It is an undisputed historical fact that from 1788 Great Britain dispossessed Indigenous Australians of their lands to establish secure penal colonies for an estimated 162,000 convicts transported up until 1868. Great Britain made no attempt to negotiate an agreement with the existing native inhabitants. To justify usurping their land, they invented the legal term, “Terra nullius” (empty land). No treaty such as the agreement signed with the Maori in New Zealand was deemed necessary because the people appeared so primitive and being nomadic, had no system of documented land ownership.
Great Britain, and subsequently after independence, Australia, appallingly, not only left the original inhabitants of Australia and the Torres Strait Islands without traditional land rights, but also denied them citizenship of the new “multi-racial Australia”. As a nation, we have shown racial intolerance, and we are hypocritical if we criticize China for their alleged human rights abuses of the ancient Uyghur peoples of Central Asia, in northwest China.
After 234 years of settlement, we have still not granted the first occupants constitutional recognition of their prior occupation, and even a collective say in their own affairs. The problem will not go away, and protest at the lingering injustice will only grow more insistent. The time has come when the constitution must be changed as requested by a representative group of Indigenous people in the Uluru Statement from the Heart five years ago.
The Constitutional Hurdle to Constitutional Change
The Constitution adopted at Federation 1st January 1901 allowed for change provided it was supported by a majority of the non-Indigenous population. To ensure this, a detailed procedure was to be followed, and a double majority result achieved at a Saturday-held referendum election. At least four of the six States had to be in favour; plus a Federal majority of votes in all States and Territories.
Before the Writ for a referendum can be issued by the Governor-General, a Bill has to be passed by both Houses of Parliament (or one House twice) describing the proposed changes. In the next month all Parliamentarians are to be divided into two case committees, one in favour of, and the other against the proposal. Their task: to prepare Yes and No cases for presentation to the electorate. Finally, brochures must be printed and distributed to every voter, by the independent, statutory body, the Australian Electoral Commission.
How hard would it have been to get a positive referendum result?
The difficulty of changing the constitution is illustrated by the fact that since Federation 121 years ago, only 8 of 44 proposed changes at 19 referenda have been approved in this way. It has been said that for referendum success there must be bipartisan support, avoiding divisive rhetoric between the Yes and No campaigns. But is the difficulty in negotiating the referendum obstacles the reason for the prolonged stagnation of progress in recognizing Indigenous Rights, or may they not be merely an excuse for stone-walling on the issue, and not really trying?
Coalition spokesman Julian Leeser on the Q&A panel of 19th August 2019 not surprisingly adopted the first proposition to explain why the government had ruled-out any change to the Constitution inherent in implementing the “Uluru Statement from the Heart”. This ruling vetoed Indigenous wishes for constitutional change and placed the onus on them to lower their expectations. They were advised that it was up to them to first find agreement among themselves as to the exact nature of any political voice, and notify the government for their approval.
This ultimatum put a kibosh on any further negotiations. The argument that the referendum process was too difficult to allow Constitutional change was patently spurious since Labor had decided to accept in full the recommendations of the Uluru Statement. A double majority Yes vote would likely have been assured had the Coalition not themselves opposed putting the issue of Constitutional Recognition to a referendum.
There is more evidence that Referendum success could have been achieved, and that the Coalition’s negative stance was a politically motivated excuse for frustrating the wishes of Aboriginal and Torres Strait Islanders for recognition. At the 1967 referendum, two Indigenous issues were approved with a 93% Yes vote, the highest in any Australian referendum.
What next?
It had been Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten who on the 7th December 2015 appointed a 16 member Referendum Council to plan for a referendum which would establish for all time recognition of the pre-existence of Australia’s native races. The failure of this genuine bipartisan policy to succeed after a bitter negative campaign of his own party, with the help of the “Sky News after Dark” media team, must have been most disappointing to Turnbull, especially when he was blamed for its demise, and denigrated for lacking in leadership qualities. It was a step in his losing office for Scott Morrison.
Undoubtedly good people such as Indigenous Affairs Minister Ken Wyatt, and Julian Leeser co-Chair of the Parliamentary Joint Committee on Constitutional Recognition, have continued to do what they can to advance the interests of Indigenous peoples. In addition the respected indigenous public servant Pat Turner has diligently worked to Close the Gap on Indigenous disadvantage.
In the election of 21st May 2022, Anthony Albanese, the Labor Leader, became the 31st Prime Minister of Australia, announcing his intention to implement in full, the three recommendations of the Uluru Statement from the Heart. The shift of the Coalition to divisive ultra-conservative policies, has driven voters away from them. Hopefully Labor will now be able to bring-about constitutional changes and foster respect for our Indigenous, fellow inhabitants of our fair land.
I believe that Peter Dutton could well prove to be the firm, and fair Leader of the Opposition the country needs, playing an important role in improving Indigenous welfare.
This Everyday Australian 