John Gregan

The Hon. Members Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples PO Box 6100 Parliament House CANBERRA ACT 2600

To Committee Members

I would like to comment on the following proposals which are the recommendations arising out of an earlier enquiry into the constitutional recognition of Aboriginal and Torres Strait Islander peoples and appear to form the basis of a future referendum. Following that, I have reviewed some relevant material in the public domain in order to cover other aspects of the proposal and the referendum itself.

• Section 25 is removed • Section 51(xxvi) is removed • A new section 51A is adopted to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples. • A new section 116A is adopted, prohibiting racial discrimination • A new section 127A is adopted, recognising Aboriginal and Torres Strait Islander languages while confirming that English is Australia’s national language………..

I believe that that the racial-discrimination sections should be removed - s.25 and s.51(xxvi) - and acknowledge that some laws affecting Aborigines would collapse if a new power to allow for Aboriginal advancement was not created in their place, particularly with the abolition of the wording in s.51 (xxvi). The main problem seems to be that the recognition of Aboriginal and Torres Strait Islander land rights legislation is dependent on s.51(xxvi). To overcome that problem I suggest that the current wording in s.51 (xxvi) be deleted and replaced by the words “Land tenure” (or renumber it 51A). That power would now read: 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:- (xxvi.) Land tenure;

This would apply to all Australians and not be seen as racist and would allow for the continuity of existing land rights legislation as well as the possibility of introducing other forms (freehold, leasehold) within Native Title, as proposed by Noel Pearson and others. However, I do not know how this change would impact on States’ power, if any, in this area. I am also unaware of the nature of the activities that would be impacted by deletion of the race clause.

I do not agree with the proposed new sections 51A, 116A and 127A and propose instead an addition to Section 51(xxx) of “and with the indigenous people of Australia.” The new power would now read :

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:- (xxx.) The relations of the Commonwealth with the islands of the Pacific and with the indigenous people of Australia.

This would grant recognition, without the racial overtones, as well allowing the Commonwealth to continue to make laws for Aboriginal and Torres Strait Islander advancement, without getting too complicated (that would happen if proposed new sections 51A, 116A and 127A were adopted) and would allow to continue such organisations as the Indigenous Land Corporation and Indigenous Business Australia. Presumably these were formed using the race power in s.51(xxvi), but possibly under the corporations head of power (s.51(xx)). It could form the basis of the existing “municipalisation” form of indigenous sovereignty currently based on the adoption a UN Convention. It could also be used possibly “down the track” for a symbolic Treaty, languages etc. In fact, it is conceivable that the Torres Strait Islands could be seen as being Pacific islands and could be already covered by this existing power (s.51 (xxx)). But it is possibly stretching it a bit far to categorise Australia as a Pacific island. The downside of this suggestion would be how to establish individual indigenous identity for legal purposes.

Finally, there may be other legislation dependent on s.51(xxvi) “race powers”. In 1901 the word “race” had a wider application than today. An examination of newspapers and literature of the 19th Century shows the wide spectrum of the word - e.g. “the British race, the German race, the Irish race, the Black races, the White races, the Asian Race, the European race etc.” It referred to people on the basis of their colour, their specific culture, their political entity or their geographical location. Recently I heard Geoffrey Robinson make reference to the “Armenian race” in his attempt to highlight Turkish treatment of Armenians in 1915 as “genocide”. I suspect s.51(xxvi) was used in the first and second world wars as the basis for legislation for the internment of “enemy aliens” who were seen as belonging to a particular “race”. Alternatively, the basis for that legislation may have been s.51(xix) “Naturalization and aliens”. If s.51(xxvi) was the basis for such legislation then you may need to design a replacement section to cover such an eventuality.

If a preamble is needed I suggest the following inclusive one – derived from the post- colonial Constitution of South Africa: -

“We, the people of South Africa Australia recognise the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who worked to build and develop our country; and believe that South Africa Australia belongs to all live in it, united in our diversity.”

However, in order to garner sufficient support for a referendum I would suggest the following approach:- 1. Delete the race reference from s. 51(xxvi) and substitute reference to land tenure, as outlined above. 2. Remove Section 25 3. Insert a non-justiciable preamble that recognises in a symbolic way the prior ownership of Australia by Aboriginal and Torres Strait Islander peoples. 4. Use existing Constitutional powers, if possible, to maintain indigenous specific structures such as Land Councils, etc 5. If, after the removal of the race power, there is no basis to legislate for the structures mentioned in 4. then consider if the other suggestion above for adding to s. 51(xxx) would suffice, provided it would not lead to unintended consequences such as a fully fledged ‘nation within a nation’.

In relation to point 5 my personal preference is to have generic structures and beneficial laws that can apply to all Australians and not a specific group in the community, based on need and not race. It may also be possible that indigenous specific structures could be developed as a corporate model from existing corporation law based on s.51(xx), namely:

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:- (xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

If s.51(xx) were used, private companies or preferably trusts consisting only of Aboriginal and Torres Strait Islander peoples as members could be formed and used to exercise a high degree of cultural and economic ‘self-determination’ without having to have a specific change made to the Constitution for that purpose.

Discussion

I began taking a real interest in the decolonisation process when I was working in Zambia between 1966 and 1976 as a pharmacist in various roles on contracts – initially for 3 years as a pharmacist in a hospital on a copper mine run by Anglo-American, then in marketing for an American drug company for 2 years followed by a 5 year (3+2) stint with a UK company managing a community pharmacy. At the end of each contract I would return home to Australia on extended leave.

At the time of decolonisation in Africa the descendants of the original colonisers were in much smaller numbers than the indigenous peoples they had colonised, so it was easy for the indigenous people to gain outside support for independence and sovereignty over the colonial boundaries on the basis of the democratic principle “majority rules”. This principle was accepted by the home nations of the colonising powers, the United Nations, and by themselves, with reference to their traditional pre-colonial polity and at the contemporary time of the struggle for independence. This was different from USA, Canada, Australia and New Zealand (as well as in South America etc) where the indigenous peoples found themselves in a minority and hence not in a position to reclaim sovereignty as did their African counterparts by using the “majority rules” paradigm. By this time, particularly in South Africa, there had developed citizens, distant descendants of the original colonisers, who could be described as ‘white natives”, completely identifying with the land of their birth, but exercising minority rule over the original indigenous peoples. With the pressure for majority rule, both internally and externally, becoming unbearable, the whites in South Africa decided on “apartheid” or separatism, so that separate “nation” states, based on what was left of indigenous historic geographical and ethnic boundaries, would be formed and have their own governments and be recognised internationally. This meant the whites would not be a minority in the post-colonial polity if it were based on the “majority rules” principle. The implementation of this separatist policy was brutal and was seen by the UN and other countries as a contravention of human rights. After the ‘Sharpeville Massacre’ in 1966, public opinion in the Anglo-Commonwealth countries was strongly against “separate- development” and the event generated a lot of anger towards the minority governments in South Africa and surrounding countries. The South Africans retaliated with a propaganda war which included criticism of the “Anglo-Commonwealth” governments’ treatment of their indigenous minorities. This was one factor why the 1967 referendum was overwhelmingly passed. Many of us at the time were uncomfortable about leaving the race power in s.51(xxvi) in the Constitution after the referendum because of our opposition to Apartheid, but were told that because the States had made a mess of their “treatment” of Aboriginal and Torres Strait Island peoples it was needed so that the Commonwealth (also responsible for diplomacy and hence external criticism) could make better legislation in conformity with modern values and human rights. Many assumed it would be only temporary and some thought that it should be retained to deal with “enemy aliens” in time of war. Most assumed, at the time, that minority indigenous populations in time would adapt their culture (without necessarily losing it entirely) as full citizens into the increasingly modern and global culture within the existing polity. But it was not the case – the indigenous minorities in these countries felt the same as their African counterparts about regaining possession of their land and self-determination but found trying to rectify the situation much harder than in Africa, because of their minority status. It is equally hard for the majority ‘white natives’ in these countries to accommodate these demands, not now so much for land, but certainly for an ill-defined ‘self-determination’ within the existing polity.

When in Zambia, I had met some African lawyers socially who had trained in England and Australia and we discussed various aspects of what the post-colonisation landscape in Africa may look like. I asked if a post-colonial South African government would send the Afrikaners back to Holland. The answer was that Afrikaners were not considered foreigners and would be treated as any other cultural group within the new South Africa, with all being equal before the law. The other question I posed was there a possibility that after all the African countries became independent would they sit down and agree to redraw the boundaries so that new nation states, based on the pre-colonial ethnic based nations, could be re-formed, so as to minimise the potential for inter-ethnic conflicts. The colonial boundaries had been drawn up at a conference of the European colonising countries in Berlin in 1884-5 in such a way as to divide traditional nation states in Africa so that they were partly in one colony and partly in another colony, in order to weaken the power of the traditional political leaders (‘divide and rule’). This indigenous power was further attenuated by having to co-exist often with former pre-colonial enemies within the new common colonial boundary. After independence, many of these traditional enmities became resurrected and threatened the stability of new countries such as Nigeria and the Congo, and more recently in Rwanda.

The answer to this second question was that the ex-colonial countries would not go back to their pre-colonial nation state boundaries, because the African governments inherited a modern economic unit where the whole country may be financially dependent on a particular area. For example, in the Congo, Katanga with its rich copper was highly developed at the time of independence and the money it brought in was used for the benefit of the whole country. If the colonial states were broken up into traditional indigenous polities one would find that some were very small in area and population and thus with a low tax base and little resources and hence no hope of sustaining a modern economy. Others could have a large population with a reasonable tax base but little natural resources. Zambia has about 5 major language groups and its economy is based around mining, mainly in the region adjacent to Katanga. English is the official language but traditional languages are maintained through language – specific radio shows and other methods. The Westminster party system, designed in UK to strike a balance between various opposing socio-economic classes, did not function well initially in post-colonial Africa where differences were ethnic based rather than socio-economic. This led political parties to become foci for ethnic groups rather than economic groupings, with predictable outcomes. The Zambian approach was to adopt what they called a “one-part participatory democracy” to minimise friction between the various indigenous groups. On paper, it looked good. Prior to a national election the local branches of the sole party, after a democratic vote of its members, could nominate a candidate from their branch for their particular electorate and at election time the voters in that constituency were presented with 4 or 5 candidates from which to choose. Despite this, you still got MPs elected on ethnic lines and getting a balanced Cabinet was always a delicate political operation. The Nigerians, after the civil war, toyed with the idea of the “one-party” system but instead kept to a multi-party system, because the ‘one-party’ system had been shown not to be as effective as first thought. To minimise ethnic friction in their federation of ethnic states, they would only register parties who had an adequate number of functional branches in all the states, with programs that would appeal to voters right across the nation on matters other than their loyalty to their ethnic group.

The reason I am mentioning Africa is that the de-colonisation process has similar issues irrespective of whether the indigenous parties are in the majority or in the minority, and it may be worthwhile for a Parliamentary group to travel to Africa to see what mechanisms they have put in place to deal with the issues confronting Aboriginal and Torres Strait Islander peoples and to check their relevance to our situation – before you make final recommendations.

