7th National Indigenous Legal Conference

Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

University of Western Australia
Perth

Saturday 6 October 2012

Introduction

I would like to begin by acknowledging the Whadjuk Noongar people and I want to thank them, the traditional owners of the land on which we meet, for allowing us to gather on their country.

My people are the Ghangulu from the Dawson Valley in Central Queensland.

On behalf of my Elders I salute your Elders, both past and present, for their continued struggle for their country and their culture.

Can I also acknowledge and thank the Whadjuk Noongar people for allowing my two daughters to grow up strong Ganagulu women on this country.
Can I acknowledge my Indigenous friends:
Ben Wyatt MLA;
Dennis Eggington;
Glen Kelly;
Len Collard;
Jill Milroy;
Tammy Solonec;
Brian Samson;
Hans Paul Bokelund;
Pat Miller AO;
Megan Davis; and
obynne Quiggin.

Finally can I acknowledge our Non-Indigenous friends here today:
Senator Rachel Siewert;
The Hon Chief Justice Wayne Martin AC;
His Honour Judge Reynolds;
Magistrate Susan Richardson;
Equal Opportunity Commissioner Yvonne Henderson;
Professor Stuart Kaye;
Professor Chris Doepel;
Dr Christopher Kendall;
Mr Hylton Quail; and
The Hon Fred Chaney AO

To the conveners of this, the National Indigenous Legal Conference thank you for inviting me to speak here today.

Ladies and gentlemen

Introduction

Sometimes I like to begin speeches by reciting a poem by Oodgeroo Noonuccal, or Kath Walker. She is a hero of the struggle for Aboriginal and Torres Strait Islander peoples’ rights and she is a hero to me.

In my mind this poem captures the essence of the challenges confronting us here in Australia in pursuit of a reconciled nation and overcoming Aboriginal and Torres Strait Islander disadvantage.

My son, your troubled eyes search mine
Hurt and puzzled by colour line
Your black skin as soft as velvet shine
What can I tell you son of mine

I could tell you of heartbreak, hatred blind
I could tell of crimes that shame mankind
Of brutal wrongs and deeds malign
Of rape and murder son of mine

But instead I will tell of brave and fine
When lives of black and white entwine
When men, in brotherhood combine
This I would tell you son of mine.^[1]

In present day Australia, there is still too much heartbreak and hurt. After more than 200 years together, we still long for, and for many of us, work toward a truly reconciled and equal nation.

As some of you may already be aware, the priorities I have identified for my term as the Social Justice Commissioner are focused on the improvement of relationships:

• between Aboriginal and Torres Strait Islander people and the broader Australian community.
• between Aboriginal and Torres Strait Islander people and government, and
• between Aboriginal and Torres Strait Islander peoples within our own communities,

I think Oodgeroo’s poem is an appropriate introduction to today’s address which is ultimately about these relationships.

Today, I’m going to talk mainly about constitutional recognition.

I see constitutional recognition of Aboriginal and Torres Strait Islander peoples as extremely important. It has a role in all of my relationship-building priorities:

• Firstly, it is an important part of the path to reconciliation between Aboriginal and Torres Strait Islander peoples and the broader Australian community;
• Secondly, it would be an important way of respecting the human rights of Aboriginal and Torres Strait Islander people, at a formal government level, and in this way reflects the potential for a new relationship between government and Aboriginal and Torres Strait Islander people; and
• Thirdly, it is an important part of the process of healing which will contribute to Aboriginal and Torres Strait Islander people creating and maintaining healthy relationships with each other, within our communities, free from lateral violence.

I am pleased to say that as a nation, we have now embarked upon a journey towards this constitutional recognition. We’re still at the beginning of that journey, but it has begun in earnest.

So, what exactly is meant by ‘constitutional recognition’?

Despite the fact that Australia is home to the oldest living culture in the world, there is currently no mention of Aboriginal or Torres Strait Islander peoples in the our Constitution. There is no mention of the fact that the history of our country, as opposed to our nation, began many years before British colonisation.

A former Attorney-General has referred to the Constitution as ‘our nations Birth Certificate’. The current Chief Justice of the High Court of Australia has referred to it as ‘defining our legal universe’.

Surely, our nation’s birth certificate should represent our full history, our diverse cultures, and the true spirit of our nation. It should reflect our complete genealogy – not just one part of the family tree.

Constitutional reform is not a new idea. Aboriginal and Torres Strait Islanders have a long history of fighting for formal recognition as the first peoples of this place now known as Australia.

In 1938, two great Aboriginal warriors - Jack Patten and Bill Ferguson, stated that:^[2]

You are the New Australians, but we are Old Australians. We have in our arteries the blood of the Original Australians; we have lived in this land for many thousands of years. You came here only recently, and you took our land away from us by force.

