Indigenous Inclusion in the Constitution — worth fighting for?
Alison Thorne
issue 5
May 2011
According to the federal government, there is “ a national discussion and broad consultation” taking place this year around plans for a referendum to recognise Aboriginal Australians in the Constitution. Last November, the Prime Minister launched a process leading to a referendum in 2013.

In December, she announced an appointed panel of experts to lead the discussion. Already alarm bells should be ringing! The hand-picked panel includes parliamentarians, lawyers and business leaders. There’ s not a radical or a grassroots community person to be seen.

The mission of the experts is to “ build a general community consensus” and come up with a change “ likely to obtain widespread support.” From day one, they have been hosing down expectations. Mark Leibler, co-chair of the panel, says: “ What is absolutely critical is that everyone is not going to get everything they want.” Ken Wyatt, Aboriginal Liberal MP, says: “ We don’ t want to be too legally ambitious. Fundamentally, I don’ t think there’ s an appetite for significant change.”

Mixed movement responses. There are three broad responses within the Aboriginal movement. The first, coming from activists who’ ve heard it all before, is to dismiss the whole exercise as a waste of time. It’ s coming from some who are campaigning against the NT Intervention and who have no confidence in a government that has continued to defend this failed racist policy. And from those who’ ve seen a government sign the UN Declaration on the rights of Indigenous people while eroding Indigenous languages, in direct opposition to pledges made in that fine document.

There’ s a lot of cynicism and distrust amongst Aboriginal rights activists and rightly so — the Gillard government is not going to do an about-face and deliver what we want. The second response from within the movement can best be characterised as uncritical “ welcoming” of the process. It comes from organisations such as ANTAR and the Law Council of Australia. They’ re on board and enthusiastically cheering things along.

ANTaR’ s National President, Dr Peter Lewis, praised “ the extensive experience and broad range of views amongst the panel’ s membership” and claimed that this would “ significantly enhance the prospect of a successful outcome.”

The third broad response has come from those who have intervened critically to say what’ s needed to make it worthwhile.

One comment came from Brisbane socialist, Sam Watson. Watson argues that it’ s essential to include Aboriginal history in the constitution, for change to be meaningful to Aboriginal people. He said: “ you’ d need to incorporate a recognition of the theft of Aboriginal land, the mass genocide of Aboriginal people and the fact that to this day there’ s not been a legitimate treaty signed between the British Crown and 500 tribal nations.”

Another important contribution came from Michael Mansell, Legal Director of the Tasmanian Aboriginal Centre. He wrote a paper to the Law Council of Australia critiquing its proposal as “ overly moderate.” Mansell argues that constitutional change must deal with “ dispossession, disempowerment and the distinct institutions of Aboriginal people.” This, he points out, requires addressing the question of sovereignty. He contrasts two approaches to addressing injustice. One deals with the collective rights of a people. The other focuses on the individual rights of people within a group. He stresses the importance of addressing collective rights. This distinction is essential, given Aboriginal and Torres Strait Islander Australians are members of oppressed nations.

Les Malezer, another Queensland leader, has raised the importance of building new leadership. In a polemic he argued: “ perhaps it is possible that a unified and strong movement for constitutional reform can occur, despite bungling incompetence and lack of leadership within government.” He adds: “ I’ m hopeful that leadership will emerge from our major organisations such as land councils and legal services.” Malezer’ s piece is a rallying call to Aboriginal organisations.

Real constitutional rights are worth winning. The Constitution is the most powerful set of laws in Australia and is the foundation of the political and legal system. It has both a preamble — which has no legal power — and a body, which is legally binding. Indigenous Australians are not mentioned in the Constitution.

There is the potential to win some useful reforms through the current process that can strengthen democratic rights. The content of what is eventually taken to a referendum is vital. If what ends up being voted on were just a change to the preamble — a sentiment that cannot be enforced — then that would be symbolic window dressing. To be worth achieving, changes are needed to the body of the Constitution. One change could be modifying section 51 (xxvi) of the Constitution (called the “ race power” ) to prevent governments from making discriminatory laws such as the suspension of the Racial Discrimination Act to implement the racist features of the NT Intervention. That action would be very difficult to repeat if the Constitution actively prohibited it.

Canadian First Nations, Native Americans and Maori all have treaty rights, which are constitutionally recognised. Indigenous Australians have no treaty rights. Adding rights to a constitution also gives the movements additional tools we can use to fight with. In the U.S., for example, people have a constitutionally guaranteed right to free speech — a right Australians do not have.

There are also additional factors to consider alongside the question of what reforms can be won. Community discussion provides an important opportunity to educate about what’ s needed to deliver real change for Indigenous Australians. This is an excellent opportunity to build the movement.

History provides a useful model — the 1967 referendum. The most radical Indigenous leadership, communists, feminists, trade unionists and many other ordinary Australians who wanted a better deal for Aboriginal people got involved. They built a very effective movement around the referendum, pushing for what was really needed. While what the referendum delivered was very limited, the campaign strengthened the movement. In the years following the referendum struggle, the movement blossomed, with the emergence of Aboriginal Tent Embassy and protests demanding sovereignty and land rights.

What now? Indigenous inclusion in the Constitution is long overdue. Reform to the Constitution, providing it enhances enforceable rights for Aboriginal people, is worth achieving. Change to the preamble only would be a missed opportunity and, no matter how fine the sentiment, would be tokenism. Any proposal for constitutional change to recognise Indigenous people must be subjected to a preliminary vote of Indigenous people. If it is not supported by Indigenous Australians, then it should not be put to a referendum.

The process established by the Gillard government is flawed. It will give defenders of the racist capitalist status quo the ability to block meaningful change in the name of “ achieving consensus.” But let’ s think creatively. Discussions being led by the government’ s expert panel need not be the only ones. The Aboriginal movement can establish a parallel process where grassroots representatives of the Indigenous community and all other people excluded from the elitist official process can hold discussions and formulate demands and a counter- proposal. The Federal government has decreed that in 2011 it aims to “ raise awareness about the importance of Indigenous constitutional recognition.” Let’ s grab it, run with it and make sure radical voices advocating real change based on sovereignty and treaty are heard!