ANTaR Victoria Submission to the YouMeUnity Panel regarding Constitutional Recognition for Aboriginal and Torres Strait Islander Peoples

 

About ANTaR Victoria

This submission is from ANTaR Victoria, a not-for-profit, non-government organisation run largely by volunteers and paid for by its members and supporters. ANTaR Victoria operates at a grassroots level with a network of local groups throughout metropolitan and rural Victoria, with each group facilitating their own reconciliation initiatives. Our purpose is to undertake and encourage community education towards the realisation of justice for Aboriginal and Torres Strait Islander peoples, including recognition of their diverse cultures and their inherent rights to self-determination, land and heritage. ANTaR Victoria is part of a national body comprising state and territory ANTaR branches. Each state/territory ANTaR works within their local state or territory to raise community awareness.

To members of the panel,

ANTaR Victoria welcomes the opportunity to make this submission to the You Me Unity Panel concerning recognition of Aboriginal and Torres Strait Islander peoples.  It is our view that ‘recognition’ involves more than a mere observation concerning the prior occupancy of the lands and waters we know refer to as Australia of Aboriginal and Torres Strait Islander peoples but a fulsome acknowledgement of the status and rights of Aboriginal and Torres Strait Islander peoples in Australian polity as the First Peoples of these lands and waters.  If we are to truly recognise Aboriginal and Torres Strait Islander peoples we must

  • acknowledge the ongoing sovereignty of Aboriginal and Torres Strait Islander peoples
  • continuance of their role as traditional owners and custodians of the lands and waters,  
  • the lack of consent and the absence of treaties with First Peoples,
  • the unjust nature of invasion and colonisation, including the ongoing nature of of colonisation,
  • the racist elements in the constitution which remain to this day, and
  • the need for protection of agreement making between the governments and Aboriginal and Torres Strait Islander peoples.

ANTaR Victoria responds to the discussion of Constitutional Recognition with the strong hope of developing greater moral and legal recognition, as well as respect, for the distinctive status of Aboriginal and Torres Strait Islander peoples.  ANTaR Vic believes that Australia’s First Peoples have inherent rights that are not recognised, and in some cases are denied, in Australia’s current Constitution.

In accordance with ANTaR Victoria’s beliefs and goals, the organisation strongly supports the following list of recommendations in hopes of rectifying Australia’s erroneous founding documentation, and ensuring progression towards an Australian community that acknowledges and justly supports the unique place of the First Peoples.

All these recommendations were given broad support at an Aboriginal community forum in Melbourne convened by statewide Aboriginal community controlled organisation at the Aboriginal Advancement League.


Recommendations

  1. 1.    Statement of recognition in a preamble or in the body of the constitution:

ANTaR Victoria recommends a statement either as a preamble to or in the body of the constitution recognising Aboriginal and Torres Strait Islander peoples as the traditional, sovereign custodians and owners of Australia’s lands and waters. If the statement is to be in a preamble, the preamble should have legal effect. ANTaR Vic also supports recognition of the injustices that have incurred through British occupation and colonisation of Aboriginal and Torres Strait Islander peoples in a preamble to the Australian constitution. This is stipulated with the condition that important changes are also made within the body of the Constitution.

ANTaR Vic argues that if the only constitutional change to occur is the addition of a preamble recognising Australia’s First Peoples, it will be a diversionary measure from the real issue of legally establishing non-discriminatory and specific rights within the Constitution for Aboriginal and Torres Strait Islander nations.

There is strong suggestion that until Aboriginal and Torres Strait Islander peoples are formally recognised within Australian legal frameworks, Australia cannot genuinely proceed towards reconciliation with its First Peoples. Incorporating a preamble to the Australian constitution is a symbolic tool that can assist with connecting Indigenous and non-Indigenous Australians to a truly collective national identity. It is therefore recommended that the preamble to the Australian Constitution acknowledge the following key criteria:

  • The many Aboriginal and Torres Strait Islander nations as the traditional owners and custodians of these lands and waters.
  • The intrusive, often violent and discriminatory nature with which Australia’s First Peoples experienced invasion and the ongoing effects of colonisation.
  • The lack of consultation, recognition or treaty with which Australia’s First Peoples were considered, and how this has ensued into an ongoing struggle for equal rights and for the voices of Australia’s First Peoples to be heard.

