further to our investigations on the federal government proposal to add aboriginal and torres strait islander human rights issues, because that is what they are and mean, to the australian constitution the following pieces are offered.
firstly is the recognition of the concerns and the needs that are built-in to any such change by helen irving, professor of law at sydney university and specialising in constitutional law.
her contribution tells us that the current preamble breathed life into the constitution at the behest of the then british government in 1900 and because it is essentially (still) a british act we are unable to change the preamble for that reason.
she believes that the whole constitutional system needs to be seriously considered for replacement with a better more modern system. a less anglo-centric system.
the second offering comes from bev manton, chair of the nsw land council. i am not sure whether this is her personal view or that of the land council.
bev is in full agreement for any positive change but then highlights the sad fact that though the apology was made to the stolen generations (and others) no compensation was offered to any group apologised to. this complete lack of moral rectitude bodes ill for any real and substantial wording being added by the federal government of the day, she believes.
the third piece comes from professor judith dwyer of flinders university health care management.
judith argues the case of the need for proper improvement in aboriginal health care. the only way to ensure this, she argues, is to enshrine that need within the constitution. the current system is piecemeal and is far from adequate for what must be done to protect our health needs.
the final point is made by professor pat dodson who, among many other things, is the director, unsw indigenous policy and dialogue research unit.
pat as we know has been a spokesman of note for many years and walked out of the 10 year reconciliation council chairmanship rather than allow then-pm howard to mutate the work of the council under his stewardship. howard did and shut the council down.
i know there are some aborigines who decry pat as a black pacifist for assimilation but i disagree and have therefore nothing but admiration for his solid social justice stance over many years.
pat too is in full agreement with the possibility of change but addresses his words not from a stance of aboriginal rights but of government responsibility.
i can only concur with all four contributors at varying levels of agreement.
fkj
Should we alter our constitution to recognise indigenous Australians?
December 4, 2010
THE LAWYER: HELEN IRVING
Most Australians will embrace the spirit behind the proposed recognition of the indigenous people in the constitution.
To achieve this, however, will be more complex than many realise. Section 128 of the constitution requires support from both a national majority and a majority of voters in a majority of states for a referendum to succeed. Success is rare. But we should not confuse the mechanism with the reason for failure.
Referendums fail because the majority of people reject the proposal. The handful of successes attracted not merely bipartisan support, but no organised opposition.
The likelihood of this happening with this proposal seems low. The wording will be highly sensitive, and if indigenous ''rights'' are invoked, the same objections that defeated last year's National Human Rights Consultation will arise. The celebrated example of the 1967 referendum will inspire hope, but it is often misunderstood. It did not confer indigenous ''citizenship'' or ''rights'', but simply gave the Commonwealth power to pass special laws for the indigenous people. Its relevance to the current proposal is limited.
Let's imagine, however, that unity can be achieved among indigenous leaders, political parties and the people. A further difficulty confronts any plan to rework the constitution's preamble. Section 128 concerns alterations to the constitution. The preamble is not part of the constitution. It heads the British act of 1900 that breathed legal life into the constitution. Whether a referendum can change the preamble remains uncertain. It is unlikely, however, that the British Parliament can simply amend the act. These problems surrounded the failed preamble referendum in 1999, but were never resolved. The preamble is now out of date in significant respects, but it records Australia's federal compact and the democratic steps by which we adopted our constitution. It should not be discarded, even if this were easy to do. Alternatively, it would be technically straightforward to insert a statement of indigenous recognition in the constitution itself. There, however, it would be interpreted by the courts, with the potential for outcomes at odds with today's understandings of the statement's purpose.
Piecemeal constitutional modernisation is not a solution. A provision acknowledging Australia's first people will sit awkwardly, like a new wing on an unrenovated building. If Australia is to rethink its heritage and core commitments, the whole constitution - including its placement in a British act - should be re-examined. Indigenous recognition, however important, will not benefit from sidestepping such fundamental issues.
Helen Irving is professor of law at the University of Sydney, specialising in constitutional law.
THE COUNCILLOR: BEV MANTON
I strongly support the federal government's initiative to consider recognition of Aborigines in the constitution. It is long overdue.
There is some interesting debate about whether or not the recognition should be in the constitution itself, or the preamble. That's also a conversation I welcome.
But my support comes with a few words of warning. Aborigines are cynical about the motives of a Labor government in Canberra, and for good reason.
When the national apology was delivered in 2008, Aborigines were grateful. It was a wonderful occasion, and a great moment of healing for my people.
But the goodwill generated soon dried up. While the apology was well received, it didn't change how the Rudd government dealt with Aborigines. It also came without any form of compensation, despite a promise by Labor in opposition it would make restitution if elected.
I understand the broader Australian cynicism towards compensation to Aborigines. I also understand the hypocrisy. Compensation becomes controversial, apparently, only when it involves a blackfella.
