In a developmenteducation.ie and 80:20 Educating and Acting for a Better World exclusive, Colm Regan caught up with Aboriginal leader and campaigner Patrick Dodson during the summer of 2014 on the “unfinished business” of reconciliation and recognition of Aboriginal and Torres Strait Islanders in anticipation of the forthcoming draft constitution in Australia.
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In your recent speech in Valetta you hinted at and raised the question of “unfinished business” between the Australian state and Australia’s first people – the Aboriginal people. Could you tell us a bit more about this “unfinished business”?
Australia was settled by the British and the British assumed no one lived there. And so they developed a legal fiction called Terra Nullius that enabled them to take the land without any conversation or acknowledgement of property under customary law rights of the Aboriginal people. That matter has festered away for over 200 years and therefore the Aboriginal people are not written into or acknowledged in the constitution. And that’s a problem because we’ve been here for over 60,000 years and are not recognised in our own lands.
This idea of Terra Nullius…what does it entail?
Terra Nullius means that the land was unoccupied by anyone…which was a complete lie. The British knew that. In fact they took two Aboriginal people back to England within the first couple of years of settlement. Remembering that this was a penal colony, Terra Nullius meant that it didn’t belong to anyone and therefore there was no need to enter into a treaty or have any other form of ideology applying other than it was peacefully settled – which was a second lie because land was taken violently from Aboriginal people as settlers more encroached upon the lands.
You mentioned the question of the upcoming referendum and reference – or lack of reference – in the constitution to Australia’s Aboriginal people. Can you tell us more about the context of this discussion of the constitutional debate?
In 1901 the British colonies (six of them) banded together to form a “commonwealth of nations” and they obviously had to go back to Westminster to have the English Parliament pass a constitutional act [to achieve this]. In that act the underpinning philosophy was that the Aboriginals were going to die out, that the colony was to retain its white ethnic origins and that there ought to be discrimination against people of colour, particularly people from the subcontinent, for Asians and for people from the Pacific.
So the Aboriginal people were not considered even worth mentioning in the constitution let alone any recognition. As a result we’ve inbuilt into our constitution ‘race’ as an archaic concept primarily to give the federal parliament the capacity to make laws for the control and management of people of any race. And that’s persisted in our constitutional character today without any recognition of any Aboriginal people’s as well.
So you’re a Yawuru man and a leader of one of many many Australian Aboriginal groups – what are Aboriginal groups looking for in this redrafting, rewriting, amendment and completion of the constitution?
Well it’s taken us 200 years to overturn the legal fiction of Terra Nullius in the Mabo case where the High Court finally came to the view that the land had a form of “native title” that was there in its own right and wasn’t imported by the Common Law of England.
What Aboriginal people are looking for is to redress the lack of recognition of Aboriginal peoples and to have a non-discrimination clause built into our constitution that applies not only to Aboriginal peoples but to all citizens of Australia or people who come to Australia so that they should not be discriminated against based on their nationality or ethnicity or their origins.
Why is this a problem in Australia? It sounds like general requirement of a constitution that it has non-discrimination – this is an international principle.
Australians think that the adoption of the Declaration on Non-Discrimination [the Convention on the Elimination of All Forms of Racial Discrimination, 1966] and the domestication of this under the Racial Discrimination Act was sufficient. Unfortunately there’s a political climate in the country to amend the Racial Discrimination Act in order to make it easy for [local] governments to do things to people of a particular race, as the intervention in the Northern Territory proved, and that’s a pretty horrifying thought for most people in the country.
But to have it not entrenched in the constitution as a principle of non-discrimination is now an imperative that this [inclusion in the constitution] takes place. Because otherwise [local] governments roll back the application of the legislation when it suits them.
So in the context of the current constitutional debates you are looking for two things: a general clause about non-discrimination and you’re looking for the specific application of that to Australia’s first people.
Absolutely. But this isn’t just my whim and fancy – this in fact comes from an expert panel that was put together by the previous government and it has made recommendations to remove section 51, which is the ‘race power’ law [entitling the government to make ‘special laws’ for ‘the people of any race it deems necessary’] and section 25 which gives powers to the states to target people of race and preclude them from voting in an election and it has also called for a non-discrimination clause. It’s called for the removal of those two sections, primarily, and replacing them with a new part [in the constitution] that recognises the Aboriginal people with a particular statement in front of a particular clause. The panel of experts was made up of 20 people from across the board – nonindigenous and indigenous people from various political persuasions.
Australians have to move into the 21st century. We cannot live in the era of the 1901 period. Australia is an embarrassment, to all of us, that our constitution retains these racist provisions.
This isn’t just an argument with the Australian government. This is a conversation and a negotiation with all Australians.
The constitution requires a double majority. It requires the majority of the states to vote in favour of the proposition and the majority of the voters to vote in favour of the proposition too. So all Australians have to become aware of what the referendum contains and that the significance of this is to right a historical injustice and recognise the first peoples of the lands from which they now benefit from.
