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Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples - 13/11/2014 - Public consultation for constitutional recognition

HUTCHISON, Ms Jane, Director, Hobart Community Legal Service

WHITE, Mr John, Solicitor, Hobart Community Legal Service

CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. I now invite you to make a short opening statement and then after you have spoken I will invite members of the committee to put questions to you.

Ms Hutchison : Thank you for your invitation to attend this public hearing of the joint select committee on constitutional recognition of Aboriginal and Torres Strait Islander peoples. The Hobart Community Legal Service does not pretend that this submission is erudite or we are learned in writing of constitutions, let alone amend one of such importance as the Australian Constitution. The Hobart Community Legal Service is sympathetic to the Aboriginal and Torres Strait Islander people generally, and especially of the Tasmanian Aboriginal community. The Hobart Community Legal Service works closely with the Tasmanian Aboriginal legal service in relation to the out-of-hours bail courts.

The current Australian Constitution was written at a time in the very late 19th century when there was absolutely no recognition of the Indigenous peoples of this nation. It was written in the spirit of terra nullius and needs correcting and updating, particularly since the Mabo decision in the High Court. A previous premier of Tasmania anecdotally once refused funding from the Commonwealth government for the education of Aboriginal schoolchildren in Tasmania, because, according to him, there were not any Aboriginals in Tasmania. In Tasmanian schools we were all taught, up until recently, as late as the 1970s, that Truganini was the last of the Tasmanian Aboriginals, and after her death they were no more. Also, they were frequently compared with thylacines.

Not only in Tasmania were the original people dispossessed, but subsequent Tasmanian governments denied the descendants of the original inhabitants there Aboriginality as well as their freehold title to Tasmania and her islands, which caused psychological harm to the Aboriginal community, who knew the truth, and that was a fact that previous governments and the general public denied.

Nowadays there are up to 15,000 to 20,000 or more people who identify as Aboriginal in Tasmania, and both houses of parliament support land rights in a more or lesser degree since 1993. For us, a very moving and educational process that we participated in and that has been taught in Tasmanian schools since the 1990s is called Gumnuts to Buttons, which explains to the general public, and in all schools that teach Aboriginal studies, the original owners' connection to the land and the tragedy of their dispossession. The important impact of Gumnuts to Buttons is not to make the non-Aboriginal community feel guilty but to help us understand what has transpired. Nine nations inhabited Tasmania and they had different language groups. Some carbon dating of cave sites where artworks, as we understand it—small left-hand stencils made by blowing a mixture of Wallaby blood and ochre—are up to 40,000 years old. A large number of those sacred sites are not published by the relevant government departments for fear of vandalisation, which is not done by the Indigenous people.

Some people might argue that symbols are not important. If that is the case then why apologise to the stolen generation or have a royal commission into child abuse in institutional care. We believe it is important for the dominant white Australian population to listen to and understand the Indigenous people of Australia and to their wishes and aspirations, and we believe optimistically an amendment to the Constitution will help achieve that outcome. We believe it is unfortunate that Australia does not have a charter of human rights based on the United Nations one. Our Constitution predates the UN human rights charter and it also predates the Mabo decision.

What this committee is tasked with, should the Australian Constitution recognise Aboriginal and Torres Strait Islander people, we believe recognition in the Constitution of a carefully crafted clause would symbolise to the original inhabitants of Australia that they are not invisible, do exist and have valid opinions. In our opinion, it might help in the recognition of their rightful place in Australia, and their relationship to the land.

We respectfully request that, when the joint select committee makes its recommendations, the amendment is couched in inclusive language. It is important that the Indigenous history, culture and heritage is recognised and taught in schools so that in the future Aboriginality will be recognised and understood with pride by all Australians. It is unfortunate that here in Tasmania we still do not give due recognition to the Aboriginal people's culturally significant and important heritage sites. Only recently the Tasmanian government has granted permission to off-road four-wheel-drive vehicles to drive over possibly the places where the original owners lived and died, such as middens and significant rock carvings.

As a dominant society, we have laws protecting our religious and cultural sites, such as graveyards, cenotaphs and churches, mosques and synagogues. There are no such far-reaching laws protecting the equivalent Aboriginal sites. We, as a dominant culture, have very little, if any, understanding of the Indigenous peoples of Australia, their spirituality, and their relationship to their dead and also to the land. It seems we have a tendency not to value and to destroy that which we do not understand.

