Where is constitutional reform in Australia going? - The Drum Opinion ...

http://www.abc.net.au/unleashed/40908.html

The Drum on ABC News 24

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A J BROWN We should all welcome the Gillard governments historic announcement yesterday that it is taking the next step towards a constitutional change to recognise Indigenous Australians in the text of our Constitution. But we need to think seriously about where we want this road to end. The establishment of a Referendum Panel to advise the nation on the best type of recognition is a great opportunity for the Australian people to re-engage with the evolution of their 109-year-old Constitution. According to Griffith Universitys Australian Constitutional Values Survey, conducted before the election this year, a substantial majority of adult citizens agree it is important to move on this question in the next few years. In March, 75% of respondents to our national Newspoll indicated that it was at least somewhat important to have a referendum to recognise the history and culture of Aboriginal and Torres Strait Islander people in the Constitution - with 43% indicating it was very important. Support is highest in Victoria and South Australia, where 79% and 78% of adults indicated the referendum was at least somewhat important - and lowest in Tasmania, where only 57% saw any importance. However there is a huge need for the Commonwealth Parliament to map out a larger process for how it plans to progress not just this, but other reforms. The Government has also committed, in its agreements with the Greens and Independents, to have a referendum on constitutional recognition of local government in the same timeframe. Where is the proposed Referendum Panel on this other change, and how are the two processes going to relate? Both processes will require a fresh effort to remind Australians about the role and content of their Constitution, and engage them in the development of the proposed

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Where is constitutional reform in Australia going? - The Drum Opinion ...

http://www.abc.net.au/unleashed/40908.html

change. There are also other basic changes to the Constitution that might be desirable in the short term - especially changes to promote and require cooperation between our levels of government. And all this is taking place in a context where a majority of Australians believe our federal system should also change much more fundamentally, in the longer term, to deliver a better system of government. So if Australians are presented with changes in the short term, they will presumably want to know that the proposals are not just random band aids for the sake of change, but going in a sensible direction. When it comes to both Indigenous recognition, and recognition of local government, there are some similar issues and choices. Both issues could be addressed by purely symbolic changes, such as a brief mention in a new Preamble to the Constitution, with no legal effect. But this has been tried before - twice in relation to local government, and once for Indigenous Australians - and failed at referenda each time. The minimum form of more substantive recognition for Indigenous Australians could be recognition that the Commonwealth Parliament may make special laws in respect of Aboriginal and Islander people, but only for their benefit. This would fix the problem identified by the High Court of Australia in 1998, that previous changes to the Constitution to end discrimination against Aboriginal people did not actually - in law - flow through to their intended result. In 1998, only Justices Kirby and Gaudron on the High Court took the position that the 1967 changes had the result which was probably intended by the majority of Australians. But it is also valid to talk about going further. Australia is the only Commonwealth country that does not have a treaty with its First Peoples. We need to recognise - as stated in the 2000 Australian Declaration Towards Reconciliation, produced by the Council for Aboriginal Reconciliation after a ten year process - that Europeans settled Australias lands and waters without treaty or consent. Aboriginal and Islander peoples are not just the original custodians of Australia, but the original owners. They do not only have their own special cultures - they had, and in differing ways still have, their own system of law, whose relationships with imported Anglo-Australian law have never been satisfactorily resolved. To be properly worthy of inclusion in the Constitution, any recognition needs to recognise these historical and legal realities... as well as be of practical benefit to political reconciliation and the process of addressing Indigenous social and economic disadvantage. Similar questions apply to local government. On some theories, all that is needed to fill our national Constitutions silence about local government is to add three words, and local governments, to the section of the Constitution which lets the federal government grant money to State governments. While any change should definitely guarantee that the federal government can directly fund local government and other regional programs, this fix was already tried and failed in 1974. We need to ask why it failed, along with a further referendum in 1988.

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Where is constitutional reform in Australia going? - The Drum Opinion ...

http://www.abc.net.au/unleashed/40908.html

There are many reasons, including lack of bipartisan political support, but they also include the fact that Australians were clearly not persuaded that the change was important or worthwhile enough to be tampering with their foundational constitutional document. Just as Australians will want to know that the form of Indigenous recognition they are giving is meaningful, they will want to know that their recognition of local government will lead to positive improvement in the role and functioning of our local councils, and to the way that all levels of government need to get their act together to deliver a better federal system. Previously, some reform advocates have said that the way to get around voters scepticism is to only propose the most minimal change possible. However, thats a false hope. Most Australians are equally suspicious of arguments that a change is good because it is only minimal. If it is only minimal, either it doesnt really matter (in which case, no cost to vote no), or there is more going on than people are being told (in which case, best to vote no). So to understand what we are really doing, we need a process which is open, thorough, transparent, and engages the entire community in discussion about the true issues driving these changes. We need to recognise the full range of options, and test those options with the people through discussion, research and plebiscites - before finalising any specific changes to be put up for formal constitutional adoption. This will require more than one or two advisory Panels; it requires those Panels to be linked in a strategy, and supported by a full-time secretariat with the resources to educate, engage, develop options and foster the necessary public discussion about the Constitutions future. Before we go too far, the Government, Greens and Independents need to make some bold decisions about the process for proper engagement to occur. It is time for us to start really trusting the people. Only then will we get the kind of change that the Australian federation needs, and that voters are likely to want and support in a referendum.

A J Brown is Professor of Public Law, Griffith Law School and Director of the Federalism Project, Griffith University.

2013 ABC

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