BY AMY MCQUIRE, FEBRUARY 13, 2012
Originally published in Tracker Magazine.
A double exposure image of Prime Minister Julia Gillard and Opposition leader Tony Abbott. Gillard has been largely silent on how she will approach the expert panel’s report on constitutional reform. (AAP IMAGE)
NATIONAL: Is Australia, both Indigenous and non-Indigenous, ready to discuss constitutional reform, asks AMY MCQUIRE*.
Its catch cry is “you, me, unity”, but it has already fueled a great deal of division. This month, the expert panel on constitutional recognition for Indigenous Australians handed its report to the Gillard government.
The government last year appointed the 19-member expert panel to hold consultations across the country about recognizing Aboriginal and Torres Strait Islanders in the constitution.
It was part of an election promise first committed by former Prime Minister John Howard in the lead up to the 2007 federal election.
In what was described as an eleventh hour promise, Mr Howard said he would hold a referendum to recognize Indigenous people in the preamble to the constitution.
Labor supported it, with Kevin Rudd beginning consultations during his short term, and Prime Minister Julia Gillard again promised a referendum in the lead up to the 2010 election.
The panel’s recommendations include repealing section 25 (which allows Parliament to disqualify any race of people from participating in an Australian election) and repealing section 51 (xxvi) (the ‘race power’ which gives Commonwealth the authority to make laws that discriminate against citizens purely on the basis of race).
The report proposes a new ‘section 51A’ be inserted which recognizes Aboriginal and Torres Strait Islander peoples.
The Parliament would also be able to make laws for “the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples”.
It also recommends a new ‘section 116A’ be inserted which says “The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin”.
The report calls for a new section (127A), which would cement Australia’s national language as English, while also recognising “Aboriginal and Torres Strait Islander languages are the original Australian languages”.
It knocks back recognizing Aboriginal sovereignty and self-determination, stating that it would be unlikely Australia would support those provisions.
Prime Minister Julia Gillard was quick to welcome the report stating that it would recognize the “unique and special place of Aboriginal people and strengthen the identity of our nation”.
Opposition Leader Tony Abbott also said the Coalition would study the panel’s recommendations, stating that it “had a very proud history of support for Indigenous recognition in the constitution”.
But at an address at the National Press Club last month, he also said he feared the panel may have “overreached” in its recommendations.
“(The Opposition) will be happy to engage with the government, will be happy to engage with Indigenous people, will be happy to do what we can to try and make this happen, but the worst thing that we could do right now would be to put a referendum forward on such a sensitive subject and have it fail,” he said.
Now it is out of Aboriginal hands, and up to all sides of politics to come to an agreement about what recommendations to take to a referendum.
Since the report’s release, the Gillard government has been largely quiet on its deliberations, becoming engulfed instead in a political battle over the Survival Day protests.
University of New South Wales professor George Williams is one of Australia’s leading constitutional lawyers.
He is perplexed at the government’s silence on the issue, stating the Opposition has been more willing to engage in public debate.
“If the government is serious about (constitutional reform) it is going about it in an odd way,” Prof Williams told Tracker.
“It’s going to take time from when the government starts to seek an agreement.
“We should be talking about reaching an agreement in a matter of weeks, and I would have hoped that process would have started immediately after the release.
“But it’s very hard to read what the government’s view is on this. They haven’t expressed one except for a very general view at the launch.”
“… The big question is how will government manage this? Can they reach agreement with the opposition. The jury’s out on that because government hasn’t said anything for a couple of weeks.”
But despite this, Professor Williams is confident that it will go to a referendum, and doesn’t believe the panel has overreached in its recommendations. He believes if it does go ahead, a referendum will be held by early next year.
“These are good reforms and they should be supported, in particular I think the constitution should include a clause which prohibits racial discrimination,” Professor Williams says.
“… (Abbott) clearly has a point because it does overreach politically and the reforms do seem to go further than what he’s planned to put up. That’s undeniable.
“But ultimately with referendums, changes are only achievable if they do have broad political support. I got a lot of encouragement from (Abbott)’s speech.
“He’s obviously a supporter of this type of change.”
But Professor Williams says he’s unsure the word “advancement” is the right language, stating it has “a lot of negative history” and has been “used for decades by states to justify assimilationist policies”.
The Greens have called on the recommendations to be implemented in full and are pushing for a referendum. But while we still wait to hear what the government will put on the table, Aboriginal people around the country remain divided about whether this is the right priority.
Aboriginal lawyer Michael Mansell is one of them. He’s labeled the report disappointing and unlikely to pass at a referendum.
The report recommends constitutional recognition for the sake of it, a position that will never wash at referendum and condemns the reform to certain failure,” Mr Mansell says.
“… ‘Cleaning up’ out-of-date parts of the Constitution such as section 25… or mucking around with s51 (race powers) will not help a single Aboriginal. No state has ever used s25 and would not get away with it today.”
Mr Mansell also raised concerns about removing the race powers stating it was “tantamount to heresy” and would “attract accusations of racism”.
“The proposal is to constitutionally delete Aborigines from the constitutional face of Australia. This promotes assimilation and effectively forces Aborigines to copy the behaviour of white people if Aborigines expect not to be discriminated against. It is a deplorable statement.”
He states substituting this section with a new s116A as an “embarrassment”.
Mr Mansell says that the proposal to make English the national language is based on notions of “white supremacy” and could have the effect of making Aboriginal languages “subservient” to English.
He said that the aim to ensure race powers can only be used for the benefit of Aboriginal people was good, but legally unworkable.
“An existing law passed under the race powers can be amended or dumped at any time by a parliament no matter what the race power says. And who decides what a positive law is? The High Court has consistently said whether a law is positive or negative is a matter for the parliament that made the law, not the courts.”
He says the focus has to be on national land rights legislation, ending the NT intervention, Aboriginal self-determination and Aboriginal representation in Parliament.
Mr Williams agrees that a referendum shouldn’t proceed if it doesn’t have the broad support of Aboriginal people.
“That’s the most important part of this debate. I personally don’t think this referendum could or should proceed without strong Aboriginal support. That’s just a necessary condition of this referendum.
“It would be offensive to proceed without their strong support.”