THE AUSTRALIAN CONSTITUTION:
An aid to justice or an accomplice to oppression.
The APG Papers
Volume 3 - June 1993
CONTENTS
The turn of the century draws nearer, and its coming prompts Australia to rethink its post-2000 political direction.
Aborigines will need to decide whether we want to follow the same path as Australia or look at other alternatives.
All the ideas, proposals and criticisms should be put up. However, there is one important qualification: when it comes to finally deciding what it is in the best interest of Australian Aborigines, it must be for Aborigines, and no-one else, to decide.
It does not matter which proposal is best: the real issue is whether the Aboriginal decision, acceptable or not to governments, will stand.
Joe McGuiness
Chairman
Elders Council
1. Constitutional change - only the right change will do.
Should the current republican debate maintain its momentum, it is almost sure to lead to changes to the Australian Constitution. There is a real danger that the Aboriginal cause could easily be swallowed up in the debate and even more alarming, completely forgotten. The question of Aboriginal rights has always remained on the periphery of Australian political issues.
The current trend in the republican debate reveals that nothing has changed. In the Republic Advisory Committee's Issues Paper (May, 1993), Aboriginal issues do not appear anywhere. One would hardly know that 1993 is the Year of Indigenous People.
Aborigines do have a place in the debate. But on what basis? All proposed reforms have so far been based on the concept of one people-one nation, or, as the Human Rights Commission is calling it, "different colours, one people". These are only slogans for a multi-cultural society. Importantly however, these variations leave unchallenged the concept of a white dominated country. Changes forecast are designed to continue that white dominated nation's existence into the next century.
Aborigines are deemed to be Australians according to the Commonwealth's Citizenship Act. Some might argue that existence of the legislation reflects Aboriginal acceptance of the imposed status. We will show later that that view is baseless. However, if that view were right, the best that Aborigines could expect is that the Constitution reflect multi-culturalism and provide for Aborigines accordingly. The record shows that when competing interests are given priority Aborigines have always fared badly. Why would it now be any different?
On the other hand, Aborigines may assert that, deeming provisions or not, we are not Australians, but Aborigines. It would follow that our rights are those accorded to indigenous people. Hence our rights go well beyond those to which sections of a multi-cultural society are entitled. The right to self-determination in the form of a nation state, or self-government, are only two options which spring to mind.
No Australian legislation, whether Federal or State, would apply to Aborigines exercising their right to independence. Nor would Aborigines be dependent on the Australian government for social security, housing and health requirements, nor the political development of Aboriginal communities.
Aboriginal sovereignty radically opposes the multi-cultural notion. Yet sovereignty too makes its own compromises. Aboriginal sovereignty - or at least the model proposed by the Aboriginal Provisional Government - intends not to destroy the white Australian nation, only to limit its borders.
Acceptance of the Aboriginal sovereignty issue into the constitutional debate would enable Aborigines to become more freely involved in the debate, on the basis that any constitutional changes would represent the first step.
Of course, there is no guarantee that either camp of Aborigines, whether campaigning for multi-culturalism or sovereignty, will enjoy any success, especially given Australia's historical lack of regard for Aborigines. Why then does the Aboriginal Provisional Government maintain that is fare more productive for Aborigines not to take the narrow approach during the debate? Is it, as has been suggested, chest thumping to show the Aboriginal community its ideological purity compared to the black pragmatists? We believe we have more substance than that.
First of all, there are strong moral grounds for ending the domination of black people by white people. Tinkering with a system which by its very nature has reduced Aborigines to beggars in their own land, cannot provide the best solution. Providing remedies for discrimination and over-representation in prisons; better housing, employment and welfare facilities; even providing mechanisms through which Aborigines may claim small lots of land, cannot overcome the despair and dependence which comes from alienation in a white nation.
The only way for a people who have become demoralised and are denied the opportunity to stand with pride and dignity as a people is to completely remove the causes of the problem; and, when that has been agreed, to allow us to develop as we see fit, not as individuals but as a people. It is high time we seriously questioned policies aimed at lessening the pain while prolonging the agony.
The second reasons is to do with education. The many Aboriginal delegations which have lobbied governments for improving their people's circumstances have rarely raised the issue of the political relationship between Aborigines and Australians. They have almost always feared that the mere raising of the issue would jeopardise their chances of even so much as getting an audience with government. Their fear of mentioning the relationship has given the impression that Aborigines consent to the political domination of Aborigines by whites continuing.
