Time to Re-Think the Nation:

Exorcising the Ghost of Terra Nullius from

Australia’s Constitution

Dr Peter LewisPresident ANTaR

•Over 400 nations within this continent

• Each nation had every institution we currently have in Australia

• Law, belief, occupations, family structures, trade, art, recreation and systems of ‘Government’

•People have lived on this land for over 60,000 years

200 years ago…

The Great Australian Silence

Inattention on such a scale cannot possibly be explained by absentmindedness. It is a structural matter, a view from a window which has been carefully placed to exclude a whole quadrant of the landscape. What may well have begun as a simple forgetting of other possible views turned under habit and over time into something like a cult of forgetfulness practised on a national scale. We have been able for so long to disremember the Aborigines that we are now hard put to keep them in mind even when we most want to do so.

W.E.H.Stanner, After the Dreaming: The Boyer Lectures

White PrivilegePeggy McIntosh suggests:

• I have come to see white privilege as an invisible package of unearned assets which I can count on cashing in each day, but about which I was ‘meant’ to remain oblivious. White privilege is like an invisible weightless knapsack of special provisions, maps, passports, codebooks, visas, clothes, tools and blank checks.

Peggy McIntosh, (1989) “White Privilege: Unmaking the Invisible Knapsack”, Peace and Freedom, July-August 1989, p. 10.

“We hold [the land] neither by inheritance, by purchase, nor by conquest, but by a sort of gradual eviction. As our flocks and herds and population increase… the natural owners of the soil are thrust back without treaty, bargain or apology … depasturing licenses are procured from government, stations are built, the natives and the game on which they feed are driven back … the graves of their fathers … trodden underfoot.”

(Godfrey Charles Mundy (1852) Our Antipodes: Or Residence and Rambles in the Australian Colonies, London: Richard Bentley, p. 226)

Rudd/Gillard Government Approaches

• Apology to the Stolen Generations and Welcome to Country

• NT Emergency Intervention tweaked

• UN Declaration on Indigenous Rights

• National First Peoples Congress

• Closing the Gap

• Resetting the Relationship – Constitutional Recognition

EXAMPLE OF COMMUNITY-LEVEL INDICATORS AND THEIR RELATIONSHIP TO A

HEALTH OUTCOME –

Suicide rates by number of factors present in the community (1987–1992). (Taken from Chandler M and Proulx T. Changing selves in changing worlds: youth suicide on the fault lines of colliding cultures. Archives of Suicide Research 2006: 10: 125-140. 2006).

An index of ‘‘cultural continuity’’ comprised of six marker variables: degree to which each of B.C.’s individual bands have already secured 1) some measure of self government; some control over the delivery of 2) health, 3) education, 4) policing services, and 5) cultural resources; and 6) are otherwise at work litigating for Aboriginal title to traditional lands.

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Re-setting the relationship:Exorcism at the foundations

• Towards treaty/ies and dealing with the open question of sovereignty

• Changing our rule book – constitutional recognition and protection from racism as the next step after apology

The First Peoples and the Constitution

• Aboriginal and Torres Strait Islander peoples, or ‘the First Peoples’, were largely excluded from the writing of the Constitution.

• The result is that Australia adopted a Constitution that referred to Aboriginal and Torres Strait Islander peoples only in negative terms:

– Section 127 made it unlawful to include ‘Aboriginal natives’ when counting the number of ‘people’ of the Commonwealth.

– Section 51(26) stated that the Federal Parliament can make special laws for ‘people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’.

1967In 1967, a referendum was held on the status of the First Peoples in Australia.

Australians voted overwhelmingly for ;

1. Section 127 to be removed from the Constitution, which meant that the First Peoples would now be counted in the census; AND

2. Section 51(26) to be changed so that the Federal Government could now make laws for Aboriginal and Torres Strait Islander peoples.

However, the 1967 referendum did not go far enough.

"Our Constitution does not recognise the First Australians. In fact it enables governments to discriminate against under the 'race power.' The referendum of 1967, while it resulted in indigenous people being counted in the census and gave the Commonwealth the power to legislate on indigenous matters, did not give us recognition or equality." Professor Marcia Langton

There are still a number of problems which need to be addressed.1. The Constitution does not recognise the prior occupation of

Aboriginal and Torres Strait Islander people.2. The Constitution still contains racially discriminatory provisions.

