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

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