Both Aborigines and Australians need to be prompted into reviewing the relationship. That cannot happen if, during the current "high stages" debate, it is not raised. The pragmatists who seem content to tinker have no basis for raising the question.
The third reason is purely practical. Those who believe that, despite all the evidence, we can all be reconciled to live harmoniously under one nation, believe in tooth fairies and fantasy. Australia is a racist country. The reaction from too many Australians to token efforts to provide practical human rights for Aborigines is just one indicator of the futility of the dream. The Reconciliation Council was set up to alter these attitudes but the deeply ingrained attitudes have not been seen to have changed one bit. The reasons for the Council's vain efforts to date is because of the insurmountable problem: attitudes against Aborigines are caused by the entrenched belief that white domination should prevail. The Council's approach is to address the symptoms of that attitude, not the source of it. It is of little note that the public be encouraged to speak better of Aborigines when the system leaves untouched the dispossession, control and domination of Aborigines.
It seems much more sensible to speak openly of the essence of the problem rather than to pretend it does not exist while at the same time we treat its consequences.
Another factor is the lack of substance of argument by opponents of sovereignty. If there are compelling reasons why all peoples of the world except Aborigines have a right to self-determination, we should hear them. Father Frank Brennan, a Jesuit priest, is noted for being perhaps the most vocal opponent of the notion of sovereignty. His views then provide an excellent summary of our opponents' argument. Father Brennan says:
"I believe it is two hundred years too late for this in Australia as there are no longer two separate contracting parties; there is not an Aboriginal nation..."
and believes negotiations with Aborigines on this level would be "unworkable" due to our geographical diversity.
Noel Pearson, a prominent Aboriginal leader from Cape York, is more open to the idea but says it is "unachievable" without saying why. Former Minister for Aboriginal Affairs, Clyde Holding, told us that "sovereignty was not on the agenda" but did not say why. Although pushing the government anti-sovereignty line, the now demoted current Minister for Aboriginal Affairs, Robert Tickner, also gives no reason.
The Aboriginal Provisional Government firmly believes that maintaining our struggle as a people is preferable to acceding to the One-Australia policy. We believe our future must be placed squarely in our own hands without conditions attached. In our view, no-one has the right to control us or our destiny. Accordingly, we proudly acknowledge that our thinking governs our approach to constitutional reform, just as it does to other matters which affect Aboriginal people.
The preliminary discussion on whether self-determination or self-management should form the mainstay of Aboriginal input to the calls for constitutional reform therefore takes on as much importance as does the constitutional debate itself.
2. Self-determination or self-management?
Before 1983, the Liberal/National Party Coalition Government's aim of 'self sufficiency' and 'self management' governed its policies towards Aborigines. Presumably, Aborigines were to take up the free market approach of the Conservative Government and become flourishing communities raising their own revenue. In practice, government support continued for mining, pastoralisation and other forms of exploitation of Aboriginal lands. Consequently the third world conditions continued to apply to Aboriginal people.
When Labor won office in 1993, "self determination" became the underlying theme of government policy. Self-determination has a precise meaning under international law. It is the right to choose one's political status:
"Its options must include the entire range of political arrangements from complete independence as a separate state, to some form of association with an existing state, to participation in a federal system of partly self-governing regions or provinces, to complete political integration or assimilation. The basis requirement is that it must be a matter of choice. International law is not concerned with the choice made, but only with whether it is, indeed, freely made."
The Labour Government's "new" approach to self-determination appeared little more than a cheap joke being played on Aboriginal hopes. The then Minister for Aboriginal Affairs (Mr. Clyde Holding) unilaterally reverted to the self-management approach in his department's background notes:
"In advancing the concept of self-management the Government has sought to open the way to Aboriginals, as individuals or in so-operation with others and in some cases with government support, to make choices as to their lifestyle, to have a say in their community affairs, to provide services for themselves, to conduct business, and, within the law, to make their own decisions."
In other words, Aborigines could continue to run their own missions, so long as their aspirations were appropriately contained.
In the April, 1987 paper entitled 'Achievements in Aboriginal Affairs 1983-84 to 1986-87', the simple incorporation of Aboriginal organisations was relied upon by the Government as "a measure of success of the policy of self-determination."
