On the 50th anniversary of the referendum that ended discrimination against Aboriginal Australians in the constitution, a new call to amend the constitution to entrench indigenous rights emerged from a somewhat divided convention of Aboriginal community leaders at Uluru in May.
The meeting was the culmination of a process initiated by the Gillard government, and continued by successive governments of both political persuasions, to secure indigenous recognition in the constitution, under the title, Recognise.
According to the Prime Minister’s departmental website: “Constitutional recognition is the move towards recognising Aboriginal and Torres Strait Islander peoples in Australia’s founding document – our constitution.”
The campaign has involved television advertisements and meetings of indigenous leaders throughout Australia, including the meeting of about 250 people at Uluru.
There can be no doubt that some indigenous Australians suffer acute social disadvantage, but constitutional recognition does nothing to deal with this issue. In fact, the call for it is based on a misunderstanding of the Australian Constitution.
The Commonwealth Constitution establishes the legal foundation on which six Australian states came together to form a single nation in 1901.
As such, it is not concerned about individual or group rights, unlike constitutions in other countries such as the United States, which confer rights on citizens. Rather, it defines how the powers previously exercised by separate colonial governments were to be shared between the new Commonwealth and the individual states.
It is not a document that refers to rights, but one that defines the division of powers between states and the new Commonwealth.
Looked at in this light, it is not surprising that it does not include any reference to the rights of Australians, whether of indigenous or recent immigrant ancestry. Attempts to now insert such rights in a constitution that does something quite different are, in my view, misguided, and likely to have unpredictable and even perverse consequences.
For example, how is specific inclusion of indigenous rights in the constitution compatible with Australian laws that outlaw racial discrimination?
The appropriate way to deal with Aboriginal disadvantage is through acts of Parliament, of which there have been many over the years, and/or policies that effectively deal with the root causes of such disadvantage.
At the conclusion of the Uluru meeting, the participants adopted a declaration that called for:
• “Substantive constitutional change and structural reform”, rejecting minimalist and symbolic recognition, as has been proposed for example, in the preamble to the constitution.
• A constitutionally enshrined Aboriginal parliament which it called First Nations Voice, which would sit separately to the Commonwealth Parliament but seek to influence and advise government policy affecting Aboriginal people.
• A pathway to treaties between Aboriginal people and the government. This would be overseen by a commission that would also guide a process of truth telling about the treatment of indigenous people.
There are fundamental difficulties with these proposals. They assume that the cause of Aboriginal disadvantage is the absence of indigenous recognition in the constitution. But no other ethnic group is explicitly recognised in the constitution, so that argument is transparently untrue.
Further, indigenous Australians have made a positive and distinctive contribution to Australia in several walks of life, for example in the sporting arena, but also in areas such as music and painting, without the need for recognition in the constitution.
Aboriginal Australians, as a result of their own gifts as well as the good will of their fellow Australians, are now to be found in all walks of life, from politicians to university professors.
Yet it is also true that a minority of Aboriginal people, particularly those living in remote outback areas, are living in atrocious conditions.
In many of these, alcohol and drug abuse is endemic, few people are in paid employment, and women and children in particular are frequently the object of physical and sexual abuse by some Aboriginal men, which stunts their development and blights their lives.
Most Australians understand that this is the reason for the Northern Territory intervention by the Howard government, and income quarantining in some indigenous communities.
Further, indigenous incarceration rates remain stubbornly high despite repeated efforts by governments to reduce them, and indigenous children continue to be removed from their families because parents are not looking after them.
These are the problems that Australians want to solve. The proposed constitutional amendments cannot fix the real problems, and may even be obstacles to fixing them.
The proposals from the Uluru summit fail the fundamental test of persuading their fellow Australians that constitutional amendments or a treaty are the way forward.