ACM Sydney submission to the Expert panel on Constitutional Change

Posted on September 29, 2011


The ACM Sydney has just made its submission to the Expert panel on Constitutional Change. The submission is following.
Submissions can be made until 5.00pm tomorrow at

Submission from ACM, Sydney Archdiocese

Dear Expert Panel,

Thank you for the opportunity to contribute to the conversation about the recognition of Aboriginal and Torres Strait Islander peoples in the Australian constitution.
We would like to comment at the outset that we have had concerns about the length of time allowed for this conversation. Whilst we appreciate that the expert panel has held a significant number of face to face consultations, our experience is that there is a lack of awareness about this conversation in Aboriginal and Torres Strait Islander communities as well as in the non-Indigenous communities. In practical terms, the short time frame has made it difficult to properly canvass opinions and allow for a proper consultation process with the communities we connect with. We also have concerns that the lack of knowledge in the community about this process will make it harder to gain support for a ‘Yes’ proposition as people will not feel a connection to the process, or ownership of the outcomes. Having said that, we welcome the opportunity to put forward the following points of view.
Changes to the Constitution must include a statement which strongly reflects prior settlement and ownership of this land.

Changes to the Constitution must include a statement which reflects a proper recognition of Australia’s history and which includes recognition of the colonisation of the First Peoples and their subsequent dispossession. We think it is vitally important that Aboriginal and Torres Strait Islander peoples are recognised as prior owners of Australia who had sovereign rights which were never ceded by Aboriginal people to the colonisers. There is a danger that changes will be weakened by opposition from the non-Indigenous population to strong sentiments. However, we believe that without such recognition any changes will be meaningless.
Changes to the Constitution must include a statement which addresses the contribution that Aboriginal and Torres Strait Islander peoples make to Australia today.

While Aboriginal and Torres Strait Islander cultures are ancient, they are also contemporary and it is important to recognize that ongoing custodianship of Country, cultural practices and Aboriginal and Torres Strait islander identities survive, remain strong and make a unique contribution to the culture of Australia.
Changes to the Constitution must create change for Aboriginal and Torres Strait Islander peoples.

Changes must be more than words; they must be meaningful and also lead to positive change. There is no value in adding some heartfelt words to the Constitution, but which ultimately leave us feeling “so what?” Changes that could result from Constitutional change could range from changes in attitudes of mainstream Australians, to practical changes in the living standards of Aboriginal people, to the possibility of Governments making treaties with Aboriginal and Torres Strait Islander peoples. Changes to the Constitution should also ensure that Government policies and legislation are made for the benefit of Aboriginal and Torres Strait Islander peoples. For example, we can see no purpose in a Government putting forward Constitutional changes while at the same time enacting legislation in the Northern Territory which is damaging to Aboriginal people.
United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP)</p>

The Constitution should reflect Australia’s commitment to the UN DRIP. The Constitution should be examined through the lens of the principles of the UN DRIP and where necessary changes made. It seems incongruous and hypocritical that we can be supporting the UN DRIP while at the same time removing protections to enable legislation such as the Northern Territory Emergency Response legislation.
Human Rights protection for all

Australia does not have a Bill of Rights or other human rights protections in its Constitution. The ACM Sydney supports incorporating human rights protection for all in our Constitution. Relying on legislation such as the Racial Discrimination Act 1975 to protect rights is inadequate as recent experience in the Northern Territory highlights. Governments can simply change or “roll back” legislation as they desire. Proper protections for the rights of all Australians should be included in the Constitution.
Removal of racist clauses
The Race Power
We believe that the Australian Constitution should not contain any racist elements. The Constitution should make it impossible for any racial group to be discriminated against.
Repealing the ‘race power’ is one aspect of addressing this issue. We understand that simply repealing the ‘race power’ could result in a loss in relation to the Government’s ability to make agreements or laws which specifically benefit Aboriginal and Torres Strait Islander people. We agree with the suggestions put forward in the Discussion Paper that the ‘race power’ should be repealed but a new head of power should also be created which would allow Commonwealth laws to be “based on culture, historical disadvantage and/or the unique place of Aboriginal and Torres Strait Islander peoples”. We also agree that a new non-discrimination or racial equality clause should be included in the Constitution.
Section 25
This section has no place in Australian society and should be repealed.
Agreement Making Powers
One of the concerns we have about this conversation about Constitutional Change is that it is seen as an “end”, rather than a beginning. Likewise, the focus on Constitutional Change could be a distraction from some of the debates which are potentially more difficult to have. For example the making of a Treaty with Aboriginal people, compensation for Stolen Generations, the end of the Northern Territory Intervention and so on. There are many areas of unfinished business that could easily be swept away under the excitement of recognizing Aboriginal and Torres Strait Islander people in the Constitution. The ACM Sydney therefore considers the idea of inserting an Agreement Making Power into the Constitution essential. This will, hopefully, ensure that Aboriginal and Torres Strait Islander peoples are more able to enter into agreements that have the force of the Constitution behind them. Currently, gains made are always at risk of change from the Government of the day. For example, the Native Title Act was introduced and then changed by a subsequent Government. Aboriginal and Torres Strait Islander people need some certainty in their engagement with Governments to ensure that they don’t lose the gains they have made.
While we are not opposed to the creation of a preamble which reflects values that we as a society hold, we favour all changes that relate to Aboriginal and Torres Strait Islander peoples being placed in the body of the Constitution. It is our understanding that a preamble does not have the same status or standing in law as the Constitution itself. It is vitally important that changes made have the full force of the Constitution, proper legal standing and are unambiguous to prevent further challenges and interpretations contrary to their intent. We also would not support any placement of these changes that would not require a further referendum to change them.
Finally, I would just like to reiterate that we do have some concerns about the timing of the conversation and would hope that any ‘yes’ proposition fully reflects the hopes, dreams and aspirations of Aboriginal and Torres Strait Islander people. Leadership on this issue will be vital as it will be far too easy to water down any proposed changes to suit the sensibilities of the most narrow minded and bigoted of Australians rather than make a bold statement that truly values and honours Aboriginal and Torres Strait Islander peoples.

Yours sincerely,

Graeme Mundine
Executive Officer