Richard Chisolm, Senior Lecturer in Law at the University of New South Wales commented:
"While changes in departmental policy represents a notable advance and a significant break with the past, it is still unclear whether they embody a real commitment to Aboriginal self-determinatino as distinct from a policy of multi-culturalism that could equally apply to other racial or ethnic groups. Self-determinatino, which would enable Aboriginal people to control their destiny and adapt their laws, culture and traditions, is essential to their continuatino as a viable and identifiable race. Multiculturalism which acknowledges differences between different communities, is not ebough."
Government indifference to such criticism was evident when new Minister, Mr. Robert Tickner, in November, 1991 gave his Government's response to the Our Future Ourselves report, where he applauded the creation of ATSIC to show his Government's acceptance of "self-management and self-determination"
Earlier, the long awaited report of the Royal Commission into Aboriginal Deaths in Custody was presented to the Australian community. In the National Report Overview and Recommendations, Commissioner Elliott Johnston QC, under the heading "Reducing the number of Aboriginal people in custody - the fundamental question - empowerment and self-determination" stated that -
"...running through all the proposals that are made for the elimination of [Aboriginal] disadvantages is the proposition that Aboriginal people have for two hundred years been dominated to an extraordinary degree by the non-aboriginal society and that the disadvantage is the product of that domination. The thrust of this report is that the elimination of disadvantage requires an end of domination and an empowerment of Aboriginal people, that control of their lives, of their communities must be returned to Aboriginal hands."
The report went on to provide a very workable plan through which such empowerment could take place.
It is very difficult to reconcile the approach of the Royal Commission with the statements made by Labor Party Ministers controlling Aboriginal Affairs, especially where protocol is washed away to reveal the real meaning of the Government's version of self-determinatino. Pam Ditton, in a frank assessment, said:
"Self-management ... is merely a political term used within Australia, without a precise, internationally accepted meaning. Therefore, if it wishes, a government could use 'self-management' as a smokescreen to 'sell' programs to Aboriginal communities that they would otherwise find unacceptable.
Undoubtedly the language used by the Government's Ministers is calculated to cajole Aborigines into accepting less than that to which we are entitled. Their view is based on the principle that, provided Aborigines can be convinced that we are "Auastralians" , it follows that our right and entitlements must accord with those of other Australians. Hence the underlying basis for white outrage that "Aborigines are getting more than us", a view showing little more than the extent of intelligence exhibited by the complainants.
The most serious consequence of broad acceptance of the "Aborigines are Australians" view is that Aboriginal right to land, and control over ourselves must take on a new dimension. No longer could we assert out inherent right as the only legitimate owners as a basis for our demands. Instead we would have to rely on any such rights to be granted by the Government rather than returned. Hence, the Government would be final arbiter on the matter, effectively limiting Aboriginal access to international forums or world standards which will continue to be developed and applied to other indigenous people. That being the case, it would be pretty reasonable to expect that we would get far less than our counterparts in other parts of the world.
The strength of Aboriginal resolve to challenge the preseumption of Aboriginal rights being limited to those of Australians ought not to be underestimated.
In a paper entitled "Aboriginality and Aboriginal Rights in Australia", Dr. John Gardener - Garden noted that:
"In South Australia Aboriginal leaders have recently proposed they should have similar justice powers to many American Indian tribes and a report from the State's Family and Community Services Department has recommended elders have a greater role in the handling of Aboriginal youth offenders. In Western Australia, Sue Gordon, a prominent Aboriginal administrator and magistrate was reported as saying Aboriginal people needed to take control of their own welfare programs if their lives were to improve and is claiming ATSIC was not truly representative or effective."
The Queensland Government's Aboriginal and Islander Review Committee produced a discussion paper entitled "Towards Self-Government" and reported:
"Aboriginal and Torres Strait Islander communities consulted by the Committee had no doubt about the survival of their rights. The Committee was often asked by the Queensland and Commonwealth Parliaments, and the Australian High Court, must be the ultimate adjudicators of Aboriginal and Torres Strait Islanders' rights. The questino is important because it highlights a fundamental issue relevant to Aboriginal and Torres Strait Islander self-government. Whatever the legal situation, Aboriginal and Torres Strait Island people do not regard any powers to govern which they exercise as being 'derivative' or origination from any mainstream government."
Aboriginal delegates from Land Councils around Australia, including the Northern Territory; Aboriginal Legal Services and other community organisations, have been annually attending the United Nations Working Group on Indigenous Populations at Geneva since 1982. The product so far os the Working Groups efforts is the Draft Declaration of Indigenous People. The Draft, to be put before the United Nation's Human Rights Commission on completion, has two competing strains in it - an element of indigenous rights being improved but not at the expense of destabling the existing nations, and on the other hand a clear push for self-determination. For our purposes the most important thing to note is that the protagonists for the self-determination emphasis has come from Australia's Aboriginal delegates. Professor Sanders observed:
"Indigenous representatives are critical: they wanted it [the Draft] to talk explicitly of a right of self-determination. No doubt there will be concerns by state representatives that the draft has gone too far."