When the Expert Panel released their report at the end of 2011 I tried to get a copy to see what it was all about. Newspapers and the electronic media tend to give opinions, not facts. In the past, one could buy such a document at the local AGPS shopfront, but those bookshops have been scrapped. So I went to Parliament House and was unable to obtain a copy. They were not stocked at the shop near the front door, and as I prefer a hard copy to read in a chair of my choosing rather than sit in an office in front of a screen, I was unable to obtain a copy. Fortunately I had started a scrap book on the matter and subsequently found a book (Indigenous Peoples’ Rights in Australia, Canada and New Zealand, Ed Paul Havemann OUP, 1999) at the second-hand bookshop at Curtin and which provides a lot of useful background. In preparing this submission I went through the scrap-book and the textbook highlighting relevant sections and have commented on them under the following headings:-

Introduction and Chronology Aims Indigenous Peoples’ Strategy and Tactics Governments’ Strategy and Tactics Sovereignty Models Recognition Reconciliation Self-Determination Existing System Perceived Roadblocks Multiculturalism Opinions Land Tenure United Nations and Indigenous Peoples Common Problems

These headings are used below as part of the discussion of the issues raised in both the text- book and the articles in the media scrapbook. As well as reviewing the various topics I have made recommendations at the end of each category, where appropriate.

The overall impression I have gained is that there is an often irrreconcilable diversity in indigenous views on these issues. This is not surprising as Aboriginal people had different nationalities and languages just as in Europe and Africa and there is the added modern tension between city and country peoples. Nevertheless, this is counter-productive, as other fellow Australians would assume that it is up to the indigenous people to tell us precisely what they want, speaking in a reasonably unified way.

Introduction and Chronology

At the beginning of the book it states that it is a “collection of essays traces the evolution of an indigenous rights discourse and its place in struggles for citizenship rights and self- determination rights.”

The subsequent tone of the language indicates to me a certain animus towards the non- indigenous people of these 3 countries and the present system of governance. It refers to Australia, Canada and New Zealand as “The settler societies of the Anglo-Commonwealth represent ‘home’ to a dominant group of migrants ….” and it says our system makes “ideas about coexisting, plural legal-political orders unthinkable.” It rejects the idea of “a notion of citizenship founded on the myth of homogenous community to which civic obligations are owed. “

It is critical of the existing government approach to indigenous demands based on the existing “usufructury lifestyle rights and/or a municipalised version of self-management powers, rather than as sovereignty rights for nations within.” This is because “the identification of a collectively defined self with locality is anathema to the logic of modern liberal individualist, private-property based, settler political economy”. So the book begins with the premise that indigenous peoples want some type of apartheid system, but there are no specific details of such a system and how it would work.

There is a useful reference of major interactions between Australian official authorities and Aboriginal and Torres Strait Islander peoples between 1835 to 1997.

Recommendation

If there is to be a mature and rational discussion on Aboriginal and Torres Strait peoples’ ultimate political aspirations there needs to be details of what is being sought and rational discussion, rather than undiplomatic language directed at the majority of citizens, particularly from academic circles Aims

In relation to the book, the aims are mostly vague and general, with specificity confined to principles rather than substance. There are two aims – the first is the aim of the contributors of the book itself as stated “Our aim is to offer insights on how the politics of rights, of shame, and of cultural recognition are being played out in each jurisdiction.” The second aim is to outline a series of political goals expressed as following: “An overarching aim of the collection as a whole is to ask what roles the legal and political institutions play in a continuing process of colonial domination, as well as to ask what contribution, if any, they make to the progressive emancipation of indigenous peoples in the settler ‘dominions’ of the contemporary Anglo-Commonwealth.”

These ‘political goals’, as stated by various contributors are as follows:

• the right of indigenous people to govern themselves, • to make claims for justice • to participate in the governance of their own affairs as well as those of the larger polity in which they are embedded. • social justice. • recognition of the inherent right to the jurisdiction and legitimacy of traditional customary laws • constitutional change to affirm the status and rights of Aboriginal and Torres Strait Islander peoples as distinct empowered peoples. • equal rights to land • recognition of its First Peoples as a foundational principle of membership of the post-colonial polity. • a multinational country of distinct social-political communities with legitimate aspirations to maintaining that distinct character of their communities in their ancient homeland. • recognise in the Constitution ….. a right of indigenous people to exercise self- government with the power to make decisions, laws. • the capacity to determine what is in the public interest of our community and in order to do that you need permanent institutions: • ..there is no theory of justice that explains why there ought to be one law for all: we have to legitimate that exercise. • (because …the activist proponents of tino rangatiratanga may well resort to civil disobedience to force the government to negotiate.) … the issue of making a constitutional provision of a nation within a nation should be addressed sooner rather than later. • shared sovereignty as a basis for the new be longing … a mutually acceptable system of coexistence. • to make the decisions which direct our present and future.’ • to establish creative structures and innovative processes for a shared sovereign arrangement, rather than a levelling of the playing field. • the restoration of an indigenous-driven sovereignty through the revitalisation of select indigenous and customs and institutions. • control over the process and power of self-governance as a third tier of government; • the procurement of cultural sovereignty and territorial groundedness as a basis for the healing process; • realignment of the political agenda to accommodate indigenous authority alongside federal and provincial jurisdictions. • Sovereignty and control over jurisdictions are the key. • the decolonising of indigenous-State relations along the line of the ‘nations within’. • … establishing the basis of a shared sovereignty with a corresponding division of jurisdictions. • a commitment that spurns engulfment into a single national identity or compliance with multicultural adjustments. • constitutional protection • want to be a majority in their own homeland rather than a minority in someone else’s.

In relation to the newspaper clippings in the scrapbook, I have abstracted the following aims:

• racial discrimination should be removed from the nation’s Constitution, • support the creation of a new power to legislate for the “advancement” of Aboriginal and Torres Strait Islanders • Everything that has defined Aboriginal politics during the past 50 years or so has been or so has been squarely aimed at separation. Land rights, native title, the permit system, self-determination, the brief flurry with an Aboriginal revolutionary government. The tent embassy, as the community development act of the century, most clearly defines the overwhelming Aboriginal politic of a separate state. So it is quite clear and fair to assume that the Aboriginal leadership with the possible exception of Pearson, has rejected Australia and does not wish to be known as Australian. Australians are the invaders, the capitalists, the environmental vandals, the racists, the whitefellas. Yet we have this new wisdom from SBS that indigenous peoples are in fact the first Australians. The indigenous community must agree on what it wants from Australia. • Aboriginal advancement requires a separate state, an Aboriginal revolutionary government and an embassy. • compensation for various expanding atrocities, for attempted genocide, for the Stolen Generations , even for the intervention. • for freehold title, responsibility, private enterprise and educational reform.

• … constitutional recognition to Aboriginal and Torres Strait Islander peoples, viz- 1. The repeal of section 25, which contemplates that state parliaments can disqualify certain people from voting on the basis of their race. The removal of the “race power” which gives the national parliament power to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”. 2. The insertion of a new section 51A, preceded by a statement of recognition of indigenous Australians , that gives parliament the power to make laws “with respect to Aboriginal and Torres Strait Islander people.” The statement, which appears as a type of ‘preamble’ to the head of power, provides four types of recognition to Aboriginal and Torres Strait Islander peoples. It recognises their status as the first occupants of Australia; it acknowledges their continuing relationship with their traditional lands and waters; it expresses respect for their continuing cultures, language and heritage; and it acknowledges “the need to secure (their) advancement.” 3. The insertion of a new section 116A that would operate as a prohibition on racial discrimination. It would provide that “the Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin” except where a given law or measure is for the purpose of “overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.” 4. The insertion of a new section 127A concerning the recognition of languages. It would, first, recognise English as the national language of Australia and, second, recognise that the Aboriginal and Torres Strait Islander languages were “the original Australian languages, a part of our national heritage.” • indigenous people should be recognised in the Constitution. • But the constitutional tradition of treating Aborigines as a race must be replaced with the idea of first peoples. • race power in the Constitution…. would need to be replaced by a non-discriminatory provision. • a focus on developing economic opportunity. • ………. It is recommended that Australians should vote in a referendum to: Remove Section 25 – which says states can ban people from voting based on their race; Remove section 51 (xxvi) – which can used to pass laws that discriminate against people based on their race; Insert a new section 51A – to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples; Insert a new section 116A, banning racial discrimination by government; and Insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first tongues, while confirming that English is Australia’s national language.

• We can find a way of ensuring that indigenous people get a fair say in laws and policies made about us without compromising the supremacy of parliament. • …consider creating a mechanism to ensure that indigenous people can take more responsibility for our own lives within the democratic institutions already established, and without handing power to judges………………… • We don’t want separatism: we want inclusion on a fair basis. We want inside the decision-making tent……………. Constitutional recognition could therefor include removal of the race clause and the insertion of a replacement power to enable the commonwealth parliament to pass necessary laws with respect to indigenous peoples , and incorporation of a requirement that indigenous peoples get a fair say in laws and policies made about us. A new body could be established to effect this purpose, and to ensure that the indigenous people have a voice in their own affairs.

Comment The above “abstracts” give us a good idea in general terms as to what are the aims in this referendum exercise. The above list of “aims” also reflects the views of the two sides or factions involved in promoting Constitutional change. On one side there those who see “self-government” as resulting in a completely independent “nation within a nation”, complete with passports, customary law etc. On the other side there are those who do not favour “separatism” but prefer to exercise cultural and economic sovereignty within a “municipal” framework of governance which then also allows them to participate in the governance of the larger nation of Australia in which they are embedded as full citizens.

I believe that the “nation within a nation” approach would not be acceptable to voters in a referendum, because most people would see it as unworkable. On the other hand, the current system of Aboriginal and Torres Strait Islander land rights and political empowerment in Australia reflects the municipal model, albeit imperfectly to many, but if a detailed outline of what the “municipal” model entailed were given to voters, it would have more chance of getting up in a referendum. In addition, what is currently in place is not very well known and hence poorly understood by most Australians and it would help if the existing framework were clarified as well, before any referendum. Most Australians would see a municipal form of self-governments as akin to local government and would see it as less “threatening” that the separatist model, and hence more inclined to vote for it.

Recommendation

• That the Select Committee recommends in its report that one aim of the referendum in Constitutional recognition of Aboriginal and Torres Strait Islander Peoples is to achieve cultural and economic sovereignty plus land rights using a localised municipal governance model, (similar in concept to existing ‘local government’) and which also allows them to participate in the governance of the larger nation of Australia in which they are embedded as full citizens. Detailed description of what are the practical beneficial consequences of the proposed Constitutional changes should be made available to voters rather than sound-bites and slogans.

• Another aim is that the Constitutional changes remove ‘race’ as a basis for legislation and that any changes proposed do not have the potential to create a separate nation, based on ethnicity, within the Commonwealth.

Indigenous Peoples’ Strategies and Tactics

My view is that some of the strategies and tactics are derived more from academic dissidents rather than reflecting Aboriginal and Torres Strait Islander aspirations.

