Notes panel members: The Hon Fred Chaney ao, Ms Alison Page Number of attendees: 12 Welcome to Country



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Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians

Meeting with Redfern Organisations, NCIE, Sydney, NSW

3 May 2011



NOTES
Panel members: The Hon Fred Chaney AO, Ms Alison Page
Number of attendees: 12
Welcome to Country: Acknowledgement of Country given
Introductory comments
Panel members opened the meeting by acknowledging the traditional owners and paying their respects to elders past and present.
Mr Morris from the Metropolitan Lands Council was also acknowledged for the assistance he provided with arrangements for the meeting and welcome to all participants.
An overview of the role and membership of the Panel was given including:

  • appointed by the Prime Minister before Christmas 2010 following nominations from the public and from parliament

  • 20 members – eleven of whom are Aboriginal or Torres Strait Islander – comprises community leaders, academics, lawyers and politicians

  • role is to consult on the government’s intention to recognise Aboriginal and Torres Strait Islander Australians in the constitution and the Panel wants to hear the views of the public;

  • a discussion paper prepared by the Panel will be released shortly that looks at different ideas for recognition

  • the Panel has met twice and prioritised consultations

  • the Government has asked the Panel to report by December on two things: the right way to recognise Aboriginal and Torres Strait Islander Australians in the constitution; and to provide advice on what is most likely to succeed at a referendum

  • the Panel is independent of government regarding the recommendations it puts forward

  • this is the first consultation meeting to seek advice on how best to go forward and consult with Aboriginal and Torres Strait Islander peoples

  • the Panel would like to hear peoples views on how best to do this

  • this is the start of a conversation – there will be other opportunities to become involved.

Initial responses from community members included:



  • Would need more notice in future of a proposed meeting

  • Need to advise people across the community of meetings

  • while advised that a formal welcome to country was not needed, it actually is.

Panel members acknowledged the experience of meeting participants and the role of Aboriginal voices in bringing about significant change e.g. 1961 voting rights; 1967 referendum, and land rights and Mabo through the courts. In order to bring about constitutional change the voices of Aboriginal people have to be heard. The Panel’s role is to listen and get the views and hear Aboriginal people’s voices and reflect this in the report to government in December 2011.


Community members indicated that the NT Emergency Response intervention would never have happened if the Australian Constitution has a similar clause to Section 35 of the Canadian Constitution which formally recognises and affirms Aboriginal and treaty rights.
Participants were advised of the different ways to get involved and for their voice to be heard:

  • Face-to-face meetings – recognising that in the time available this was limited

  • By lodging a submission via the website or by post to the Secretariat

  • Through surveys of community attitudes

  • By running your own consultation sessions using the Do It Yourself resources that will be available – the Panel would like people to mobilise to hold their own forums eg youth groups/create a mechanism where peoples voices can be heard and fed back to the Panel


Issues and questions raised in discussion
Points made about the Panel

  • there is limited time available for the consultations

  • the experts on the Panel should be ‘expert’ and know the struggles and rights that Aboriginals fought for, and the detail of the constitution and other matters that impact upon it

  • there should be grass roots representation on the Panel and people who know what it is like to be Aboriginal, to be removed from family and then try to re-establish back in the community

  • the name should be changed from ‘expert’ to ‘advisory’

  • the term Indigenous is offensive and should be replaced with Aboriginal [and Torres Strait Islander]

  • the government should speak to experienced community nominated representatives who know the issues

  • should start each consultation with an overview of previous meetings:

  • participants were advised that discussions in Darwin were positive and supportive but there is consultation fatigue and appeared to be an increase in racism


Legal/rights issues raised

  • do the rights in the preamble to the Australia Act, the Native Title Act and the NSW Constitution make the Commonwealth Constitution obsolete?

  • were the amendments to the Constitution in 1967 to the benefit of Aboriginal people? The assumption was yes but the courts had a different interpretation – the Constitution should not have been silent on this

  • Aboriginal [and Torres Strait Islander] language areas should be recognised – is it possible to have a clause in the body of the constitution that gives power to language groups and people?