It was in the late 1980s that the first Aboriginal land rights bill was tabled in the Tasmanian parliament and the general view of the dominant society was that there were no Aboriginals because they were not black enough to be Aboriginal. It would be wonderful if there was an understanding and an appreciation by the dominant community of the importance of the Aboriginal and Torres Strait Islander peoples' role in our history and our future, and that we simply appreciate the ATSI peoples were here, are here, and will be here in the future. The Hobart Community Legal Service does not pretend to speak on behalf of the Tasmanian Aboriginal community, but we do believe an amendment to the Australian Constitution will greatly assist this nation.

CHAIR: Mr White, would you like to make a statement at all?

Mr White : No, thank you.

CHAIR: We will commence with Senator McKenzie.

Senator McKENZIE: Thank you very much for your submission. We have heard a lot about any proposition put forward for a change to the Constitution needing to be beyond symbolism, which butts up against question of the success—we do not have a great success rate in Australia of passing constitutional change, no matter what the question is. I would be really interested in you fleshing out that a little bit more, understanding that we are on a journey as a nation.

Mr White : In a past life I was a member of the Tasmanian parliament and I brought in the first land rights bill in late 1980s. It was opposed by the conservative opposition and our unique conservative upper house. By 1993 the Liberal government under Ray Groom as Premier suddenly saw the light and they not only adopted our legislation but extended it. We believe that there is a growing acceptance of the Indigenous people, particularly in Tasmania. Dare I say, my wife is a primary school teacher and she does From Gumnuts to Buttonswith children in grade 2 and grade 3. There is a recognition of Aboriginality, especially here in Tasmania, and I believe that, with optimism and an inclusive and sensitive amendment to the Constitution, it will get over the fact that some people actually resent the Indigenous people, in the same way that we have overcome smoking.

Senator McKENZIE: Alright. Can I think about that for a moment? I have got a follow-up.

Mr NEUMANN: Have you looked at our progress report and the interim report in relation to that?

Ms Hutchison : No, we have only just received them, I am afraid.

Mr NEUMANN: Having just looked at it, have you perused it at all and looked at the various options that we have suggested?

Ms Hutchison : We only looked at the overarching document.

Mr NEUMANN: There is one option, the first option which is a broad option. Option 1, which is on page 5.

Ms Hutchison : Of the interim report?

Mr NEUMANN: Yes, that is right. We will talk about the various options. Look at page ix, 'List of Recommendations'.

CHAIR: Have you got the interim report or the progress report in front of you?

Mr White : The progress report.

Ms Hutchison : The progress report.

CHAIR: It is page ix in the progress report.

Mr NEUMANN: Can you see that?

Ms Hutchison : Yes.

Mr NEUMANN: There is option 1 and option 2 and option 3. The first option, which is really a broad prohibition against racial discrimination, includes the expert panel's recommendation on section 116A which covers states and territories as well as the Commonwealth and also covers a variety of different areas of discrimination. The second option would only cover Aboriginal and Torres Strait Islander peoples, and then only covers the Commonwealth. The third option is a redraft of section 51(xxvi) with the possibility of enacting an act of recognition. Because you did mention a charter or a bill of rights et cetera, I am very interested to hear your perspective in relation to the various options.

Ms Hutchison : It is very hard to answer that in the very short period of time—

Mr NEUMANN: Just take that on notice and come back to us on it.

Ms Hutchison : Yes.

Mr NEUMANN: The other question I have relates to issues of opposition amongst the legal profession, because some of the people who have been expressing their views in opinion pieces in relation to constitutional recognition come from a jurist background or are constitutional law professors or the like—people from a legal background—and they have been critical of the idea of constitutional recognition on legal grounds, on a more conservative basis. In Tasmania, here, amongst the legal profession, are you aware of any opposition? If so, from which particular groups or individuals? I do not want you to name and shame, but are there particular organisations? Well, are there individuals? We have been asking these questions this morning in relation to a variety of different organisations, but, in my experience of more than 20 years in private practice, I can tell you that some of the most conservative people I have ever met have been lawyers, so I am just interested to hear from the legal profession here in Tasmania.

Ms Hutchison : I certainly have not spoken to them broadly about it, but I certainly have not heard any voice saying that they are not happy about it. That is about all I can say. We certainly do not hold ourselves out as constitutional lawyers or anything like that.

Mr NEUMANN: You are at the coalface.

Ms Hutchison : We are at the coalface, yes. But we do believe strongly in talking to the Aboriginal community et cetera. We do think that it will help them move on. But we do not believe that it should be the be all and end all. It should not just stop there.

Mr NEUMANN: In what way could it assist in closing the gap in disadvantage?

Ms Hutchison : The fact that the Constitution was based on the empty land principle is incorrect, and, if nothing else, it needs correcting. I think that, when you look at what happens in other countries with their Indigenous peoples, where they have been recognised there is more harmony and people understand their culture better.

CHAIR: Senator Siewert?