In relation to the book I have abstracted what appear to me to be the strategies and tactics to be employed to achieve the political goals, as follows:

• Indigenous Australians’ flags are recognised. • Confrontation politics takes place, based on: 1. Demonstrations, sit-ins, and isolated actions of civil disobedience-some with great symbolic power, such as the Aboriginal Tent Embassy.. 2. Endless debilitating litigation, such as the Mabo and Dekgamuukw cases, and often one-sided ‘negotiated’ confrontations with the Crown in boardrooms, such as the Native Title Bill… • From the signing of the Treaty of Waitangi in 1840, Maori were recognised as having the rights of British subjects. They were allocated four Maori seats in the House of Representatives in 1867. • 1972 – Canberra: The Aboriginal Tent Embassy is established to protest against the McMahon Coalition government’s denial of land rights. • Larrakia Petition: Aboriginal people petition the Commonwealth and the monarch for land rights, a treaty, and reparation. • 1979 – High Court: In Coe v Commonwealth a majority court rejects inherent Aboriginal sovereignty – even as domestic nations, as enunciated in Worcester v Georgia. • 1982 – High Court: Koowarta v. Bjelke-Petersen affirms the Commonwealth’s use of s.51 to enact and enforce legislation municipally in order to effect international obligations (for example, ICCPR); the Court rejects Queensland’s claim that the Racial Discrimination Act 1976 (Commonwealth) is inoperative in Queensland. • 1988: Burunga Agreement: The Prime Minister, Hawke, signs an agreement with Aboriginal leadership to negotiate an agreement and discuss reparations. Commonwealth: The opening ceremony for the new Parliament House in Canberra recognises Aboriginal and Torres Strait Island people as the original occupants of Australia. • 1989 – The Aboriginal and Torres Strait Islander Commission Act is enacted, but without the original preamble, which officially recognised Aboriginal and Torres Strait Islander peoples as ‘prior occupiers and owners of this land’. • 1998 – At the Geneva meeting of the UN Working Group on Indigenous Populations, ATSIC Chairperson, Gatjil Djerrkura, castigates the Howard government for its complicity with the One Nation Party’s race agenda. He identifies this as an evil fuelled by a cocktail of anger, fear, and ignorance, leading Australian politics astray, and couples it with globalisation and economic rationalism as phenomena that do nothing to benefit Aboriginal people . • … the activist proponents of tino rangatiratanga may well resort to civil disobedience to force the government to negotiate. • The struggle takes place in courtrooms, press conferences, political rallies, and increasingly across barricades and blockades… • Indigenous peoples are attempting to shift the dominant liberal paradigm of State sovereignty – that is the conflation of nationhood with the State – and so to redefine citizenship so that it is both universal and differentiated. • … international ….. human rights law has, however, been evolving as a jurisprudence that is beginning to provide the means for individuals and peoples to become objects of international law, initially for their protection against discrimination by states but also, more recently, in order to promote self-determination. • Although, formally, the right to self-determination had no domestic applications, it nonetheless became a rhetorical resource to be harnessed to assert indigeneity within these states. • Highly regarded are collective actions that not only defy accommodation but also subvert the hegemonic discourse associated with dispossession and disempowerment. • Appeals to self-determination are critical: minorities become majorities by revamping the existing political rearrangement in order to claim jurisdictional control over a defined homeland while restoring sovereign legitimacy denied to them as a subject people….. • With their capacity to publicise and provoke, the media play a pivotal role in boosting the fortunes of ethno-politics. • Eye-popping protest actions are a favourite tool, spanning the spectrum from flagrant acts of civil disobedience to theatrical displays, whose flamboyant images linger and prod. • Grassroots protest may be less organised, to be sure, but sheer numbers often harness a critical mass for advancing ethno-political agendas. • Institutionalised channels are pursued as well, including through national bodies that prefer discreet negotiations and carefully cobbled compromises as pathways to success. • Ethno-politics do not hesitate to use the international arena as a catalyst for change. • By hugging the high moral ground of victimisation and human rights, indigenous ethno-politics rely on world opinion or global outrage to shame or embarrass intransigent governments. • New social movements spring from the polarities of race, ethnicity, gender, sexual preference, and (in our case) indigeneity, rather than class relations • …….In new ‘social’ movements, emphasis is directed at the transformational process by which new identities are formulated, innovative solutions are tested in response to novel dilemmas, and new communities are constructed for resisting capitalist hegemony. • Ethno-politics can also refer to the process by which ethnicity is politicised – that is, ethnic differences are mobilised as a basis for political struggle in the competition for scarce resources. • Conversely, national politics and political struggles become ethnicised when conventional political assumptions are challenged by and refracted through the demands of ‘politicised’ ethnicity. • Applied to the principle of indigeneity, ethno-politics…openly challenges the paramount authority of the sovereign State, while reasserting the legitimacy of indigeneity as the preferred source of popular consent and entitlement. • More extreme versions espouse a level of restructuring up to and including territorial secession and statehood. • Acknowledgement of indigenous rights as inherent is critical; not only does it negate the exclusive authority of the State as a basis for lawmaking jurisdiction, but it also dispenses with the need for a constitutional amendment to recognise the need for a constitutional amendment to recognise indigenous self-determining rights, since a broad latitude already exists for what was never extinguished. • … by linking Aboriginal socioeconomic deprivations with a national disgrace in need of urgent redress. • Aboriginal ethno-political activism that resisted inclusion in a multicultural model of society, preferring instead a perception of Aboriginal peoples as nations set apart from other Australians. • Outrage over mistreatment of Aboriginal people by the criminal-justice system • Public embarrassment over images of Aboriginal people as dispossessed, which sullied Australia’s international reputation while pricking its collective conscious and challenging its self-image as a progressive and civilised country. • Growing scholarship on and awareness of discriminatory practices and past injustices • Ethno-politics …. have focused instead on the judiciary in hopes of securing negotiable property and legal rights upon which to construct a future treaty. • Colonialist structures continue to erode, as indigenous pressures for sovereign space challenge the once unquestioned legitimacy of the indivisible state. • … few ethno-movements seek outright secession; most are willing to act as partners in the society-building project, the two partners being interrelated, yet distinct and sovereign in their own sphere. • Tactics ….. include recourse to law and litigation, civil disobedience, constitutions, embarrassment, or moral suasion….. Along with other tactics, this juxtaposition of the familiar with the foreign (‘aliens in their own land’) has had the effect of undermining public complacency while prodding politicians into reaction or response. • Treaties may also act as extra-legal restraint on the legislative power of the Parliament. • the utilisation of international human rights standards in domestic law. • Two heads of power are particularly relevant to our focus: race, and external affairs. • Power to place an issue on the political agenda is crucial. • Aboriginal groups since the 1930s have most commonly used ‘the politics of embarrassment and more formal lobbying to articulate grievances. Particularly since the 1970s, supportive NGOs, academics, and politicians have also used the politics of shame and embarrassment, both to place the issues on the national political agenda and to push for their resolution. • Attempts at embarrassment have been made at international events held within Australia, such as the Commonwealth and Olympic Games and Bicentennial celebrations and overseas (for example at international human rights conferences and meetings) • The United Nations Human Rights Committee is likely to affect Australian domestic legal and political issues, because Australia’s accession to the Optional Protocol means that Aboriginal people are likely to make complaints to that committee about Australia’s compliance under the ICCPR – particularly in respect of article 27, concerning the rights of minorities. • Indigenous peoples in Canada, Australia, and New Zealand all hold the view ‘that their rights are not simply a matter for domestic law’. Indigenous organisations in all three countries have made strong links with indigenous peoples worldwide and have organised internationally from an early stage. • Demonstrating the denial of rights is the most potent strategy in the politics of embarrassment…. A new politics of identity and cultural recognition occupies the political • newly heard claims are couched in in the language of rights to self-determination.

In relation to the newspaper clippings in the scrapbook, I have extracted the following strategies and tactics:

• ideas and policies that are considered to be “progressive” – in fact are destructive”. • the progressive rights agenda of the past three decades must be replaced by a more conservative program of jobs, home ownership and self-discipline. • …the …. focus on symbolic and rights …. paved a false road for Aboriginal people • …… the latest highly politicised rights campaign devised in academia………………… • During the ABC’s Q&A program on Monday, April 11, the Walpiri woman activist spoke passionately and bravely, given the audience, in favour of the Howard intervention. • to push on with important elements of the intervention, against the institutionalised shame politics. • The tent embassy, as the community development act of the century, most clearly defines the overwhelming Aboriginal politic of a separate state. • … the need to make special mention of the pre-occupants in the Constitution is based more on the national guilt that has been built by public intellectuals • Aboriginal advancement requires a separate state, an Aboriginal revolutionary government and an embassy. • …. require compensation for various expanding atrocities, for attempted genocide, for the Stolen Generations , even for the intervention. • …… freehold title, responsibility, private enterprise and educational reform. • Wikileaks founder Julian Assange has been offered an Aboriginal Nations passport ……. the Indigenous Social Justice Association • classifying the frontier conflict as war has politically useful benefits…………….. This of course is what exactly what the Mabo and Wik cases showed ……. The recasting of the frontier conflict has just begun • “We are going to keep chipping away at this and getting it right.” .. that applies ..to … fixing a gap in Australia’s Constitution.

The above abstracts reflect the views of the two main factions seeking Constitutional recognition. Their strategies and tactics are often poles apart and at other times overlap. From analysis of the above abstracts, I have noted the following strategies: • Show that Aborigines and Torres Strait Islanders are different from the rest of Australians – both the non-indigenous natives and migrants. • Show that Aborigines and Torres Strait Islanders are not accorded social justice and are mistreated victims within the criminal justice system • Show that that Aborigines and Torres Strait Islanders are serious about their quest for both real and symbolic power. • Appeal to white racists by offering a separatist model of self-determination. • Create a separate ‘ethno-politics’ as a de facto political force, complete with radicals and conservatives. • Emphasise Aboriginal and Torres Strait Islander socio-economic deprivation as a national disgrace that causes shame and embarrassment both nationally and internationally. • Link up with other indigenous groups with similar agendas, particularly in the Commonwealth countries where indigenous people are seen as a minority. • Use the U.N. Conventions to promote aims. • Get university academics “on side” and to employ their influence on governments and students in relation to the cause

In relation to the tactics to accompany the above strategies, the following are apparent in the listed abstracts: • Using the name “Peoples” • Having separate flags • Tent Embassy • Demonstrations at prominent events, e.g. Commonwealth Games, opening of the new Parliament building in Canberra, G-20 in Brisbane etc. • Civil disobedience e.g. jostling and shouting at the PM (Julia Gillard), Redfern riot, etc • Endless, debilitating litigation at High Court and other places • Petitions • Appeals to the United Nations • Press conferences and releases • Support for a separatist “nation within a nation.” • Media appearances • Speak only in general terms without revealing practical details, and the use of emotive slogans • Preach a “national guilt” • Offer passports • Recast colonial settlement as a formal “war” • Suggest Freehold Title within Native Title • Disavow “separatism” as an end-point of Constitutional recognition • Support the use of the municipal model of self-determination. Comment If you are looking at a referendum, the majority of Australian voters would prefer the conservative approach. If you are looking for a referendum to be successful the more robust radical approach is a big “turnoff” for the average Australian and in particular for migrants who have often fled from unpleasant situations to come to a place they consider to be stable. It is tempting (as well as fanciful) for the radical faction to think that most Australians have not moved on from their racist attitudes in the 19th century (such a view is indicative of a colonial mentality) and hence we would give them what they want, just to be rid of the ‘problem’ and the annoyance of their ‘tactics’. However, the 1967 referendum and the 1972 election of the government headed by Gough Whitlam and the subsequent legislative action by the government of Malcolm Fraser that was favourable to Aboriginal and Torres Strait Islander Peoples would indicate that there is widespread support for indigenous aspirations across the political spectrum, but within a unified nation in which the component parts respect each other. Recommendation

• That the Select Committee recommends strategies and tactics to support the “aim” previously recommended, viz: to achieve cultural and economic sovereignty plus land rights using a localised municipal governance model, (similar in concept to existing ‘local government’) and which also allows Aboriginal and Torres Strait Islander Peoples to participate in the governance of the larger nation of Australia in which they are embedded as full citizens. Detailed description of what are the practical beneficial consequences of the proposed Constitutional changes should be made available to voters rather than sound-bites and slogans. • Such strategies and tactics should eschew the old ‘black victim/white guilt’ paradigm and use an approach that reflects rational and modern thinking and social values and attitudes of contemporary society.

