CONSTITUTIONAL RECOGNITION FOR INDIGENOUS AUSTRALIA

At the 1967 referendum, Australians voted overwhelmingly to amend the constitution to include Aboriginal people in the census and allow the Commonwealth to create laws for them. Today, nearly 50 years on, there’s a groundswell of support for Indigenous heritage to be recognised in the Constitution. As Indigenous groups and government work towards a model for such change, lawyer and author Frank Brennan SJ and Dr Megan Davis, a Professor of Law and an Acting Commissioner of the NSW Land and Environment Court, addressed The Sydney Institute on Wednesday 27 May 2015 to discuss the fundamental issues behind the mood for change. Frank Brennan is the author of No Small Change: The Road to Recognition for Indigenous Australia. Megan Davis is co-author – with George Williams – of Everything you Need to Know About the Referendum to Recognise Indigenous Australians. The paper which follows is an edited transcript of Megan Davis’ address.

CONSTITUTIONAL RECOGNITION FOR INDIGENOUS AUSTRALIA

MEGAN DAVIS

I note that today is the 48^th anniversary of the 1967 Referendum. I also note that today is the 35^th anniversary of the first State of Origin and tonight is the night that my team Queensland will be regaining our shield which we accidentally lost last year. So my comments will be very brief. As Frank Brennan knows, I grew up in Queensland, in South West Queensland where Rugby League was the sport that was played on the missions and reserves all over Queensland. So it is a very serious business in Aboriginal Australia.

To be frank (pardon the pun) my comments could be slightly discursive because there’s been a lot going on in constitutional recognition in the past few weeks.

From the outset, I want to identify two really important things that Frank said. One was identifying the successes of ATSIC. Australian public policy is all the poorer for not having any academic or scholarly analysis of ATSIC and what it achieved and what it did. All focus has been on the negative. In fact, it was quite an innovative body. And as people like Noel Person and Nicholas Rothwell have written, it was a mistake to abolish ATSIC. So I acknowledge that comment, in A broad based discrimination provision in the constitution would be overwhelmingly supported by the Australian people and I agree with that.

Constitutional reform, as it relates to Australia’s first peoples, is always a very difficult thing to discuss in Australia. Even the most pedestrian reform – such as many to be found in other comparative liberal democracies – can be regarded as radical in Australia. So I’ve kind of come to the conclusion that my academic career in Australia is that of a radical.

The greatest indicator of the parallel universe that Australia inhabits on Indigenous rights is probably the fact that symbolic or weak form recognition is regarded as a moderate approach. I think that this country can do better.

Charles Taylor in his very famous book on recognition, The Politics of Recognition, wrote that “written constitutions are a major site of contestation in the political struggles of marginalised groups, to have their identities respected within public institutions.” Constitutional accommodation of these identities and the manifestation of culture are not uncommon around the globe. We can all agree that it’s important to continually think about the way our liberal democracy runs. But little did we know when we were lumbered with the term “recognition”, from a previous government, – a legacy of the 1999 failed referendum – that recognition was not a central plank of the Aboriginal political movement. It is a word that we have inherited. That word would, in some way, become a straightjacket. It has now influenced the debate itself.

On the face of it, the word recognition means to recognise and it’s not surprising that people then think that we’re talking about the kind of symbolic recognition that people are supporting. However, when it comes to constitutional accommodation of groups like Indigenous peoples, when it comes to comparative constitutional law, there is in fact a recognition spectrum.

Strong recognition involves agreements or treaties or other constructive arrangements or Indigenous parliaments or entrenched Indigenous rights or an Indigenous parliamentary body. It means a redistribution of public power within the state. The weak end of the spectrum is non-constitutional symbolism. The language it makes reference to Indigenous people’s unique relationship with ancestral lands and waters, for example. But there’s nothing constitutional about it. It’s merely symbolism.

A cursory glance at Indigenous media suggests to any interested person that Indigenous Australians are very ambivalent about the debate. They feel that the current debate is steering toward symbolism, which Frank noted. This has limited input from them and they are overwhelming in rejecting a minimalist or weak form of recognition. From the Indigenous media that I have surveyed, symbolic recognition is not seen as a step forward. It’s not seen as a step forward simply because it is something. That Indigenous people are being told at this point that something is better than nothing. That is being rejected.

There are salutatory benefits in constitutional recognition. However, there is a downside. As Dylan Lino, an Australia scholar at Melbourne and Harvard Law School, argues, “the pursuit of a wholly symbolic recognition in written constitution often neglect the valid grievances about how power is wielded by the state”. He argues that symbolic recognition can actually have negative effects if you’re ignoring what it is that people are arguing for.

