The Australian: Let’s bring our Constitution in line with current practice

if hirst is implying that we need a new constitution, then i agree with him. the rest of his polemic i most certainly do not agree with him.

the current constitution is nothing more than a colonial genuflection to the invaders rule of law which allows for the blatant theft of our lands. hirst’s changes only allow that theft to be better recognised and only enforces that land rights, as envisaged in the nt land rights act, would become very much a dead letter concept.

the puerile argument that we must be ‘recognised’ only in the preamble is an insult to the traditional owners of the aboriginal nations. i see no value in this concept and, i understand, it is already included in the state and territory constitutions. accepting that, we then must clearly accept and recognise that such a concept as ‘recognition’ has not improved the life of any aboriginal person. nil! nothing! zilch! such a concept is only being used to cover a multitude of sins that are perpetrated daily against us. we and 60 000+ years of history know that we have existed on our lands for that time and longer. it is further accepted and recognised that we are the world’s oldest living culture. the addition or lack of some ‘secret english’ words adds not one day to our life expectancy, our rights to our self-determination, or one footprint of our ancient lands.

any discussion on this concept is nothing more than an attempt to second-best our human rights and is therefore just a waste of time. what is clearly required is, firstly, an australian constitution that recognises our rights and obligations under the un declarations and especially the un declaration of the rights of the worlds indigenous peoples. i much prefer the identifier of ‘aboriginal peoples’ as the term ‘indigenous’ is merely an exercise of making one amorphous mass. this cultural attack was introduced by john howard in an attempt to overcome our own identifier and replace it with a term that racist pundits such as bolt, ackerman, devine, among others, opine that that term allows all australians to be included. just another example of assimilation by stealth.

we are proud aborigines of many nations. we are not one tribe but many. we must have our right to identify as aborigine or as from our nation. i myself strongly identify as an aborigine and also of being a wiradguri man.

secondly, i strongly argue, is that our new constitution must fully recognise the rights of all asylum seekers to this country as per the un declaration on refugee rights. by all means it is accepted that any asylum seeker to our lands must go through a thorough vetting of their status as genuine refugees. those who do not meet the strict criteria laid out in the un declaration must be returned with all his/her rights intact. we most certainly now live in a troubled world of isms fighting for dominance to the exclusion of others. some of these events have been caused by western, but mainly american, interference into their internal affairs oroutright invasions of their nations. whether political, religious, sexual or social causes are used against a class or minority peoples then they must be accepted as true refugees to this country and be added and welcomed into our wonderful multicultural australia. they must not be treated, as they are now, as a form of racial or religious pariahs and thus be stripped of all their human rights. since the hawke government there has been a race to the depths of social depravity from our politicians. this must change! the asylum seekers coming here must not be stripped of their human rights for reasons based on a xenophobia that is firmly set within the racist concept of a white or british australia.

this acceptance must be in our new australian constitution and the evil and criminal practices against those seeking asylum must cease. asylum seekers are not ‘boat people’, they have broken no law, their full human rights as asylum seekers/refugees must become constitutional law so that we can once again all proudly accept our correct moral standing in the world. morrisson, et al do not speak for me. i say refugees are welcome here!

we all have this terrific opportunity to dismantle the colonial constitution and replace it with an australian constitution that would truly reflect the full rights of all who now live here and thus become the envy of the world. we could, as a multicultural peoples, be proud of our country once more. we do not need or want the insult of merely tinkering at the edges. let us have an australian constitution that gives equal rights to all with the most important codicil that the innate rights of aboriginal peoples to our lands, languages, culture, law and lore is clearly stated and accepted. to our full self-determination and not assimilation.


ray jackson


indigenous social justice association

prix des droits de l’homme de la republique fraincaise 2013 (french human rights medal 2013)

1303/200 pitt street, waterloo. 2017

61 2 9318 0947

0450 651 063

we live and work on the stolen lands of the gadigal people

Sent: 4/09/2014 8:16:39 AM

Subject: The Australian: Let’s bring our Constitution in line with current practice Let’s bring our Constitution in line with current practice John Hirst

The Australian

September 04, 2014 12:00AM

Illustration: Sturt Krygsman. Source: Supplied

THE proposal to recognise Aborigines in the Constitution does not require more public education as John Anderson, head of the review into public support for recognition, recommends; it needs to be a better proposal. The obvious place for recognition is in the preamble. The case against including any new matter there is that it may be used by the High Court in unpredictable ways and produce unpalatable results. The usual solution to this problem is to follow any new words in the preamble with the statement that they are not to have any force at law. It rather spoils the symbolic effect. Any constitutional recognition of Aborigines that the Australian people may agree to in the preamble or elsewhere will be trifling compared to the recognition -already accorded to them in the fundamental law of the land. The High Court in Mabo declared that they were the original owners of the land and in some circumstances retained rights to it. That was the revolution in their status in a settler nation that had simply seized their country from them. The best way to recognise Aborigines in the Constitution is for the preamble to incorporate the judgments of the High Court in Maboand Wik. That would capture a symbolic moment in our history, accept its consequences but limit their effect according to the principles the High Court has laid down. The proponents of Aboriginal recognition also want to remove “race” from the Constitution. At present the Constitution allows the commonwealth to make laws for “the people of any race for whom it deemed necessary to make special laws”. It also envis-ages that a state may exclude -people from voting on the basis of race. No one would object to the removal of these two provisions. The difficulty in doing so is that the commonwealth’s power to legislate for Aborigines derives from the first of these. The best way to overcome this difficulty is to add “Aboriginal affairs” to the list of the commonwealth’s powers in section 51. From the attention being given to the Constitution by Aboriginal leaders one would think this is a document full of noble sentiments and entitlements from which Aborigines are excluded. Alas, the Constitution is a very prosaic document. Certainly Australians do not look to it to define who they are. Most Australians do not know they possess a written constitution. The details of the American constitution are better known: the right to bear arms; the right to keep silent (“I take the fifth”). We care so little about the Constitution that it still provides that the Queen may disallow laws passed by the commonwealth. This is now a dead letter following the passage of the Statute of Westminster (1931) and the Australia Acts (1986). But it remains to puzzle any reader of the Constitution who is not an expert in our constitutional history. We are planning to remove references to “race” in the Constitution, but we are happy to go on being overruled in all things by the Queen! Surely it would be much better for our self-respect to have a constitution that made clear we are a fully self-governing nation, albeit still under the crown of Britain (whose power is limited to the appointment and removal of the governor-general on the advice of the prime minister). This suggests that the plan to recognise Aborigines in the Constitution should be made part of a wider project – to bring the Constitution in line with our current practice. Aborigines have a secure place in the polity because of Mabo. And the Queen can’t veto our laws. Let the Constitution say so. Various other superseded provisions should also be removed. The project needs a name. Officially: legislative independence and recognition of Aboriginal people. Informally: updating the Constitution or the New Australia Amendment. The Constitution would open with these words (the first paragraph modifying the words of the present preamble): Whereas the people of New South Wales (and the other states) humbly relying on the blessing of Almighty God, agreed to unite in one indissoluble federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution established on 1 January 1901 And whereas the Commonwealth of Australia evolved into an independent nation under the Crown And whereas the people of the Commonwealth acknowledge that all its lands were owned by the Aboriginal and Torres Strait Islander peoples who retain rights to them as set out by the High Court in its judgments in Mabo and Wik We the people adopt our Constitution as follows: This proposal would recognise the changed status of all the Australian people. It would have a much better chance of passing the parliament and being accepted by the people at referendum than any of the current proposals. John Hirst’s most recent book is Australian History in 7 Questions.


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