Governments’ Strategies and Tactics

In relation to the book, I have abstracted what appear to me to be the strategies and tactics to be employed by the government to address political aspirations of Aboriginal and Torres Strait Islander Peoples:

• use of the Constitution Act s.51 to enact and enforce legislation municipally in order to effect international obligations. • The 1966 International Covenant on Civil and Political Rights (ICCPR) , became, in the 1970s, the international-law ‘charter’ for post-imperial decolonization, with its recognition to self-determination. The Anglo-Commonwealth States ratified the ICCPR (Canada in 1976, New Zealand in 1978, and Australia in 1980). Although, formally, the right to self-determination had no domestic applications, it nonetheless became a rhetorical resource to be harnessed to assert indigeneity within these states. The Anglo-Commonwealth states also ratified the Optional Protocol of to allow individuals to make complaints for breaches of the Covenant and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). • Indigenous ethno-politics are shown to threaten the legitimacy of the indivisible State; not unexpectedly, State efforts to ‘neutralise’ indigeneity through multicultural adjustments have proven both illusory and duplicitous. • (New Zealand) – From the mid-1990s, government has turned away from constitutional redesign and towards contractualist strategies – the full and final, fiscally capped settlement policy, the Sealord fisheries deal, and major settlements such as the historic one with the Tainui – to try and end Aboriginal rights claims discourse. Only time will tell if this ‘revolutionary’ strategy will succeed in reconfiguring power relations.

In relation to the newspaper clippings in the scrapbook, I have abstracted the following strategies and tactics of government:

• municipal and essential services in remote indigenous communities after years of failed attempts by the commonwealth…… essential and municipal services are the responsibility of state and local governments and it should be no different in Aboriginal and Torres Strait Islander communities. • “With any constitutional change there’s a very great risk that unless people really understand exactly what they are voting for they will vote against it.” • …. disagreed with the panel’s recommendation that a preamble acknowledging indigenous Australians should not be included at the start of the Constitution • …. the South Australian government will recognise Aboriginal people in the state’s constitution and enact the changes through parliament • The National Congress of Australia’s First People, launched in Sydney in May, is the first indigenous representative body since 2005, when the Howard government abolished ATSIC amid corruption scandals.

In relation to the strategies, the following are apparent in the listed abstracts: • Cede ‘land-rights’, but only agree to a municipal version of ‘self-determination’ based on UN commitments. • (New Zealand) Develop contractualist strategies • Express support for Constitutional recognition in principle and promise details later.

In relation to the tactics to accompany the above strategies, the following are apparent in the listed abstracts: • Ratify relevant UN covenants etc, such as the International Covenant on Civil and Political Rights (1980) and the Optional Protocol • Create representative indigenous administrative bodies • Contract out management of National Parks, Fisheries etc to Indigenous groups • Create commissions and Parliamentary committees to conduct public consultation and to use focus groups to assess community views. The Commonwealth’s strategies and tactics have been consistent in not favouring the formation of an indigenous political entity independent from the rest of Australia. Various High Court rulings have supported this stance, e.g. 1979 – In Coe v. Commonwealth, a majority court rejects inherent Aboriginal sovereignty – even as domestic dependent nations, as enunciated in Worcester v. Georgia. Recommendation

That the Commonwealth maintain its current position in relation to recognition and self- determination of Aboriginal and Torres Strait Islander Peoples and be more transparent in what it is prepared to support in a referendum.

Sovereignty It was interesting to note that there were no real references to sovereignty in the newspaper clippings and only in the book. The abstracts below are derived only from the book. Possibly, journalists realised that sovereignty has been “done and dusted”, because of the High Court decisions that there can be only one sovereignty in Australia and that is the sovereignty of the Crown (1975, Coe v. Commonwealth, 1994 Walker v. NSW ). I think what concerns many people, is that litigation activists have realised they have exhausted recourse to the High Court on the issue of sovereignty and so the next step is to change the Constitution in order to achieve their political aims which have been thwarted by the High Court’s interpretation of the Constitution. This would result in more years of litigation. Abstracts • The contemporary jurisprudence that informs the recognition and definition of indigenous rights in the Anglo-Commonwealth evolved directly from these rights- and-duty based discourses on membership of the family of nations, personhood, possession, property, the social contract, citizenship and sovereignty. • 1690 – John Locke’s Two Treatises define political society as one that delegates the powers of the individual to endow the ruler with popular sovereignty. .. the productive powers of such a society flow from individual labour and private property. • 1743 - J.G. Heinccus’s A Methodological System of Universal Law equates sovereignty with the power to resist domination and to exclude others from territory. • 1836 – Henry Wheaton’s Elements of International Law defines sovereignty as the power to govern independently of foreign powers. Like Bentham and Austin, Wheaton conceives of this power as requiring a political order demonstrating habitual obedience to the ruler, reinforcing the Austinian ‘indivisible sovereign’ paradigm. Any protectorate relationship requires an ‘express compact’ • 1992 –In Mabo No.2, the original sovereignty of Aboriginal and Torres Strait Islander peoples is recognised, • 1994 – High Court: Walker v. NSW asserts the non-justiciability of Crown sovereignty and rejects the ‘post-Mabo’ argument that indigenous criminal law and jurisdiction should be recognised as having survived. • Governments need to:- 1. Recognise multiple jurisdictions as legitimate 2. Comprehend, accommodate, and identify the affinities and differences within parallel and converging systems. 3. Manage border disputes at the interface between systems 4. Facilitate border crossings between systems (where appropriate) for the individuals and groups.

• 1995 Maori Sovereignty discussion led to 3 models - kawanatanga (Pakeha governance), mana motuhake (Maori self-government) , and tikanga rua (bi-cultural governance). • the question of indigenous sovereignty – High Court in the 1979 case Coe v. The Commonwealth. The plaintiff’s claim to at last some form of residual sovereignty was decisively rejected. – • From the moment of annexation, the Crown’s power was complete and extended to every corner of the claimed territory. • the contention ‘that there is in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.” • The court in the Mabo No. 2 case overthrew the doctrine of terra nullius in relation to property but reaffirmed it in relation to sovereignty. • any change to existing legal doctrine would ‘fracture the skeleton of principle that gives the body of our law its shape and internal consistency’. • difficult to sustain the view that Aborigines did not exercise sovereignty over their traditional lands. • “First Nations’” collective and inherent rights to self-determination of jurisdictions pertaining to land, identity, and political voice have never been extinguished but prevail in international law. • the concept of shared sovereignty • the notion of shared yet interlocking sovereignties would appear consistent with the principles and practices of post-colonialism. • Is sovereignty indivisible or can it be shared without undermining the integrity and cohesion of society? • Parliament, was unconditionally accepted as the ultimate law-making authority, whose sovereignty could not be broached. • ethno-politics openly challenges the paramount authority of the sovereign State while more extreme versions espouse a level of restructuring up to and including territorial secession and statehood. • power is a basis for sovereign self-determination. • competing paradigms – indigeneity versus sovereignty, nationhood versus statehood • indigenous demands for sovereignty are rarely synonymous with claims for political independence or territorial autonomy. • American First Nations do not possess external sovereignty (for example, they cannot raise an army or defy federal laws); as ‘domestic dependent nations’ they do retain considerable control over internal sovereignty, subject to certain restrictions at federal and state level. • Complete autonomy is not feasible for many indigenous communities, given the costs and obligations associated with sovereignty. Access to a resource base and the level of development are inhibiting factors as well. • not all First Nation communities possess the jurisdictional capacity to manage the different dimensions of self-government. But many do and are casting about for ways to secure a mutually satisfying coexistence under tribal tradition. • indigenous demands for self-determination are inseparable from concerns over ‘who controls what’ with respect to wealth, power, and status. • First Nations prefer to maximise jurisdiction and powers as a means of restoring what they have always possessed: sovereignty. • Australian Aboriginal people possess the inalienable right to confer or withhold consent for non-indigenous use of the continent, given their sovereign autonomy as First People as yet undiminished by colonisation. • the mere possession of sovereign rights may be altogether different from reality or practice. • how can indigenous Australians exercise their collective and inherent right to self- determination as a distinct people, within the framework of Australian society? • the Mabo decision repudiates long-standing Crown claims to imperial sovereignty; • the judicial abandonment of terra nullius in Mabo was read by some Aboriginal lawyers as implicitly affirming a sense of indigenous sovereignty. • Others are worried about the prospect of an Aboriginal state being established. • others wonder how Australia will accommodate indigenous demands for inherent and collective rights without destroying itself in the process. • Indigenous sovereignty may not aspire to statehood, and yet its aspirations often exceed the level of local autonomy envisaged by the state. • Central authorities perceive autonomy in terms of municipal-level, administrative structures under parliamentary jurisdictions. • (Canada) - … the British Columbia Court of Appeal rejected the idea of sovereignty as a concomitant set of rights along with the ‘way of life’ rights. • The court concluded that Australia, irrespective of the original presence of the Aboriginal people, was a territory acquired by settlement. If the nature of the acquisition had been challenged so as to suggest that the territory had been acquired by conquest, the decision would have had profound consequences • The rejection of terra nullius by the majority of the High Court was empty rhetoric.

An analysis of the above abstracts reveals 6 types of sovereignty under discussion, viz:-

1. Shared sovereignty 2. Municipal type sovereignty 3. Somewhere between municipal government and Statehood. 4. Complete sovereign autonomy (nation within a nation) 5. Territorial secession and Statehood. 6. Complete autonomy not possible because of lack of resource base and level of economic development

Given the High Court judgements, further discussion on sovereignty appears redundant.

Recommendation

That the Select Committee recommends in its report that in view of the fact that the question of indigenous sovereignty has been answered by High Court judgements:- • That the wording of any proposed changes to the Constitution in a referendum does not have the effect or potential to change the current position of the High Court on Indigenous sovereignty. • That those seeking the referendum refrain from further litigation on the question of Indigenous sovereignty, via the Constitution or International Law. • That those seeking the referendum provide precise details of exactly what ‘sovereignty’ entails, if sovereignty is seen as a possible outcome from the referendum.

Models

In relation to the book I have abstracted what appear to me to be some suggested models of the relationship between Indigenous people and the other citizens in the post-colonial polity, as follows:

• 1998 – Commonwealth: At the Australian Constitutional Convention Gatjil Djerrkura, the ATSIC Chairperson calls for: 1. New preamble to the Commonwealth Constitution recognising the First Australians. 2. Bill of Rights including specific recognition for indigenous Australians. 3. Constitutional protection against adverse discrimination 4. A ‘race’ power in s.51(26) to become affirmative power 5. Reserved seats in Parliament for indigenous representatives.

