is conducted in a way which is successful in achieving meaningful change. As was stated in the initial discussion paper put forward by You Me Unity, there are three essential features required in order for a successful referendum. These are:  Multi-party support for the proposal  Community education and awareness raising regarding the issue and;  Ownership by the Australian people

 Multi – party support

We understand there is in principle support from all Australian parties and Independents for constitutional recognition for Aboriginal and Torres Strait Islander people. However the form which constitutional reform will take has yet to be determined and agreed amongst the political parties and Independents. Given the broad spectrum of political opinion in relation to Indigenous Affairs; it is of some concern that the issue may become politicised.

It is clear that support is needed from all political parties for there to be any chance of a successful referendum. Due to the historical difficulties which have been experienced in enacting constitutional change in Australia we consider that the proposed constitutional changes put forward by the You Me Unity panel to the Government must not become a vehicle for political debate that could be damaging to the chances of a successful outcome. In doing so, we hope that meaningful recognition is supported by all parties.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

 Community education

As a grassroots community organisation we believe that our organisation and others have a significant role to play in educating the community. The Constitution is a complex and technical legal document that may not be accessible or easily understood by many people in the general population. To ensure there is informed and considered debate and that all Australians can join the conversation about recognising Aboriginal and Torres Strait Islander people, a level of confidence and understanding needs to be gained. This can only be achieved by effective public education and awareness raising campaigns. This requires a significant investment in providing appropriate resources to develop and disseminate educational materials. Without a successful community education campaign, people may be unwilling to vote ‘Yes’ to changes of which they do not fully comprehend, even if in principle they support recognising Aboriginal and Torres Strait Islander people in the Constitution. We consider it important to make the Australian public aware of the political climate in which the Constitution was drafted in the 1890s, and the place which Aboriginal and Torres Strait Islander people had (or didn’t have) within that context. This will contribute to a clear understanding of why the Australian Constitution needs to change to recognise Aboriginal and Torres Strait Islander people.  We urge the Expert Panel to recommend to the Government that resources are made available to community and NGO organisations to play a role in educating the community.

Community based organisations, such as the NSWRC, need to be engaged and resourced to develop materials, events, programs and activities that suit grassroots audiences. The issue of constitutional recognition is one that we feel Australians will embrace if clear and accessible information is made available to them.

 Ownership by the people

The NSWRC recognises the importance of enacting and mobilising a groundswell of support by the people. To ensure ownership is taken on board, the community must be involved and engaged in the development of the wording and the model for Constitutional change. The issue of constitutional recognition was put to Australian voters in 1999. The proposed preamble which included an acknowledgment of Aboriginal and Torres Strait Islander people was defeated convincingly by an overall majority and a majority of the six states. Prior to the referendum, polling had shown that most Australians supported the principle of recognition. We must learn lessons from this experience. The proposed model was defeated because it did not embody the principles of recognition that the voting public supported. It is therefore important that this time around public consultation is embraced in the writing of the proposal. This includes 16


NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

significant consultation and inclusion of Aboriginal and Torres Strait Islander people in the drafting and development of any proposed constitutional changes.

 We believe organisations like the NSWRC have an important role to play in building support in the broader community.

As we understand from the success of the 1967 referendum, support came from The People, but it was garnered by many community groups. The strong community support provided a face to the ‘Vote Yes’ campaign, which reflected The People and not politicians. Harnessing strong community commitment can be activated through the vast NGO and community sectors (Indigenous and non-Indigenous) using their grassroots spheres of influence, to gain momentum for a successful referendum.

 Timing of the referendum

The Gillard Government has committed to holding the referendum on the issue of constitutional recognition at or before the next election, which must be taken by 2013.

 We strongly recommend that the referendum be separated from the next federal election.

Whilst practically and financially there are advantages to be gained by tying the referendum to an election, doing this poses a number of challenges to obtaining a ‘Yes’ vote. Any decision in regards to timing should consider that:  The present political atmosphere is particularly volatile. The next election has the potential to be one of the tightest and hardest fought in recent times. If a referendum were to be held concurrently, the issue of constitutional recognition may become overshadowed by other political issues. A separate date for the referendum would allow the issues involved in constitutional recognition to receive a significant amount of public attention.  Previous events which have marked significant advancements for Indigenous people in Australia, including the successful 1967 election and the National Apology in 2008, were overwhelmingly embraced by the Australian public and have proven to be important symbolic moments in the development of the relationship between Indigenous and non-Indigenous Australians. Holding the election on a separate date from the election will enable Australians to take the time to understand the full significance and importance of constitutional change, and to embrace it as the next step in the ongoing process of Reconciliation.  Professor Mick Dodson has recommended that the election be held on the 27th of May. This was the date that the overwhelmingly successful 1967 election was held. Symbolically this date would be fitting, and help to harness the spirit of equality and unity which events like the 1967 referendum have had in Australia’s Reconciliation movement.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

 Harnessing support

We understand that raising awareness and changing attitudes and minds in the Australian community takes time. Whilst it isn’t impossible, we believe the campaign needs time to reach a broad audience. A significant contributing factor to the success of the 1967 referendum included the long period of campaigning and debate which preceded it. The ‘Vote Yes’ campaign was launched in 1957 and through rallies, petitions and demonstrations it created significant public awareness and momentum to ensure the overwhelming success which was achieved at the referendum over 10 years later. The campaigning provided public opportunities for debate and discussion regarding the value which changing the Constitution would have to the nation, and enabled the public to develop an ownership of the issues and the referendum process.