Why do I say this; what are those valid grievances? I’ll make some comments here in a similar vein to some I made earlier for this reconciliation week. I think they bear repeating. Why are we here? We know that Australia has a well-known, well entrenched culture of right scepticism. This is curious, to some extent, for a nation that developed very strong economic and social rights such as labour force rights well before they emerged in any post world war two United Nations framework.

But when it comes to equality before the law, and non-discrimination, we have not done so well. Noel Pearson captured this well in his Gough Whitlam memorial. He noted that the last vestiges of compulsory segregation lingered well on into the 1970s until the passage of the Racial Discrimination Act. We all know that the protection era, which was the compulsory racial segregation of Aboriginal people in Australia, began around the 1890s (although earlier if you read some historians) to ostensibly 1967. That overlaps with this Australian policy period of paternalism and the assimilation period.

I don’t have to tell a room like this that our rights reluctant culture is very much sustained by a very strong commitment to parliamentary sovereignty and our political and legal system. It’s an almost intact 1901 diocesan notion of parliamentary supremacy that holds that the parliament should remain unencumbered by any checks and balances or fetters – except for the doctrinal kind of limitations such as separation of powers and the constitution. We teach that each year at UNSW to our public law students. We talk to them about A.V. Dicey who influenced the drafters of the constitution, and how the theory goes that federalism and common law should be able to do the work of rights protection because of a number of reasons, including that parliamentarians would not do the wrong thing by people. We also know that Dicey felt that a bill of rights is an admission of failure that politicians won’t do the right thing by people.

But we also know that other comparative liberal democracies have dispensed with this absolutist notion of parliamentary sovereignty. I don’t have to go through the whole list, but there is the US, Canada, New Zealand and the United Kingdom, although there is a debate there now about the Human Rights Act.

The Australian polity resists any fetter on parliamentary power that wasn’t there in 1901. Except for trade agreements of course. We assume rights entrenchment and are sceptical of any fetter on parliamentary power, but the scepticism collides with another very important factor, which is by no means again unique to Australia. Western liberal democracies are essentially procedural democracies, they’re ballot box democracies. It is a challenge for all minimalist liberal democracies that limit citizens’ participation to the ballot box at multi party periodic elections. How do you pay more attention to the quality of the decision making that happens between elections? And we’re not alone there.

There’s voluminous literature about how to improve the quality of decision making by parliaments between the ballot box process. There’s many opportunities that I’m not going to run through, submissions to parliament, protest letters to the editor. I don’t have to spell those out and anyone who surveys the civic surveys regularly in Australia would know that Australians don’t perform too well on the tenants of liberal democracy, such as things like protest.

But this is the problem of all liberal democracies, and it pushes politics to become attuned to what political scientists called utilitarian calculation. This is where the disparaged minority group comes from, or falls outside of the interests of parliament. Most liberal democracies do try to temper that that majoritarianism in some way – some have electoral systems that encourage more independent or minority voices, many have bills of rights or charters of rights or human rights. For Indigenous people, liberal democracies have things like agreements, constructive arrangements, treaties, reserved seats, Indigenous parliaments and the list goes on.

We have resisted structural accommodation of Indigenous peoples. But to go through all of this is to say why we are here. We’re here because of that kind of hardnosed structural problem. We’re not necessarily here for recognition in a symbolic sense. We are here to find ways to better accommodate Indigenous peoples within the Australian democracy.

As Frank has already summarised, 116A and the parliamentary body proposed by Cape York leader Noel Pearson are two ways that Indigenous people have conceived as ways to temper the excesses of majoritarian democracy. Indigenous peoples are saying that the ballot box isn’t enough. We can’t influence the ballot box. Our democratic culture poses that problem. We’re two per cent of 22 million people.

It’s probably a bit erroneous to regard Indigenous proposals for reform as just mere aspirations – they’re actually very concrete, very substantive, very advanced, very carefully considered. They are well thought out proposals for law reform. I wouldn’t describe them as aspirations. Much of the trajectory since 1967, in terms of Aboriginal political advocacy, has been aimed at ameliorating the harsher tendencies of parliament, and pushing for recognition through rights of manifestations of our culture. But we see this step of current constitutional reform on a very long trajectory. We see it from first contact to the conciliation phase. To the killing times or the frontier wars. To the protection era and the assimilation period, self-determination. To what the Prime Minister has labelled a period of neo-paternalism. So we see it on a trajectory.

