Constitutional reform: moving towards reconciliation

Australian Catholic Bishops Conference

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

Mary McKillop Place
Mount St
North Sydney

Tuesday 22 November 2011

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It is with respect and gratitude I acknowledge that we sit on the lands of the Cammeraigal People of the Curingai Nation and I thank the Traditional Owners for allowing us to do so.

My people are the Gangulu from the Dawson Valley in Central Queensland.
On behalf of my Elders I salute Cammeraigal Elders, both past and present, for their continued struggle for country and culture here in the place close to where colonisation began.

I also acknowledge the President of the Bishops Conference Archbishop Phillip Wilson, Cardinal George Pell, Bishop Christopher Prowse, Chair of the Bishops Commission for relations with Aboriginal and Torres Strait Islander peoples and all the Bishops of Australia.

I was very pleased to be invited to address you here today.

The Church has played a critical role in many of the struggles we have faced as Aboriginal and Torres Strait Islander peoples in this country.

It would be dishonest of me to stand here and tell you that I believe that everything the Church has done in the past 200 years has, with the benefit of hindsight, been in the best interests of Aboriginal and Torres Strait Islander peoples.

But today I look to the rich tradition of the Church standing up for Aboriginal and Torres Strait Islander peoples and our rights.

I look to people like Archbishop of Adelaide Matthew Beovich who conveyed to a delegation of Aboriginal people in 1967 that he and other church leaders would do all they could to encourage Australians to vote yes for the [so called] Aboriginal rights referendum of 1967.

I look to the Australian Catholic Bishops who in a Conference statement in 1972 said that:

it is as obvious as a tree on the Nullarbor that Aborigines have land rights... ownership, employment, housing, education and bargaining power are also paramount rights. This is the track to the human liberty and dignity which Australia owes her people (ACBC, 1972).

And I look to a sobering plea for a reconciled nation made with Australian Church Leaders during the 1988 bicentennial celebrations:

we are said to have been living together for two hundred years. Yet ignorance, prejudice and discrimination have divided us. In these two hundred years, many aborigines have lost life, land, language, culture and dignity. Many European Australians have never met or known aboriginal Australians... we Australians, aboriginal and not, can not be reconciled until we know each other, appreciate each other, our cultures and our perspectives on life. We must acknowledge and own our past, even the injustices... aborigines need an ensured, empowered place in our public life (Australian Church Leaders Joint Statement, January 1988).

This speaks to how I have framed my priorities as Aboriginal and Torres Strait Islander Social Justice Commissioner. I think what it’s getting at is the question I asked myself at the start of my tenure:

How can we ever be truly reconciled while Aboriginal and Torres Strait Islander peoples continue to live in such relative disadvantage and continue to remain on the margins of our society?

I decided to focus on issues that are foundational to an agenda of hope. An agenda which aims to unleash the potential of Aboriginal and Torres Strait Islander Australians, maximise the capabilities of each and every one of us, and tackle the root causes of the disadvantage faced by our people particularly in the areas of health and social inequality.

I believe that central to this agenda of hope is that:

We develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and the rest of the Australia.
And that...

We develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and all levels of government

These relationships are central to reconciliation. As the Church Leaders Statement said back in 1988, we ‘can not be reconciled until we know each other, appreciate each other, our cultures and our perspectives on life’.

And so, it is this tradition of the Church speaking out, of supporting us, of walking with us that is needed on our journey together towards a truly reconciled nation.

And important steps on this journey are being taken as we speak.

Moves towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in our nations Constitution are well and truly under way.

It is this critical step in our journey that I will speak to you about today.

But why is it that so many of us have sought, and are seeking, reform of the Australian Constitution?

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, or of the fact that the history of our country, as opposed to our nation, began many, many years before British colonisation.

The Attorney-General 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’.

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.

That is why I welcome the commitments of Labor, the Coalition and the Greens, to commence a process towards a referendum to facilitate such recognition.

But I think we need to recognise that constitutional recognition hasn’t appeared out of nowhere.

In the face of a history of exclusion, Aboriginal and Torres Strait Islander peoples have consistently and vehemently fought to have our rights recognised and acknowledged by the Australian Government and the Australian people.

In 1938, two great Aboriginal warriors - Jack Patten and Bill Ferguson, stated that^[1]:

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.

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

And as I mentioned earlier, the Church walked with us in that struggle.

In that referendum, the Australian public overwhelmingly voted to remove two references in the Constitution that discriminated against Aboriginal people. Voters supported this with 90.8 per cent of Australian voters recording ‘yes’, the largest ‘yes’ vote in an Australian referendum.

Aboriginal and Torres Strait Islander peoples were then included in the counting of the Census, and 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 power included making laws regarding Aboriginal and Torres Strait Islander peoples from across Australia who were previously subject to the differing laws of each State or Territory.

And the journey towards reconciliation continued...

Who could forget the bitterly cold morning on May 26, 2000, when more than 250,000 people walked across Sydney Harbour Bridge in support of Aboriginal and Torres Strait Islander Australians?

This walk was the culmination of 10 years work by the Council for Aboriginal Reconciliation, set up to promote greater understanding between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians.

And again, the Church was with us on that walk.

And there was that historic day on the 13th February 2008 when the National Apology to Australia’s Indigenous peoples was made.

On that day there was a palpable sense of us coming together as a nation. Indigenous and non-indigenous Australians sat together, held each other and cried together. The nation took a great leap forward together.

I believed Australia was ready for a new, stronger, deeper relationship with its first peoples.

And just a few months ago – at the first historic meeting of the National Congress of Australia’s First Peoples – the national representative voice for Aboriginal and Torres Strait Islander peoples – almost 90% of the 630 members surveyed said it was very important that Aboriginal and Torres Strait Islander people are recognised in the Australian Constitution.

