Constitutional Reform: Creating a Nation for all of us

An Eidos Institute Event with Mick Gooda

The State Library
Brisbane

23 February 2011

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Introduction and Acknowledgement of Country

Good afternoon ladies and gentlemen, distinguished guests.

Before we start today, it is with respect and gratitude that I acknowledge the traditional owners of the lands on which we meet.

I also acknowledge my Aboriginal and Torres Strait Islander brothers and sisters here today, Mr Mark Nolan (Chair of the Eidos Institute) and Professor Bruce Muirhead (CEO of the Eidos Institute), Institute Board Members, University representatives, distinguished guests.

Can I especially acknowledge Professors Boni Robertson and Chris Sarra.

Thank you for inviting me to come and speak with you today about a topic that I am passionate about and committed to: Constitutional Reform: creating a nation for all of us.

With the Eidos Institute focused squarely on the public policy environment, I have no doubt that you are all aware of the conversation that is just beginning - to recognise Aboriginal and Torres Strait Islander peoples in our founding document – the Australian Constitution.

Background

But before I talk about Constitutional Reform, let me first give you the context behind my choice of this particular issue as a priority.

It is now just over a year since I started as the Aboriginal and Torres Strait Islander Social Justice Commissioner.

I am appointed for a period of 5 years by the Governor in Council, and I have a statutory responsibility to review the impact of laws and policies on Indigenous peoples; promote an Indigenous perspective on issues; and monitor the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples.

Over the past 12 months I have travelled extensively around Australia. I have met with Aboriginal and Torres Strait Islander communities in remote, regional and urban settings.

I have heard many stories and witnessed many things in Aboriginal and Torres Strait Islander communities that are heartbreaking and disturbing – particularly given that we live in one of the richest, most successful democracies in the world. It is simply unacceptable that Australia’s first peoples are the most vulnerable of our healthy, prosperous nation.

But...I was also humbled by the many stories of resilience and hope. I witnessed Aboriginal and Torres Strait Islander communities working hard to raise the bar and not accept the status quo. I also met with many non-Indigenous people and organisations that are behind us all the way – people who want to walk and work with us to improve the life chances for Aboriginal and Torres Strait Islander peoples across Australia.

SJC Priorities

In November last year, I outlined my overarching priorities that I wanted to pursue during my time in this important role.

Firstly, I want to see the full implementation of the United Nations Declaration on the Rights of Indigenous People in all laws, policies and programs in Australia. And through this - the spirit and intent of the Declaration can be realised.

The Declaration reaffirms that Indigenous peoples are entitled to all human rights recognised in international law without discrimination. But it also acknowledges that without recognising the collective rights of Indigenous peoples and ensuring protection of our cultures, Indigenous peoples can never be truly free and equal.

The Declaration is about creating new relationships between Indigenous peoples and government based on partnership, mutual respect and honesty.

The Declaration is not an instrument of division as some would have us believe; rather it is an instrument to create the institutional structures, arrangements and process needed for indigenous peoples to be able to effectively engage in a relationship with Governments based on mutual respect. Any doubt to this is made clear in the preamble which states the United Nations General Assembly is:

Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance the harmonious and cooperative relations between the State and indigenous peoples.^[1]

It is my view, here in Australia, we should use the Declaration as a road map towards a reconciled nation.

So, while the Declaration guides our journey toward reconciliation it is the relationships we form along the way that will actually get us to our destination.

This is why the other overarching priority I chose to pursue is to promote stronger and deeper relationships:

• between Aboriginal and Torres Strait Islander peoples and the broader community.
• between Aboriginal and Torres Strait Islander peoples and governments.
• And within Aboriginal and Torres Strait Islander communities.

These priorities were informed in part by the many conversations I have had on my travels; and in part by my own of involvement in the Indigenous policy environment.

I have come to the conclusion that without positive relationships and rules about how those relationships are maintained and nurtured, the status quo will not change significantly.

Constitutional Reform

In considering how we might progress these priorities, it became clear to me that the first and fundamental steps in the policy staircase were not yet in place. The first step in particular sets the foundation for the staircase and is the foundation document of our nation – our Constitution.

