16 January 2012 Pat Dobson and Mark Leibler presented Prime Minister Gillard with a 320 page report from an Expert Panel titled Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution .
It addressed the 'terms of reference' issued on 23 December 2010 for inserting provisions in the Australian Constitution designed especially for indigenous Australians (Aboriginal and Torres Strait Islanders).
Now Pat I see, "Holds an Honorary Doctor of Laws degree from the University of Melbourne and an Honorary Doctor of Letters degree from the University of New South Wales" and Mark, I am informed, "is considered one of Australia’s leading tax lawyers and corporate strategists"
So, I was inclined to hold a view that they would be painstakingly honest, accurate and impartial with the information they provide.
But alas that’s not the case.
Why that is so we will consider later, but for now lets consider first, some examples of the misinformation.
To do this we need go, no further into the Report than the Forward, written cooperatively by Pat and Mark (co-chairs) to understand the intent, direction and philosophical position that the Report would adopt for its following 316, pages.
The co-chairs said in the Forward that:
The consultations the Panel undertook were a reminder of how far Australia has come since the nation’s legal and political foundations were laid down in the late nineteenth century.
Then, in line with the values of the times, Aboriginal and Torres Strait Islander peoples were excluded from the deliberations that led to the adoption of the (initial) Constitution. The text of the Constitution excluded them."
In 1967 Australia held a referendum to remove the term “other than the Australian aboriginals” from the Constitution.
The term appeared in the original document in "Part 5 -Powers of the Parliament, in Paragraph 51 - Clause 26 (xxvi)
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 :-
The people of any race other than the aboriginal race in any state for whom it is deemed necessary
to make special laws
So firstly, this is irrefutable evidence that aboriginals were not " excluded from the deliberations", of the time, I suspect they were very much in consideration at the time, but the consequence of those deliberations was that aboriginal were simply “excluded” from the Commonwealth Parliament's power to make laws in relation to the management of them.
The reason for this exclusion, we are told, is simply because it was "in line with the values of the times" but nowhere in the report did it provide an explanation as to what these values were and why they required the ‘exclusion' of 'aboriginals' from the law-making powers of the Commonwealth government.
From my research it appears that the British Colonies on this continent in 1899 (when the Constitution was being drafted) were all self-governing with their own Constitutions and legislative power and had been using these powers, in some cases for many decades, to manage their own affairs within their own designated territories and this included management of the natives.
It would appear that the prime reason for the ‘exclusion' was a reluctant to transfer this power to the Commonwealth government.
Clearly, some of the concerns that could have existed in Colonies like South Australia could have been that, the privileges of voting and land ownership already provided to their 'aboriginals' could have well been downgraded by a hostile Commonwealth Government.
And what are we to make of this part of the statement:
......... and Torres Strait Islander peoples were excluded from the deliberations that led to the adoption of the Constitution.
Torres Strait Islander people would hardly have been taken into consideration, given that it wasn't until the annexation by the British in 1879 of the Torres Strait islands that most of the Torres Strait Islander became a British citizen within the Colony of Queensland.
Their number in relative terms would have been very small and Torres Strait Islander had only been part of the colonisation process for less than 20 years, (unlike the half million or so aboriginals, who had been involved in the process for 111 years), so it's a pretty obvious reason as to why Torres Strait Islander didn't occupy any serious deliberations about legislative management by the Commonwealth Parliament.
So, why didn't they want to share this background information/reasoning with us - the Australian community?
Well, I can't answer for either of these two individuals but my opinion is that it might have provided a more logical explanation which would have demonstrated that it wasn't a purely racial discrimination matter but more of a political power issue.
If this is correct and I believe it to be the case, the values at the time were simply parochial and not so much racial, that in 2010, people with certain philosophies, would have us believe.
For a full account see The 1967 Referendum—history and myths by Dr John Gardiner-Garden
And what of the statement:
“The text of the Constitution excluded them."
Clearly the original Constitution had the term “aborignal“ embedded within it, and while it is true the Constitution did not have the term ‘Torres Strait Islander’ embedded within it, it is inaccurate and clumsy to make this statement.
This is then followed by the statement
The logical next step is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.
All people, including Aborignal and Torres Strait Islander, born in any of the colonies since each was proclaimed, were, as of 9th July 1900, (when the Commonwealth Constitution was passed by the Imperial Parliament), by law "British Subjects". In 1948 we all got an upgrade to Australian citizens. So, to that extent, as it is with any of us they are covered by the Constitution.
But this is not the real intention.
They simply don't want, just the ‘people’ who are Aboriginal and Torres Strait Islander to be the beneficiaries of the current Constitution, they actually want the terms Aboriginal and Torres Strait Islander cited within the Constitution and ALSO, as we now know, not just cited but also to allocate to them, not just a special mention but also special provisions.
And what about this interesting component of the above statement
.... and by removing the outdated notion of race.
Suppose we remove the word "race" from our vocabulary and dictionary. Then what descriptor are we going to use for a group of people in Australia who, for example, call themselves 'First Nation'
Will we use the term "club" as the descriptor, of which there can be the First Nation Club members?
And how do you get to be a member of the First Nation Club?
Well first off it is desireable but apparently, not essential, to establish ancestory, to be a member of the First Nations Club.
So how many Australians are eligible for membership of the First Nations Club?
And don't you think it's just a tad bit discriminatory to deal with people based solely on their ancestry?
That doesn't sound to me, a lot like a democratic society based on fundamental equality.
Granted "race”, "species" and “sex” are all terms under pressure as academic labels relating to the identification of biological entities and behaviourism, as our understanding and knowledge expands but there still remain a number of scientifically validated characteristics that can be used for the nomenclature, or grouping of biological entities.
The full report can be found here
Warren Bolton Wednesday, 5 July 2023