• Canadian Royal Commission on Aboriginal Peoples recommends, for example, o institutional redesign affecting the Senate, the House of Commons and the Supreme Court; o the creation of new provinces; o changes to the very formulas for amending the Constitution; o an Aboriginal House of Parliament, • The desire of these communities …. can be accommodated within Canada as a whole by the concept and institutions of federalism…. • One of the great challenges to the concept of developing a vision for multinationalism is this demographic fact that people are moving into cities…… so the problem is how can these concepts of nationalism accommodate these people in the cities. • (New Zealand) The kawanatanga model recognises that the power to govern was ceded to the Crown in the first article of the Treaty of Waitangi. Implicit in this model is the pragmatic recognition of that Pakeha majority rule, under the Westminster parliamentary system, is an irreversible reality. Therefore, a modus vivendi has to be reached in a new constitutional arrangement between kawanatanga and tino rangatiratanga. The basic model consists of an elected national Maori assembly based on groupings of tribal districts. The national assembly would provide a united Maori voice directly to the Crown. This model existed in the Maori Councils of 1900-10 • The mana motuhake model of parallel self-government was tried by the Maori King Movement in the 19th century. It was overthrown by force. It was also tried by the Maori Parliament, which was simply ignored by the Pakeha Parliament…. Force is unlikely to be used to re-establish Maori self-government…. That leaves negotiation towards a political settlement for recognition of tangata whenua as a nation within a nation as the only realistic option. • The tikanga rua model …. Proposes a Maori assembly to produce legislation based on Maori tikanga (custom) and a Pakeha assembly to make law based on Pakeha tikanga. The legislation from these two houses then goes forward to an upper house known as ‘Te Runanganuio te Tiriti’ ,The Grand Treaty Council. This council, comprised of twenty-one Pakeha and eleven Maori, would assess laws from the lower house for their compatibility with the Treaty before giving its approval

• … the former Prime Minister Jim Bolger argued the sovereignty of Parliament is indivisible..

• Self-governing models will vary .. Canada’s First Nation bands…. Four levels of self- governance appear possible: • statehood: ‘absolute’ sovereignty with complete independent authority over internal and external jurisdictions. • nationhood: ‘shared’ sovereignty with jurisdictional authority over internal matters of direct relevance but not over external affairs. • ‘municipal’: ‘functional’ sovereignty, with control over community-based, culturally sensitive development in conjunction with control over legitimate concerns of comparable units. • ‘institutional’: ‘nominal’ sovereignty, with meaningful decision-making powers through improved representation and institutional accommodation.

• Jurisdictional matters are expected to vary from band to band, but the following are likely to be incorporated: a. the delivery of social services such as policing, education, and health and welfare (‘institutional autonomy’); b. resource acquisition and use of land for economic regeneration; c. promotion of distinct cultural values and language systems; d. band membership and entitlements; e. federal expenditures according to indigenous priorities rather than those of the government or bureaucracy.

• Proposed are indigenous models of self-determination that sharply curtail State jurisdictions.

In relation to the newspaper clippings in the scrapbook, I have abstracted the following discussion on models. The two points below are related and deal with a model for “recognition” as opposed to the other administrative-type models derived from the book. Like ‘sovereignty”, journalists tend to stay clear of examples of administrative models of self-government.

• The obvious place for recognition is in the preamble. The case against including any new matter there is that it may be used by the High Court in unpredictable ways and produce unpalatable results. The usual solution to this problem is to follow any new words with the statement that they are not to have any force at law. It rather spoils the symbolic effect. ………………. The best way to recognise Aborigines in the Constitution is for the preamble to incorporate the judgements of the High Court in Mabo and Wik. That would capture a symbolic moment in our history, accept its consequences but limit their effect according to the principles the High Court had laid down. …….

• Officially: legislative independence and recognition of Aboriginal people. Informally: updating the Constitution or the New Australia Amendment. The Constitution would open with these words (the first paragraph modifying the words of the present preamble): Whereas the people of New South Wales (and the other states) humbly relying on the blessing of Almighty God, agree to unite in one indissoluble federal Commonwealth under the Crown of United Kingdom and Ireland, and under the constitution established on 1 January 1901 And whereas the Commonwealth of Australia evolved into an independent nation under the Crown And whereas the people of the Commonwealth acknowledge that all its lands were owned by the Aboriginal and Torres Strait Islander peoples who retain right to them as set out by the High Court in its judgement in Mabo and Wik We the people of the Commonwealth adopt our Constitution as follows: ……….etc

The basic administrative models outlined above can be reduced to 4 types: • Statehood • Nationhood • Municipal • Institutional

The book also links all four models with a range of jurisdictional matters in a general way without indicating which model has what jurisdictional powers. This is the most frustrating part of this referendum exercise in that no-one seems prepared to spell out what is wanted and why is it needed.

Recommendation That the Select Committee recommends in its report a specific administrative model in which the powers and their limitations are clearly defined.

Recognition

In relation to the book, I have abstracted the following statements in relation to recognition:

• 1975 – Commonwealth: The Senate passes a resolution acknowledging that Aboriginal and Torres Strait Islander peoples had ‘original possession’ of the continent. • 1988 – Commonwealth: The opening ceremony for the new Parliament House in Canberra recognises Aboriginal and Torres Strait Islander peoples as the original occupants of Australia. • the importance of negotiation, compromise, and recognition of the economic and intellectual contributions Aboriginal peoples make • overcome some obstacles in constitutional theory to recognise the constitutional legitimacy of the exercise of fundamental power by Aboriginal peoples • recognition - a struggle made more difficult by their small percentage of the Canadian population • Recognition of indigeneity as part of the national agenda not only legitimises indigenous engagement at the highest levels of decision-making, but it also bolsters the counter-hegemonic assertion that political legitimacy rests with the First Peoples’ consent rather than the paramountcy of the State. • Constitutional recognition of indigenous rights to self-determination is increasingly contested in international law and in White settler constitutions • recognition of indigenous people’s right to exist as distinct peoples, rather than as minorities. • Commonwealth and State Aboriginal land-rights legislation was not grounded in governments’ recognition of pre-existing Aboriginal political or property rights. Rather, it followed from their generalised sense of ‘injustice’ and recognition of the need for reconciliation. • race can be dispensed with without compromising the recognition of indigenous status.

In relation to the newspaper clippings in the scrapbook, I have abstracted the following statements in relation to recognition:

• the objection that recognition of indigenous peoples is another form of racial category. • Australia’s failure to sign a treaty between indigenous Australians and the Government in his strongest declaration for support for a referendum to change the Constitution to recognise Aborigines. • Inspired by the 2004 Long Walk, the Journey to Recognition, • …… both leaders spoke in support of a bill that recognises the contribution of indigenous Australians to the nation. • We want to be at peace with our past and we can get to that point only if we can recognise our full history. There is an implicit transaction on offer in the quest for constitutional recognition. It is the final step in what Australia began in the 1967 referendum. • Recognising the first Australians in the constitution will help close the indigenous disadvantage gap and herald a new era of formal national unity. • urging a new generation of Australians to push for recognition for Aboriginal and Torres Strait Australians in the constitution. • The Australian Republican Movement “emphatically supports the recognition of Aboriginal and Torres Strait Islanders in the Constitution.” • a compromise position on recognition of indigenous Australians in the Constitution, constitutional recognition could include removal of the race clause and the insertion of a replacement power to enable federal parliament to pass necessary laws with respect to indigenous peoples, and “incorporation of a requirement that indigenous peoples get a fair say in laws and policies made about us.” …. “a new body could be established to effect this purpose, and to ensure that indigenous peoples have a voice in their own affairs. • constitutional recognition has always been about achieving constitutional protection and recognition of indigenous rights and interests within Australia. It is about reconciling the fact that there were peoples here before the British arrived, and making provision for those peoples and their interests to be recognised within the nation • why could we not have a declaration of recognition that dealt broadly with indigenous issues and sat alongside the Constitution whenever it was printed? Could this type of declaration be a charter for the representative body charged with counselling parliament and government on indigenous matters, and why would it be impossible that the Constitution itself include some appropriate reference to both things? • Symbolic recognition is important, but it is not enough to fix the problems in indigenous affairs.

In relation to a pamphlet “National Reconciliation Week – Let’s Talk Recognition produced by the ACT Human Rights Commission, Canberra, I have abstracted the following statements in relation to recognition:

• What is recognition? Recognition means different things to different people. But everyone likes it when they get it. The Macquarie dictionary says that recognition means ‘the acknowledgement of something as valid or entitled to consideration’. Recognition can take lots of different forms, such as: • Saying a simple ‘thank you’ when someone lends you a helping hand • Cheering on your friends or being cheered on during a game • Being praised at school or work for your hard work and effort • Think about how much you value recognition. When you are sincerely recognised for who you are and what you contribute, you feel proud, valued and connected. Being recognised is good for your self-esteem. It energises you and encourages you to recognise the best in others…………………….. • ….. The 1967 referendum removed some constitutional discrimination against Aboriginal and Torres Strait Islander peoples but it did not recognise them as the nation’s first peoples, or recognise their existence in Australia today. • Symbolic gestures of recognition are not as important as actions.

Given the level of recognition contained in the Senate statement of 1975 and the statement issued at the opening of the new Parliament House in Canberra in 1988, the question that begs is “What further recognition will satisfy those seeking it?” One suggestion above is that a declaration of recognition, presumably along the lines of those in 1975 and 1988, be published alongside the printed Constitution. I am not sure if that is feasible from a legal point of view or whether it would be acceptable to the promoters of recognition.

From the above abstracts there appear to be many views on what recognition means: • Recognition of indigenous contribution to Australia • Recognition = primacy of indigenous people over paramountcy of the State. • Recognition = a separatist model of governance derived from pre-existing political rights. • Recognition = racial profiling • Recognition = substitute for a Treaty • Recognition = a ‘follow-on’ from 1967 • Recognition = protection of indigenous rights and interests within Australia • Recognition will result in ‘closing the gap’ and achieve ‘formal national unity’. • “Symbolic” recognition is not enough.

This confusion as to the meaning of ‘recognition’ needs to be cleared up before any referendum is attempted. The sort of patronising and meaningless comments put out by the ACT Human Rights Commission in their pamphlet does not help. The bland statement by the Australian Republican Movement that they support recognition is also unhelpful. If Australia were to cut off from the Crown how would that impact on the relationship between indigenous people and the new political paradigm, given that it was the Crown that claimed sovereignty over Australia? I am all for an independent Commonwealth with an Australian Head of State and embracing all its component parts, but the implications of such a step vis- à-vis indigenous aspirations need to be considered. Also, if ‘symbolic’ recognition is not enough, what is the acceptable alternative?

Recommendation

That the Select Committee recommends in its report details of a specific and formal meaning and method of “recognition” (and its practical applications) that are comprehensible to the electorate.

Reconciliation

In relation to the book, I have abstracted the following statements in relation to reconciliation:

• the unbreakable connection of Aboriginal people to the land will never be possible to recognise that adequately in law. It can be achieved only at local level and only by reconciliation founded on agreement. • reconciliation may prove even more elusive once the deep fissures associated with the transformational ethno-politics are exposed for what they really are: challenges to the legitimacy of exclusive Crown authority and its replacement by indigenous hegemony.

