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An expert panel set up by the Australian Government to gage public support for the constitutional recognition of Indigenous Australians, will spend the next few months finalising its recommendations.

Although 75 percent of Australians already support some kind of constitutional reform, ideas on the practical effects that constitutional change would bring to the human rights of Aboriginal and Torres Strait Islander peoples are more contested, with some commentators noting the disparity between existing legislation and the realities of government policies such as the Northern Territory Intervention, (Northern Territory Emergency Response Act 2007), which defy the United Nations Declaration on the Rights of Indigenous Peoples.

After holding public forums across the country and accepting public submissions, the expert panel will now suggest changes to the Constitution of Australia and the Government will then decide whether or not to propose these to the nation in the form of a referendum. This will not be a simple procedure. Only eight out of forty four referendum questions in Australia’s history have been agreed to.

Members of the expert panel for constitutional recognition of Indigenous peoples.

At present, the Constitution includes racially discriminatory laws that allow states to forbid people of “any race” from voting in elections, and also allows the government to make discriminatory laws for “the people of any race for whom it is deemed necessary to make special laws”.

Some believe that legislation like the Racial Discrimination Act of 1975 have only so much power, while these laws are still in place. In 2007, the Australian Government suspended this act in order to begin the ongoing Northern Territory Intervention, which saw the compulsory acquisition of previously Aboriginal-owned land, the take-over of Aboriginal service providers, mandatory sexual-health checks for Aboriginal children, the prohibition of alcohol consumption and distribution, and the quarantining of 50 percent of social services payments, that individuals work for, onto a ‘BasicsCard’ which can only be spent on food in two supermarket chains located in larger regional areas.

Uncle Don, an elder from the Deerubbin Local Aboriginal Land Council in Western Sydney says, “When you look at Aboriginal Affairs in Australia, this Constitution is still a racist Constitution…You are living in our circle, but the ‘northern hemisphere-city’ of your thinking is back up there”.

Uncle Don and Jeff McMullen Discuss Constitutional Reform.

Constitutional recognition of Aboriginal Australians may take the form of a ‘statement of recognition’ or ‘statement of values’ to be inserted into a preamble or in the body of the Constitution; the power to make regional agreements with particular Indigenous groups; or it may involve the repeal or amendment of one or both of the racially discriminatory laws.

Some panel experts such as MP Ken Wyatt have said they support Indigenous recognition in the form of a preamble. Although under the exercise of ‘non-judicial provision’, a preamble alone would have no legal bearing. Dr Jeff McMullen, a Journalist and Aboriginal Rights Campaigner, feels that constitutional reform may not affect Australia’s policies anymore than current laws do, “Under our law and under International law, Aboriginal people have the legal right to self-determination. And yet over four years of the Northern Territory Intervention, we have clearly broken that trust. We have ignored our own laws”.

Jeff McMullen discusses constitutional reform.

Nicole Watson is a Lawyer and Research Fellow at Jumbunna Indigenous House of Learning who believes the creation of an Australian Bill of Rights or a Treaty would afford Indigenous peoples, and other Australians, appropriate legal protection without the risk that their human rights may be undermined. She states that constitutional recognition may be a “gesture that does not go far enough towards recognising our sovereignty. It does not restore the rights that were taken away by the Howard Government’s amendments to the Native Title Act of 1976. It’s a piecemeal gesture”.

Australia was reviewed this year under the United Nations Human Rights Council, leading the UN High Commissioner for Human Rights Navi Pillay, to state, “I would urge a fundamental rethink of the measures being taken under the Northern Territory Emergency Response. There should be a major effort to ensure not just consultation with the communities concerned in any future measures, but also their consent and active participation.”

Indigenous performers opening Parliament. Picture: Ray Strange

As Nicole Watson says, “It is disingenuous to even have this constitutional recognition dialogue while we have the Northern Territory Intervention in place. How can you talk about ‘nation-building’ when you have one part of the nation effectively subject to apartheid?”