At the local level, Torres Strait Island leader, Getano Lui issued a press statement on 6th October, 1992 expressing his people's aspirations for "self-government". In the ATSIC Annual Report for the Torres Strait region, Mr Lui ominously remarked -
"our location between Indonesia and Papua New Guinea and mainland Australia makes us aware of the strategic importance of the Torres Strait. [W]e fear for our marine food resources as we watch foreign shipping using our waters. All of this and the expectations by some, that we should accept these things without having any management input to the decision making process."
All of this shows that there is a developing trend within the Aboriginal movement to explore rights which accord with the status of Aborigines as indigenous people and not as Australians. It is futile for Government Ministers to refuse to take heed of these developments. Instead of continuing the ludicrous and embarrassing campaign of trying to force their view on Aborigines, they should instead be providing the resources to enable Aborigines to fully and more freely consider all options for the future.
3. The changes required
It has been argued that there are compelling reasons why the Australian Constitution ought to be urgently revamped. Mr Ron Castan QC, in an opinion headed "Aborigines, Torres Strait Islanders and the Constitution", stated:
"The Australian Constitution was avowedly racist when adopted. A principal motivation for Federation was the institution of an effective White Australia Policy, to prevent a further influx of Chinese, and of Pacific Islander natives (known as Kanakas).
The Aborigines were not people whose existence mattered, and there was no need for any national policy to be adopted, or for any notice to be taken of the 'remnant' which was still to remain.
Both racist themes manifested themselves in the Constitution. Section 127 provided:
"127 In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, Aboriginal natives shall not be counted."
Section 51 (XXVI) provided as follows:
"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, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws."
Section 25 provided:
... 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."
This was the framework for the two pillars of racism upon which Australia was founded, the White Australia Policy, and the denial of the humanity of the Aboriginal people."
3.1 Section 25 and Aboriginal voting
Ron Castan noted that the 1967 referendum left Section 25 intact. That section provides that if a State chooses to make laws excluding Aboriginals from voting, then they may not vote for the Federal Parliament.
In his view "Section 25 remains as an ugly blot on the Constitutional landscape of Australia." The Constitutional Commission, of which Mr. Castan was an Advirosy Committee member, recommended in 1988 that the provisions of Section 25 should be removed by referendum. The Government has not acted on the suggestion.
Despite the undoubted goodwill motivating both the Constitutional Commission and Ron Castan, perhaps it was fortuitous that Government ineptitude ensured it did not move with haste on the recommendation. As has been mentioned earlier, the basis upon which constitutional reform takes place is critical.
The Constitutional Commission has looked at Section 25. Although the section does appear to be noting orhter than a "racist blot" on Australia's pretentious claim to being a non-racist country, the section was apparently based on Section 2 of the Fourteenth Amendment to the United States Constitution. The Committee noted that the American provision was directed tot he States to "enfranchise the emancipated American Negro's after the Civil War by reducing the federal representation of the States if they failed to do so." Section 25 was said to be designed for the same purpose.
The recommendation of the Advisory Committee to the Constitutional Committee was for the repeal of Section 25. The Constitutional Committee accepted the recommendation, but for different reasons. The Advisory Committee's reasoning was more relevant for our purposes. The Advisory Committee found the section to be "odious and outdated" and considered that it would permit a State Parliament so minded to create "whites only" or "blacks only" electorates. In the Committee's view, Section 25 represents a chilling analogy with the current electoral system in South Africa. It concluded:
It is a leftover from the racial intolerance of the nineteenth centure and is a standing temptation to a State to discriminate on the grounds of race. Although the provision is not being used by any State at the present time, it is unacceptable and dangerous to democracy to retain such a provision in the Australian Constitution."
The Advisory Committee's distaste for an arrangement approximating the South African apartheid system is commendable and supported, but the implication of the logic of the argument is not.