In relation to a pamphlet “National Reconciliation Week – Let’s Talk Recognition produced by the ACT Human Rights Commission, Canberra, I have abstracted the following statements in relation to reconciliation:

• Reconciliation involves building positive, respectful relationships between Aboriginal and Torres Strait Islander peoples and other Australians; enabling us to work together to close the gaps, and achieve a shared sense of fairness and justice. • The ultimate goal of reconciliation is to build strong and trusting relationships between Aboriginal and Torres Strait Islander peoples and other Australians, as a foundation for success and to enhance our national wellbeing………

In relation to the newspaper clippings in the scrapbook, I have abstracted the following statements in relation to reconciliation:

• Reconciliation will involve replacing the Constitution’s racially discriminatory provisions. ………… • In the Howard era we moved to an emphasis on practical reconciliation. However John Howard pushed for preambular recognition during the 1999 referendum, which did not succeed. The polarity swung from symbolism to practical reconciliation. Symbolic recognition is important, but it is not enough to fix the problems in indigenous affairs.

Comment

From the above abstracts there appear to be various views on what reconciliation means:

• Reconciliation to be based on ‘agreement.’ • Reconciliation = replacement of Crown authority by ‘indigenous hegemony’. • Reconciliation = replacing Constitutional race powers. • “Practical” reconciliation

This multiplicity of meanings of ‘reconciliation’ would be unhelpful to the success of a referendum. The sort of vague and patronising remarks by the ACT Human Rights Commission in their pamphlet does not help.

Recommendation

That the Select Committee recommends in its report details of a specific and formal meaning and method of “reconciliation” (and its practical outcomes) that are comprehensible to the electorate.

Self-Determination

In relation to the book, I have abstracted the following statements in relation to self- determination:

• political rights to self-determination and self-government , is an increasingly prominent dimension of political jurisprudence. • As original occupants, they assert their collective and inherent rights to self- determination of jurisdictions pertaining to land, identity, and political voice. • As autonomous peoples within their own sphere of jurisdiction, they further: 1. Insist on a special relationship (‘nation to nation’) with the State 2. Continue to possess land and resources unless explicitly ceded 3. Propose that legitimacy rests with the consent of the people rather than with State authority 4. Espouse a new belonging in which sovereignty is shared with society at large.

• indigenous ethno-politics also creates a challenge in implementing indigenous models of self-determination that sharply curtail State jurisdiction as a framework for co-existence • For First Peoples, questions of culture and identity are always inextricably caught up with questions of self-determination and with questions of land. • Canada … proposed solutions pointing in the direction of inherent and collective rights to self-governance as a basis for renewal and reform. • new structures are required – structures that sharply curtail State jurisdiction while endorsing Aboriginal-defined models of self-governance. • It has never been up to the governments to give self-government. It has never been theirs to give. • Amendments to constitutionally enshrine inherent rights to self-government were defeated when put to a national referendum in October 1992. • self-determination has emerged as a prevailing discourse for redefining First Australian-Crown relations • assurance of autonomy rights (the right to self-determination at all levels), identity rights (the right to exist as a different society), and resource rights (rights to land that rightfully belongs to First Australians). Yet such pronouncements are not necessarily consistent with the implementation of self-government as an inherent and collective right. • Recent policies of self-management have tended to be primarily local in form and function, involving, at best power to create parallel institutions, manage domestic affairs, and administer government funds • Ethno-political struggles in Australia encompass a commitment to self-sufficiency and cultural survival within the framework of inherent self-determination. • Government officials prefer to deal with indigenous demands for self-determination essentially in terms of a political concession , both contingent and delegated on a municipal basis, with accountability to Parliament and the Constitution. • … states refused to use the word ‘peoples’ for fear of its being taken to imply that indigenous people have the right to self-determination as expressed in common article 1 of the International Covenants, and for fear of secession, which they thought self-determination implied. • customary international law has accepted the right of cultural self-determination for indigenous peoples and the consequent autonomous control necessary to achieve that may have impact on Australia, Canada and New Zealand. • the concept of self-determination has been ostensibly applied to the design of institutions to advise the government on Aboriginal affairs- what self-determination should mean in practice – not clearly defined in international human rights law – has been affected more by domestic pressures. • the Royal Commission expressed the view that self-determination by Australia’s indigenous peoples is ‘central to achievement of the profound change which is required in the area of Aboriginal affairs’. • defines self-determination as ‘the gaining of Aboriginal people of control over the decision-making processes affecting themselves, and gaining power to make the ultimate decisions wherever possible. • Royal Commission, Recommendation 188, states that ‘Governments negotiate with appropriate Aboriginals organisations and communities to determine guidelines as to the procedures and processes which should be followed to ensure that the self- determination principle is applied in the design and implementation of any policy or program which will particularly affect Aboriginal people.’ • .. Aboriginal spokespeople who call for the constitutionalisation of new power structures. • Black Australians… must define what is best for their own advancement and then they can determine where white Australians can be of assistance. • The Aboriginal Provisional Government is more specific, arguing (in 1992) that ‘If ever there was an appropriate time for the formation and development of a national black liberation movement, it is now, and providing blueprints for the process to occur. • move decisively into a new era of Aboriginal and Torres Strait Islander empowerment and self-determination.’ • As an administrative principle, self-determination was linked closely to decentralisation

• Indigenous self-determination is based on principles for de-colonisation enunciated by the United Nations: that all people have the right to cultural freedom, to exercise choice over their own lives, and to be free from coercion. • … in Australia – the Aboriginal people have never gained self-governing autonomy, though there have been some limited gains at local government level. • ATSIC claims to political legitimacy stamps it as a potential mechanism for self- determination for Aboriginal and Torres Strait Islander peoples within the Australian polity.

Comment

The above abstracts are derived solely from the book. The scrapbook of newspaper clippings did not contain any discussion of indigenous ‘self-determination’. From the above abstracts there appear to be various views on what ‘self-determination’ means, as follows:

• ‘Self-determination’ (although not defined in practice) is more impacted philosophically by international human rights law than a local democratic process. • Self-determination = separation e.g. Secession – nation within a nation – ‘constitutionalisation’ of new power structures – black liberation movement • Self-determination = new structures defining indigenous self-governance. • Self-determination = self-management using the municipal model • Inherent indigenous rights to self-government opposed in Canada in a referendum.

Again, the above views reflect the division in the indigenous political position. Some are calling for complete separation whilst others favour a municipal model of self- determination. While this debate is occurring there is incremental progress in what in effect is a fusion of the two views whereby existing indigenous-focussed and controlled bodies are added to the Municipal model. An example of this is the setting up of a trial “Koori Youth Court” in NSW, following similar models already established in the ACT and Victoria, known as ‘circle sentencing’. This is very similar to the scheme set up in Sweden for dealing with young drug abuse offenders. It could be a template for the wider Australian community in dealing with young offenders. For example, if Arnhem Land has something like a municipal council, they could work with the local NT Police to set up a scheme along the lines of a “Koori Youth Court.” Down the track, I would like to see successful indigenous initiatives applied to the rest of Australian society, so it is not all one way as it was in the past. We not only share this country, we also share the same social problems, albeit sometimes (but not always) on different scales.

Recommendation

That the Select Committee recommends in its report that the outcome of a referendum would not result in ‘self-determination” being interpreted as a separate indigenous nation but instead could lead to a municipal model and new structures, clearly defined by the Select Committee, and which have the aim of favouring the desire of indigenous people to have more say over their daily lives and which also allows them to participate in the governance of the larger nation of Australia in which they are embedded as full citizens.

Existing System

The abstracts below are derived solely from the book. The scrapbook of newspaper clippings did not contain any discussion of the existing system. From the abstracts below there appear to be opposing views on the current system.

• The ‘One Australia’ policy, with its notion of equal (as in the ‘same’) rights for all Australians, is proving a barrier to specifying the precise nature of these rights. • The positivist denial that universal rights for all human beings existed in natural law had four implications for indigenous peoples.

o First, international law could only be created by nation-states in the European mould. o Second, international law was concerned solely with the rights and duties of states: human rights of individuals or groups were not of international legal concern. o Third, the sovereignty of states in the conduct of domestic affairs (including the treatment of indigenous people within the state) was protected by interference by other states. o Finally, only European-style ‘civilised’, nation-states could hold rights and duties in the international sphere while statehood in international law depended on recognition by the other existing states.

• (Nicaragua) ..the establishment of separate autonomous regions in which elected regional councils administer inter alia ‘national health, education, culture, supply, transportation and community service programs and have the power to pass regional ordinances, set taxes, and control land and resource use and development. • The High Court decision in Mabo No 2, … means that the common-law doctrine of Aboriginal or native title applies – and should have always applied to Australia. Under this doctrine, the Crown acquired sovereignty upon colonisation and thus root or radical (or underlying) title to all lands within Australia, but the Aboriginal people retained their (possessory) titles to land and resources until expressly extinguished by the Crown, under the common-law rules for extinguishment. • Aboriginal people identify themselves as Australia’s ‘First Peoples’. Theirs is a traditional society governed by ancient laws and a relationship to the land that bears no resemblance to the economic culture (and the culture of security) that supports property ownership in non-indigenous societies.

Comment The above abstracts appear to be discussing three different systems, viz: the ‘nation-state system’; the ‘traditional’ system; and a fusion of the two types. The discussions on the ‘nation-state’ and ‘traditional’ simply reiterate the obvious but offer no proposal as to how the existing ‘nation-state’ system could be modified to accommodate the ‘traditional’ . The Nicaraguan ‘fusion’ model is based on geographical boundaries which may not suit indigenous aspirations, particularly of those living in urban areas.

Perceived Roadblocks

In relation to the book, I have abstracted the following statements in relation to perceived roadblocks:

• Language of academics – for example - Improve taxonomies and typologies for categorising knowledge. The salience of contextual specificity: the significance of unique historical, political, economic, and sociological factors, which combine to structure action and reaction • The public construction of indigenous ownership, custodianship, and management of terrestrial and marine areas as conflict-prone is the principal impediment to negotiation and settlement, and to the establishment of management regimes in northern Australia.

In relation to the newspaper clippings in the scrapbook, I have abstracted the following statements in relation to roadblocks:

• Irrational anti-Aboriginal thinking is the most troubling in the Australian psyche • how we reconcile the recognition of indigenous people within one nation where all Australians share the same indivisible citizenship, as Australians. • a certificate of Aboriginality –need one to get Aboriginal housing - claim for Aboriginality was rejected. • ……. The issue of indigenous identity – who’s in, who’s out, and who decides – has long been the subject of bitter debate in the indigenous community. … Who has the right to call themselves indigenous? • When Mansell rejects a candidate “for being white” he is not talking about the colour of their skin “Skin colour has nothing to do with it. The first generation of white people who bred into the Aboriginal community had children who had lighter skin…. Over time, the shape or the look of people become irrelevant” he says. “What it’s about is ancestry: can you prove it in your family tree?” • “As for you …, you’re not an Aborigine at all. You’re a … white man”. • only those that speak the language , dance the dance, and live on their own land are truly Aboriginal; and those that do not live with knowledge of ‘the ways’ are simply wearing the label, often for self-aggrandisement.. • some people choose to identify as Aboriginal because there’s something in it for them • if Aboriginal people in urban communities are now ‘very much like’ the neighbours, why does Australia still have laws that target them on the basis of their race rather than their needs? • but if there is a need, target the need, not the race. • remove all references to race in any legislation, and assist people only on the basis of need. • colour is undeniably an issue in our society. • the importance of improving education outcomes and social well-being for young Aboriginal people. • warned of pushing constitutional change too far. • the Prime Minister cautioned against moves to turn the proposed referendum on constitutional recognition of indigenous people into a charter of rights, saying it would fail if it became a de facto bill of rights • The final wording will have to be something that all sides of politics can accept … Without multi-party support, the referendum will fail. • A PREAMBLE speaks from the date of the document. …. John Hirst’s amendment contains an express approval by the people of the most extreme act of judicial adventurism in our history, whatever attempt is made to negate this. It would give to any future adventurist judges the authority to do whatever they like – without of course, ever having to face the people or allowing the people to reverse the fundamental changes they may make. • ..Jacqui Lambie has threatened legal action after an Aboriginal elder lashed out at the senator for identifying as an indigenous woman without consulting the Tasmanian community or providing “evidence”. ………….. the head of the Aboriginal Land Council of Tasmania, Clyde Mansell, said Senator Lambie had no right to claim she was indigenous. • The Family Court has declared a ‘notably fair’ man to be a ‘proud Aborigine’ despite both his parents saying they are white. • Ms Price’s attack on Amnesty and the activists is right, at least to the extent that hand-wringing over UN obligations and endless consultation is not helping progress but applying a handbrake. • activists focus on these symbolic issues of self-absorption, while families disintegrate in the regional and remote areas • Ms Price… was challenging the credentials of those claiming to speak for indigenous Australians, exposing the cant of activists and the law, and crying out for real help to relieve real suffering. • Ms Price … said Amnesty was ‘not dispassionate and neutral’, but was dominated by Greens supporters. • Ms Price .. responded …. by describing Amnesty as an “undemocratic and racist” organisation that has done nothing but treat her and her people with contempt………………….. • According to the census, Australia’s population includes about 600,000 people indentifying as Aboriginal or Torres Strait Islanders. Most also report non-indigenous ancestry. • Half a million of Aboriginal Australians live in cities