Following this, around 30 years of advocacy – involving activists such as William Cooper, Jack Patten, Bill Ferguson, and Charlie Perkins, Pearl Gibbs, Joyce Clague and of course Oddgeroo just to name a few – played a significant role in the lead up to the successful 1967 referendum.

In that referendum, the Australian public overwhelmingly voted to remove two parts of the Constitution that discriminated against Aboriginal and Torres Strait Islander peoples. Voters supported this proposition ib\n great numbers, with over 90 per cent of Australians recording ‘yes’, the largest ‘yes’ vote ever in an Australian referendum.

The two changes in 1967 meant that:

1. Aboriginal and Torres Strait Islander peoples were included in the counting of the Census, and
2. the Commonwealth had the power to make laws for ‘the people of any race for whom it is deemed necessary to make special laws’ – this now included Aboriginal and Torres Strait Islander peoples, who had previously been excluded so that States and Territories could make whatever laws they saw fit regarding our peoples.

The history of constitutional activism continued throughout the 20^th century. In 1999, then Senator Aden Ridgeway, only the second ever Aboriginal person in the federal Parliament, played a key role in the campaign to recognise our people in a Constitutional preamble. This was the same referendum to which the republic question was put.

One of the first scoping exercises conducted by the National Congress of Australia’s First Peoples in their efforts to prioritise issues of importance to Aboriginal and Torres Strait Islander peoples was a survey which included a question about the importance of being recognised in the Constitution. Almost 90% of the 630 members surveyed said recognition was very important.^[3]

Some people ask: what difference will recognising us in our nation’s Constitution make to the day-to-day disadvantage we face as Aboriginal and Torres Strait Islander peoples?

I think it can be the vehicle to increasing and improving our:

• self worth
• our resilience
• our relationship with the broader Australian community; and
• our relationship with governments.

The Royal Australian and New Zealand College of Psychiatrists believes that constitutional change would improve Indigenous peoples mental health. According to the College President, Dr Maria Tomasic:

Recognition in the Constitution would have a positive effect on the self esteem of Indigenous Australians and reinforce their pride in the value of their culture and history. It would make a real difference to the lives of Indigenous Australians.

The impact on relationships

In line with the evidence base that suggests constitutional reform would have a practical impact on the creation and maintenance of healthy relationships, I would like to briefly discuss two issues where I think constitutional reform will make a difference:

• Lateral Violence – which considers our relationships as Aboriginal and Torres Strait Islander peoples
• Our relationships with Government and the broarder Australian community.

In last year’s Social Justice Report, I focused on relationships within Aboriginal and Torres Strait Islander communities. I particularly talked about lateral violence. I looked at the reasons for it and the destructive impact it has.

In case you are not aware of lateral violence I will briefly summarise what I mean by it.

Lateral violence refers to behaviours such as bullying, gossiping, jealousy, shaming, social exclusion, family feuding and organisational conflict, which can and often does escalate into physical violence.

Lateral violence occurs in all communities, all families and all organisations and workplaces, but for us lateral violence can be particularly acute. It is reflected in the worldwide phenomenon of where oppressed peoples eventually internalise that oppression and start oppressing each other. Lateral Violence has been described as 'internalised colonialism' and according to Richard Frankland includes:

[T]he organised, harmful behaviours that we do to each other collectively as part of an oppressed group: When we are consistently oppressed we live with great fear and great anger and we often turn on those who are closest to us.^[4]

This kind of behaviour diminishes the capacity of our families, communities and organisations. Ultimately, it diminishes our capacity to run our own lives – our ‘governance capacity’, in the broadest sense of the term.

So in a curious circularity lateral violence diminishes our governance capacity and our diminished governance capacity provides breeding grounds for lateral violence.

Unsurprisingly, improving our internal governance structures and process as well as those of the broader governance environment is one way of reducing lateral violence and conflict within our communities.

In last year’s report I recognised the role that governments can play in diminishing the governance capacity in our communities and creating the conditions for lateral violence to flourish. For example through legislative and regulatory frameworks that require organisational structures which do not reflect our legitimate decision-making processes.

Or through funding frameworks which burden our small organisations with disproportionate administration, taking resources from the service delivery role.

Or Government tendering processes that see the survival of the strongest as opposed to the survival of the most appropriate.

I also discussed how government can change the role it plays and fulfil an enabling and supporting role for our communities to build on existing capacity.

In this year’s Social Justice Report I am going to talk in more detail about ‘effective Indigenous governance’ and government’s role in enabling and supporting it.

The evidence on the importance of these two aspects of governance as it relates to Aboriginal and Torres Strait Islander people is extensive and clear. It is only through having control over our own lives that ‘practical’ aims of governments will be achieved.