 

  1. 2.    Repeal of section 25

 

‘Provision as to races disqualified from voting:

 For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.’

ANTaR Victoria supports the suggestion to repeal s25 of the Australian Constitution in its entirety, due to its operation as an overtly discriminatory measure that can be utilised by any State enacting racially discriminatory voting laws. This has the potential to primarily be targeted towards Aboriginal and Torres Strait Islander peoples again in the future, as well as the wider Australian community.

 

  1. 3.    Amendment of section 51

‘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) The people of any race, for whom it is deemed necessary to make special laws’

ANTaR Victoria recommends an amendment to s51 (xxvi) of the Australian Constitution to introduce a focus on the sovereignty and unique rights of Aboriginal and Torres Strait Islander peoples. ANTaR Vic recommends that s51 (xxvi) is removed and replaced with a clause that guarantees a non-discriminatory stance but allows laws to be made for Aboriginal and Torres Strait Islander peoples on the basis of their status as First Peoples. The principle of prior and informed consent should guide any laws made for First Peoples. This is deemed necessary due to current and ongoing injustices and violations being experienced by Aboriginal and Torres Strait Islander people at the hands of the state. ANTaR Vic feels this recommendation is supported through international recognition as stated in the United Nations Declaration on the Rights of Indigenous Peoples, Article 2 ‘Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.’

 

  1. 4.    Introduction of specific rights for Aboriginal and Torres Strait Islander peoples

ANTaR Vic recommends that the specific rights of Aboriginal and Torres Strait Islander people, similar to those set out in the UN Declaration of the Rights of Indigenous peoples, could be summarised and introduced into the Constitution to ensure a more comprehensive protection of Aboriginal and Torres Strait Islander rights, traditions, cultures and laws.

 

  1. 5.    Encouraging national discussion of ‘treaty’

ANTaR Victoria strongly recommends utilising the national discussion of constitutional recognition to comprehensively address and consider questions around the sovereignty and political representation of Aboriginal and Torres Strait Islander peoples. ANTaR Vic supports the notion that a treaty, or treaties, is still the most apposite means of resetting the relationship between Aboriginal and Torres Strait Islander peoples and Australia as a whole and will provide the opportunity to respectfully engage in an ongoing process of negotiation.

 

  1. 6.    Introduction of agreement-making powers

Building on recommendation five, ANTaR Vic further supports the recommendation noted in the YouMeUnity Discussion paper, which includes amending the Constitution to enable the Australian Government to enter specific agreements with Aboriginal and Torres Strait Islander peoples, which would have the force and effect of Commonwealth law. Ideally, this would enable the making of such agreements between Commonwealth and Indigenous bodies or groups over a range of issues such as education, rights to land and traditional practices. Such a clause would have the power of ensuring that changes could only be made to agreements if both sides agree.  ANTaR Vic maintains that there must be provision for agreements to be internationally scrutinised, because of the power and resource imbalance between Aboriginal and Torres Strait Islander people and Australian governments. This recommendation is an important step in initiating a more equal relationship with governments when decisions about Aboriginal and Torres Strait Islander people, and their land, rights and culture are being made.

 

  1. An additional amendment to establish reserve seats for Aboriginal and Torres Strait Islander peoples as per the New Zealand parliamentary system.

This issue was raised at the Aboriginal community forum in Melbourne and there was considerable support for this inclusion.  The model suggested was along the lines of the reserved seats in the New Zealand parliament and would provide Aboriginal and Torres Strait Islander voices in the Federal Parliament.

In conclusion, ANTaR Vic strongly advocates for the listed recommendations to be considered and ultimately implemented to introduce genuine and positive changes for the legal and societal status of the First Peoples in modern Australia.

 

Written by Alicia Garrett & Tessa Elvin with the ANTaR Vic Committee of Management

On behalf of ANTaR Victoria

67 Brunswick Street, Fitzroy 3065

03) 9941 93613