Can you imagine the outcry, for example, if the former NSW premier Bob Carr suggested to the victims of the James Hardie outrage that they were entitled to an apology but no compensation?
Recently, I gave a speech in the NSW Parliament to celebrate reform of the state constitution. As expected, it proved to be a wonderful, healing occasion. But coming together in Macquarie Street was possible because of real runs on the board by NSW in recent years, including a joint $200 million water and sewerage program with the NSW Aboriginal Land Council.
The NSW Parliament has not been engaged in a ''race to the bottom'' on Aboriginal affairs. That's why the symbolism of constitutional recognition was so well received in NSW. And it's why federal Labor will have a much tougher sell. The Prime Minister, Julia Gillard, is likely to discover that Aborigines are sick of being used as symbols by a government which gives with one hand, and punches us in the nose with the other. I think our PM has her work cut out in convincing Aborigines that this won't be just another empty gesture designed to secure herself a place in the history books.
I would also remind her of her predecessor's words: "… symbolism is important but, unless the great symbolism of reconciliation is accompanied by an even greater substance, it is little more than a clanging gong."
Bev Manton is chairwoman of the NSW Aboriginal Land Council.
THE ACADEMIC: JUDITH DWYER
There are good reasons to make this constitutional change, including respect for the people who were here first, and their descendants, and as part of the need for reconciliation after a conflict. But I want to address one practical reason: the need to improve Aboriginal healthcare.
Everyone is aware of the fact that Aborigines live shorter and sicker lives, on average, than the rest of us. Why, you might ask, should attention to these pressing problems be diverted to the ''symbolic'' question of constitutional recognition?
Recognition would put the efforts of the health system to provide good care for Aboriginal patients on a more solid footing. I'm not talking about showing favouritism - I'm talking about making sure that Aborigines get an equivalent quality of care, in accordance with their needs. It's not so long ago that Aborigines were excluded from our public hospitals, or were placed in special ''back wards''. Things have improved, and now some hospitals and health services are engaged in creative energetic work to respond to the needs of Aboriginal patients, from adapting therapies to suit desert life, to finding ways to establish communication and trust across language and cultural differences.
At the same time, the system seems to operate on an underlying premise that ''we treat everyone the same, nothing special is happening here''. In spite of high-level policy statements about cultural respect and equity, there is a strange lack of the serious operational plans, strategies, quality assurance measures and protocols that you would normally expect for any situation that substantially affects good healthcare delivery. For example, for staff in most city hospitals it is easier to get an interpreter for almost any language on the face of the Earth than for local Aboriginal languages.
Why is this so? I suggest it is part of a larger denial at the centre of our national life. When you look at health services for indigenous people in Canada, New Zealand and the US, there are still lots of problems, but there is a sense that special measures are on a sounder policy footing, and the system thus finds it easier to enact and sustain good ideas.
Judith Dwyer is professor of health care management at Flinders University, and a research program leader for the Lowitja Institute.
THE LEADER: PAT DODSON
The Prime Minister has announced a process of consultation and discussion leading to a referendum, which will ask others whether recognition for indigenous people incorporated into the Australian constitution. I welcome the announcement.
If this process is done with an open heart and recognition that this is a matter of justice, not special benefit, then what the Prime Minister has described as a once-in-50-years opportunity can become the first page in the promised "next chapter of new history of this great nation".
If we face our history with courage, and if we pledge the integrity of our improving relationship firmly within our constitution, then a real dialogue between us can proceed secure in the knowledge of our shared commitment to the nation and its future. Not incidentally, we can also address the task of ensuring that education, economic and health outcomes for Aborigines reach parity with all other Australians.
There is much work to be done and there are tasks aplenty for all of us. It cannot be left to governments alone to determine the solutions to the problems confronting our communities and people. In that model resides further paternalism, assimilation and welfarism, when what we all want is well-being.
As long as even one such regime of social oppression remains in place in this country, we remain a subjugated people. As long as a Parliament is able to remove some of our most basics rights on a political whim, we remain a subjugated people.
The spurious discourse over symbolism versus practical outcomes, over rights versus responsibilities, and the notion that a collective or a community is somehow at odds with the rights and aspirations of individuals, still remains on the lips of many well-intentioned Australians.
The place of Aborigines in the constitutional and institutional frameworks of our nation has to be approached from the point of understanding what our greatest fears are about such a discussion and its outcomes. This should not daunt us. We have seen that indigenous ceremony and symbols can be incorporated into the Parliament, and that change to institutions is possible.
The creators of the constitution were men of their time, and they delivered to the new federation a document reflective of the political and social imperatives of their day. But the writers of the founding document of the nation always imagined and incorporated a capacity for the nation to adapt to new times and changed circumstances.
Professor Patrick Dodson is founding director of the UNSW's Indigenous Policy and Dialogue Research Unit.
ray jackson
president
indigenous social justice association