First Peoples Say No to Constitutional Recognition

Contrary to popular opinion broadcasted on national Australian TV and news sources, First Nations Peoples are not the driving force behind Recognition in the Constitution campaign. The Australian government is the main driving force behind the campaign since former PM John Howard placed it on the political agenda in 1999.[1] Some of the major financial sponsors are private mining companies. In 2013, the government suspended sections of the Referendum (Machinery Provisions) Act 1984 to allow it to fund a YES campaign (called Recognise). According to this Act the government is required to remain financially impartial on plebiscites and only allowed funding to printout 2000 word pamphlets for each side of the campaign. The NO side of the campaign has not received any funding from government nor any major external sponsorship compared to the YES campaign.

Also the government’s Indigenous Advancement Strategy funding application states that a prerequisite for receiving funding for Culture & Capability Programmes requires that the outcome be ‘Outcome Progress: towards a referendum on constitutional recognition, participation in society and organisational capacity’ .[2]

Mainstream public opinion polls are not reflecting the views of First Peoples. The data gathered from the Recognise campaign’s public poll speculated that 87% of First Peoples would vote “yes”. A public Indigenous poll taken by IndigenousX indicated that 32% would vote “yes”, 47% would vote “no”, and 21% were unsure[3]. A recent gathering called by the Victoria government on the 3^rd Feb 2016, with a few hundred First Nations Peoples from across Victoria discussed constitutional recognition and concluded with a unanimous motion of “We as Sovereign People reject Constitutional Recognition.”[4]

What is the Government looking to change?

The Australian Parliament was seeking to hold the referendum to coincide with the 50^th anniversary of the 1967 referendum (May 27, 1967). The three main sections of the constitution that have been recommended for amendments in the referendum are:

• An addition to give: Recognition of Australia’s First Peoples (in the Preamble/outside the body in a Declaration of Recognition/or in the body).
• Removing Section 25 which can disqualify people on the basis of race from voting.
• Amending Section 51(xxvi) which enables the government to legislate on the basis of race and create special laws exclusively for them. Race Powers of Parliament.

After recent discussions (July 2015) between Abbott, Shorten and the government’s hand selected 40 Indigenous people it was stated that:

A minimalist approach, that provides preambular recognition, removes section 25 and moderates the races power [section 51 (26)], does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples.[5]

Noel Pearson warned, in his Cape York Institute’s submission to government, that anything more than a minimalist recommendation for changes will leave the conservatives extremely wary and would not win wide public support[6].

So pushing for anything extra such as an anti-discrimination clause and having the recognition clause in the body of constitution will lack support. A conservative held fear is that an anti-discrimination clause and Recognition clause in the body of the Constitution could potentially be used to the detriment of Parliament, through a misconstrued interpretation that could happen in the High Court of Australia. Public support for a referendum is lacking on all fronts and both sides of Parliament are manoeuvring to increase public and political interest. Recruiting Indigenous celebrities like Pat Dodson into positions of influence to ensure “Yes Vote” public advertising is widely circulated to the Australian public appears to be their strategy.

Why are First Peoples rejecting it?

First Peoples do not have wide spread interest in constitutional recognition reform because sovereign treaties are more of a priority[7]. Another reason for opposing it is that Section 51(xxvi) as it stands should not, by law, annex First Peoples into its jurisdiction, as their sovereignty has never been ceded by the Crown[8]. Thus, indicating that in the first instance, the Australian government is not actually constitutionally empowered to legislate for First People without their free, prior and informed consent to do so.

Some First Peoples are rejecting inclusion in the Australian constitution as they believe that because they are not currently in the constitution that they are then not subject to it[9]. And some claim that they are not subjects of the Crown as they have not acquiesced their sovereignty, nor consented to be governed by an external sovereign authority.[10] Therefore, indicating that the natural order under international sovereign law would conclude that treaties need to be negotiated to stipulate jurisdictional rights to lands. The move of negotiating sovereign treaties would demonstrate respect for the fundamental human rights of First Peoples to self-determination and their right to be able to give free, prior and informed consent to be governed, and by a governance system of their own choosing.

(Example of First Peoples’ petition opposing recognition)[11]

First Peoples biggest dilemma is Section 51(xxvi)

If Section 51(xxvi) Special Powers of Parliament is amended to include words:

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 Aboriginal and Torres Strait Islander peoples.[12]

If the Australian government obtains First Peoples’ willing consent for this amendment to happen. Then the Australian government will claim to have a domestic lawful constitutional right to make laws for First Peoples (as suggested before this something that it lawfully doesn’t have at present). This could also enable them to claim to have a lawful right to discriminate against First Peoples exclusively and create laws that can be made to their detriment if this section is amended to state the above wording. As some First Nation Peoples’[13] have indicated, and as the constitution stands the government currently claims to have a lawful right to make special race based laws to the detriment of any people of a particular race (including First Peoples). This was shown in the Hindmarsh Island High Court challenge. The High Court case did not dismiss the former PM John Howard government’s ability to create a discriminatory law through the use of Section 51(xxvi). His government created the Hindmarsh Island Bridge Act 1997 which was used against First Nation Peoples trying to protect a sacred heritage site from development. One of the dissenting judges from the case, Justice Kirby judgment recommended:

‘that the operation of Section 51(xxvi) ‘should be significantly altered’ so as to permit only positive or benign discrimination’

 It is understandable why some First Peoples are rejecting the proposal of constitutional recognition and requesting a treaty process, as ‘Recognition’ appears to be an assimilationist approach. With a high probability, according to previous recommendations to Parliament, (such as Section 51A and amending Section 51(xxvi)) of making changes that will still allow the government to have the legal right to create detrimental race based laws against First Peoples exclusively.

[1] Tony Abbott, 21/10/2013. RecogniseAU https://www.youtube.com/watch?v=hhCSCweaPq0

[2] http://www.dpmc.gov.au/sites/default/files/publications/ias_guidelines.pdf

[3] http://indigenousx.com.au/constitutional-recognition-survey/

[4] https://www.nteu.org.au/defendourunis/article/Aboriginal-Torres-Strait-Islander-motion-passed-at-NTEU-National-Council-2015-18036

[5] http://theconversation.com/grattan-on-friday-indigenous-referendum-timing-likely-to-slip-again-49950

[6] http://capeyorkpartnership.org.au/wp-content/uploads/2015/01/Submission-to-Joint-Select-Committee_October-2014.pdf

[7] https://newmatilda.com/2016/02/08/recognise-rejected-historic-meeting-500-black-leaders-unanimously-opposes-constitutional-recognition/

[8] https://weopposerecognition.wordpress.com/2015/09/03/the-australian-constitutional-race-powers-dilemma-we-are-not-racist-but-our-constitution-allows-us-to-be-racist

[9] ‘Anderson: You cannot benefit from murder. … Time does not erase murder.’, media release, Sovereign Union 23/5/2014

[10] http://www.theguardian.com/world/postcolonial/2014/aug/26/-sp-the-man-who-renounced-australia

[11] http://www.petitionbuzz.com/petitions/no-consent-to-add-first-peoples-to-the-australian-constituti

[12] Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, Report of the Expert Panel. Jan 2012. p xviii

[13] Anderson & Murrumu (source: 9 & 10)