The argument is premised on the notion that a separate "black electorate" is inherently bad. The South African situation is abhorrent not only because of the real consequencesa for blacks since the introduction of the apartheid system, but also because the separation was imposed by whites on blacks. It is the impostiion of the will of whites on blacks that brings about notions of white superiority, the finger of which can be pointed directly at Australia's policies towards Aborigines, both past and present. The Committee failed to take into account that Aborigines may very well wish to be independent and if so, that is our right. The exercise of that right ought not to be tarnished with typical Australian judgemental idiocy such as "separateness" or "apartheid".
Section 25 may then stand as the only Australian Constitutional provision allowing for a form of Aboriginal independence in the event that Aborigines seek it. Suppose a referendum was held among Aborigines only, and that the result showed a majority elected not to participate in the Australian electoral process or the Australian political system. The States are empowered under Section 25 to put an end to the imposed compulsion of Aborigines to participate in a system not of our making and so far, not providing for our needs.
The words of Ron Castan are more than pertinent -
"The Constitution was adopted by popular referendum (of whites) and mayonly be amended by referendum (of all those now entitled to vote)."
"It was the migrants to Australia, and their offspring who adopted the Constitution in 1901. In 1967 the Aboriginal people were not asked whether they also -"
"agreed to unite in one indissoluble Commonwealth".
3.2 Aborigines and optional voting
When considering the issue of compulsory voting the Constitutional Committee relied on the principal that the right to vote in electinos should bring with it the obligation to exercise that right. But surely this argument cannot be sustained where a people have not been asked if they want to vote at all. The whole discussion in the Commission's report on this issue presumed that Aborigines would want to. The Constitutional Committee itself appears not to have been aware of the development of Aboriginal thinking about the future. In the absence of any indication from Aborigines that we do wish to vote, the argument of one of the submissions to the Inquiry is most apt:
".... Our political rights arise out of a man's capacity for reason and choice; those rights are abrogated when they are allied to compulsion".
3.3 Citizenship
Aborigines are legally obliged to participate in the electoral process by virtue of Section 10 of the Commonwealth's Citizenship Act 1948 and Section 101 of the Commonwealth Electoral Act 1918. The provision of the Citizenship Act deems any person born in Australia to be an Australian citizen. When such citizen attains adult age, the provisions of the Electoral Act make it compulsory to enrol to vote and an offence if failure to do so occurs.
The writer was in fact prosecuted for failure to enrol to vote and was fined $25 in the Hobart Court of Petty Sessions on 30 July, 1992. Counsel for the writer, Ms. Heather Sculthorpe (the first Tasmanian Aborigine to be admitted to the Bar) had this to say in her address to the Court before sentence was passed:
"It is clear that the Commonwealth accepts the fact that many if not most Aborigines do not vote. They go to great expense to employ Aboriginal liaison officers and conduct public campaigns in the Aboriginal community to encourage Aborigines to vote. Despite the continuing high numbers of Aborigines who do not vote we have been unable to find any case known to Aboriginal Legal Services throughout the country of prosecutions for failing to vote. In this case however the Commonwealth has chosen to prosecute a high profile Aboriginal in a very public manner and who has hence drawn attention from government authorities. In other countries this would be accepted as political prosecution of vocal resistance leaders who must be subdued.
By failing to enrol to vote Mr. Mansell has adopted a very popular but critically important Aboriginal position. His refusal rather than his failure to enrol to vote raises the jurisprudential question of the value of a law being imposed on a people who strongly object to it. That objection is not based on unreasonable or selfish motives of private gain but is based on the historical and political grounds that the people at whom the amended voting laws were directed quite simply wish to be left alone by white governments at all levels."
Legislating to enforce Aboriginal participation in Australia's political system is a policy decision undoubtedly aimed at containing Aboriginal political development. Developments elsewhere make this painfully clear.
Norfolk Island, which lies about 1700 kilometres to the east of Sydney has about 2000 residents, of which approximately 1500 are permanent. Of those 1500 about half are of Pitcairn Island descent and the balance are a mixture of Australian and New Zealanders.
During the second reading debate on the Norfolk Island (Electoral and Judicial) Amendment Bill 1992 on the 25 June, 1992, the issue of optional enrolment arose for Norfold Islanders. The difficulty was that under the provisions of the Commonwealth Electoral Act 1918, optional voting only applied to three categories: an Antarctic elector; an eligible overseas elector; and an itinerant elector.
The House of Representatives agreed to amend the Electoral Act to make special provision for Norfolk Islanders to allow optional participation in Australian elections. Mr. Ian Sinclair of the National Party, provided compelling arguments for his Party's support for optional enrolment. He prefaced the substance of his view by arguing:
"I think we should start a discussion on an island of this nature by remembering that in Australia we believe that people should have the right to govern themselves. It is therefore, very much a matter for the people of Norfolk Island to determine the extent to which they want to maintain their association with Australia."