From the above abstracts there appear to be some serious ‘roadblocks’ to a successful referendum outcome, as follows:

• Poor communication to the general public and public understanding • Residual racism in the general community • How to reconcile ‘recognition’ with a ‘single nation’ • Race classification (indigenous identity recognition) and Rural vs Urban indigenous aspirations. • Target needs – not race • Divided and opposite aims – different views on all sides as to Constitutional change • Preamble change only • Mechanics of the ‘struggle’ becoming an end in itself, without a clearly defined goal.

Poor communication… Communicating with the general public should be in plain English. Whilst the language in the book reflects the target audience of its academic authors, it is all too often the case that similar language is used when imparting information to the general public. Every academic discipline has its own language whether it be law, medicine or sociology, etc. The challenge for practitioners of those various disciplines is to be able to explain their often complex concepts in a way that is understood by members of the general public. It can, and should be done. In my own area of pharmacy I learned very quickly how to present pharmacological concepts to my patients in a way they comprehended. It is not the public who are ‘dumb’, it is the academics and professionals who are the ones who lack the skills to communicate clearly. Good communication skills become even more important if the general public are expected to vote in a referendum.

Residual racism…. This exists and is a problem for both sides, with one racism reacting to the other. Given the 1967 referendum result one could be reasonably confident that racism would be confined to an insignificant minority of the electorate, as a factor in how to vote. The media can play an important role in fostering the demise of racism, but given the focus on ‘sensationalism’ by modern journalists I am not confident they would assist.

How to reconcile ‘recognition’ with a ‘single nation’ – As discussed elsewhere in the submission, this is the issue that will most likely have the biggest impact on voters’ intentions if this is not clarified satisfactorily rather than being presented as an obscure slogan.

Race classification (indigenous identity recognition) - Having seen at first hand the social ill- effects of race-based politics in Africa where a major issue was the formal classification of ‘races’ and the methodology used, I can see from the above abstracts that ‘classification’ of indigeneity is going to be a major impediment to Constitutional recognition of Aboriginal and Torres Strait Islander peoples. As can be seen above, among themselves there is no unanimity on the subject. For people still living in traditional lands it is straightforward, but how can it be done for those of multiple cultural ancestry and living in urban areas? Other countries have developed formulae for determining identity without the horrors of the apartheid system. For example, Britain has an “Ancestor visa” category which allows people who have had one grandparent born in UK to work there and eventually attain citizenship. If ‘ancestry’ is the key to indigenous identity recognition, as claimed by Clyde Mansell, at what stage is there a cut-off point, or is there some other criterion? This is a real issue not only for Aboriginal and Torres Strait Islander peoples but for non-indigenous Australians who may be expected to have to vote for some nebulous concept. I know that activists tend to brush this question aside and disparage those who ask it, but if special laws are going to be made for Aboriginal and Torres Strait Islander people then from a purely administrative and entitlement point of view there has to be criteria. It may be that indigenous people and their successors living in traditional areas are automatically registered but urban indigenous citizens may have to have a cut-off point along the lines of the UK ancestry visa.

Target needs – not race – This is my preferred option. What is happening in the indigenous community is usually happening in the non-indigenous community as well, but it suits the need of some in the non-indigenous community in order to feel superior to pretend that it is a problem only in the indigenous community. This attitude of superiority is very evident in the electronic media. Drug abuse, welfare dependency, family violence etc are not unknown and sometimes rife in the non-indigenous community and the solutions to these problems should be generic, as is being increasingly advocated by some influential voices on both the indigenous and non-indigenous sides of politics.

Divided and opposite aims – If we go into a referendum when the major political parties disagree it would be doomed to failure. Similarly, if indigenous people fail to agree on what they want it would be equally a disaster.

Preamble change only – For many non-indigenous Australians this looks like a simple solution, but it ignores the fact that the offensive race clause would remain and if deleted it would impact on existing legislation underpinning real gains by indigenous people such as land rights. A change to the preamble may be a good idea but it has to be accompanied by real changes to the Constitution, whatever they may be.

Mechanics of the ‘struggle’ becoming an end in itself - There comes a time when those involved in pressing for political and social change should ask themselves ‘We have done enough to sensitise people to our needs and goals, now is the time to achieve them’. Persisting in ‘sensitising and educating’ activities can become counter-productive if carried on for too long, without telling the target audience exactly what you want and when you want it.

Recommendation

That the Select Committee recommends in its report that before a referendum is initiated the ‘roadblocks’ identified above be removed or minimised.

Multiculturalism

In relation to the book, I have abstracted the following statements in relation to multiculturalism:

• indigenous ethno-politics do not entail a commitment to multiculturalism, with its focus on removal of discriminatory barriers and attitudinal adjustments. • indigenous peoples assume the politically self-conscious stance of a ‘nation’. As such, they go beyond the socio-cultural concerns of multicultural minorities. The additional step consists of the assertion that they possess a special relationship with the State, together with a corresponding set of collective entitlements that flow from this link. • Aoteroa New Zealand’s predominantly homogeneous European population, combined with its formidable indigenous sector, has marginalised the salience of multiculturalism as a basis for national discourse. Both public discourse and social policy are geared towards the goal of bi-culturalism. • Indigenous peoples are not multicultural minorities, who comprise immigrants and descendants of immigrants in search of cultural equity within the existing framework of the host society. • Unlike immigrant groups or ethnic minorities, they (indigenous peoples) possess a unique and inalienable relationship to the Crown, together with powers and entitlements that arise from this connection.

Comment From the above abstracts on “multiculturalism” it appears that Aboriginal and Torres Strait Island people do not see themselves fitting in to the rigid formalised ‘multicultural’ paradigm. This view is shared by many of their compatriot ‘white native’ Australians who see it as another piece of social engineering sponsored by racist academics and their political acolytes.

The promoters of the referendum on both sides also fear that if special recognition and self administration is assigned to Aboriginal and Torres Strait Islander peoples because of their unique claim to pre-colonial possession of Australia then migrant groups will seek similar formalised treatment because they do not want to integrate. This in turn would make it less likely for the bulk of the electorate to support a referendum, if they thought that what was considered suitable for indigenous people should also apply to migrants. Putting people in ‘ethnic boxes’ and making special laws for them was a feature of apartheid. As indigenous Australians found out, the power to make laws for them has occasionally resulted in laws that not all agree with.

The migration experience in Australia shows that ‘integration’ is a voluntary process over time and it is a two way process, with the host adopting some of the cultural features of migrants (e.g. olive oil instead of dripping, drinking wine at meals instead of tea, having the main meal in the evening instead of midday, dragon boat racing etc) and the migrants doing the same (e.g. playing Aussie Rules instead of soccer, acceptance of Australian dress codes, acceptance of the egalitarian ethos and meritocracy concept, etc). This is a very human process, not confined to contemporary Australia. When the Normans conquered Britain in 1066 the king took away the estates from the previous owners and gave them to his nobles who over time lost contact with their French heritage. The kings, meanwhile, kept up their close family ties with their brethren in France so when king John demanded money and troops to prosecute a war in France against his cousin the locals rebelled. While the English king John still felt connected to Normandy the majority of landowner families after nearly 200 years had lost contact and considered themselves English. So in late 1214 they got together and said they would withhold fealty from the king and make war on him until he confirmed the laws and liberties of the people by a sealed charter and this led to the famous Magna Carta.

Recommendation

That the Select Committee recommends in its report that any Constitutional recognition of Australia’s indigenous peoples be such that its terms could not be applied to migrant groups.

Opinions

In relation to the newspaper clippings in the scrapbook, I have abstracted the following statements in relation to opinions:

• Warren Mundine has declared that he will campaign against proposed constitutional changes that promote the advancement of Aborigines, saying that they “go a hundred steps too far”, are stupid and will lead to legal challenges.

• the panel advising the government on how to acknowledge indigenous people in the Constitution believes that while race discrimination sections should be removed, many laws affecting Aborigines would collapse if a new power to allow for Aboriginal advancement were not created in their place.

• … If, for example, the referendum fails – and it probably will – there is a risk that the High Court will read the rejection as a sign that Australians, by majority, do not want “special laws” for Aborigines.

• But after the Howard government legislated to allow the construction of the Hindmarsh Island Bridge in South Australia in 1996, the High Court ruled that the power also authorise special laws operating to the detriment of Aborigines. It will be argued that the proposed amendment will authorise laws working to Aboriginal advantage. But just what is Aboriginal advantage?

• the greatest single danger facing the Negroes of America is that the whites are going to put them on welfare.. We will have created an entire subculture of dependency, alienation, and despair. … Moynihan believed that the greatest source of objection to his analysis came not from black civil rights leaders, but rather than from white liberals and particularly those in the academies.

• Divisiveness should not be part of the Constitution. The clause to empower the government to make laws for the “advancement” of one group of Australians based on race as proposed by the Expert Panel for Indigenous Constitutional Change will divide Australians. When the new South African constitution was created in 1996, no such distinctions were made between indigenous and newer inhabitants. Yet its preamble was able to capture historic issues and a future vision of equality and inclusiveness. “We, the people of South Africa recognise the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who worked to build and develop our country; and believe that South Africa belongs to all live in it, united in our diversity.” The South African preamble makes no reference to ‘first peoples’. It states that the country belongs to everyone. This is a profound and inclusive statement. They crafted a forward looking constitution that is blind to race (Action to redress apartheid injustices was sought through other mechanisms such as the Truth and Reconciliation Commission). Australia’s preamble and Constitution should recognise the multicultural nation we have become. The proposal for ‘indigenous advancement’ laws simply perpetuates divisions of us into ‘first nations’ peoples and everyone else.