As a member of the expert panel, we did note when going to Aboriginal communities, there was a much stronger knowledge of civics and Australian history than some of the other communities we visited. Frank has effectively said, we’re at a fork in a road. In fact, Indigenous leaders are now at a fork in the road and we will await their call. As Frank would know, I don’t agree that we’re at a fork in the road. We might be disengaged because of the gutting of Indigenous funding through the Indigenous advancement strategy. Or the amending of heritage laws that protect sacred sites from damage, the very sacred sites that people wish to recognise in the constitution. A more considered analysis is that Indigenous leaders do have quite a detailed idea of the way forward and we have been doing this for years.

After the Mabo decision, there was a three pronged approach – the Native Title Act, the Indigenous Land Fund and the Social Justice Package. This was an Indigenous consultation based document with a very clear path forward for settlement, including principles of engagement. The same too with the Council for Aboriginal Reconciliation that actually included consultation from non-Indigenous Australians. I would say they really are quite advanced proposals for reform.

You can’t admonish Aboriginal people for wanting 116A in the constitution; we’ve been singled out for racially discriminatory treatment, or adverse treatment, by the government on numerous occasions. The protection era is very alive in the minds of Aboriginal people.

Aboriginal and Torres Strait Islander health and wellbeing is not just about statistical quality. I know that a lot of the public discourse is just about “close the gap” now. There is actually very serious unfinished business to address. Pretending the agenda doesn’t exist is doing great damage. What we’re hearing from Aboriginal communities is that they see a dissonance between recognising us in the constitution and the kinds of legislation and policy that’s being enacted around our federal system that undermines those manifestations of Indigenous culture. They see it as disingenuous.

There are a number of narratives that are scaring the mob, including the when you wake-up-next-morning scenario which Frank referred to. There is no date for the referendum – 2017 is not a date that the Prime Minister has set. It’s a date that was suggested to him and he’s right to resist the calls for many of the reasons you have raised. No referendum date in Australia has ever been set before there’s a model.

We need a model before we even begin to think about a date. The other thing I would say about 1967 is that this is not 1967. There are no visible manifestations of compulsory segregation in the same way that there were in 1967. We knew what the question was. This time we also have a very burgeoning Aboriginal middle class, and it’s a very different situation to 1967. We should allow 1967 to have its own identity.

This is a very different stage for the Australian people. A lot of Aboriginal people are thinking strategically and politically and legally, and very carefully and hard about this model. On the other hand, there’s a lot of people who are chasing the significance of this date in 2017. We’re talking in a hard headed way with political people. Last night we heard about the new government tendering policy for Aboriginal business. People aren’t desperate for recognition. We’re here because of structural issues. It’s serious stuff.

The desire to set the date before a model reveals a kind of impatience which is bewildering to me. Last week on ABC TV’s 7:30, an interviewer told me that the politicians couldn’t move until the Indigenous community got its act together – black leaders. That pressure to set the date is putting a lot of pressure on Aboriginal and Torres Strait Islander committees. It’s pushing them into a corner perhaps to accept something that they just don’t want. I haven’t commented on the model because we’re waiting for the committee to release its report.

I’ll end by saying something I’ve been saying for four years now, while promoting the work of the expert panel, and the notion of constitutional reform without a model. Those on the parliamentary committee have been travelling around Australia consulting. I urge you to read the Hansard transcripts on the committee website. You will see that while people will engage with the model, if they’re asked to, it’s a difficult thing. It’s constitutional law. It’s not easy. In those transcripts, you see a very palpable feeling of voicelessness, of powerlessness, of hopelessness. People feel completely left out of the debate. But they also feel completely left out of, the Australian polity. With the policies we have at the moment, you can’t force people to opt in, but you can find ways for them to participate in the debate more.

While there is support for constitutional recognition, in a kind of mainstream sense, what is it that our mob actually thinks? Do we really know what Indigenous people want, what our communities are really thinking. The answer to that is not at the moment. Frank has articulated a point of view from his considered perspective, and places the challenge at the feet of Indigenous leaders – whoever they are at any one point in time. But Aboriginal and Torres Strait Islander people have sought a respectful, honest and good faith relationship with the dominant culture of mainstream Australia for a long time.

We’re not there. Debates around the adequacy and completeness of our constitution in today’s environment are useful and they can contribute to a debate not only about Australia’s past and present, but about the future of Australia. The process is about all of us. But it does call into question the response of non-Indigenous Australians who, equally, have not been given a chance to participate. It’s not enough to leave the burden at Indigenous leaders’ feet. Our fates are tied. Neither Indigenous nor non-Indigenous Australians are going anywhere. These are the questions that we must address as a nation of great public policy innovation.