Constitutional recognition and a treaty: Can we have both?

The Recognise campaign supports constitutional reform (AAP Image/Supplied by Recognise)

Recommendations to reform the Constitution have gone further than symbolic recognition of Indigenous Australians, but some say that's not far enough. Here's a closer look at the issue.

Last week the head of the Prime Minister’s Indigenous Advisory Council Warren Mundine challenged Prime Minister Tony Abbott to form a question for a referendum to change the Constitution, in a way that will somehow include Indigenous Australians,  “sooner rather than later.”

Those changes might encompass anything from symbolic recognition of Indigenous peoples in its opening statement, to the possibility of removing racist clauses.

The government-supported Recognise campaign's expert panel put forward its recommendations in 2012, and more recently a parliament-appointed joint select committee headed by Nova Peris and Ken Wyatt gave their progress report.

But Indigenous people fall on all sides of the debate around constitutional change, including whether it should happen at all. One of the bigger arguments is the question of a treaty, and why Australia is not pursuing one instead of constitutional reform. Australia is the only Commonwealth nation in the world not to have a treaty with its first peoples.

SBS spoke to Professor George Williams from the University of NSW and one of Australia’s leading constitutional lawyers to break down some of the rhetoric around the formation of a referendum question and the feasability of a treaty.

Professor Williams supports constitutional reform given the right amendments, and is also an advocate for treaties between the state and Indigenous peoples in Australia.


Q: Last week the PM’s Chief Advisor on Indigenous affairs Warren Mundine said constitutional change does not need to come at the expense of a treaty for Indigenous people, which is one of the major concerns. What exactly is the difference between a treaty and constitutional reform?

A: Well they’re really directed to different purposes. They’re not alternatives; they’re just different things to pursue. On the one hand, the Australian constitution sets out the basic powers of parliament, the institutions of government, it sets out a bit about the history of this continent, and also establishes what sort of laws can be passed for Aboriginal and Torres Strait Islanders. Now, at the moment it recognises that those laws can be very discriminatory. It might deny them the vote or a variety of negative consequences. So fixing that up would fix the rule book for the nation that sets out those powers.

A treaty is different, because it doesn’t seek to set out the rules. What it does is amount to a special document between the state and Indigenous groups. That document might for example provide for reparations or compensation or it might provide rights to land, it might provide recognition. But it’s doing it in the form of some sort of contract between the state and Indigenous peoples, not as a constitution.


Q: Are Indigenous Australians signing over their sovereignty if they vote to be acknowledged in a document not designed by them?

A: People often mean different things by sovereignty, but at its basic it means that Aboriginal people are arguing that they never ceded their rights to govern themselves, that they have control and ought to have control to make decisions for them and their families and they rightly say to that never being taken away in 1788.

The Australian courts, however, don’t recognise that. They say that sovereignty now has changed, that Indigenous sovereignty does not persist. And indeed High Court decisions such as the Yorta-Yorta decision sometime ago have affirmed that.

What this means is that when we come to constitutional change, it just doesn’t engage with these sovereignty issues. The courts have looked at them separately, there’s no suggestion any new changes would actually remove any form of sovereignty- indeed it’s already thought to have been removed- and if the sovereignty issue was to be engaged with, you’d need a very different process by way of perhaps recognising that, and something like a treaty could be a way of doing that.


Q: Some people say if Indigenous people are written into the constitution, then laws can be made about them by the state, which might put into question their sovereignty to create laws for themselves. How can a treaty and a Constitution exsist side-by-side? 

A: If there was a problem with sovereignty and the constitution- it’s already happened. In that, we got this Constitution in 1901 and there has already been a referendum about Aboriginal peoples in 1967 that did half of the work of fixing the Constitution, so those sovereignty issues would have been just as relevant then, but nobody’s suggesting that referendum displaced whatever sovereignty Indigenous people claim. And neither would this referendum, it just doesn’t work that way.

In fact, a well drafted constitution would reinforce claims to sovereignty and treaties. The American Constitution for example, recognises sovereignty of the Indian tribes and the Canadian Constitution specifically preserves the treaty rights of the first nations of Canada. And you actually need a supportive Constitution to make treaties work.

