Megan Davis on the Issue of Constitutional Recognition

By Thomas Weston

The Law Institute of Victoria’s Dame Roma Mitchell Memorial Lunch opened with a sobering statistic: In 2015, the gender pay gap in legal services was as great as 34.3%. Dame Roma Mitchell, a pioneer of women’s rights, was the first woman appointed as a Queen’s Counsel, Judge, Chancellor of an Australian university and State Governor. The LIV event held in her honour celebrated the role of women in law, whilst also serving as a reminder that significant gender inequality continues to exist into 2016. Professor Megan Davis became the first Indigenous Australian woman to be elected to a United Nations body in 2010 when she was appointed to the United Nations Permanent Forum on Indigenous Issues. In her keynote address at the event, however, Davis chose not to focus on gender inequality but instead on the issue of constitutional recognition for Indigenous Australians.

Professor Davis promised that her speech would be ‘controversial.’ What followed was only controversial insomuch as it presented an alternate perspective on a debate that has been dominated by one side. Davis questioned whether constitutional recognition is the best path to Indigenous self-determination. The idea of self-determination holds that communities know themselves better than outsiders, and that providing individuals with the freedom to participate in important decision-making about their lives is important and beneficial for a number of reasons. The UN outlines that “participation by indigenous peoples in decisions that affect them is necessary to enable them to protect, inter alia, their cultures, including their languages and their lands, territories and resources.”[1] Professor Davis has previously bemoaned the fact that self-determination is a principle that “has been eviscerated from the lexicon of Australian politics.”[2] One non-constitutional means of improving self-determination put forward by Davis is a treaty. A treaty would acknowledge the sovereignty of Indigenous people as well as negotiating various rights. Australia is the only Commonwealth country without a treaty with its Indigenous people.

Davis herself was selected as part of the expert panel that reported to the Australian government on the issue of constitutional recognition in 2012. The panel recommended that sections 25 and 51(xxvi) of the Constitution be removed. These sections allow the States to ban people from voting based on their race and enables the Federal government to pass laws that discriminate against people based on their race. They also recommended new sections be added that recognise Aboriginal and Torres Strait Islander peoples and ban racial discrimination by the Government. Since 2012, the Recognise campaign has gathered significant mainstream momentum. It has bi-partisan backing, as well as support from Indigenous leaders such as Noel Pearson, Patrick Dodson and Lowitja O’Donoghue. It has even been endorsed by the Greens, the AFL and Cricket Australia.

However there is also significant movement against constitutional recognition within the Indigenous community. Indigenous organiser for the NTEU, Celeste Liddle, has argued that those against constitutional recognition have “barely been heard.” Her concern is that a referendum may set back the campaign for a treaty. A survey by IndigenousX released in June 2015 found that as little as 25% of Indigenous people support constitutional recognition, while 58% are opposed. In February the Victorian government hosted a meeting with over 500 Aboriginal and Torres Strait Islanders who reported unanimously to Aboriginal Affairs Minister Natalie Hutchins that, “we as sovereign people reject Constitutional Recognition.” Some even see the Recognise movement as an attempt to deliberately undermine the sovereignty movement. Michael Anderson, a Euahlayi Peoples leader, has argued that

the real hidden agenda of the proposed referendum is to coerce Aboriginal Nations Peoples to become part of the Australian Constitution and by doing so consent to be governed.

Sovereign Union, a group asserting the sovereignty of First Nations peoples, argues that Constitutional Recognition originally emerged from John Howard and not from the Indigenous Community itself. In 2007, Howard declared that, if elected, he would put a referendum to the Australian people to formally recognise Indigenous Australians in the Constitution. Nayuka Gorrie of the National Indigenous Youth Leadership Academy has argued that “recognition forces me to ask to be seen by you in a colonial system that I don’t want to legitimize.” The fact that these voices go largely unheard is part of a broader problem.

Together the Indigenous community makes up less than 3% of the population. In theory, even if every single Aboriginal person voted against constitutional recognition, it is still possible for a yes vote to occur in a majority of people in the majority of states. This begs the question, ‘will a referendum truly recognise and respect the wishes of Indigenous Australians?’ Professor Davis has previously written about the inability of Indigenous people to properly participate in Australia’s procedural democracy. She has argued that ‘majoritarianism’, a stream of utilitarianism, results in a political agenda that is focused on the centre and smaller numbered groups as well as larger groups with no money or power are left out of the democratic process.[3] Professor Davis lamented the demise of ATSIC as a means of enabling Indigenous people to actively participate in the processes of government that affect their lives. Davis explained that within the Indigenous community, frustration with the lack of self-determination was often expressed through the popular slogan “about us, without us.”

Most people would agree that removing racist sections of the Constitution and acknowledging Indigenous Australians is undoubtedly a good thing. Though Davis problematised constitutional recognition, she is not explicitly against it. Her main concern is that other, non-constitutional methods of improving Indigenous people’s rights need to occur alongside or in preference to constitutional recognition. Kevin Rudd’s apology in 2008 was an important symbolic moment, but rhetoric and symbolism alone cannot heal. Like a plebiscite on same-sex marriage, one might cynically view a referendum for constitutional recognition as the attempt to avoid real leadership on an issue, whilst trumpeting the triumph of ‘democracy in action.’ From my perspective, it seems that recognition risks merely consulting the population about an outcome that is mostly symbolic, whereas a treaty enables self-determination and protects Indigenous sovereignty. It would also negotiate the terms of rights to land, minerals, resources and the self-governing of communities. In 1988, Bob Hawke promised that Australia would enter into a treaty with Indigenous Australians by 1990. It’s now long overdue.

Thomas Weston is the editorial assistant of Law and Justice and is currently in his second year of a Graduate Entry Bachelor of Laws at La Trobe University. He has previously completed a Bachelor of Arts (Hons) majoring in English Literature at History at the University of Melbourne.

[1] Expert Mechanism on the Rights of Indigenous People ‘Indigenous peoples and the right to participate in decision-making’ (‘Expert Mechanism’), Advice No.2, A/HRC/18/42 (2011) para 1.

[2] Megan Davis, ‘Indigenous Constitutional Recognition from the Point of View of Self-Determination and its Exercise through Democratic Participation’ (2015) 8(19) Indigenous Law Bulletin 10.

[3] Megan Davis, ‘Indigenous Constitutional Recognition from the Point of View of Self-Determination and its Exercise through Democratic Participation’ (2015) 8(19) Indigenous Law Bulletin 11.

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