creating the australia we want

An Act of the British Parliament.

It’s easy to forget, but when we are talking about the Australian Constitution we are talking about a document that only came into effect once it was passed as an Act of Parliament by the British.

It makes sense when you think about it. While it was helpful that Australians got to vote on the wording of their own constitution, this was all about six self-governing British colonies deciding to federate. The British had to be the ones, ultimately, to make it happen.

And of course, not all Australians voted, or were even allowed to. It was voluntary, for a start, but among the Australians who were denied a vote were:

• Women, unless they lived in South Australia or Western Australia

• Indigenous Australians, Asians, Africans and Pacific Islanders in Queensland or Western Australia, unless they owned property

• Many poor people who received government assistance

The First Nations, the people who were on this continent when the boats first arrived, had no specific role to play at all. As a group, they didn’t count. The Constitution was fundamentally a matter between the British and their colonial subjects. The term ‘terra nullius’ may not have been in common usage, but the idea was: the place was ours to sort out as we wished. I don’t know about you, but that doesn’t strike me as an inspirational statement of national identity to be particularly proud of.

Fast forward 125 years or so – the merest blink of an eye in the context of world history – and none of us are particularly in the mood to start all over again. We are not a nation born of revolution, a fight for freedom or a defining moment of high principle. What we have for our national birth certificate is basically a piece of admin. It’s hard not to have some sympathy for the ‘progressive no vote’ in this coming referendum, the supporters of black sovereignty who want so much more. But that’s not where we are. Where we are is approaching a moment where we can start to make some small but important improvements to our nation’s rules, changes that better reflect our modern understanding of who we are. For those of us who might like more radical changes – a treaty, for example, or perhaps a republic, rather than persisting with a constitutional monarchy that relies on the head of another country on the other side of the world for our legitimacy – these are fights for another day. Right now, we are being asked to consider two small but important constitutional matters that improve what we are currently working with.

The first is to acknowledge what should have been acknowledged in 1900 – that Aboriginal and Torres Strait Islander peoples are the First Peoples of Australia.

The second is to consider what, if anything, we should do about that.

The first proposition could not be any less contentious. Remember – even the ‘no’ case for this referendum supports constitutional recognition of First Nations people. Peter Dutton is promising his own referendum to achieve it. It is righting a historic wrong. It is eliminating an obvious blind spot. So let’s not hear any more arguments about how recognising Indigenous Australians in our Constitution is somehow racist or creating inequalities. It is simple recognition of a fact.

The second part is the controversial part: what do we do about that fact?

The ‘no’ camp says that, in terms of our constitution, we should do nothing at all about it. Nothing fundamental flows from that long-overdue recognition. By all means give them a ‘voice’ if you want to, but legislate for one. That way if we don’t like what it does or how it is organised we can legislate it away again. We can change our mind whenever we like, because any voice would be a gift bestowed on Indigenous Australians, not something which they have by right.

I can’t make any sense of that view at all. I have read the ‘no’ pamphlet, I have listened to ‘no’ voters at public meetings and in private conversations. I have heard people say that Indigenous Australians already get so much, that they should be treated as equals rather than as a special group, and that our beloved constitution should ensure that every Australian is equal. Don’t divide us, they say.

And so I go back to our ‘sacred’ constitution, the document that was drawn up to create our new nation. What do I see?

I see all of the special privileges and protections that were put in place to ensure that the rights of the various groups coming together in this new nation were properly protected.

All Australians are equal, but each colony retained control over significant parts of its own decision-making. And where certain things were ceded to the new Commonwealth, they retained their own set of representatives in the upper house of the new Parliament, specifically to protect their state interests.

All Australians are equal, but the British Crown retained its sovereignty, and a set of reserve powers to protect its interests.

In short, the parties that came together to build our nation made sure their identities and interests were protected in the Federation, even as they celebrated this new identity. Victorians were proud Victorians and Western Australians were proud Western Australians. They became proud Australians too, and somehow this recognition and understanding of the need to be both, and to consider the rights of both, served to unite us rather than divide us.

Now we understand that someone was left out of that process. The First Nations of Australia had no such recognition, no such protection of their interests, and no voice in the process at all.

Are we seriously saying that, having finally decided to right that wrong, nothing at all flows from that? We should just admit they exist, but continue to deny that anything more than that is required?

In considering this issue, the Indigenous people of Australia have carefully and patiently considered the matter over many years and many discussions. While they don’t all agree (how could they?) the suggestion that emerged for our consideration is the most modest one imaginable.

They have asked simply that they be given the constitutional right, as a key group ignored at the time of Federation, to express a view on matters that affect them. A view that the Parliament can heed or ignore. A view that the Government can heed or ignore. 

Will they be listened to? Perhaps. Will they use that voice to ask for more? Perhaps. Do we know everything that might happen once First Nations People have the constitutional right to speak as a group? No. Will it help to solve the many problems, the many disadvantages and the many injustices still faced by Indigenous Australians? Who knows?

What I know is one thing. There is a world of difference between offering Indigenous Australians a collective voice as a favour, and recognising that they have one as a right. Shared responsibility for our future comes from shared rights and shared power, even a power as small and modest as the power to speak, or the power to be heard.

There is no hidden agenda, no missing details, no secret plan. It is the opening of a door to a shared future. It is a place to start. The right place to start.