No amount of money or resources can compensate for relationships which disempower Aboriginal and Torre Strait Islander people.

What this suggests is that there needs to be a new relationship between Aboriginal and Torres Strait Islander peoples and government. A relationship built on recognition of our unique position as First Peoples.

There will need to be negotiations on a different basis to those which currently exist – there will need to be genuine partnerships forged – genuine power-sharing arrangements.

The place to start with a new relationship between government and Aboriginal and Torres Strait Islander peoples is with recognition in the nation’s founding document - recognition that we existed at the time of colonisation and we still exist, here and now.

This would signal both a new relationship, respecting the unique position of us as the First Peoples, and the importance of our peoples and cultures being valued within the broader nation.

So constitutional recognition is part of resetting the relationship between government and Aboriginal and Torres Strait Islander people; And I believe it will impact on the relationships we have within our communities as well as the relationships we have with broader Australia.

The prospect of this referendum provides us all with a great opportunity to reframe and reset our relationship as a nation.

Importantly, this opportunity not only provides us with a chance to frame our national identity through recognition – it also allows us to address the provisions within the body of the Constitution that permit, enable or anticipate racial discrimination.

After all, how can you recognise Aboriginal and Torres Strait Islander people on the one hand, and still allow discrimination against us and other races on the other?

So what stage is the constitutional recognition process at now?

This most recent movement seems to have cross party support and I’m very hopeful that it will ultimately succeed. But it will take some time.

I was a member of the Expert Panel which the Government appointed to report on the options for constitutional change and approaches to a referendum that would be most likely to obtain widespread support across the Australian community.

Throughout 2011, the Expert Panel conducted a nation-wide consultation process. Members of the Expert Panel shared the responsibility of attending over 250 public consultations across Australia between May and October 2011. We had conversations with over 4000 people, including individuals and representatives of business, media and community organisations.

The Expert Panel’s consultation process targeted the involvement of Aboriginal and Torres Strait Islander people, with visits to as many of our communities as possible. The discussion paper was made available in 15 Aboriginal and Torres Strait Islander languages.

The Expert Panel reported to the Government in February this year.

We made five recommendations for changes:

1. Repeal of section 25 (which allows States to disqualify people from voting on the basis of race);
2. Repeal of section 51(xxvi) (which allows the Commonwealth to make laws regarding people of a particular race), together with
3. A new section 51A recognising Aboriginal and Torres Strait Islander peoples and allowing the Commonwealth to make laws regarding Aboriginal people in the context of acknowledging our continuing relationship to traditional lands and waters and the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.
4. A new section 116A prohibiting racial discrimination, except for the purpose of overcoming disadvantage.
5. A new section 127A recognising English as the national language of Australia and that Aboriginal and Torres Strait Islander languages are the original languages of Australia and part of our national heritage.

We also made eight recommendations regarding the process of a referendum, for example:

• that it should be a single question on a package of changes, and
• that the referendum should only proceed when it is likely to be supported by all major political parties and a majority of State governments.

The Government, Opposition, the Greens and Independents have all said they support Constitutional recognition generally. However, it is unclear yet whether they will support the Expert Panel’s recommendations in whole or in part.

The Government’s response to the Expert Panel’s report so far has been to give Reconciliation Australia $10 million, from the 1^st of July this year, to conduct an ‘education campaign’ about what constitutional recognition is, why it is needed and what needs to happen for the changes to go through.

Reconciliation Australia has recruited Tim Gartrell as the education campaign manager. He is a well-known and experienced campaigner, responsible for Labor’s successful Kevin 07 campaign. Reconciliation Australia also have the support of a range of individuals and organisations across the political divide.

At the moment, before we know what the referendum question will be, the aim is to try and build popular support and momentum. We are aiming to educate people on the reasons why change is necessary and the positive effects it will have on Aboriginal and Torres Strait Islander people and the whole nation.

I am a member of the RA Reference Group and under Tim’s steerage, Reconciliation Australia is coordinating a selection of different stakeholder groups. The NGO Group has met several times and there are other groups that could be established within community as well, for example a business group, a sporting group, a community organisations group, etc.

This will need to be a community movement; we will need to take the whole community with us.

If anyone here is looking for resources to do your own bit of community education and campaigning, ANTaR has put together some very useful material on their website and I highly recommend you take a look. The You Me Unity website was established by the Expert Panel specifically as a tool for engaging the public on constitutional recognition. It continues on as a space for this public conversation and also hosts useful educational material.

Funding Grants are available through Reconciliation Australia to assist the Australian community run events and conduct activities that assist with educating our citizens on constitutional reform. The first of a series of funding opportunities over the next two years is open now. Funding of between $1000 - $5000 is available for organisations who want to help raise awareness and community support.