You’re here in Malta. What do you think the implication is of this debate internationally? Does the international context make any sense for the arguments of the campaign?
This debate concerns indigenous peoples and their relationships to nation-states. It arises in Australia in a particular context where we are not recognised in the constitution. There has never been any treaties and there’s never been any real accommodation of the specific interests of the Aboriginal people. It arises now for nation-states because a lot of the doctrines under which nation-states settled other people’s lands have in fact caused injustices to many other indigenous peoples.
A readjustment of how notions of sovereignty and “settlement” are to be determined. [It is crucial to ask] how we can build new futures that involve respect for the indigenous people and how we can build up their strengths as well as the admission of many other cultures into these lands.
What about the role of other people outside of Australia, such as the Australian diaspora abroad and people of goodwill? What would you have them do in relation to this question?
I would ask them to encourage Australia to be courageous, to face up to its historical narrative and to rewrite that narrative in a way that’ll give the country a sense of pride and honour in fixing up a 200 year old problem that we in Australia have failed in being able to do ourselves.
Secondly, I’d be encouraging any Australians living in the diaspora to take note that there is a referendum coming up and to become aware of that referendum, what the proposition is and to support the principle of non-discrimination in our constitution. It’s one thing to recognise the Aboriginal peoples but if the next day you can discriminate against them then that doesn’t seem to have been a very valuable thing to have done.
So you think people outside of Australia are part and parcel of this debate?
Absolutely – this is beyond our shores and can’t simply be resolved within our shores. It requires Australians living abroad and other nation-states to encourage Australia to be a global citizen and fix its own internal problems rather than constantly trying to look over the horizon at what problems exist for democracy in other countries.
You mentioned the question of staying informed and about the parliamentary committee comes to conclusion you would want to achieve. What else are you asking Australians to do? Are there specific actions you are asking them to undertake?
Yes. Firstly, to become aware that the referendum is coming. There’s a RECOGNISE campaign in the country where you can log on and see what the campaign is talking about. Secondly, to encourage the parliamentary committee to be courageous in responding to the expert panel recommendations and to avoid neglecting the need for a non-discrimination clause in our constitution along with the recognition of the Aboriginal Torres Strait Islanders peoples.
So what you are implying here, Patrick, is that the challenge of Aboriginal Australia is not just a debate about the Australian state or government and the Aboriginal people – it’s a much bigger question that in some way defines what Australia is, how Australians see themselves and how Australians want to be seen in the world. Is that a fair summary?
There’s got to be discussion in Australia. Why is this necessary after 200 years? This is something that we can fix. It’s not dependent on government entirely. It’s in the hands of the voters and it’ll be in their hands to decide whether Australia is a country that is capable of reconciliation or whether Australia isn’t capable of dealing domestically with its own issues.
So the priority is to ensure that this agenda is not just left to politicians – it’s actually a broader conversation Australians and they should be seen to be involved in that conversation.
Absolutely. Through their employment, through their trade unions, their churches, their associations, football clubs – in fact some of the football clubs are taking the lead in the RECOGNISE campaign when supporters are becoming aware of their clubs and leagues are standing for – because they are all switched on to the fact that we in Australia have got to have a respectful, honest and just recognition of the Aboriginal and Torres Strait Islander peoples in our constitution.
You’ve campaigned for Aboriginal rights over many decades. At the moment are you optimistic about where we are at? Do you expect a result here, now, in this agenda?
Quite frankly I’m not. I think that the conservatism we bring to constitutional change is relevant because out of the 44 referenda we’ve had only eight that have been successful. So unless there’s really good support across the party lines and social diversity lines then this proposition won’t go forward and it won’t be supported at the plebiscite stage.
So the key thing that’s missing in your view, at the moment, is the building of a threshold of support that would get this over the line.
Absolutely – this job has to come from the media and leaders amongst all people’s in Australia rather than just relying on the politicians to sort this.
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Patrick Dodson is an Aboriginal leader (a Yawuru man) and Chairman of the Lingiari Foundation, Chairman of the Kimberly Institute and former Chairperson of the Council for Aboriginal Reconciliation.
Note: The interview with Patrick Dodson was recorded in Malta when he participated as guest speaker at the annual Mediterranean Academy of Diplomatic Studies and 80:20 Educating and Acting for a Better World Human Rights Summer School in June 2014. With thanks to GozoTV for recording and producing the interview.
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Visit the RECOGNISE campaign | https://www.recognise.org.au
Read the expert panel report recommendations on recognising Aboriginal and Torres Strait Islander peoples in the Constitution | https://www.recognise.org.au/expert-panel-report
Check out our guide: A Focus on Aboriginal Australia | https://www.developmenteducation.ie/issues-and-topics/aboriginal-australia