Racially discriminatory provisions

• Section 25- This section contemplates state governments excluding people from voting on the basis of their race.

• Section 51 (26) - After the 1967 referendum this section allows the Parliament to make laws for the people of any race for whom it is deemed necessary to make special laws, including Indigenous Australians. However this section does not specify that these ‘special laws’ have to be for the benefit of the people they affect.

Expert Panel

• In November 2010 the Gillard Government established an Expert Panel on Constitutional Recognition of Indigenous Australians.

• The Expert Panel was made up of Aboriginal and Torres Strait Islander and non-Indigenous community leaders, lawyers and members of parliament.

• All major parties were represented, and the Panel included an Independent member.

• The Panel lead public consultations and debate all over Australia.

• In January 2012, the panel reported back to Parliament, with a number of recommendations.

What the Expert Panel Recommended

• Repeal Section 25 which contemplates State governments excluding people from voting on the basis of race.

• Repeal Section 51(26) which can be used to create laws that are to the detriment of a particular race.

• Both powers described as “a blemish on our nationhood”.

What the Expert Panel Recommended

Add a new Section 51A to recognise Aboriginal and Torres Strait Islander people, including their prior occupation, their continual relationship with the land, their continuing languages, cultures and heritage.

This would preserve the Federal Government’s power to make laws with respect to Aboriginal and Torres Strait Islander peoples.

What the Expert Panel Recommended

Add a new Section 116A that would prohibit racial discrimination on the basis of race, colour or ethnic or national origin; but still allow laws to protect cultures, languages and heritage or overcome disadvantage or effects of past discrimination.This would protect all Australians from racial discrimination.

What the Expert Panel Recommended

Add a new Section 127A that recognises that Australia’s national language is English and that, as the original Australian languages, Aboriginal and Torres Strait Islander people’s languages are part of Australia’s heritage.

What are Aboriginal Leaders Saying?

“We're gathered to take a remarkable step forward. Forward to a nation that acknowledges its history, its heritage in its founding document. Forward to a nation who stands up to be counted as opponents of racism and proponents of recognition.”

Patrick Dodson

Noel Pearson

"What is still needed is a positive citizenship for indigenous Australians: a positive recognition of our status as the country's indigenous peoples and yet sharing a common citizenship with all other Australians"

Lawyer, academic, land rights activist and founder of the Cape York Institute for Policy and Leadership

Lowitja O'Donoghue

Constitutional recognition of Aboriginal and Torres Strait Islander People would be good ''not only for our own heads and hearts … but also for the nation's soul''.

Marcia Langton

“We must, I believe, leave our children with a formal acknowledgement in our Constitution of the existence of the Aboriginal and Torres Strait Islander peoples, one that goes beyond the racialised citizen and encompasses the explicit rights of peoples within our nation state.”

Chair of Australian Indigenous Studies at the University of Melbourne

Mick Gooda

“Constitutional reform is more than just symbolism. The positive effect on our self-esteem, the value of our culture and history, and the respect it marshals from others can make real differences to the lives of indigenousAustralians everywhere."

Aboriginal and Torres Strait Islander Social Justice Commissioner

Be part of the change• Get informed. Go to: http://www.antar.org.au/constitutional_recognition

• Organise an event in your home, workplace, school, university, TAFE or community centre. See ANTaR’s ‘Event Hints and Tips’.

• Circulate ANTaR’s petition calling on Federal politicians to support changes to recognise Aboriginal and Torres Strait Islander people in the Constitution and protect all Australians from racial discrimination. Go to www.antar.org.au.

• Make a financial contribution to ANTaR’s campaign for Constitutional Recognition.

• Tweet the Prime Minister and tell her you stand for #ConstitutionalRecognition.

• Get together with other supporters to lobby your MPs in State and Federal Parliament and get them to voice their support for Constitutional reform.

• Ask if you can put up a poster in your workplace, neighbourhood centre, school, library, university, local cafe or public place. To order a free poster, go to www.antar.org.au or contact antar@antar.org.au.

• Volunteer your time at ANTaR’s HQ in your State. Fill out our campaign supporter registration.

Treatment (Muriel Bamblett)

Treat each other – foundations: human rights as meeting place and rules of engagemento Self-determination and cultural respect

Healing o of relationships

– Confronting racism and white privilegeo within Aboriginal and Torres Strait Islander

Communities– restoring culture and mitigate lateral

violence Writing a new story - a new shared narrative, a

new shared identity