Pod Rights Transcript
Episode 1: Constitutional recognition of Indigenous peoples
- Audio - 6 February 2012: Mick Gooda (MP3, 19 minutes 30 seconds)
Graeme Innes: Hello and welcome to the first Pod Rights for 2012. This is a series of podcasts from the Australian Human Rights Commission. I am Graeme Innes, the disability discrimination commissioner.
Last year the Government established a special expert panel to consider changing our constitution to recognise the first Australians. In January this year the panel - after lengthy consultations with lots of people - brought down its findings.
To discuss those findings with me on Pod Rights this week is my colleague, Aboriginal and Torres Strait Islander social justice commissioner, Mick Gooda. Mick is a descendant of the Gangulu people of Central Queensland, with 25 years' experience as a senior executive. Before starting at the Commission Mick was the CEO of the Co-Operative Research Centre of Aboriginal Health. You've been a commissioner now for a few years, Mick.
Welcome to Pod Rights. Thanks for kicking us off for 2012.
Mick Gooda: Lovely to be here, Graeme.
Graeme Innes: Could you give us the background to the panel; how it was constituted and how it carried out its work; because I know you've been involved - it took up a lot of your time - and many others' time, I guess - during 2011?
Mick Gooda: Well Graeme, both parties at our last election - the major parties - agreed that there would be a referendum to recognise Aboriginal and Torres Strait Islander people in the constitution. So in the event - with the hung Parliament we had - the Greens entered into the agreement to support Government. One of the conditions was they'd hold this referendum in the life of this Parliament. The Government, in its election platform, said that they would appoint an expert panel to advise it on the form that recognition would take.
So it was a panel of 20 people that were picked from all spectrums of society - Aboriginal and Torres Strait Islander people, people from remote areas, people from cities, engineers, former parliamentarians. There were, indeed, four current parliamentarians on it, representing the Greens, Labor, the Coalition and the independents. So it was a wide selection of people that were put together to provide this advice to Government.
Graeme Innes: There was very broad consultation, wasn't there, before the panel came out with its findings? How was this important to the ongoing progress of the issue, do you think?
Mick Gooda: Our job was to report back to Government on what the feeling or the view of Australians was about the form of recognition. It meant that we did have to consult widely. We had over 200 meetings in about 90 sites across Australia. Like you said in the introduction, we were all extremely busy last year carrying out these consultations.
We would generally meet with the indigenous leadership in a particular place and then have a more general meeting. So one place we could have - Adelaide, for instance, we had about three meetings there. We received over 3500 submissions, which is a really, really big sample, given the sort of issue we were talking about.
It was an extensive consultation process. We realised that we couldn't get to everyone, but we made a fair attempt to getting to as many people as we could.
Graeme Innes: Do you think, as well as being really important in the sense of consultation, that those meetings have given the issue a bit more momentum in the broader community?
Mick Gooda: Oh, absolutely. We raised the issue - the issues we raised around the constitution, more generally - apart from recognition of Aboriginal and Torres Strait Islander people - a lot of people were dumbfounded when we told them that, for instance, the constitution, as it stands, anticipates or enables laws to be made on the base of race.
Graeme Innes: Yes, pretty amazing really. The panel has recognised in its report - and we'll come to the substance of the report in a minute. It's recognised in its report that achieving a successful referendum outcome should be the primary consideration of the Government and the Parliament. Why did the panel come to that conclusion? What's the importance of that conclusion?
Mick Gooda: Oh look, the history of referenda in this country is pretty bleak. We've only had eight out of 44 get up. One of the main reasons why they don't get up is because of the lack of bipartisan support across the major political parties.
It is one of the most absolute vital components that we need in this referendum, or, indeed, any referendum; even to the point where the panel makes the point about if we can't achieve bipartisan support we shouldn't even go ahead with the referendum. So that's why we think it's important.
Just to follow on from that, there are a couple of other important parts of that besides the bipartisanship. One is community education. People have got to actually know what they're voting for. There's almost a sense of community ownership. It can't be something that's seen to be forced upon the community by the politicians. While Government has been criticised in some quarters for not saying much about that, I think, in the longer run, it has to be run by the community. The Australian people have to own this change that's being proposed.
