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.
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