The House of Representatives Legal and Constitutional Affairs Committee had recommended optional voting for Norfolk Islanders but had also recommended that to vote in the Norfolk Island Assembly, Norfolk Islanders had to take out Australian citizenship, drawing a remarkable parallel to the Government's position on Aborigines. Mr. Sinclair, along with the rest of the House, rejected that recommendation. He objected to imposing citizenship on Norfolk Islanders because:
"If Norfolk Islanders have decided to retain their association with us, so be it, but I do not believe that we shouldimpose on them any obligation to Australian citizenship"
In making its recommendation to the Parliament, the Committee had been cognisant of the strongly held views of the Norfolk Islanders, " .... most likely a majority, for whom Commonwealth Parliamentary representation is an anathema."
Mr. Bruce Scott for the Liberal Party gave his endorsement because ".... it is sensible and it has certainly taken into consideration the wishes of the people of Norfolk Island in its drafting."
The Government was influenced by the strength of the resolve of the Norfolk Islanders. Mr Kerr (now Minister for Justice) referred to evidence taken by the Committee from the Society of Pitcairn descendants, who expressed the view that ".... we do not want to be part of Australia ... we are not Australians."
This response from the Society is a reminder of the stated reason given by the writer both to the Electoral Commission and the Court for refusal to vote, namely, that "I am not Australian but am Aboriginal and therefore not entitled to vote".
Mr. Kerr summarised his Government's support for Australian law accommodating the Norfolk Islander's view when he said -
"That the particular circumstances of the island are very different from the rest of the country is reflected in the unique compromise which permits a voluntary enrolment, rather than a compulsory enrolment, as is the case for the majority of Australian electors. The reasons for that are provided in the report."
Despite my best efforts in searching for these reasons in the report titled Islands in the Sun: the legal regimes of Australia's external territories and Jarvis Bay territory to which Mr. Kerr referred, I could find nothing to support his contentions.
There appear to be three fundamental reasons which explain the willingness of the Australian Government to consider both self-government and optional enrolment for areas such as Norfolk Island but not for Aborigines.
The first arises from a mixed feeling of political insecurity and conditioning. Australians feel a great sense of achievement for having built their nation. They see any injustices, such as have befallen Aborigines, as not being sufficient to handicap the cause of continuing to build their nation great. As a result, Australians have developed tunnel vision and intolerance toward attitudes which do not subscribe to that of their own on the issue of nationhood. This explains the horror expressed by politicians and media especially to Aboriginal assertions of "not being Austrailan, but Aboriginal". Yet the identical position taken by Norfolk Islanders was actually relied upon by the Australian Government to give them what they wanted.
Australians seem genuinely shocked that Aborigines would not want to be a part of their nation, and dismiss Aboriginal calls for independence as being ridiculously unworkable. So accustomed have Australians become to keeping Aborigines dependent that they cannot conceive that we may be able to survive without them.
The second reason relates to the extent to which the Aboriginal demand of ending Aboriginal dependency on Australia is seen to have widespread Aboriginal support. Because Australians hold to the premise that everyone must want to be a part of Australia, any bald assertions for Aboriginal sovereignty is dismissed as being wishful thinking and unrepresentative of the broader Aboriginal community.
Take the Norfolk Islander issue again to illustrate the point. The Committee took evidence from Norfolk Islanders directly which left an indelible impression on the Committee that the majority of Norfolk Islanders wanted nothing to do with the Australian political system. At the moment there is no acknowledgement by politicians of evidence that Aboriginal desires for sovereignty reflect broad Aboriginal opinion, even though the evidence is readily available and appearing to be on the increase.
The third reason concerns the extent to which a community calling for some form of independence can already display an abililty to operate alone, a factor which appears to have had a huge bearing on Australia's attitude to NBorfold Island on this question. As Mr. Lavarch, the Attorney-General, recognised during debate on the Norfolk Island Electoral Bill, the island had a relatively buoyant economy, a great deal of self-determinatino and self-management, its own tax system and does not rely on the Australian Social Security system. There was a range of basic pieces of legislation run purely from the Island's own government and its own resources.
Aborigines cannot, admittedly, show a similar form of self-government. That is hardly surprising given our circumstances. If the fault for that was not of our making, it follows that its absence cannot be relied upon by Government seeking to stall a process enabling Aborigines to properly re-establish self-control.