The 110 year old history of the Australian Constitution has served as a platform for both national unity and cultural segregation. When the Constitution was being developed we were excluded from that conversation, when it was given Royal Assent 110 years ago, we were even expressly excluded in the text of the Constitution.

As a consequence, the Constitution did not, and still does not make adequate provision for us as the first peoples of this nation.

As you will all be aware, the historic 1967 Referendum went some way to rectifying our exclusion by finally ensuring that Aboriginal and Torres Strait Islander peoples were to be counted in our national Census and that the Commonwealth could make laws on our behalf.

This coming referendum will be an opportunity to further that outcome achieved in 1967 to finally recognise that our country is made up of old and new Australians. And to recognise with pride the ancient histories and cultures of our unique nation that dates over 40 000 years prior to the arrival of the First Fleet.

At present, we stand at the edge of a potentially historic and landmark social, political and cultural debate – the question of an amendment of the Constitution to include recognition of the Aboriginal and Torres Strait Islander peoples of Australia. With political momentum for a constitutional referendum continuing to swell, the issue is shaping up as a critical plank in future conceptions of the nature of reconciliation in our country.

Why is it important?

But why is this important? Why is it important to recognise Australia’s first peoples in our nations Constitution?

The Attorney-General in launching a pocket version of the Constitution recently 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’.

Australia is home to the oldest living cultures in the world and this is something that each and every Australian should be proud of - and be proud to assert as part of our national identity.

There is currently no mention of Aboriginal or Torres Strait Islander peoples, or of the fact that the history of our country, as opposed to our nation, began many many years before British colonisation.

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.

This opportunity not only provides us with a chance to reconstruct our national identity through recognition – it will also allow us to remove the provisions within the body of the Constitution that permit, enable or anticipate racial discrimination – namely ss 25 and 51(xxvi).

If these two options are considered seriously as a minimum for reform in an upcoming referendum I believe this opportunity has the potential to:

• improve the status and therefore the lives of Aboriginal and Torres Strait Islander peoples, specifically by addressing the history of exclusion of our peoples in the life of our nation and increasing our self-worth as citizens within Australia.
• entrench the protection of human rights for all Australians within the Constitution.

And as a result,

• ensure a solid foundation upon which to build a reconciled nation.

As such, I think it is important that all Australian’s are aware that constitutional reform is not just about Aboriginal and Torres Strait Islander people. It is about the entire nation. It's not about looking back. It's about looking forward and moving forward as one, united nation.

Referenda provide an opportunity for the people of Australia to speak. This will be a great and rare opportunity, to reframe and reset our relationship as a nation.

That is why it is so important that we all get involved in the dialogue about Constitutional recognition as an opportunity to reconcile and grow as a nation together.

It’s been said to me that Australians are not ready for such an initiative – to change our Constitution to recognise Aboriginal and Torres Strait Islander peoples.

Maybe that’s true, and maybe I have more faith in the spirit and mateship of Australians than I should.

Certainly, we can’t underestimate the immensity of such a challenge. Only eight out of 44 referendums have been passed in Australia’s history.

But to those who doubt the importance of this journey on which we are all about to take together, I say this:

This process will give this generation of Australians the opportunity to say ‘yes’ to an issue that is relevant to each and every one of us - an opportunity to demonstrate goodwill and innate decency, just like 90% of Australians did in 1967 in recognising the need to include Aboriginal and Torres Strait Islander peoples in our nation’s population count for the first time.

How do we get there?

So in order to achieve a successful referendum, we have much to do.

To be successful a referendum requires a double majority. The majority of people in the majority of States must vote yes.

In the Social Justice Report 2010, I looked at the history of referendums and drawing on the work of Constitutional expert George Williams^[2], identified some critical factors that are essential for success including:

• bipartisan political support – while we have it at the moment – it will be critical to maintain bipartisan support up until the referendum - and we know just how hard it is to get politicians to agree, especially if either side thinks there’s a possible wedge in there somewhere
• popular ownership of the referendum process – Australian’s historically will not vote yes for a proposal that has been foisted upon them – each and every Australian has the right to participate in this conversation
• popular education about the Constitution and the proposed reform.