  • for various reasons the arrangements with land councils in each state are different - an issue for NSW land councils is that anyone who resides here [even though it may not be their traditional land] can become a member as long as they are accepted, but there are no reciprocal rights to become a member of Land Councils in other states resulting in further dispossession and disenfranchisement

  • the government tends to bring people to the resources rather than resources to the people

  • Aboriginal people need the same statutory rights as state government to say ‘no’

  • will a new start in the Constitution accompany compensation?

  • a fundamental issue is that the Commonwealth shares power with 360 Aboriginal [and Torres Strait Islander] nations – the relationships between Aboriginal [and Torres Strait Islander] nations need to be recognised; then the relationship with the state government and the Commonwealth considered

  • when it suits the Australian government it recognises sovereignty - it was usurped in the NT when all international conventions were contravened and the Racial Discrimination Act suspended

  • the Panel needs to consider why the proposal for an Aboriginal treaty failed

  • will amendments to the Constitution weaken rights in other areas?

  • if a referendum goes forward and is not supported this will have significant negative consequences

  • when looking at constitutional change, care should be taken not to transpose approaches in Canada and the UA as the circumstances of those communities are different – one size does not fit all


Racism

  • the arithmetic of colour should not be used to determine Aboriginality

  • the issue of racism is destroying communities and there is lots of hurt and suffering – governments have promised lots and come up short

  • 1967 may have been the most successful referendum but places like Kempsey and Moree recorded the highest no vote because of racism

  • the focus should be on addressing institutional racism – the system can’t recognise flaws in itself

  • government is not benign – Aboriginal and Torres Strait Islanders need people to act on their behalf

  • the two party system doesn’t address the issues brought to the table

  • white Australia needs to understand that Aboriginal [and Torres Strait Islander] Australians have to right to fight amongst ourselves to work out the issues for ourselves before interacting with them

  • why can’t there be bipartisan support of the Racial Discrimination Act?

  • Aboriginal people have spent 25 years on the Declaration on the Rights of Indigenous Peoples – we need to look to Australia giving it legal effect

  • Australia should also ratify the Genocide Convention

  • Aboriginal [and Torres Strait Islander] Australians as the first peoples of this land are having to deal with the consequences of colonisation


The Process

  • can people recommend that a referendum be delayed if it [time to consult, seek views and hear people’s voices] can’t be done properly ?

  • recognising there are some flaws in the land council structure, a letter should be sent from the Panel to Local Aboriginal Land Councils who can notify their members of the issue and meetings

  • Noel Pearson advocated for a referendum with Aboriginal people first

  • if Aboriginal people had the resources they would have this process up and running

  • Aboriginal [and Torres Strait Islander] Australians should boycott this process until the government ceases the intervention and reinstates the RDA in its entirety

  • the Panel should interact with each of the 360 Aboriginal nations directly

  • is funding available to organisations/communities to run consultations/forums?


Next steps
The Metropolitan Lands Council offered to facilitate a further discussion with meeting participants and will provide a written submission to the Panel.
A copy of the notes from the meeting will be provided to meeting participants.
Responses to the following questions were taken on notice:
Q1. Do the rights in the preamble to the Australia Act, the Native Title Act and the NSW Constitution make the Commonwealth Constitution obsolete?
No, the statements in the Native Title Act and NSW Constitution about Aboriginal and Torres Strait Islander peoples do not have the same status as would a statement in the Australian Constitution itself, which could not be overridden. The Australia Act made clear that the UK could not exercise any legislative power in Australia and reinforces the fact that if we want to amend the Constitution it has to be done in accordance with the requirements in the Constitution itself, which requires a referendum. It did not contain any statement in relation to Aboriginal or Torres Strait Islanders.

 

Q2. Will amendments to the Constitution weaken rights in other areas?


Amendments to the Constitution would be intended to strengthen rather than weaken any existing rights and the Panel will obtain legal advice as to the effect of any proposal.  In particular any proposal to remove or amend the race power will need careful consideration to ensure the constitutional basis for existing laws like the Native Title Act are not adversely affected. 


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