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Constitutional recognition will do nothing for Aborigines

Date

Michael Mansell

It is not clear what benefits Aborigines will get from constitutional recognition or why time is being spent on it. After all, NSW, Queensland, Victoria and South Australia have already recognised indigenous people in their state constitutions and the Federal Parliament passed the Act of Recognition in 2013. Not a single benefit to anyone has flowed from those measures.

One of the bewildering proposals for constitutional recognition of indigenous peoples is to recognise Aboriginal and Torres Strait Islander languages as the original Australian languages, but confirm English as the official national language. This is reminiscent of the military government in Sudan in the 1960s that declared Arabic would be the official single language despite the many languages spoken. Aboriginal languages are the most threatened in the world and the proposed constitutional declaration would sound the death-knell of those that remain.

Another proposal is to delete section 25 of the constitution - which recognises that the states can ban people from voting based on their race - is on its face racist but which was originally installed to punish racist states. It has never been used in 114 years, is never likely to be used, and even if it was, any law made under it would be struck down as contrary to the Racial Discrimination Act 1975.

A third proposal is to limit the Federal Parliament to only make positive laws for Aborigines and Torres Strait Islanders by changing the word ‘'race'’ power to ‘'Aboriginal'’. The High Court is then to judge if a law is good or bad for Aborigines. This will not work. The court has stated time and again that it is for the parliament to make the laws, and the courts to interpret those laws. Whether parliaments are making good or bad policy is up to the electorate, not judges. 

If the race power is to be tampered with, it should be done properly. After 226 years Aboriginal people are still prevented from making their own decisions. The Recognition proposal condones that immoral position.

Why not declare self-determination a constitutional right? After all, the Ethiopian constitution of 1994 provides in article 39 that ‘'Every nation, nationality or people in Ethiopia shall have the unrestricted right to self determination up to secession'’. Is Australia not willing to catch up after Ethiopia, 20 years later? Such an insertion in the constitution provides a standard against which Australian government policy can be considered and allows for Aborigines to sue for its breach. 

Recognition is supposed to deliver benefits to Aborigines yet the beneficiaries are denied the chance to have a say. Public meetings on recognition have been held around Australia without a single meeting to hear Aboriginal opinion. If Aborigines had a say they would call for legislative action, not constitutional tampering. Legislation is quicker, more predictable and cheaper. Whereas Federal Parliament can create instant law, parliamentary support for a referendum does not guarantee the outcome. With 36 of 44 referendums rejected since federation, a ‘'no'’ vote is more than on the cards.

None of the recognition proposals confer any right on Aborigines to sue, nor do they impose any obligation on government to act. If Prime Minister Tony Abbott wants to be constructive and practical, change the date of Australia Day from January 26. The only significance of the date is that it marks the arrival of whites to the detriment of indigenous peoples, making the celebrations race-based. Hardly appropriate for a national day.

As Gary Foley said: “Who gives a damn about whether we’re mentioned in the Australian Constitution. What real difference will it make? It’s a grand token gesture and will mean nothing in the long run, so it’s a waste of time for people to be even talking about it”.

Michael Mansell is a an Aboriginal lawyer from Tasmania.

5 comments

  • Ahh come on Michael, don't be a spoilsport,
    If we don't have a GREAT change in our laws regarding the Original Australians, "Good Old Tony 3 Words " will not have an opportunity to hold a press conference and to appear in some sort of Aboriginal garb .
    Also you must consider all the spin doctors (oops sorry Media Consultants ) that he employs, what would they have to write about

    Commenter
    srg
    Location
    nambucca heads
    Date and time
    July 25, 2014, 8:15AM
    • ‘'Every nation, nationality or people in Ethiopia shall have the unrestricted right to self determination up to secession'’
      I am sorry Michael but I sincerely believe that to be a stupid idea to be offered to the Australian nation if we are to be ONE nation. Multiculturalism is about integration and inclusion, not exclusion, and for a nationality to claim unrestricted rights is racist. You see, when you claim unrestricted rights for your people, you excluse other people from such rights until they claim them for their own people. Look around the world and see how your policy is working in countries like the former Yugoslavia.
      It has long been my contention that one of the greatest barriers to Aboriginal advancement, closing the gap so to speak, is that certain Aboriginal people (not all) have a separatist agenda. Some people of your nation do not want inclusion in the wider Australian culture, yet seemingly do not understand that without inclusion your people have no future. Imagine what would happen if we allow Islamists to claim that Sharia law is above Australian Constitutional Law, or if a Chinese company operating in Australia decided it was their right to insist that all employees, customers and business partners speak Chinese. An absurd example to be sure, but policies are best tested by taking them to the limit, for the venality of people ensures that such will be the case.
      Your people would be best served by working for inclusion, not exclusion, lest that wisdom of Pogo applies to you: We have seen the enemy and it is us.

      Commenter
      Wayne Talbot
      Location
      Kelso, NSW
      Date and time
      July 25, 2014, 8:43AM
      • He is spot on about Australia day - wrong date altogether. The new Australia day should be on the day that the republic is declared with a constitution that includes Aboriginal recognition as the first Australians.

        Commenter
        Rick
        Location
        Sydney
        Date and time
        July 25, 2014, 9:25AM
        • Languages die all the time.
          Should we bring back Latin?

          It's time Michael realized we are all Australians.

          Commenter
          ij
          Date and time
          July 25, 2014, 9:50AM
          • Thanks Michael for thoughts and comments. I think we need to have a debate about this change where we hear from all people and all perspectives.

            My perspective is that if we are going to have a bill of rights in our constitution then we need to have a serious debate a genuine bill of rights. I think a one statement Bill of Rights would be a big mistake for our country.

            Commenter
            A serious debate
            Date and time
            July 25, 2014, 1:12PM
            Comments are now closed
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