If you want to get more involved, or apply for some of that funding, take a look on the You Me Unity website or call Reconciliation Australia to find out how.

What about recent announcements about a ‘Recognition Act’?

The Labor Government made a commitment to hold a referendum before the next election. It was part of the Government’s agreement with the Greens and Independent MP Rob Oakshott has been a driving force on this issue in Canberra.

However, as you will have probably heard in the news recently, the Government has concluded that the public are not ready for a referendum on constitutional recognition either before or at the next election. That is, a referendum in that timeframe would probably not pass. This is a views with which I am in agreement.

Reconciliation Australia reckons its research shows that only 39% of people had heard that a referendum was proposed on this issue.^[5]

And we know that the 1967 referendum took over a decade of tireless work.

So it is not surprising that 3 years would not been long enough to raise sufficient awareness.

Instead of putting the issue to a referendum in the next year, the Government has proposed an ‘Act of Recognition’ be passed by Parliament to continue building momentum and progress the journey towards constitutional recognition.^[6]

We do not yet know what that Act would look like but the Government has said it will ‘be worded to reflect as closely as possible the recommendations of the expert panel’.^[7]

I have to agree that rushing a referendum and failing would not be a good outcome of all the hard work.

That’s for two reasons:

1. Part of the benefit of this process is the journey itself and the fact that people are talking about our constitution and about Aboriginal and Torres Strait Islander peoples’ place in our nation. And hopefully people are learning and are developing their understanding and their opinions accordingly.
2. The second reason is that I believe it is important that the referendum succeed. It would be a blow to reconciliation if it did not; and it would be such a boost to national pride and our national spirit if it did.

That being the case, I hope that all parties and independents will come on board to support this intermediary step of an Act of Recognition.

I sincerely hope that the major parties can sit down and agree, in the spirit of reconciliation, on an Act or an appropriate alternative that will keep this matter on the political and parliamentary agenda in a serious way.

There is a history in this county of Aboriginal and Torres Strait Islander policy issues being used as a ‘political football’. Our current leaders should do all they can to ensure that constitutional recognition does not fall into this category. It is too important to Aboriginal and Torres Strait Islander people and to the nation as a whole.

Conclusion

So to conclude: there is a long way to go and a lot of work to do. And there could be obstacles along the way.

But I believe in the innate decency of the Australian people to walk with us on this next important stage of our national journey towards reconciliation.

Each and every one of you can also contribute to this important event.

This change won’t happen in Parliament. This change will happen in our backyard bbq’s and family get-togethers, and our footy clubs. I encourage you all to actively advocate this important step in our nation’s history with your families and friends and in your workplaces, churches and other clubs or groups that you are involved in. Hold an event – or put information on your staffroom pinboards. Join You Me Unity on Facebook and share the information throughout your networks.

Now is also the time for our political leaders to step up, put politics aside and really lead us on this journey.

It’s a journey that can help build the healthy relationships necessary for an agenda of hope.

Relationships that are built on understanding, dialogue, tolerance, acceptance, respect, trust and reciprocated affection.

But what is the ultimate outcomes of these relationships.

I want to leave you with something my friend Glenn Pearson has said when asked what type of future he’d like to see for us. It’s a vision that I share and I want to share it with you:

Glenn said:

“I want for me and my children – as I do for you and your children – to grow really, really old together – having led fantastic lives that have allowed us to make a lifetime contribution to the health and wellbeing of the broader community and our families.”

“I want to know that when we were tested by life’s challenges, that we pulled together to face them as a people; that we drew upon the best of what we had, to find positive solutions to the things that have tested us along the way.”

“I want to know that, purposively, we took on and changed those things that we felt do not reflect what we want in a fair, honest, respectful and harmonious society.”

“I want that we learn to hold and to celebrate Aboriginal and Torres Strait Islander culture and history as an essential part of the Australian story because we see ourselves as part of it – connected to it, proud of it and centered by it.”

Thank you.

^[1] K Walker, My People: A Kath Walker Collection (1970), p 55.
^[2] J Patten and W Ferguson, quoted in S Bennett, Aborigines and Political Power (1989), p 5.
^[3] http://nationalcongress.com.au/wp-content/uploads/2011/07/CongressMemberPolicySurveyFinalReport.pdf p 6.
^[4] R Frankland and P Lewis, Presentation to Social Justice Unit staff, Australian Human Rights Commission, 14 March 2011.
^[5] http://www.jennymacklin.fahcsia.gov.au/node/2098
^[6] http://www.jennymacklin.fahcsia.gov.au/node/2098
^[7] http://www.jennymacklin.fahcsia.gov.au/node/2098