3.4 Section 51 (XXXI) and acquisition of Aboriginal lands
Another change required concerns the power of the Commonwealth to arbitrarily acquire land on just terms - Section 51 (XXXI). Under that Section any land, including that of Aborigines, may be acquired on just terms. The issue here is not with the provision for "just terms". To allow for a power of acquisition of Aboriginal land when we have surely lost too much already, is unjustifiable. There has to be a point at which we can all agree that enough is enough! There ought to have been a review of this provision, in so far as it affects Aboriginal land well before now. With the welcome arrival of the Mabo decision consideration of Sectino 51 (XXXI) becomes even more urgent.
Under the Mano principle, it is arguable that up to 10% of the Australian land mass is vested in Aborigines under cover of native title. The High Court decision, taking account of the sovereign powers of the Commonwealth and the States which apply their respective constitutional provisions, can at any time extinguish native title by any lawful exercise of power. Aborigines are not haning out for compensation for future loss of land: we are demanding retention of the lilttle bits we have not already lost. According to the High Court judgement, Section 51 (XXXI) provided back-up support for Aborigines whose native title was extinguished by legislative activity. Deanne and Gaudron, JJ. said -
"There are, however, some important constraints on the legislative power of Commonwealth, State or Territory Parliaments to extinguish or diminish the common law native titles which survive in this country. In so far as the Commonwealth is concerned, there is a requirement of Section 51 (XXXI) of the Constitution that a lwa with respect to the acquisition of property provide "just terms". Our conclusion that rights and the common law native title are true legal rights which are recognised and protected by the law would, we think, have the consequence that any legislative extinguishment of those rights would constitute an expropriation of property, to the benefit of the underlying estate, for the purposes of Section51 (XXXI)". (107ALR1,84)
To rely on that aspect of the judgment is like shutting the gate after the horse has bolted.
The better way to protect Aboriginal interests in land is therefore to prevent the acquisition power being used at all against Aboriginal lands. Already the Constitutional Commission has recommended that the States be bound by Sectino 51(XXXI) as well as the Commonwealth. It would be appropriate to run both reforms together.
Restricting government acquisition of any Aboriginal interests in land in the future at least protects what we have now. Even better, those lands are capable of providing the land base from which Aborigines might seek greater self-control, either through self-government or independence at some future time. Without such constitutional protection now, more land is likely to be lost making it impossible for the options to be realistically considered.
3.5 Power to make a treaty with Aborigines
The Government can currently treaty with any other nation state. Not having yet acquired such status in Australian law or politics (although this is yet to be tested under international law), the problem for Aborigines is finding a Commonwealth power which might bind the Australian Government to any agreement or treaty reached with us.
The Constitutional Commission did not accept the need for the addition of any such specific power. The said -
"there is no doubt that the Commonwealth has sufficient constitutional powers to take appropriate action to assist in the promotion of reconciliation with Aborigines and Torres Strait Island citizens and to recognise their special place in the Commonwealth of Australia".
In other words if there is to be any token agreement which gives a false impressino of a treaty with Aborigines but which in reality is little more than a welfare package, the Commission was pointing out a fact, that is, sufficient powers already exist in the Commonwealth.
By placing emphasis on Aborigines being Ausrtalian citizens and suggesting that we have a "special place in the Commonwealth of Australia", the Commission, by implication, was rejecting token platitudes. For the Commission, Aborigines are either citizens as part of Australia, in which case the Commonwealth could already act on its existing powers, or Aborigines are outside of the Commonealth, in which case, as the Commission noted, the isseus raised by this matter are complex. However, complexities cannot be continually relied upon as a reason for not providing justice for Aboriginal people.
3.6 Aboriginal passports
Although it is true that there are no longer restrictions placed on Aboriginals travelling within Australia, the same cannot be said where Aborigines wish to travel through Australia's international ports.
In Gatwick v Johnson the High Court struck down a wartime regulation forbidding travel by rail or commercial passenger vehicle from one State to another without a permit. The Court ruled that this breached the constitutional right to freedom of interstate trade. Although the High Court later commented that some form of restriction or regulation might be permissible, it virtually acknowledged a guarantee of personal freedom "to pass to and fro among the States without burden, hindrance or restriction". However there is no Australian authority on the rights of permanent residents of Australia, whether deemed to be citizens or not, to pass freely in and out of the country. The Supreme Court of India has held that the right to travel abroad is an implied personal liberty of which a person may not be deprived except according to a procedure established by law.