Senator SIEWERT: Shayne went where I was going to go in terms of looking at the recommendations from our progress report and which options you think would be better. Well, there are two questions. There is one that you would think is the best option, and then there is the second question, which is: which one do you think would get up?

CHAIR: If you are unable to answer that, then I am quite happy for you to make a submission back to us on that important comment, because I think that—

Ms Hutchison : I think we would feel happier if we could go away and talk and really look at those and think about them carefully.

Senator SIEWERT: I am trying to cut through what is going to be in the question, and that is then dependent on what we think is actually going to succeed.

Ms Hutchison : Exactly, and of course you are going to need bipartisan support.

Senator SIEWERT: I would say tripartisan or multiparty support.

Ms Hutchison : Everybody, inclusively.

Senator SIEWERT: The point being—and you are right—that we need across-the-political-spectrum support, because it does not take much to voice opposition to a proposition such as this for it to fail. We know that. We have obviously got to get that balance. We are constantly hearing—and I totally support—that we need a substantive proposition, but how far do you go in the substantive proposition before you will start losing support?

Ms Hutchison : I understand that, and looking back—and I have been around for a fair few referendums—it does seem that the Australian population on the whole is very reluctant to change. I suppose the 1967 referendum was about the only successful one, and that was when all parties got behind it.

Senator SIEWERT: If you could take that on notice, that would be really appreciated. That is the guts of what I am looking for.

Ms Hutchison : We certainly will. I think it is very important, and we will get back to you on that.

Senator SIEWERT: Thank you. That would be appreciated.

CHAIR: Senator McKenzie, you indicated you wanted to come back.

Senator McKENZIE: No. I think we are all sort of fishing around the same place, and I think, once our witnesses have had a really good look at the words we have come up with and can give us some feedback on where that balance is—success, symbolism and substantive; where we can get that triumvirate right—we would appreciate it.

CHAIR: Mr White, given you were previously in the parliament, are there any sections of the Tasmanian community that we have not done enough work with, or who would oppose recognition within the Constitution—outside the political arena?

Mr White : I believe that there is a tide change in Tasmania in relation to Aboriginal affairs, but it is slow, and conservatives on both the left and the right are reluctant to recognise—in my view—Aboriginal rights in relation to their relationship with the land and the damage that has been done over denial of any Aboriginal people existing in Tasmania. The comment in Jane's statement about, 'There are no Aboriginal people, because they're not black enough,' is still resonating in some of the more extended—the further away from Hobart you go, dare I say it, the less tolerance there is for Aboriginal affairs.

CHAIR: Which is interesting, when you consider that we never question, say, the degree of Greek within a person who says they are Greek, or somebody who is Italian, or somebody who is Jewish. We never do it for any other ethnic group or cultural group within Australia, yet within Aboriginal and Torres Strait Islander communities, we want to know to what degree they are. It always has been an interesting conundrum. It is: how do we sell that notion that ethnicity is the basis for your connection to any community in society that one should be proud of and use in the way that is the essence of what shapes them? It has always been a conundrum to me how in this instance we want to define the degree, but in no other ethnic group do we do that.

Mr White : Correct, Mr Chairman. But I was influenced by an elder of the Aboriginal community, Ida West, who wrote the book Pride against Prejudice. She went to an Aboriginal meeting in Queensland, and she came back and said, 'They are measuring our blood with a teaspoon,' which meant: 'How much are you Aboriginal? Are you half, a quarter or whatever?' She said, 'I am Aboriginal, that is a fact, and let's get on.' So Auntie Ida was upset by that very question. I do not know the answer.

CHAIR: I certainly knew Auntie Ida, and I had discussions with her of a similar nature. It is where we find the resistance and what we need to do with the resistance. There are many groups that are supportive, but equally we have not been told of substantial groups that would be opposing. Individuals have spoken out and expressed their opposition. We certainly heard this morning that the media is not as favourable in its coverage of the issue as it was in the 1967 referendum. I am curious to see if there are groups that we need to do further work with collectively. When I say 'we', I do not mean the parliamentary committee; I mean groups that we as a society need to do work with to help them make a judgement in respect of the question. Shayne, in a sense—Mr Neumann—was hinting at it when he was talking about conservative lawyers, but the legal profession does not stand alone in this.

Ms Hutchison : No, it does not. That is why in our submission I did say that I think there needs to be a lot more education, because I think a certain part of the Tasmanian population in particular are threatened. For some reason they think that they are going to lose something or something like that. I think it is education that is going to change that. You have to remember that many of us were brought up with the idea that there were no Aboriginals in Tasmania.

Mr White : Especially the older generation.

Ms Hutchison : Yes. I think you will find that it is the older generation who to a certain extent will not understand and maybe not support this as much.