The last two factors in particular draw a parallel with the Eidos Institute’s philosophy that ‘the best democracy is an informed and included democracy’.^[3]

Most Australians I meet pride themselves on being part of a liberal democratic society that is fair and inclusive, and does not condone discrimination or racism. And that we have laws that cover those things. However, laws only offer limited protection.

Megan Davis highlights this point, and I quote:

In Australia, Indigenous interests have been accommodated in the most temporary way, by statute. What the state gives, the state can take away, as has happened with the ATSIC, the Racial Discrimination Act and native title.^[4]

However, it can be inferred from the National Human Rights Consultation that the majority of Australians have limited knowledge about the Constitution or its importance in our everyday lives.

People mention the rights to bear arms and quote the 5^th Amendment. Somehow they seem to get the Constitution of another country mixed up with ours.

In order to progress this dialogue and increase understanding, the Australian Government has established an Expert Panel to report to it on options for constitutional recognition of Indigenous peoples.

I am an ex officio member of the Expert Panel, and I will be urging the Panel to keep these factors at the front of their minds as their duties are undertaken.

The task of achieving a successful referendum cannot and should not be left to the Expert Panel alone. Especially when we consider that popular education and popular ownership are two critical factors for success. These two factors mean it is essential to engage effectively with the Australian people.

Independent advice and assessment of options under consideration by the Expert Panel would also assist in the design of meaningful and effective consultation, and the development of a sound and sensible referendum proposal.

So over the next two years, there will be debates, speeches, opinion pieces in the press, bloggers responding to these articles, people prowling the parliamentary corridors, Constitutional lawyers at 10 paces, yea and nay sayers, documentaries, panel discussions, arguments at dinner parties, barbecues and in front bars – all of these things.

And it’s precisely all of these things that will build awareness, focus minds and hearts and help move us all forward as a nation.

What can EIDOS do?

As an independent think tank, an alliance of Universities with some of the greatest minds in our country, Eidos are in a perfect position to contribute to this important debate.

But more importantly to educate our Australian brothers and sisters about this rare opportunity that we are presented with.

Universities can be key informants in this debate and by including learning about Aboriginal and Torres Strait Islander history, pre and post colonisation; and learning about our Constitution in programs across key faculties including law, social and political science, and literature, we will increase the numbers of Australians who can participate in this process from an informed basis.

I hope that Constitutional Reform to recognise Aboriginal and Torres Strait Islander peoples as the first Australian’s, as well as addressing the provisions within our founding document that enable or anticipate racism – will become a key priority for the Eidos Institute. And that you will join with others who are mobilising around the country to promote and progress this important conversation.

Conclusion

When Kevin Rudd gave the National Apology in February 2008,^[5] there was a palpable sense of us coming together as a nation for the first time. Indigenous and non-indigenous Australians sat together, held each other and cried together. The nation took a great leap forward together.

Unfortunately, we lost a bit of that momentum, but we now have an opportunity to reinvigorate that momentum with the upcoming referendum.
I firmly believe the time is right, here and now for the Australian people to formally recognise the special and unique place of Aboriginal and Torres Strait Islander people in our nation.

By finally and formally settling and affirming the place of Aboriginal and Torres Strait Islander peoples in our nation, all of us grow in stature.

I invite you to walk and work with us to improve the life chances for Aboriginal and Torres Strait Islander peoples across Australia, and to reform our foundational document to reflect the real spirit of our nation – a reconciled nation.

Let me conclude today with a quote from the Father of Reconciliation in this country and a Yawuru elder, Patrick Dodson:

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.

Thank you.

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^[1] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc: A/61/L.67 (2007), preambular para 18.
^[2] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), ch 7.
^[3] Eidos Institute – an Australian public policy think tank, at http://www.eidos.org.au/v2/index.php?option=com_content&view=article&id=212&Itemid=133 (viewed 20 February 2011).
^[4] M Davis, ‘A woman’s place...’ (2009) 24 Griffith Review 156, p 157. At http://www.griffithreview.com/edition-24-participation-society/222-essay/643.html (viewed 13 September 2010).
^[5] Commonwealth, Parliamentary Debates (Apology to Australia’s Indigenous Peoples), House of Representatives, 13 February 2008, p172 (Kevin Rudd, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 10 November 2010).