• Bradley in his piece in these pages, mooted “embedding in it (our Constitution) a protection for the benefit of all Australians against discrimination on the basis of race, colour, or ethnic or national origins.”. This is nothing other than a bill of right’s type anti-discrimination provision. It’s a cheque one signs and hands over to the top judges to cash later, as they (and they alone) see fit. It should be rejected and if made part of the s.128 referendum I would oppose it. Why? Because no one has the slightest idea, how it will be interpreted ………………… That leaves a third possibility… but now seemingly out of favour and thankfully so. This is to amend the preamble of the Imperial Act that contains our Constitution. This too, is a very bad idea, as a mere glance at what judges in France and India have done with their constitutional preambles confirm. Such preambles can be used down the road by interpreting judges in ways no living person, drafter or anyone at all, could have imagined. Again, just look at France and India. ……………………. No one should be sensibly asked to buy something whose contents are in reality unknown and unknowable.

Comment The above abstracts cover a wide divergence of views relating to the issues surrounding the proposed referendum. I think the abstracts speak for themselves and I won’t be making a recommendation to the Select Committee except to ask them to take the above views into consideration when developing their recommendations.

Land Tenure

In relation to the book, I have abstracted the following statements in relation to land tenure:

• There is nothing .. to prevent Aboriginal people who have rights in Aboriginal land- tenure from holding land titles under the Australian system as well. Such a title, for a tiny proportion of Aboriginal people might be a freehold suburban residential block. • Many communities throughout northern Australia are incorporated under the Commonwealth’s Aboriginal Councils and Associations Act 1976. The Torres Strait Regional Authority evolved from two previous statutory bodies: the Commonwealth’s ATSIC Regional Council for the Torres Strait, and Queensland’s Island Coordinating Council. The Authority now governs Torres Strait indigenous affairs. – relating to both local government and Commonwealth service delivery of special measure Islander programs. – alongside the mainstream Torres Strait Shire Council, whose jurisdiction covers the area excluded from the deed of grant in trust areas (former reserve areas). • Mabo enabled Australia to join the other White settler dominions in acknowledging the continued existence of indigenous rights and Aboriginal land title, including cultural autonomy and territorial groundedness, unless explicitly extinguished by mutual consent. It also announced that First Australians are a legitimate party to negotiations over ownership of Australia - perhaps the most legitimate stakeholders in the country, whose interests could never be ignored. • Australian laws did not recognise any Aboriginal title to land until 1992. Instead Australia was a terra nullius, such that, upon colonisation, the Crown obtained all land. This meant that a valid title to land had to stem from a Crown grant..

In relation to the newspaper clippings in the scrapbook, I have abstracted the following statements in relation to land tenure issues:

• We must ensure that constitutional change recognises the existing and prior property rights of indigenous people…..These changes will provide … opportunities for traditional owners to negotiate their own futures as they have done with the Argyle diamond mine and the Browse LNG project • one community has written to Solicitor for the Northern Territory demanding the government leave town or face prosecution for trespassing. ……………….. Lawyers acting for Amoonguna, a community on the outskirts of Alice Springs, wrote to the NT government yesterday asking all its employees, including those from Territory Housing and the local shire council, to vacate their premises by next weekend. ……….. • Amoonguna residents have rejected the commonwealth’s request for a 40-year lease…… • In August 2007, the Coalition under John Howard compulsorily acquired five-year leases over 64 communities as part of the intervention…………… The leases were acquired to give the government security of tenure while it implemented its reforms. They were also needed because Aboriginal land is owned collectively.

Comment The above abstracts show the complexity of land tenure issues and the lack of information available to the general public about such matters. The average Australian understands that they have ‘freehold’ or ‘leasehold’ etc and that it is derived from ‘the Government’ (and ultimately “Crown Land”), but most are puzzled by the system of land tenure applicable to Aboriginal and Torres Strait Islander peoples under ‘Native Title’. It seems to me that that with the overturn of terra nullius, the lands still mainly populated by Aboriginal and Torres Strait Islander people were returned to them without any control by the Crown (i.e. Commonwealth or State). It appears that ‘native title’ is ‘alloidal’ . Alloidal title constitutes ownership of real property (land, fixtures and buildings) that is independent of any superior landlord. True alloidal title is rare, with most property in the Anglo- Commonwealth ‘common law’ world being held from the Crown and described as ‘fee simple’, a term from our feudal past. Some of the Commonwealth countries (particularly Australia) recognise native title, a form of alloidal title that does not originate from a Crown grant (?). Some land in the Shetland and Orkney Islands, known as Udal land, is held in a manner akin to alloidal land in that these titles are not subject to the ultimate ownership of the Crown. …. Alloidal title cannot be mortgaged. Moreover, as liens cannot be attached to alloidal title, it is difficult to finance improvements to a property held in alloidal title as, once incorporated, the improvements become part of the alloidal title and become exempt from lien or seizure of the property to pay a contractor’s bill or a default on a bank loan, etc. So, as Noel Pearson has pointed out, there is a need to able to have the usual tenures (freehold, leasehold, etc) co-existing within native title to allow for financing of beneficial developments within land owned by indigenous people. It would be a hollow victory to have gained title to traditional lands and then not to be able to have access to finance for beneficial purposes. On the non-indigenous side, the lack of understanding of the powers accorded to holders of native title is a big ‘negative’ that could impact on a referendum. Some time ago it was reported that the Army was seeking to develop a firing range in a remote part of Australia but the traditional owners refused permission. In the abstracts above, the Amoonguna people appear to have the power to make the NT government leave town. Presumably such actions can be overturned through specific Commonwealth legislation as when John Howard compulsorily acquired five-year leases over 64 communities as part of the intervention. Was the race power used to effect this compulsory acquisition? If so, and the race power goes, how will the Commonwealth be able to compulsorily acquire land for national security and other reasons? The general public, including myself, is not told the answers to these obvious questions, and that is one reason why I suggested at the beginning of this submission that the race power be replaced by a land tenure power. The main reason, however, is to ensure that there is no impact on existing traditional landholdings held under native title tenure and to allow for future changes of Crown land to native title (assuming, of course, that the word ‘tenure’ is applicable to native title).

Recommendation

That the Select Committee recommends in its report that the current wording in s.51 (xxvi) be deleted and replaced by the words “Land tenure” so that power would now read:

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:- (xxvi.) Land tenure; United Nations and Indigenous Peoples

In relation to the book, I have abstracted the following statements in relation to land United Nations and Indigenous peoples:

• 1966 – The International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) are open for ratification. These covenants affirm the right not to be discriminated against for reasons of race, colour, or national or social origin, and affirm indigenous peoples’ rights to self-determination and to natural resources in their territories. ICCPR article 27 specifies protection of rights for minorities to practice their culture with other members of their community. • 1989 – The ILO adopts Convention 169 Concerning Indigenous and Tribal Peoples’ Rights in Independent Countries. …. Sovereign States persist in blocking recognition of the rights of peoples to self-determination. • The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1966, Canada becoming a party to it in 1976, New Zealand in 1978, and Australia in 1980. This international legal development is notable because of its use by indigenous peoples and its impact on domestic policies. The provision most utilised by indigenous people is article 27: ‘In those states in which ethnic, religious or linguistic minorities exist shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’ States argued initially that it implied only a negative duty not to harm or impair the rights of minorities to do these things, but that duty has been extended to a positive one, obliging states to take measures to uphold ‘minority’ culture. • Most significant in terms of the development of indigenous rights in the international sphere has been the working group’s drafting of a Draft Declaration of the Rights of Indigenous Peoples, begun in 1985 and completed in 1993. • Importantly, some indigenous representatives from these countries – most notably Mick Dodson, ….. have since changed their minds and now argue that Convention No. 169 should be ratified. (Note: I checked the ILO website and Australia is not a signatory to this Convention) • The Human Rights Committee is especially relevant because Canada, Australia, and New Zealand have all ratified the Optional Protocol which allows individuals within these countries to complain directly to the Human Rights Committee about alleged violations of the ICCPR, protecting the rights of members of minorities to enjoy their culture has been utilised by indigenous peoples,……… • ..the Commonwealth government has been able, under the external affairs power, to give effect to the international human rights laws that have led to the recognition of significant Aboriginal rights. Under the race power it has been able to enact further legislation specifically for Aboriginal peoples, even against the wishes of the states. • .. the Commonwealth Racial Discrimination Act 1975 (RDA) …. was passed in order to implement in domestic law the ICERD, which is included as a schedule to the Act; some of the wording is incorporated directly into the Act, including the definition of ‘racial discrimination’. The RDA has played a significant and often crucial role in the determination of cases upholding Aboriginal rights. • .. some judges in Mabo 2 were clearly influenced by general international human rights law. For example, Brennan J in the principle judgement comments: …….. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary to both international standards and to the fundamental values of our common law to entrench a discriminatory rule which …..denies (indigenous inhabitants) a right to occupy their traditional lands.

Comment The above abstracts show how the Commonwealth has used s.51(xxix) (External affairs;) to adopt UN Covenants and Conventions to assist in developing policies beneficial to Aboriginal and Torres Strait Islander peoples, that they could not have otherwise developed using the Constitution with its limited stated powers.

The abstracts speak for themselves and I do not propose to make a recommendation.

Common Problems

In relation to the newspaper clippings in the scrapbook, I have abstracted the following statements in relation to common problems:

• The situation of Australia’s native peoples and the white natives of places such as Macquarie Fields, in southwest Sydney, tells us that amid plenty we have persistent intergenerational poverty and joblessness.

• ……. I met up with his cousin, Mick Mundine, the indefatigable head of the Aboriginal Housing Company, at the Block in Sydney’s Redfern…………………….. He literally walked the streets of his community to take charge of the problems afflicting his people. His target was the scourge of drugs and alcohol.. he waged against the needle-exchange buses that fuelled the illicit drug epidemic in Redfern’s Aboriginal community. This was a bracing street-level confrontation with the addicts and dealers among his own people, as well as a huge ideological and political struggle with the harm minimisation orthodoxy in drug policy. At the time the harm minimisers held the commanding heights and they insisted on their right to facilitate the drug epidemics, even at a genocidal cost to the last original community living in the shadows of this country’s first and greatest city. ……………….. The great majority of Aboriginal Australians live in urban locations and while there is a sizeable middle class who are doing well on social and economic indicators, there are many communities who are as disadvantaged and distressed as some of the most parlous remote communities. What is done in urban areas will often need to be different from remote and regional areas, but turning a blind eye to these communities as if they are prospering in the mainstream is wrong. ………………..

Comment I admire people like Mick Mundine who can stand up to the well-funded activists who have captured the drug abuse policy-making apparatus and inflict socially destructive ‘solutions’ on our society. As a retired pharmacist who worked in methadone clinics I know what Mick Mundine was dealing with is not peculiar to the indigenous community. None of my patients were indigenous and it was obvious that drug abuse and its effects are having a bad impact right across our social fabric. The rest of Australia can learn a lot from the methods used by indigenous people in how to counter corrosive social ills.

Summary

• Remove race references in the Constitution • Add in the Constitution a power over land tenure • In relation to recognition, reconciliation, self-determination and political sovereignty adopt a municipal model of self government, in compliance with a UN Covenant under s.51(xxix) which has already been adopted. • In relation to cultural and economic sovereignty it is suggested to adopt a ‘corporate’ model (trusts, private companies) to generate income for members and to allow for cultural promotion through language specific radio stations, education etc (s.51(xx)). • If the above suggestions do not maintain some existing indigenous-specific structures that are considered desirable then the Constitution may need to be suitably amended.

Yours sincerely

John Gregan 18 November 2014