Why amending the Australian Constitution remains necessary for Indigenous recognition

The need for constitutional change should be clear when you understand that it was these old white men that wrote the Constitution during the late 1800s without care or consideration for Aboriginal and Torres Strait Islander people. Just because white supremacy, erasure and the ‘dispersal’ of Indigenous people was the doctrine of the day, doesn’t mean that it need continue in today’s ‘progresisve’ times…   The Australasian Federation Conference delegates, Melbourne, February 1890. Photographer: Johnstone, O’Shannessy & Co,  National Archives of Australia.

The need for constitutional change should be clear when you understand that it was these old white men that wrote the Constitution during the late 1800s without care or consideration for Aboriginal and Torres Strait Islander people. Just because white supremacy, erasure and the ‘dispersal’ of Indigenous people was the doctrine of the day, doesn’t mean that it need continue in today’s ‘progresisve’ times…

The Australasian Federation Conference delegates, Melbourne, February 1890. Photographer: Johnstone, O’Shannessy & Co, National Archives of Australia.

The final report of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples is due by 29 November 2018. This will be the latest in a long history of reports addressing the place of Indigenous people in Australian society. It will also be the first, following the interim report produced in July, that has available to it the Uluru Statement from the Heart.

The Uluru Statement from the Heart was the result of a unique deliberative process whereby the Referendum Council centred the voice of Aboriginal and Torres Strait Islander peoples in the constitutional recognition debate. This process consisted in a series of regional dialogues across the nation, culminating in regional representatives gathering for the National Convention at Uluru in May 2017. Never in Australian history have so many Indigenous peoples been directly involved in shaping their own future and that of the nation.

Uluru affirmed what is important to Aboriginal and Torres Strait Islander peoples: the entrenchment of their Voice, the realisation of a Treaty and the telling of their Truth. Voice, Treaty and Truth question the very core of Australian society.

The Rotten Core of Australia

Australia remains marred by the refusal to address the demand of Voice, Treaty and Truth. At Australia’s foundation is an inability to meaningfully engage with Indigenous peoples as equals, according to their rights as political and cultural sovereigns. This issue differentiates Australia from similar countries, such as New Zealand, Canada and the United States, where more substantial progress has been made, but where that progress is based in the tradition and authority of agreements between peoples.

The Uluru Statement from the Heart marched beyond this restraint by rejecting minimalist and symbolic measures that have failed to affect change and address Indigenous claims. The level and nature of direct Indigenous participation in the dialogue process importantly gave the Uluru Statement from the Heart an unprecedent level of political legitimacy and cultural authority as a legitimate deliberative process and as an expression of Indigenous will.

The Uluru Statement from the Heart has also been lauded by constitutional and public law experts for its development within and suitability to the principles and practices of constitutional liberalism. These facts all make the continuing rejection of the Uluru Statement from the Heart by key members of the Commonwealth Government and other public commentators hard to understand.

FAILED HOPES, DREAMS AND LEGISLATIVE INERTIA

Laureate Emeritus Professor Cheryl Saunders AO has described the Uluru Statement from the Heart as  representing a legitimate and genuine consitutional moment . What better foundation for amending the Australian Constitution, changing the rule of engagement and developing a new and better relationship between Indigenous and non-Indigenous Australian’s could there be? This image juxtaposed to that above of the ‘founding fathers’ of the Constitution and the Australian state speaks volumes.   The  Uluru Statement from the Heart,  resulting from the Uluru National Convention, 23-26 May 2017.

Laureate Emeritus Professor Cheryl Saunders AO has described the Uluru Statement from the Heart as representing a legitimate and genuine consitutional moment. What better foundation for amending the Australian Constitution, changing the rule of engagement and developing a new and better relationship between Indigenous and non-Indigenous Australian’s could there be? This image juxtaposed to that above of the ‘founding fathers’ of the Constitution and the Australian state speaks volumes.

The Uluru Statement from the Heart, resulting from the Uluru National Convention, 23-26 May 2017.

Rather than engage seriously with the invitation from Uluru to move toward substantive reform, key commentators such as former Prime Minister Malcolm Turnbull and current Prime Minister Scott Morrison have rejected the invitation outright.

Citing concerns that have been otherwise addressed by leading constitutional and public law experts, the Commonwealth Government has doubled down on their rejection, arguing that a First Nations Voice would be an unrepresentative third chamber of parliament, could jeopardise parliamentary sovereignty and would be contrary to the principles and practices of constitutional liberalism and individual rights that underpin Australian citizenship.

