Aboriginal recognition: getting from talk to action
The Prime Minister has announced that she will establish an expert panel to investigate the best way for indigenous people to be recognised in the Australian Constitution.
Julia Gillard’s announcement is no surprise in of itself. It merely makes good on an election promise and, at least among major political parties, has bipartisan support.
But as Kevin Rudd has showed us, the road from announcing an “expert panel” to something actually getting done is a long one, and there are a lot few issues to be teased out between now and seeing this in the Constitution.
Gillard was very keen to emphasise that constitutional recognition of indigenous people had bipartisan support, and looking at the Coalition indigenous policy statement there’s pretty clear cut endorsement for recognition.
In the dying days of his Prime Ministership in 2007 John Howard had somewhat of a reawakening on the issue, going close to admitting that he had made a mistake in the 1999 proposed preamble by advocating such weak terms of recognition for indigenous people, but he framed his new found advocacy in terms of “practical reconciliation” epitomised by the intervention:
“A positive affirmation in our Constitution of the unique place of Indigenous Australians can, I believe, be the cornerstone of a new settlement.
“I sense in the community a rare and unexpected convergence of opinion on this issue between the more conservative approach which I clearly identify with and those who traditionally have favoured more of a group rights approach,” Howard said just weeks before the 2007 election.
Howard also recognised any referendum would have to be free of the Constitutional “clutter” that characterised the 1999 vote, which was taken on both the republic and the preamble.
Gillard would be free of the more divisive issue of the republic, and combined with bipartisan support – including the words of Howard as ammunition to any conservative opposition - you’d have to like the chances of any referendum succeeding.
But, there remains, very tricky questions about how to word and place the statement. The 1999 proposed preamble committed to:
Honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country;
The word “kingship” was favoured over “ownership” for fear of its legal implications in the Constitution, albeit only in a preamble. More than ten years on all these complications are still present.
Any time you change the Australian Constitution you’re altering the guiding legal document in this country. All laws, legislation and the common law of the courts, must be read consistently with it. If, for example, a contentious term like indigenous land “ownership” is included in a preamble, arguments would break out about the extent it should influence already existing indigenous land rights laws and how the High Court should interpret these statements.
There’s also the question of timing. Do we have the referendum at the next election to save money, or do it separately so as not conflate the issue in the political white heat of an election campaign?
While bipartisan political and mainstream media support will give the question a massive boost, it won’t guarantee support given our historically conservative attitude towards changing the Constitution. Only 8 of 44 proposed referendums have been carried since our Federation.
Encouragingly one of the few to get over the line was the 1967 referendum which counted indigenous people as part of the population and allowed the Commonwealth to make laws on their behalf.
So do you agree with indigenous recognition in the Constitution? And how should it be done?
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