I’m someone who thinks we ought to have treaties, but we’re not going to get there without appropriate constitutional change, because at the moment the Australian Constitution does not recognise Aboriginal people exist. They’re not of mention. There’s no recognition of their language, their customs, their connection to land or even that they existed on this continent prior to 1788.

And until those things are fixed I don’t think you have any strong basis to move forward and negotiate an appropriate treaty.


Q: So that’s a lot of change you’re suggesting needs to happen in our Constitution, can all of that be covered in one question in a referendum?

A: Well typically a question in a referendum will cover a number of changes and Australians vote yes or no to a “package.” And in the republic referendum in 1999, it was some 69 changes to the constitution people are voting on.

On this occasion it’s thought the changes will fit into three categories:

  • The symbolic recognition, the acknowledgment
  • There would also be removing the clause of the permit racism
  • And thirdly there would be the insertion of a new power

And I would hope also a provision saying racial discrimination is no longer permitted

And they’ve been recommended by the expert panel, but as yet they haven’t been something that the Government has signed onto.


Q: Which of these options is the government leaning towards?

A: I think it seems clear the Prime Minister supports symbolic recognition, and perhaps also removal of the racially discriminatory provisions, but beyond that there’s no clear indication, and he hasn’t clearly supported any proposal.

That’s why I can understand the position of Aboriginal people, who are very concerned about whether this is worthwhile and other things are better to pursue.

Because unless we actually get a meaningful substantive change that fixes the lack of acknowledgement and the continuing potential for racial discrimination, then there is a potential that a constitutional reform will be put forward that doesn’t get to first base, in terms of being worthwhile and providing a platform for a treaty down the track.

The problem is I can’t see any prospect of a treaty being negotiated under a constitution that doesn’t even acknowledge Aboriginal people exist. 

Q:The PM is proposing a referendum for 2017, the 50th anniversary of the 1967 referendum. Is this the right amount of time to have the discussion?

A: Well I think it would be preferable to hold a referendum sooner rather than that, this is a debate that’s been running for many years now. One of the difficulties with this debate is it doesn’t leave room for other discussions. I think some of the concern about treaties and other things is that until we resolve the constitutional issue then it’s hard to move onto something else.

I think the opportunity to hold the referendum this year has already past, but perhaps next year at the Federal election, or at the absolute latest, in 2017. But we really do need a firm timetable on a proposal to discuss, so instead of talking around what it might be, people can discuss the genuine possibilities for change and whether they think it is worthwhile.


Q: How long in advance does the population need to know the question before a referendum?

A: I think its desirable six months to a year out, there’d be a clear sense of what the model would be. So people can pick it a part and have that discussion. That said, you don’t actually put the final proposal through parliament until only six months beforehand. So it means some of the discussion must happen close to the referendum, but clearly we do need now to move from a general discussion to something a bit more specific. For example so the sovereignty and treaty issues can be dealt with properly by saying this is the actual text of the change, and hopefully it gives people confidence that it doesn’t in any way override their other aspirations. If it’s approached in the right way it might actually complement them.


Q: In the event of a 'no' vote to constitutional recognition, will it set the discussion back?

A: I think that if the referendum fails it will be a big negative; it won’t just be the status quo. It will be the Australian nation voting ‘no’ to recognise the long history of Aboriginal people and Torres Strait Islanders on this continent and that will be a real problem.

It’s why I don’t think the referendum should go ahead, unless it has a very good chance of success. I think we have to be pragmatic. A ‘yes’ vote for the right proposal could be very positive for the whole of the community, but a ‘no’ vote could be disastrous.


Q: Some Aboriginal people say they will vote 'no', regardless of what the question is. Considering that Aboriginal people themselves might vote it down, couldn’t they bring forth the discussion of a treaty, without constitutional reform?

A: I think if it’s a no vote, I think that will kill off the chances of a treaty in any interim period. The problem is I can’t see as a constitutional lawyer, any prospect of a treaty being negotiated under a constitution that doesn’t even acknowledge Aboriginal people exist.

Given that a treaty is a document between the parliament and the institutions created by that constitution, and Indigenous Australia, it just doesn’t provide a basis for a treaty at the moment.

In fact that’s one of the strong reasons I’d like to see this get up, because I think we do need treaties.  


SBS acknowledges there are multiple sides to the debate around constitutional reform and treaty, and we are seeking further comment on the topic.


Watch: NITV’s Awaken explores this issue


Source SBS

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