Others, such as Indigenous Affairs Minister Nigel Scullion, have further repeated discredited arguments that constitutional recognition would do nothing for Indigenous disadvantage, ignoring the obvious and well-established links between Government action and its legislative authority and the direct causational this has on the lives of Indigenous peoples. This position further ignores the incontrovertible fact that the legitimacy of Indigenous claims is based in more than just the alleviation of disadvantage and attempts at ‘closing the gap’.

This disappointing position demonstrates an unwillingness to affect substantial structural reform for Indigenous peoples while continuing to hold stock in failed legislative mechanisms that remain susceptible to the whim of Government and maintain a contemptuous disregard for the moral and political authority of the Uluru Statement from the Heart. Indigenous Australians are well versed in these politics; they have endured time again the generational failures of hopes, dreams and legislative action and inaction that have perpetually decentred Indigenous voices while purporting to include them.

Further concerning however has been the lack of engagement and understanding with the legal scholarship and expert advice about proposals for Voice, Treaty and Truth within the larger constitutional and public law framework. Most notably, the Government and key commentators have been critical of a lack of detail put forward by the Referendum Council and the Uluru Statement, stating that any First Nations Voice would have to be detailed and entered into the Constitution, presenting this as an insurmountable task, and using this disingenuous argument to bolster false claims about the nature of a First Nations Voice.

These claims are wrong. An entire corpus of domestic and international scholarship on constitutional and public law demonstrates this, but continues to be ignored by Australia’s political leadership.

The Australian Constitution does not have to detail or express the terms and conditions of a First Nations Voice. The much lauded 1967 Referendum that enabled the Commonwealth Government the power to legislate for Indigenous peoples did not layout the detail of the Department of Aboriginal Affairs or any other subsequent departmental iteration. It rather addressed the core issue at hand – the authority of the Commonwealth Government as enacted in the Australian Constitution and the status of Australian society as represented by the Australian Constitution.

The Uluru Statement from the Heart and the subsequent report of the Referendum Council were not wrong in demurring on the detail of a First Nations Voice. That is a matter for self-determining peoples to negotiate with the Australian Government once the ability for its realisation is enacted and protected in the Australian Constitution.

This does not mean that important legislatively enacted bodies such as a Makarrata Commission or an Interim First Nations Voice Office should not be established to enable and facilitate this process. This will be a necessary part of the development and implementation of Voice, Treaty and Truth.

But to avoid the Australian Constitution would be to continue the history of failed hopes, dreams and legislative inertia controlled entirely by non-Indigenous Australia that also perpetuates the refusal of Indigenous rights as political and cultural sovereigns.

LEGISLATING THE VOICE FIRST WOULD BE WRONG

These issues make the recent emphasis on the pursuit of a legislatively enacted First Nations Voice – such as that by Opposition Leader Bill Shorten and Father Frank Brennan – as either a trial before further change is attempted, or an alternative to constitutional entrenchment, all the more concerning. Many have been rightly critical of this movement highlighting the failure of this approach to comprehended what the Uluru Statement from the Heart represents, the lived reality of Indigenous peoples in Australian society as relative to the authority of the Commonwealth, State and Territory Governments and the failure to comprehend relevant constitutional and public law principles and practices.

Concerns have also been raised that any inclusion in the Australian Constitution would be a further colonial incorporation of Aboriginal and Torres Strait Islander peoples according to non-Indigenous standards. While these concerns are understandable considering the history of Indigenous affairs in Australia, the Uluru Statement from the Heart and the call for Voice, Treaty and Truth are further unique in this regard in being able to appropriately address this specific concern. This is because while the Australian legal system is a reality that Indigenous peoples must deal with, the call for Voice, Treaty and Truth is fundamentally built on centring Indigenous authority and providing for its entrenchment and protection, something not achieved before.

The fundamental rules of engagement must be changed for the institutional structures of the Australian state to affect Indigenous peoples being heard and to result in the much-needed reconfiguration of the relationship between Indigenous and non-Indigenous peoples. Constitutional amendment must address the issues at the core of the nation and the inequality in relations that have plagued relations and previous legislative actions. Without need for a detailed body or First Nations Voice, the Australian Constitution should: 

(1)   Recognise the status and history of Indigenous peoples;

(2)   Enable the Commonwealth to negotiate and make agreements with Indigenous people according to their rights and interests; and 

(3)   Entrench those rights and the right to be heard on those rights and interests. 

The Australian Constitution can be whatever the Australian people decide it to be; we should not be limited by incontrovertible legal doctrines and convenient fictions. The realty of Indigenous sovereignty, history and the right to self-determination makes a mockery of claims otherwise and demands the relationship be reset. The Australian Constitution remains the best place to begin that structural change, and the Uluru Statement from the Heart is our clearest statement of intent and importance to this affect.