 It is important that sufficient time is allowed to develop public ownership and education.

Along with the issues related to constitutional recognition, the Government has also raised the possibility of holding a referendum relating to the entrenchment of local government mechanisms within the Constitution. Whilst we understand that this is an important matter, in the interest of developing this referendum with a focus on Indigenous issues we would recommend that any local government issue be separated from that of constitutional recognition.

 Conclusion

Reconciliation has been a formal and integral part of Australian life since 1991. It has helped us to understand our shared histories and to reflect on the place of Aboriginal people in the economic and social life of this country. Reconciliation has taught many Australians to value and understand the unique cultures of Aboriginal and Torres Strait Islander Australians. A Constitution that contains meaningful recognition for Aboriginal and Torres Strait Islander people in itself is a significant act of Reconciliation. The challenges which are faced in going forward with the process of constitutional change are great, however, so are the rewards. The NSW Reconciliation Council considers that constitutional recognition is the next step in the ongoing process of Reconciliation.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

 NSWRC Recommendations Recommendation 1:  The insertion of a preamble to the Australian Constitution that recognises Aboriginal and Torres Strait Islander Australians Recommendation 2:  The NSWRC does not support the inclusion of a Statement of Values Recommendation 3:  The insertion of a Statement of Recognition within the body of the constitution Recommendation 4:  The removal of Section 25 Recommendation 5:  The removal of Section 51 (xxvi) ‘The Race Power’ Recommendation 6:  The inclusion of a new power to allow the making of agreements between governments and Indigenous peoples. Recommendation 7:  Significant consultations and contributions by Aboriginal and Torres Strait Islander peoples is required at all stages in the development of constitutional recognition. Recommendation 8:  Constitutional recognition must move beyond just symbolic recognition allowing for greater protection of rights for Aboriginal and Torres Strait Islander people

Recommendation 9:  Significant resources are made available to community and NGO organisations to play a role in educating the community about Constitutional Recognition for Aboriginal and Torres Strait Islander people. Recommendation 10:  The referendum is separated from the next federal election. Recommendation 11:  Sufficient time is allowed to develop public ownership and education.

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NSW Reconciliation Council submission to the Expert Panel on Constitutional Recognition for Aboriginal and Torres Strait Islander Australians

References Attwood, Bain & Markus, Andrew. (2007), The 1967 Referendum: Race Power and the Australian Constitution, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra. Australian Human Rights Commission, (2011) “Constitutional Reform: Creating a name for All of Us” paper on constitutional recognition. Accessed online through You Me Unity Website on 27/09/2011: http://humanrights.gov.au/constitution/reform/constitutional_reform2011.pdf Behrendt, Larissa (2009), ‘Constitutional and Human Rights Reform’, NSWALC Conference Paper, Hunter Valley, NSW. p.46 Bourke, Eleanor. in Colin Bourke, Elaine Bourke and Bill Edwards (eds), Aboriginal Australia, UQP, p.1 Costar, Brian.,(2003) “Section 25” chapter in Selective Democracy: Race, Gender and the Australian Vote. Edited by John Chesterman and David Phillips. Armadale (Victoria). Davis, Megan & Lyno, Dylan (2010), Constitutional Reform and Indigenous Peoples Indigenous Law Bulletin, vol.7., no.19.pp.3-4 Dodson, Patrick. (2007), “Whatever happened to Reconciliation?” chapter in Coercive Reconciliation, Stabilise, Normalise, Exit Aboriginal Australia. Eds: John Altman and Melinda Hinkson. Langton, Marcia. (2011), The Australian federalism and race: the special cases of Qld and the NT. Article in National Indigenous Times, issue 232, Vol. 10. Thursday August 18, 2011. Maddison. Sarah (2011), Beyond White Guilt, p. 169, Allen & Unwin, McGrath, Frank. (2003), The Framers of the Australian Constitution 1891-1897 Their Intentions, Ligare, Pty. Ltd. Stanmore, NSW. Williams, George. (2011), Land, Rights, Laws: Issues of Native Title., Issues Paper No.1, Native Title Research Unit, September 2011. The Law Council of Australia (2011), Discussion Paper on the Constitutional Recognition of Indigenous Australians. You Me Unity (2011) Discussion Paper: A national conversation about Aboriginal and Torres Strait Islander Constitutional recognition.

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 The NSW Reconciliation Council acknowledges and pays respect to the Traditional Owners and custodians of country throughout NSW and Australia.


NSW Reconciliation Council Submission Constitutional Recognition