Unless a proposed Bill of Rights was entered into the Constitution, it too could be easily overwritten by the Government. Chris Graham, Managing Editor of Tracker Magazine says that positive outcomes could potentially be reached through constitutional reform, saying “If they go far enough, constitutional recognition will afford Aboriginal people some more human rights, however, so would a treaty.”

Australia is the only colonised nation that has never signed a treaty with its Indigenous Peoples, and the only Western nation without a Bill of Rights.

Uncle Don and Jeff McMullen Discuss the acquisition of Aboriginal land and financing the NT Intervention.

For SBS World News Australia’s related story on constitutional change click: here.

Yesterday marked the four-year anniversary of the United Nations Declaration on the Rights of Indigenous peoples. The declaration was adopted on the 13th of September 2007, over 20 years after it was initially drafted in consultation with Indigenous groups and spokespeople across the world.

The non-binding document describes the rights of Indigenous peoples to self-determination, as well as their rights to express their cultures, identities and languages, while it also sets a universal standard for employment, education and health outcomes within Indigenous communities.

Australia, under the Howard Government, along with Canada, New Zealand and the United States originally voted against the Declaration, which was endorsed by 143 other nations. At the time, some conservative Australian political figures and the media voiced their concerns that the Declaration’s definition of self-determination would mean “we are prepared to have a separate Indigenous state”, as Alexander Downer stated in The Age.

A mural celebrating the ideal of equality, in Redfern, South Sydney.

After Kevin Rudd’s 2008 election promise to support the UN Declaration, the Australian Government officially endorsed it on the 3rd of April 2009, in a statement to Parliament by Minister for Families, Housing, Community Service and Indigenous Affairs, Jenny Macklin. Quoting the numerous articles in the Declaration that condemn forced assimilation and the destruction of Indigenous culture, as well as the removal of peoples from their lands, Jenny Macklin stated “Today Australia takes another important step to make sure that the flawed policies of the past will never be re-visited”.

In a joint statement to the United Nations Permanent Forum on Indigenous Issues Relating to the Declaration, held earlier this year, Deputy Secretary of the Department of FaHCSIA Cath Halbert, and Chairperson of the Torres Strait Regional Authority John Toshie Kris, were keen to stress the Australian Government’s continued support of the Declaration, saying “Australia’s Indigenous policies are consistent with the spirit of the Declaration…the Australian Government has worked hard to ensure that our commitment to open and collaborative engagement with Indigenous Australians is upheld.”

But UN Special Rapporteur on Indigenous Issues Professor James Anaya, has reported that Australia’s legal and policy landscape still needs reform, recommending that “Commonwealth and State Governments should review all legislation, policies, and programs that affect Aboriginal and Torres Strait Islanders, in light of the Declaration”. Upon visiting Australia in April of this year, his second trip to Australia in two years, Professor Anaya noted the continued importance of the Declaration on the Rights of Indigenous Peoples, stating the Federal Government “should seek to fold into its initiatives the goal of advancing indigenous self-determination, in particular by encouraging indigenous self-governance at the local level, ensuring indigenous participation in the design, delivery, and monitoring of programs, and promoting culturally-appropriate programs that incorporate or build on indigenous peoples’ own initiatives. Additionally, further efforts are needed to secure indigenous peoples’ rights over lands, resources and heritage sites”.

While the Declaration is non-legally binding, Aboriginal and Torres Straight Islander Social Justice Commissioner Mick Gooda sees the article as illustrative of a moral framework through which Governments should act, saying “It is only when we can see these articles being translated from abstract concepts to practical improvements in our lives that the spirit and intent of the Declaration will be realised”.

An ABC report announcing the UN Declaration on the Rights of Indigenous Peoples, and Australia’s then dissent.

For more information on the United Nations Declaration on the Rights of Indigenous Peoples, click: here, and here.

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