Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
Constitutional reform involving Indigenous peoples can take three main forms:
1. the amendment of the national Constitution which came into force in 1901 (or creation of a parallel document or process of reconciliation);
2. change in the general structures of Australian political life of which the national Constitution remains the summit, but which can include re-organisation of responsibilities and relations among governments whether by Constitutional amendment, other laws, or other politico-administrative arrangements; and
3. the creation of local `constitutions' providing for the powers and procedures whereby Indigenous communities or regions manage their own affairs to a greater or lesser degree.
These three processes are by no means mutually exclusive. In Canada during the 1980s all three were pursued simultaneously.
In the first case, a major national debate would inevitably occur. Many of the most controversial items in that debate will apply to any movement for constitutional rights -- rights of the disabled, of women, of prisoners, of refugees and migrants, of ethnic minorities, et al. Constitutional change has been difficult to achieve in the past. However, one could well imagine a contemporary `first world' country with a very well informed and aroused public supporting and respecting these rights. The failure of the 1988 Canadian constitutional referendum questions was hardly a good example, the Yes position being too lightly defended during the campaign, left to ever wilder attack and misrepresentation, and opposed by the Opposition in Parliament. 5
Whether or not a national process takes place or succeeds, the second and third types of constitutional reform listed above may bear more fruit. Reforms here will be less dependent on a general spirit of constitutional reform and more on current needs.
For this reason, I would encourage the Federal Government to guard against taking an exclusive view of constitutional reform and focussing on nothing but the document itself. It should also explore those constitutional questions which may not directly or immediately involve the national constitution but which are no less fundamental to the constitutional place of indigenous peoples in Australia. In these I would include the future of Northern Territory Aboriginal peoples and lands, particularly in respect of the NT government's campaign for statehood; the future of the Torres Strait; service delivery issues between Federal, State and Territory and local governments, recognition and management of indigenous marine rights, and provision for comprehensive or multifunctional regional agreements.
In all cases, if Indigenous peoples are to feel included in Australia's 2001 centenary, we must have some structures or processes established to facilitate specific reforms. Torres Strait Islanders have been seeking a commitment to such a process for their region.
In establishing a process whereby Indigenous Australians could participate in the process of constitutional reform, the Commonwealth would do well to look both to the Canadian example where the Federal Government provided specific funds for indigenous organisations to participate in the debate, and to the United Nations Working Group on Indigenous Populations and the `Voluntary Fund for Indigenous Populations'.
The background to the UN Working Group in fact mirrors the very situation we are talking about. At its first meeting in 1982 the Working Group adopted rules of procedure which permitted any interested party, including Indigenous people, to attend its meetings and put submissions. In addition, in recognition of the financial impediments which would prevent many Indigenous groups from attending meetings and the desirability of broad representation, in 1985 the UN General Assembly created a `Voluntary Fund for Indigenous Populations' which Indigenous peoples and organisations can access to send representatives to the meetings of the Working Group.