Mick Dodson on fixing the constitution
Karen Middleton What do you think of the outcome of the Referendum Council’s consultations and Uluru process?
Mick Dodson In my view it is a little disappointing. It’s not that I disagree with the recommendations. They are things we ought to pursue. But I think it’s a bit back-to-front. We’ve had almost five years now talking about and doing things regarding the constitution. It’s clear the problem we have is with our constitution, and the report of the Referendum Council does not address it. Our constitution at its heart is racially discriminatory. Subsection 26 of section 51 allows the parliament to pass laws that can discriminate against any Australian on the basis of race. That’s the problem. There’s also another section, section 25, which contemplates the possibility that states can ban people from voting – disenfranchise them – on the basis of race.
Now, in a modern democracy like ours, we wouldn’t expect to have those provisions in our constitution in the 21st century. Racism is a scourge across the world. We shouldn’t be boasting about it in our constitution. The Uluru result doesn’t deal with that. How are we expected to deal with that? My understanding of the whole process and the terms of reference of the Referendum Council was to deal with these questions. I’m disappointed because it doesn’t.
KM You were part of facilitating very early consultations, is that right?
MD There were three peak meetings before the regional consultations, and all of those meetings discussed the work the expert panel had established. It had an extensive report and made numerous recommendations. There were two parliamentary inquiries; there’s been dozens of opinion pieces, scholastic papers, other erudite writings about the issues. Much of that was covered in those peak meetings.
KM But not then in the consultations?
MD Well, I don’t know what happened in the consultations. If you read the original report of the expert panel, it’s not that easy to plough your way through it. And you’re dealing with complex, not just legal but social, cultural and language issues. I don’t know what happened at Uluru. But I’m disappointed by the result because it’s not going to deal with the constitution. The idea that we go cap in hand to the parliament and ask them to set up a representative body is not dealing with our racist constitution. Secondly, if we’re talking about a treaty and having some sort of recognition of at least a residuum of Indigenous sovereignty, this concedes our sovereignty upfront. [It suggests we] go to the parliament and say: “Please listen to us.”
I didn’t give permission to Uluru to cede my sovereignty. I think there’s an element of a sort of residual sovereignty that’s left that will enable us to at least get some autonomy or some self-government – some way of sharing power. The problem with our policy approach is we don’t have any power in the game. It’s all up there on the hill.
KM Are you concerned that if it is entrenched in the form proposed, that it could actually be a backward step?
MD Yeah. I think it’s saying: “Well, you’re the sovereign one. We want you to deal with us decently.” It’s not saying: “Hang on a minute, we didn’t concede any sovereignty to you. You came and took the place off us without our consent. Can we sit down and talk about that?”
KM Do you have any concerns that under this proposal the statement of recognition won’t be in the constitution at all?
MD Well, no. My position has been against a statement of recognition in the constitution because I think that’s unrealistic and too hard to get in and we’re never going to agree on the words. So perhaps that’s okay if you want to legislate some sort of statement through the parliament, that’s fine. But do something about the constitution that gets rid of the racist elements.
KM It’s perhaps ironic that before the 1967 referendum – hailed as a great step forward for Indigenous rights – Indigenous people were excluded from that race power. One of the changes made in ’67 was to remove that exclusion so now laws can be made to the benefit and the detriment of Indigenous people.
MD Subsection 26 was never meant to capture Indigenous Australians. It was aimed clearly at aliens who came to the country and to deal with them. It was designed to discriminate against aliens. And when we took the reference out it exposed us to that capacity of the parliament. I think this section has facilitated the enactment of five different pieces of racially discriminatory legislation by the parliament, each directed at Aboriginal and Torres Strait Islanders only.
KM Does that mean we’ve been talking about the wrong thing all along in focusing on recognition?
MD It’s all been a bit back-to-front. The problem with the constitution is the differentiation on the basis of race. Subsection 26 allows racism. It doesn’t say there has to be special laws for the benefit of people. It can be for their benefit or detriment. There was no intention to treat people equally when they wrote the section because they wanted to treat aliens differently.
KM Well, what happens now?
MD Nothing’s going to happen because neither the Liberal Party nor the Labor Party support what’s come out of Uluru.
KM Do we start the process again?
MD I don’t know what we do. But I thought this was about reforming the constitution, not going cap in hand to the parliament and saying, “Please can I have some of the power?”
KM How widespread among Indigenous Australians do you think your view is?
MD I don’t know. There are people who share my view. I think we should get rid of 25 and subsection 26 and say, “Well, there is no differentiation on the basis of race. All citizens under this instrument must be treated equally.” Now, there’ll be a lot of fearmongers running around saying, “Well, this will crash, that will crash. The Native Title Act will be destroyed.” Therein lies the treaty. “We can fix your problem. Sit down and talk to us about it. Let’s negotiate our way through this.”
It gets to the Uluru result by a different path. The problem with the Native Title Act, for example, is it suspends the Racial Discrimination Act. We as citizens are not equal because we are unable to use the Racial Discrimination Act to protect ourselves against racism. They deny us our right to call racism out. So what’s the problem here? Let’s work out a resolution to this. We call it a treaty. I don’t give a rat’s what you call it. Let’s sit down and work out a settlement here, a decent human honourable settlement.
I think there’s something in the Australian psyche that goes back to colonisation and the way in which present-day Australia came by the country and there’s fear of facing up to that truth. People from another country came to this country in 1770 and said, “We’re going to have that, that’s ours.” They didn’t ask for consent, they didn’t speak to us. They planted the flag. They said, “We’re going to have this”, and then they proceeded to colonise it. They dispossessed people of their country, they took kids away, they slaughtered people, they banned cultural practice, they banned language. They put people into concentration camps, compounds, reserves, government stations. They imprisoned the survivors of the colonial practice.
And some say it’s still going on. That’s why I think there’s a fear.
Because that was wrong and we haven’t redressed it. It’s what many of us call the unfinished business. That’s where I think the fear comes from – deep down within what Henry Reynolds calls “the whispering in our hearts”. Deep in the whispering in our hearts, we don’t want to confront these wrongs and be called to account for them. It’s not about blaming people; it’s about asking people to come with a good heart and say, “Let’s fix this business.” It needs to be fixed.
KM So what should happen to the results of the consultations? Should they just be put to one side?
MD I’m not saying put aside the results of the Referendum Council’s review exercise. I’m just saying they’re arse-about. Let’s do that after we sort out the constitution. And if that has repercussions – for example, some legislation might fall because it’s racially discriminatory and I don’t know why we’d want to be racially discriminatory – let’s sit down and talk about how we might best come to an agreed position on those issues.
This takes us to a treaty. And the idea of a “Makarrata commission” – I call it a treaty commission – it does that work.
This is an edited transcript from A Month of Saturdays at the National Museum of Australia.
This article was first published in the print edition of The Saturday Paper on Oct 7, 2017 as "Fixing the constitution".
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