Graeme Innes: Let's get to the substance of the changes. The first change - and I should say that the panel has recommended that these all be in the one bill and that there be one referendum question for ease of, I suppose, process, and so that people don't get confused with a whole lot of questions. That seems to me a very sensible approach.
The panel has recommended that section 25 of the constitution be repealed. Why did it recommend that, Mick?
Mick Gooda: Section 25 basically says that if a State Government has disqualified people from voting on the basis of race that those people will not be counted for the number of seats each state has that go in the House of Reps. It was basically developed as a means of states enfranchising as many people as possible because they have more representation in Canberra.
However, Howard's worked in practice - and this is why we talk a bit about unintended consequences of the constitution - is that it's actually being used to disqualify people from voting on the basis of race. The last time we can find that happening, Graeme, is in North Queensland, in about 1965. During an election the people up that way came to the view that if all Aboriginal people voted for one person we could probably elect an Aboriginal person. So the State Government fixed that problem by disqualifying Aboriginal people from voting in that particular election.
Graeme Innes: Is that right?
Mick Gooda: Yes. So it's been used against us. Indeed, as it stands now, it could be used against any race in Australia. The State Government could prevent a state from doing that.
Graeme Innes: So it's important, obviously, to remove that opportunity from the constitution.
Mick Gooda: Graeme, that's probably the part of our recommendations that has the highest amount of support across - they see it as an outdated provision that has no place in Australia in the 21st century.
Graeme Innes: The panel also recommended that section 51(xxvi) be repealed. What does this section deal with?
Mick Gooda: It deals with the ability of the Commonwealth to make laws for particular races. It's silent on whether the laws have to be beneficial or detrimental. Then, in 1998, around the Hindmarsh Island Bridge case the High Court actually said it is silent and therefore it's possible for laws to be made that can be to the detriment of particular races.
So, again, when you look at the history of this particular section, Barton, who was our first Prime Minister - and went on to become a foundation member of the High Court - basically said that the purpose of this section was to control the lesser or darker races in Australia. So it really had racist connotations right from the start.
If you take those two sections together - if I can talk about that for a moment...
Graeme Innes: Sure.
Mick Gooda: Aboriginal people have said we want to be recognised, but we want it to be substantial. The substantial part is let's look at the part of the constitution that's being used against us. These are the two sections, Graeme: section 25 and section 51, subsection xxvi.
When people say we've overreached our terms of reference here, we don't believe we have because this is what we've been told by the majority of Aboriginal people. When we raise the issue of the racist powers in the constitution the great majority of non-Aboriginal people also want that fixed.
Graeme Innes: The important consideration here too, isn't it - or another important consideration - is that the panel's provided a new section 51A. Does this section replace, in a more positive way, what section 51(xxvi) now does?
Mick Gooda: Well, we came up with this idea of - section 51A would be what we're suggesting would become the place where the statement of recognition is put. So we would have a statement of recognition around the prior ownership, the heritage and cultural, the languages; recognising the need to make laws for the advancement of Aboriginal and Torres Strait Islander people.
Then there's a new power that says, basically, that the Commonwealth can make laws for Aboriginal and Torres Strait Islander people. So it says - it uses the word advancement, so that we can get into a space where there can't be any detrimental laws made for Aboriginal and Torres Strait Islander people.
So that section 51 does two things. It gives us, the Government, what we call this new head of power to make laws for Aboriginal and Torres Strait Islander people, but also contains a statement of recognition.
Graeme Innes: Those laws that the Government could make, as you say, must be beneficial laws. They can't be detrimental.
Mick Gooda: They must be for the advancement. Therefore, you'd imagine they couldn't be discriminatory.
Graeme Innes: The panel made a couple of other recommendations. It also proposes the insertion of section 116A to prohibit discrimination on the ground of race. Clearly, that's an important change as well.
Mick Gooda: Again, we were told during our consultations - we put that out there in the discussion paper. Australia, in 2012, is a different country to what it was in 1901, when the constitution was adopted. We're not talking at it as a back door bill of rights because we're only going to race, colour, ethnic origin here. We're not going to gender or sexual preference or religion or anything like that; which you would think a bill of rights would contain. It's basically around race, colour and ethnic origin.
So people told us that's what they wanted. I know it's causing a lot of commentary out there but, again, we were asked to report on what we were told by the Australian people. This is another thing, besides section 25, that had the greatest level of support.