And so we walk towards another milestone in the journey towards reconciliation – recognition of Aboriginal and Torres Strait Islander peoples in our nations Constitution.

But some have asked...

What difference will recognising us in our nations 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

• resilience

• our relationship with the broader Australian community

• our relationship with governments.

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

The lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity, value within the community and perpetuates discrimination and prejudice which further erodes the hope of Indigenous people. There is an association with socioeconomic disadvantage and subsequent higher rates of mental illness, physical illness, and incarceration. 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.^[2]

And so, in improving our sense of self worth, our resilience, our mental health, and our relationships with the broader community, recognition can lead us towards the goal of a reconciled nation.

That is why I welcome the commitments of Labor, the Coalition and the Greens, to a referendum to facilitate such recognition.

The prospect of this referendum provides us all with a great opportunity to reframe and reset our relationship as a nation, and to establish new relationships that open our hearts and minds to new possibilities.

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 on the other?

And so, this process will give this generation of Australians the opportunity to say ‘yes’ - an opportunity to demonstrate goodwill and innate decency, just like 90% of Australians did in 1967.

The National Apology marked an opportunity for Parliament to acknowledge the past and build towards a reconciled future in Australia.

I believe the current opportunity for constitutional reform to recognise Aboriginal and Torres Strait Islander peoples as part of this nation, offers the Australian population an opportunity to move to the next stage of that journey.

I think constitutional reform and the journey to get there can be just as powerful in recognising our place in this nation.

This journey has well and truly begun and builds on the fight for equality over many years.

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

I am pleased to be an ex officio member of the Expert Panel.

Throughout the year we have been seeking the views of Australians on what changes should be made to our Constitution.

The Panel has encouraged as many people as possible to contribute their ideas and views on constitutional recognition through public consultations, other meetings and submissions.

Over this consultation period, around 200 public consultations and other meetings were held in 84 communities in metropolitan, regional and remote communities across Australia.

We have also commissioned research which has found an overwhelming majority of people surveyed support constitutional recognition of Aboriginal and Torres Strait Islander peoples and their heritage, cultures and languages.

The national survey conducted by Newspoll late last month found there was majority support for constitutional recognition in all states and territories.

Importantly, there was also majority support for addressing the sections of the Constitution that permit discrimination on the basis of race.

Similarly, high levels of support for constitutional recognition and addressing racial discrimination have been identified in the 3,600 submissions received by the Panel.

The most common reasons given in the submissions for supporting such changes included:

• that the unique status of Aboriginal and Torres Strait Islanders should be enshrined in our nation’s founding legal document;

• that the Constitution should be amended to ensure the racial equality of all Australians and to remove potentially discriminatory clauses;

• that constitutional recognition is well overdue and will more accurately reflect Australia’s national identity;

• that constitutional recognition is important for recognising Aboriginal and Torres Strait Islander peoples as custodians of the world’s oldest continuing culture and is needed to protect their heritage, cultures and languages; and

• that constitutional recognition would go some way towards redressing past wrongs and building stronger relationships.

We on the Panel are heartened by the strong engagement in this process and the high levels of support for change.

As the Panel refines its report to Government, it will consider the issues raised in consultations and submissions, the findings from the research that has been commissioned, and the outcomes from more intensive consultations, taking into account advice from leading constitutional lawyers.

Alongside and complementary to recognition, we will look at the important issues raised regarding the prohibition of discrimination on the basis of race, and constitutional support for language or culture.

Our work on the Panel is drawing to completion, with our report to government to be released in January.

Our task was made clear by government. In order for the Panel to recommend a proposal for constitutional change it must:

• contribute to a more unified and reconciled nation

• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples

• be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums

• be technically and legally sound.

Although at times, working towards changes that fit these criteria seems almost as difficult as parting the Red Sea, I firmly believe we can fulfil these criteria.

And following the report to government, I believe in the innate decency of the Australian people to walk with us on the next important stage of our journey towards reconciliation – recognition in our nations Constitution.

As one of our own great church leaders Pastor Doug Nichols said “We want to walk with you. We don’t want to walk alone.”

But there is work to do.

We need to engage the entire nation, and inform and educate them on the Constitution.

I don’t underestimate the challenges - this will be a long hard journey. But it’s the journey that will mark our maturity as a nation, not just the destination - as important as it might be.

It’s a journey that to steal the words of the Australian Catholic Bishops from 1972 moves us along the road ‘to the human liberty and dignity which Australia owes her people’.

It’s a journey that is not about looking back. It’s about looking forward and moving forward as a nation.

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. Not intolerance, a lack of acceptance, a lack of dialogue, mistrust and a lack of respect and understanding.

And it’s a journey that I’m sure the Church will walk with us on.

To finish I would like to share a poem written by one of our fighters in the struggle, Oodgeroo Nunukul, or as she is also known Kath Walker.

I am honoured to have known Oodgeroo in her later years and the poem I want to recite is one she wrote for her son, Dennis.

I think she captured the spirit of where we want to head, of looking ahead rather than backward, indeed a woman before her time. Its called Son of Mine.

My son, your troubled eyes search mine

Puzzled and hurt 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 you of crimes that shame mankind

Of brutal wrong and deeds malign

Of rape and murder son of mine

But instead I will tell you of brave and fine

When lives of black and white entwine

And men in brotherhood combine

This I would tell you son of mine.

Thank you.

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^[1] J Patten and W Ferguson quoted in S Bennett, Aborigines and Political Power (1989), p 5.
^[2] See The Royal Australian and New Zealand College of Psychiatrists 2010, Constitution changes would improve Indigenous mental health, media release, 12 October. Available at http://www.ranzcp.org/media/constitution-changes-would-improve-indigeno… (viewed 24 November 2010).