Aboriginal activists say constitutional change not enough

October 8, 2010
Larissa Behrendt.

The Greens and the Australian Labor Party signed an agreement on September 1 to form a minority government on certain conditions, one of which was support for amendments to the constitution to recognise Aboriginal people. The government has agreed to hold a referendum on the issue.

The proposal has sparked debate among Aboriginal activists about its usefulness for the Aboriginal rights struggle.

The discussion takes place in the context of the continuation of the NT intervention — a punitive measure put in place by the then-Howard government in August 2007, which required the suspension of the Racial Discrimination Act (RDA).

The policy has been condemned by the UN Committee for the Elimination of Racial Discrimination.

The results of the August 21 federal election showed widespread anger in the remote Aboriginal communities affected by the intervention. The ALP’s previously safe seat of Lingiari, which covers a vast area of the NT, was challenged by Greens candidate and Aboriginal anti-intervention campaigner Barb Shaw. Shaw won 12.59% of the vote.

Lingiari sitting member Warren Snowdon admitted on August 23 that the NT intervention was a key factor in his seat becoming marginal.

Shaw has long campaigned for the reinstatement of the RDA and for protections against racial discrimination to be enshrined in law to stop governments overturning them with impunity.

Shaw told ABC News on August 28: “I actually support the [UN Declaration on the Rights of Indigenous People] being embedded into the constitution and not Aboriginal people just being written into the preamble.

“At the moment Aboriginal people in the constitution have got a right to vote and a right to religion and that's not enough for us.”

Below, two prominent Aboriginal leaders, Larissa Behrendt and Sam Watson, contribute to the debate. Behrendt is professor of law and director of research at the Jumbunna Indigenous House of Learning at the University of Technology, Sydney.

For several years, Behrendt has written on the failure of government to adequately protect the rights of Indigenous people. She spoke to Green Left Weekly about the ALP-Greens.

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[The proposal] should be seen only as one part of a range of suggested changes to the legal system to make it fairer and to properly acknowledge Aboriginal and Torres Strait Islanders. I think we need to stress that while it is an important part, it is only one part.

At the heart of it, these acts of symbolism are important. The apology speech [by former PM Kevin Rudd to the Stolen Generations] was an example of how important symbolic acts are. But I think things like the apology haven’t led to changes in policy and haven’t led to any real changes on the ground.

In fact, some of the Close the Gap statistics [on Aboriginal health] have gone backwards.

Many Indigenous people are sceptical about symbolism-only proposals.

The important thing is that when the idea of changes to the constitutional preamble was put forward, by both major political parties (not the Greens), it was always with the qualification that it would not have any legal weight.

There is some hope that it would change the [political] climate and allow room in the community to have discussions and advance. The danger is that people see it like the apology, and think that with the symbolism done that’s all that needs to happen.

I think it is quite important that broader issues of constitutional change are looked at ... We should be looking at issues like protection from racial discrimination entrenched in the constitution.

The importance of an equality provision or a non-discrimination clause is that it would stop governments from simply suspending the Racial Discrimination Act protection whenever they felt like it.

The only times the RDA have been suspended has been to stop Aboriginal people from using it to protect themselves. It was suspended during the Hindmarsh Island dispute in 1997. It was suspended during the changes to the Native Title Amendment Act under Howard in 1998. And it was suspended for the NT intervention in 2007.

Governments cannot be trusted with protection from racial discrimination. The proof is that we still have legislation that exists in the Northern Territory that is extremely racist — so racist that international human rights organisations are continuing to raise questions about it.

Even though there is agreement from the two major parties and the Greens about the preamble being put to a referendum, there’s going to be very difficult questions about what process takes place for that to happen.

Consultation needs to take place and I feel very strongly that if this act is about recognising Indigenous people, then Indigenous people need to be centrally involved. The first challenge is around the issue of process.

The second challenge is: what are the words? Preambles have been put up before. Someone’s idea of what appropriate recognition might be like is another person’s disaster. We must remember that just because there is political party support, it would still need majority support from a majority of states. There are some pretty big challenges ahead.

Watson is political activist and leader of Brisbane’s Murri community. He was the Socialist Alliance Senate candidate for Queensland in the August federal election. Most recently, Watson has led the campaign against Black deaths in custody, particularly in the case of Mulrunji Domadgee, who died in police custody on Palm Island in November 2004.

Watson told GLW the proposed changes were likely to be symbolic in nature and that movement at the grassroots was needed to push for real changes, such a bill of rights that included provisions to protect the rights of Aboriginal people.

With the sort of people in parliament, we’re unlikely to get the change we want. There is only one Aboriginal man in parliament, Ken Wyatt [who won the WA seat of Hasluck for the Liberals], and he has gone on record as supporting the NT intervention.

We are unlikely to see something that will help with Palm Island and the issue of Domadgee, or for [remote Queensland communities like] Wadeye, or for other places at the coalface of Aboriginal oppression.

Why we should we wait for parliament to come up with its own ideas for constitutional change? We should put out our own now. I believe we should put forward a set of platforms, of which Aboriginal rights should be one, that move us towards a Bill of Rights.

We would want one that would be binding on the constitution.

With the Greens having the balance of power from July 1 next year, there would be more chance of such a proposal getting up. The lack of such rights has pushed back the ability of Aboriginal people to access the courts to challenge impositions against us.

It could explode like the civil rights movement in the US. The results of that movement were huge. It ended segregation in schools and hindered discrimination in the workplace. A bill of rights would define the rights that every person would have under common law as a member of that society.

The only way we can have a real democracy is by having a bill of rights.

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