One of the strange things of the Uluru Statement was the abandonment of race power reform and leaving out the prohibition of racial discrimination clause.
Before the Referendum Council (2017), there was an emphasis on the importance of removing racism in the constitution. This was reflected in the 2012 Expert Panel report and the 2015 Joint Select Committee report. Both recommended removing the race power, creating a head of power for “Aboriginal and Torres Strait Islander peoples”, and creating a prohibition on racial discrimination clause.
The narrative went something like this…
The constitution is racist. Race should play no part in a modern constitution. It's embarrassing that Australia still has the word "race" in it's constitution. etc. etc.
Making the constitution “not racist” was the selling point. And should be an easy sell in a referendum, given Australia’s ‘fair go’, egalitarian self-perception.
But these changes are not part of the latest iteration of constitutional recognition. What happened to them?
Both the 2012 and 2015 committees had a criteria that any reform must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples. Yet at the conclusion of the Yulara dialogue rounds in 2017, the Aboriginal and Torres Strait Islander delegates had dismissed both the non-discrimination clause and race power reform. Did the experts read the wishes of Aboriginal and Torres Strait Islander peoples; for at least half a decade, completely wrong?
The anti racial-discrimination clause (116A(1))
It seems like at the Yulara dialogues have framed a dichotomy. A Voice OR a non-discrimination clause is possible, but not both.
Section 116A as proposed by the Expert Panel was one of two substantive proposals. The other substantive proposal was the Voice to the Parliament.
Referendum Council Final Report, page 13
Delegates to the First Nations Regional Dialogues were conscious that these two substantive proposals were options, each being an alternative to the other. The protection against adverse discrimination provided by section 116A was viewed as a shield dependent upon interpretation by the High Court of Australia, whereas a Voice to the Parliament was viewed as a sword, enabling First Peoples to advocate directly to the Parliament.
“each being an alternative to the other….”
Why not both? It is 100% vanilla to have constitutions that contain both representative advocacy and rights enshrined AT THE SAME TIME. I would guess the majority if not all democratic republic constitutions in the world contain these two elements. Swords and shields are meant to be used together. Why should we fight with only one hand, like Jamie Lannister?
It is not really explained why not both, just that the delegates were conscious that they are alternatives to one another.
Many have used the word “sophisticated” to describe the Yulara deliberations. I don’t believe delegates know why the Voice and the Racial discrimination clause is an either-or choice. Perhaps by “sophisticated” they mean full of “sophistry”.
The report goes on; back-tracking on the anti racial-discrimination clause;
Delegates were well aware, following considerable discussion at the Dialogues, that section 116A was subject to interpretation by the High Court and prohibitive in relation to costs of litigation both in terms of finance and time.
Referendum Council Final Report, page 13
This is an admission that even after reform, First peoples will still be too poor to access the so-called justice system to fight against government discrimination. I don’t see any solutions offered as to how to address this problem of the inaccessibility of the justice system. It is brushed aside as too hard.
This is also an admission that governments do not care enough about the constitution to stop and think twice about what it says before acting. Clauses like this should not have to go to the High Court to have an effect; they should act as an immediate and general deterrent. Which makes you wonder – if putting such a clause in the constitution should be so ineffective, why bother with constitutional reform at all?
The Race power (51(xxvi)/ 51A)
As for reforming the race power, the dialogues decided to keep the race power “as is”.
There was no significant appetite for removing the word ‘race’. Dialogues understood that although the concept of ‘race’ was a social construction, removing the word ‘race’ and inserting ‘Aboriginal and Torres Strait Islander Peoples’ does not alter the adverse discriminatory potential of the race power. Therefore, removing the word ‘race’ was not regarded as an improvement on the status quo of the people affected.
Referendum Council Final Report, page 13
This ignores a fundamental problem with the race power – the equivalent of a “type-mismatch error” that computer programmers will recognise. It is logically incorrect to apply a “race power” to a polity. Race and polity are apples and oranges. To state the bleeding obvious – We are NOT A RACE. This alone is reason to reform the power. The Constitution and it’s interpretation should be clear, concise and unambiguous.
It also seems that the delegates and facilitators have only thought of themselves, and not considered the possibility that reforming the race power would prevent the government from discriminating against other races. A racist government could have a field day with the races power against any race, not just the aboriginal race in any State (sic). Given our culture, I find it hard to believe that we would not support protecting others against racial discrimination, even if we were still at the mercy of it ourselves.
Why keep all that racist stuff in the Constitution?
Why are the Voice and the non-discrimination clause considered alternatives; why can’t we have both? And why is the races power being left as-is; despite being fundamentally flawed?
If you know what the colony is trying to achieve in accordance with decolonisation General Assembly resolutions 1514 and 1541, it sheds light on the issue. Going from removal of racism, to the Voice was a switch from “integration” to “association” decolonisation pathways.
The non-discrimination clause prepares for Integration
General Assembly Resoultion 1541 outlines the conditions for the “Integration” decolonisation pathway.
Principle VIII
Integration with an independent State should be on the basis of complete equality between the peoples of the erstwhile Non-Self-Governing Territory and those of the independent country with which it is integrated. The peoples of both territories should have equal status and rights of citizenship and equal guarantees of fundamental rights and freedoms without any distinction or discrimination; both should have equal rights and opportunities for representation and effective participation at all levels in the executive, legislative and judicial organs of government.