CHAIR: We were hearing this morning that younger members within families seem to have a stronger sense of wanting to support the question on recognition and that they will play a critical role within their families of asking the question, 'Why not?'

Ms Hutchison : I think I can see that with my own children, who have been taught about the culture et cetera here and who have a much better understanding than I have of what has happened.

Mr White : In relation to conservative lawyers, I doubt that they ever see an Aborigine. There is the Tasmanian Aboriginal Centre, which has a small legal office. They tend to represent most Aborigines in Tasmania, and we assist in the out-of-hours bail court at weekends.

CHAIR: But equally I can also cite people like Ian Viner or Fred Chaney, who were conservatives who, after giving of their time, certainly gave strong commitment and continued to. So I think sometimes we can generalise, but there are always individuals who stand out in that context, and sometimes those who you think are supportive and would be fully behind a question like this are the ones that surprise you.

Mr White : But those two gentlemen you mentioned I would describe as liberals.

CHAIR: That is not how they see themselves.

Senator McKENZIE: How they self-identify.

CHAIR: Are there any other questions from the members?

Mr NEUMANN: To pick up on something that John said, I find this curious. Six per cent of Indigenous people in the country live in Victoria—Victoria has the second-largest population but it only has a small number of Aboriginal people—but, even in Victoria, Aboriginal people have lived in and around certain areas, around Shepparton, in parts of Melbourne, Richmond and Fitzroy and places like that, for a long time. In Tasmania there are pockets, areas, where Indigenous people have historically lived for a long, long time. How is it that that ignorance that you talked about, John, still remained—that people did not identify there were any Aboriginal people? Maybe this is me coming from a Queensland background, where they went to our churches, they played in our soccer teams and our rugby league teams and went to our schools. Aboriginal and Torres Strait Islander people lived in our neighbourhood, lived in the same street as me growing up. How is it that that ignorance that you are talking about was prevalent here in Tasmania? I mean, they still lived here.

Mr White : I went to the local Catholic school, and we had 'Nigger' Brown, who was an excellent all-rounder, both academically and sporting. We knew he was Aboriginal, but collectively we called him 'Nigger' because that was the common parlance of that time. Yet, at home, when I said, 'I've got young Brownie coming over,' or whatever, my mother—she was from country Victoria and she was a National Party supporter—said, 'He's not Aboriginal.' She said, 'He's not Aboriginal; he's not dark enough.' That was the test. Most Aboriginals in Tasmania you cannot tell by the colour of their skin. It is what Mr Chairman was referring to. I say I am Scottish—my name is Scottish—and no-one questions it.

Mr NEUMANN: I was not referring to pigmentation. I was referring to ignorance.

Ms Hutchison : I can only go back to the fact that we were taught at school there were no Aboriginal people. It was drummed into us that Truganini died and that was the end. I know a lot of Tasmanian Aboriginals were actually bullied and so on and so forth at school et cetera because they were slightly different. However, we did not recognise them.

Mr White : Only as 'different'.

Mr NEUMANN: I picked up what you said. You raised this issue, and I thought, 'I've got to ask this question: "How is it that you deny them?"'

Senator McKENZIE: Tasmania, for referenda, no matter what the question, is the bellwether state. So the unique history of Tasmania in this space leads me to ask: is Tasmania ready, is Tasmania reconciled within itself, to have this conversation at a national level? And, if it is not, how do we get there?

Mr White : I think it will be carried or opposed. It will be carried if there is tripartisanship. My understanding is that both the conservative elements and the more progressive elements will support it, because we have moved in Tasmania, I believe, because of the education that is starting to take place.

Mr NEUMANN: In your evidence earlier, John, you raised that ignorance. Is that ignorance gone in terms of our educational system and what is going on? Has it gone?

Ms Hutchison : It has improved.

Mr White : Yes.

Ms Hutchison : It has not gone, but it has improved a huge amount. I would also say, to get the Tasmanian population on board, the ones who maybe do not understand it, you need the media on board and you need the commercial media on board.

CHAIR: That has been a very strong message out of this morning's evidence.

Ms Hutchison : In my experience, if you do not have the commercial media behind you, it is really hard.

CHAIR: There being no further questions, can I thank you for your attendance and the evidence you have given. I would remind you that we are happy to extend to you the opportunity of responding to the recommendations, particularly the two questions as they relate to the questions asked by Mr Neumann and Senator Siewert: that is, the favourability of one or more of those options, and your thoughts around them. That would help us in our deliberations as well. Thank you both very much for being here.

Ms Hutchison : Thank you.

Mr White : Thank you.

CHAIR: We will adjourn for 10 minutes and then we will see if any members of the public wish to make a comment.