Graeme Innes: Finally, the panel also proposes a new section 127A regarding recognition of languages. What will the effect of this section be?
Mick Gooda: This is what the constitutional experts call the declaratory provision. It doesn’t do anything except make some declarations; that English would be the language of Australia and that we'd also honour and preserve the language of about the 250 tribes of Australia. So it's just getting the point across, how important language is to Aboriginal and Torres Strait Islander people. It doesn’t really - it's not a head of power.
Graeme Innes: It doesn’t give the Government more power. It states the situation as it exists, I guess.
Male: Absolutely.
Mick Gooda: Well, yes. We know, practically, that English is the language of Australia. This would just confirm it in the constitution.
Graeme Innes: Mick, these changes are all really important to all Australians, not just to Aboriginal and Torres Strait Islander people, aren't they? Why is that? What do we need to do now to maximise the chances of their support by the Government, the Parliament and the Australian people, because, as you said, there has been some opposition commentary, as well as a lot of supportive commentary since the panel released its recommendations?
Mick Gooda: Well, if you go to the issues about removing the race powers in section 25 and 51(xxvi). All Australians benefit from that, not just Aboriginal and Torres Strait Island people. The same with the new section 116A, that prevents discrimination on the grounds of race. All people in Australia benefit from that, not just Aboriginal and Torres Strait Islander people.
For us the additional thing is the statement of recognition. I think it's a chance for Australia to get to that - there's unfinished business in this country about the place Aboriginal and Torres Strait Islander people occupy here. I think your listeners would understand everyone in Australia has an opinion on Aboriginal and Torres Strait Islander issues.
I think this is a chance to say to the people of Australia do we want to do this? The thing about referendum is that it's the people of Australia speaking; it's not our representatives over in Canberra or the people we elect. This is the people of Australia speaking.
I just think what a magnificent thing it would be for Australia if we wake up on the Sunday morning - finding out the night before we voted in big numbers to recognise Aboriginal and Torres Strait Islander people in the constitution; just a feeling - I've said in other presentations the feeling we all had on National Apology Day would be multiplied by about 100 I reckon. We all felt pretty good that day. I think it would be a maturing signal; the maturing of a nation willing to come to terms with its past.
Where we go to from here? The Government will consider the report. The Opposition is considering it. The independents and the Greens will. Eventually there will be negotiations about a bill that will be put to Parliament which will contain, like you said, the question that will be put to the Australian population. Once that bill gets royal assent the referendum have got to be held between two and six months.
So once the negotiations start - which I expect to be starting fairly soon - that we will then get a bit of an inkling about the timing of this thing; whether it's going to be in the life of this Parliament or somewhere down the track.
Graeme Innes: Well, some really important changes. Mick, if people want to get more information the youmeunity site - so that's youmeunity - all one word - .org.au - is a really useful resource, isn't it?
Mick Gooda: Absolutely. It's the website we use for the consultations. It will continue to be the website through this next phase of the process. All the information is there. You can download the report itself. It's a fairly big report. I think that's the best place to go.
Look, Reconciliation Australia was an important part of the consultation process. They'll continue to be the mob that will be advocating for change and pulling together a whole group of people from the spectrum of Australian society; from all parts of the political area to civil society, to churches, to groups representing different ethnic groups in Australia.
I think that's where we'll end up very soon. There is almost a movement of people across Australia advocating a yes vote when we get to the referendum.
Graeme Innes: Well, thanks for taking us through the issues, Mick. It's really useful to tease them out. This is an important issue, as I said, for all Australians. It's great to have a chance to think the issues through and talk them through with you, so thanks for that.
Mick Gooda: It's great to be here, Graeme.
Graeme Innes: Thanks to all of you listening to Pod Rights. Remember that this podcast is for you. So if you have a suggestion of someone with whom I should talk or a comment on the podcast, please email me at podrights@humanrights.gov.au or find me and message me on Facebook or Twitter. Just search for Graeme Innes - G-R-A-E-M-E-I-N-N-E-S - all one word.
Also, if you want to become more active on human rights issues have a look at tellmesomethingidontknow.gov.au, where you can read fascinating human rights facts and stories, participate in polls, add your own content and find out what you can do to advance human rights issues in Australia.
Keep your pod catchers ready for the next Pod Rights in the series
because human rights is for everyone, everywhere, every day. I'm Graeme Innes.
Goodbye for now.