A/RES/1541(XV)
If you evaluate the Australian constitution and recent events, then Australia fails this.
Firstly – the “races power” is used to discriminate to the detriment of Aboriginal and Torres Strait Islander peoples. That’s textbook State discrimination against the peoples who are under colonial occupation.
Fail.
The Northern Territory Emergency Intervention required the suspension of the Racial Discrimination Act. This shows that racial discrimination is not just constitutional in a theoretical sense, but that deliberate and premeditated racial discrimination occurs.
Another fail.
Aboriginal and Torres Strait Islander peoples are not even in the constitution. The Australian constitutions represent the British Subjects of the colonies, plus those who have immigrated under that body of law, plus the descendants of all those peoples. They later constructed a conceptual Australian citizenship and rolled with jus soli (soil birthrights) for a few generations to fabricate a connection with the land. But the entire constitution is still predicated internationally on the Crown claim of Terra Nullius. There is no Treaty. There can be no proof of equal rights of citizenship when it is not clear how Aboriginal and Torres Strait Islander peoples became Australian citizens.
Fail again.
What fixes these failures is recognition with consent, reforming the races power and adding a non-discrimination clause. These reforms would clear the path and enable Integration under the General Assembly Resolution 1541 criteria. But the colonised peoples weren’t having any of it. No Consent. Time for plan B.
The Voice is a request for Association
The Uluru Statement is a request for asymmetric federalism. Federalism is a form of free association. (see Associated State) Let’s look at the requirements for free association. Note that there is no mention of discrimination;
Principle VII
(a) Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes.
A/RES/1541(XV)
(b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon.
First and main point – unlike the rules for integration, there is nothing here about discrimination.
Note the similarities with this Principle VII and what played out in the Referendum Council process. Mark Leibler and the legal team would have had this resolution printed out and at the forefront of their minds in the backrooms of the First Nations National Constitutional Convention. Consent for association was the ultimate goal. These similarities to Principle VII and the Dialogues (going by the “official narrative”) in point form:
- The dialogues included an educational component followed by a “consensus decision-making” process. Informed and democratic processes
- They wrote a First Nations internal constitution without outside interference (no media or non-indigenous people allowed at the Constitutional Convention).
- They had a wide representation geographically, representing the cultural characteristics of the territory. While that doesn’t make the cut under Aboriginal law, it looks plausible to the outside world and ticks the box.
- They made an offer to the Australian people to associate by way of federalism. A free and voluntary choice – as the delegates made the offer, it was not imposed on them by the government.
- Under association, the Voice retains the freedom to modify the status of the territory. They also retain “Spiritual Sovereignty”, some kind of undefined, nebulous sovereignty. The freedom to modify the status of the territory is to be exercised immediately on federation of the Voice. The delegates endorsed the Declaration of Recognition, or “recognition outside of the constitution”. This endorsement consents to modify the status of the territory to a newly independent democratic federation of which the Voice is a member.
The absence of discrimination is not a requirement under the General Assembly Resolution 1541 criteria for association. This is the real reason why these proposed anti-racism changes were dumped – the colony doesn’t need them anymore. They don’t want any unnecessary limitation on their power.
The ‘sword and shield’ reasoning is smoke and mirrors to avoid the now redundant racial discrimination clause being included. I seriously doubt the delegates were conscious of this.
Reason for optimism
The amazing thing about this, is that Australia seems to be putting an obscene effort towards attempting decolonisation under the UN decolonisation resolutions. And they are doing it with great amount of deception – which shows they don’t want people catching on what’s happening.
This is strong evidence that the options under 1514 are still on the table waiting for the colonised peoples to exercise them. Just because we are outnumbered by settlers 33 to 1, doesn’t foreclose on our right to self-determination under resolution 1514.
To exercise this right together as sovereign peoples, we can emulate the dialogues, but do it proppa. The Yulara dialogues have shown that it must be legally possible under 1514, we simply need to keep the UN resolutions in mind. Have meetings from the ground up with the strength of lore. There needs to be choices made whether to go for Independence, Association or Integration. Every Nation might not necessarily go down the same path. This is rightfully the choice of the sovereign peoples, and all options should be understood, be on the table and discussed.
The options might be hard to visualise because no settler-colonial state has gone down this path before. The options will look very different when exercised under a settler-colonial state vs. under a franchise colonial state. We will be breaking new ground and there will be much to learn and many decisions to be made.
Building strong community decision-making mechanisms is vital. This is where our lore and our connectivity as peoples come in to play. These are our strengths. This is something which everyone can play a part in strengthening. There is always something you can do to help your community, even if it’s just checking in for a yarn.
We are all linked by Songlines, these are a form of international law as they are shared law between nations. Songlines prove we are capable of entering into international agreements, and that we have done so for millenia. The Songlines can be connected – or recognised – by the outside world. This equates to diplomatic recognition in the international sense. It doesn’t mean we have to become members of the UN, that is a choice that can be made later.
Just like Israel will never recognise Palestine, Australia will never recognise our sovereignty as being separate to theirs. But like recognition of Palestine, some countries will see us. We are colonised peoples who have never agreed to ceding, integrating or sharing our sovereignty. The international community has a jus cogens duty under customary international law to recognise us and allow us and assist us to exercise our free choice of self-determination. We just need to leverage our lore to reach out and speak to the world loudly enough so they hear us from under the weight of colonial oppression.