In Australia, the Migration Act 1958 regulates movement of persons in and out of Australia's international ports. Power to restrict entry for those without a valid means of identification is vested in authorised officers. Under Section 7 of the Passports Act 1938-1973 passports may be issued to Australian citizens, the holders of which may travel freely in and out of Australia. A passport is defined in the Act as -
"... includes a document of identity issued from official sources, whether within or outside Australia, and having the characteristics of a passport." (Section 5(1))
On entering Australia the holder of a passport is reqquired to deliver up the same to an authorised officer on request - Section 9.
Many Aborigines travel on the Aboriginal passport, issued within Australia by the Aboriginal Provisional Government. The passport has all the trappings of a "passport" . On what basis, other than political annoyance, are Aborigines harassed on re-entry?
Australia became a signatory to the International Covenant on Civil and Political Rights in 1991 and are bound to comply with its terms. Article 12.1 and 12.2 of the Convention provide for the freedom of movement of anyone lawfully within a Territory and freedom to leave any country, including his own. These rights are, however, subject to Article 12.3 which allows for lawful restriction on these movements, for security, public order or public health and so on. Presumably officers at Australia's international ports would not be in breach of the Article by merely confirming the identity of Aborigines travelling on an Aboriginal passport.
Article 12.4 of the Convention reads:
"No one shall be arbitratily deprived of the right to enter his own country".
Article 12.4 is not framed to be subject to the qualification of Article 12.3 which appears to put Australia's authorities in breach of the Convention for failing to allow Aborigines the same courtesy on re-entry to the country under an Aboriginal passport as they do Australian citizens travelling under an Australian passport. It is likely that this matter will be tested before the Human Rights Commission.
The Advisory Committee on Individual and Democratic Rights recommended to the Constitutional Commission that a new Section 116(A) be inserted into the Constitution to enable the freedom of movement of "citizens and permanent residents of Australia". If this approach was adopted Aborigines could enjoy the same freedome of movement in and out of Australia as appears to be the case under the authority of Gatwick v Johnson. The Constitutional Committee accepted the concept, noting that freedom of movement had been recognised as long ago as 1215 int he Magna Carter.
However it is not apparent wether the Constitutional Committee meant to distinguish between "citizens" and "residents", for it interchanged the terms during its commentary and sought to impose Australian citizenship on anyone "born in Australia" in other parts of the report.
4. Conclusion
The Australian Constitution is the source from which white governments in Australia draw their powers to act. Alteration of it cannot, by itself, possibly supply the answer to the long-term needs of Aborigines.
Providing greater access for Aborigines to the services available to Australians such as health, housing and education have improved the circumstances of many Aborigines. Providing opportunities for Aborigines in government positions has given an impression of accommodation of Aboriginal needs. Yet the despair and neglect of Aborigines on the ground continues, showing that tinkering with the problem of the needs of individuals is far different from tackling the task of the needs of a people. Collecting your dole from a white instution, being made to feel a burden on the white taxpayer, and being locked in a white jail for breach of a white law by a white policeman for interfering with white people's rights, hardly lends itself to the feeling of being "saved".
While it is acknowledged as a step forward to allow self-management at the community level, it is not enough. Aboriginal people are looking to achieve the same rights as other peoples of the world take for granted.
Constitutional change based on self-management will provide a very different result to constitutional change based on self-determination. For example under self-management immediate repeal of Section 25 of the Constitution is a justified call. Self-management also carries with it the connotation of "equality" of other citizens of the community. Self-determination provides rights beyond individual rights and includes those accorded to a people.
The Constitutional Centenary Conference in 1991 stated as one of its three points on Aboriginal issues that:
"the process of Reconciliation should, among other things, seek to identify what rights the Aboriginal and Torres Strait Islander people have, and should have, as the indigenous people of Australia, and how best to secure those rights, including through constitutional changes." (Our emphasis).
The gradual acceptance of the need to replace notions of individual Aboriginal rights with the preferred rights of a peaople debate, is gaining momentum.
Perhaps it is fitting to finally consider the view of the Royal Commission into Aboriginal Deaths in Custody. The final report stated:
"The first and most crucial is the desire and capacity of Aboriginal people to put to an end their disadvantaged situation and to take control of their own lives. There is no other way. Only the Aboriginal people can, in the final analysis, assure their own future".
Michael Mansell
National Secretary
Aboriginal Provisional Government
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