June 19, 2014

Progress towards constitutional “recognition” of indigenous Australians continues, with a decision on what initiatives will be put to voters for a referendum decision to be made by the end of 2014.
Although the joint parliamentary committee charged with deciding the final formulation can yet recommend the least provocative “preamble” option, it now seems likely that the amendments floated will be to the constitution itself.

The measures that appear to have found favour, are for the inclusion – in words yet to be decided – of an affirmation of Aboriginal and Torres Strait Islander peoples as our first inhabitants and to modify paragraph 51 (xxvi) to permit a benevolent racially based federal law in respect of only them, as opposed to the current position which permits any good or bad law affecting any race.

There is reason to argue that this should be extended to allow capacity for laws for the benefit of any disadvantaged ethnic group. There will also likely be a YES/NO vote to decide the deletion of sections 25 which specifies races banned by states from voting, are not to be included in head count for federal seats.

Because the powers that are proposed to be modified have not been utilised for decades, many argue the measures are largely “symbolic”. Clearly though, racial provisions in the constitution are offensive and should be removed.

Can we do better? Are we – including our indigenous cousins – being sold a pup?

Indigenous Australians  still have one the lowest standards of education, health and housing and one of the lowest life expectancies of all developed nations. Urgent practical measures are clearly called for. Australian governments have for decades struggled with successive failures in policies intended to make big advances in closing the gap. Bigger ideas are needed.

These issues, including the Recognition referendum itself, must be understood against the background of the limited endowment, actually provided to the populous by the nation’s constitution. While it is true that the constitution ignores the continent’s first inhabitants, the document does not “exclude” the pre-contact population, in the sense that others are granted rights and freedoms that they are not.

The Commonwealth of Australia Constitution Act – a law passed in 1900 by the British parliament that at the same time delivered nationhood and established the constitution – was also concerned with preserving a role of successive British monarch.

Australians remained – at least until 1942 when a further British law was enacted to grant legal independence – subjects of the crown. With a few exceptions, the liberties and freedoms of individuals – as opposed to the crown and government – were ignored by the constitution. It is not just the indigenous who have no constitutional “recognition”, none of us do.

Freedoms acknowledged to subjects in 1900 were few: the right to vote in federal elections, trial by jury for federal indictable offences, federal religious freedom and protection against federal seizure of property. The states though, are not required to acknowledge even those few liberties and can legislate away, the freedoms we take for granted.

Having been elevated since 1942 from “subjects” to “voters”, we now have a perfect opportunity for us all to gain the status of true citizens. If there is to be a referendum, then let’s have these further questions decided:-

  • Recognition that the sovereignty of the nation is derived – not from the crown – but the people, all people, indigenous included;
  • That basic freedoms – of speech; of the press; of religion; from interference with the common law; of communication on political matters (which currently exists only “impliedly”); from unreasonable search and seizure – be permanently protected;
  • That the states be bound to observe the federally documented liberties.

Constitutional “recognition” of pre-contact culture and peoples is important and necessary. But to hold that discussion in a “rights” vacuum, spotlights the obvious incongruity of a very large elephant in the debating hall and risks the entire process ending up with a “recognition” runt.

Categories: Opinonian

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