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Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples - 23/07/2014 - Public consultation for constitutional recognition

BROWN, Mr Joe, Adviser, Kimberley Aboriginal Law and Cultural Centre

CARTER, Mr Neil Angus, Kimberley Aboriginal Repatriation Officer, Kimberley Aboriginal Law and Cultural Centre

HERRING, Mr Scott, Project Officer, Kimberley Aboriginal Law and Cultural Centre

STREET, Mr Mervyn, Chair, Kimberley Aboriginal Law and Cultural Centre

WISE, Mr Butcher, Kimberley Aboriginal Law and Cultural Centre

Committee met at 10:42

CHAIR ( Mr Wyatt ): I declare open this public hearing of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples and I welcome you all here today. Before I proceed any further, I will ask Mr Mervyn Street, an elder of country, to welcome us to country.

A welcome to country was then given—

CHAIR: On behalf of the committee, I would like to acknowledge the traditional owners of the lands on which we meet and pay my respects to the elders both past and present. I also extend that respect to Aboriginal and Torres Strait Islander people present here today, including all those who are in attendance. Today the committee is taking evidence on the steps that can be taken to recognise Aboriginal and Torres Strait Islander people in the Australian Constitution, including on the form of words that should be used and on mechanisms to build support across all sectors of the community. This is a public hearing, and a Hansard transcript of the proceedings is being made. The committee prefers to hear evidence in public. We may agree to take evidence confidentially if it is relevant. The committee may publish confidential evidence later, but we would try to ask before doing this. It is important that witnesses give the committee notice if they want to give evidence in private. In addition, if the committee has reason to believe that certain evidence may reflect badly on a person, the committee may direct that the evidence be heard in private.

I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is against the law for anyone to threaten or disadvantage a witness because of the evidence they have given to a committee. If they do, the action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. Witnesses should be aware that, if in the giving of their evidence they make adverse comment about another individual or organisation, that individual or organisation will be made aware of the comment and given a reasonable opportunity to respond to the committee. If a witness objects to answering a question, the witness should state the grounds of the objection and the committee will determine whether it will insist on an answer. On behalf of the committee I would like to thank all who sent representatives here today for their time and cooperation. Before I welcome Neil Carter from KALACC, let me give an overview of what is occurring.

Former Prime Minister John Howard proposed that Aboriginal and Torres Strait Islander people be recognised in the Constitution. It followed the journey of the 1967 referendum, which counted Aboriginal and Torres Strait Islander people in the census. The next major event was the Paul Keating Redfern speech, in which he acknowledged the things of the past. Then we had Mabo and Wik. The next step in the journey was the apology from Kevin Rudd. All prime ministers from John Howard, Julia Gillard, Kevin Rudd to Tony Abbott were committed to the recognition of Aboriginal and Torres strait Islander people in the Constitution. The Constitution is a small booklet but it is the foundation, like constitutions of organisations, for which the Australian parliament has the authority to pass laws for Australians and to govern and manage the country.

In that Constitution, when it was written and framed in the 1890s and eventually proclaimed in the 1900s as an act of the British parliament—because we were still separate colonies—we became a federation or Commonwealth. In the conventions of 1900 and the 1890s Aboriginal and Torres Strait Islander people were not part of the process. They were still under various state parliament acts, under flora and fauna or whatever. Over that time, the exclusion of Aboriginal and Torres Strait Islander people has been known but not acknowledged. We have had four prime ministers of Australia who want to ensure that people who have lived in this land over the last 60 to 40,000 years should be recognised in the foundation document that is the Constitution of this country.

This committee is a stage of taking that journey. Prime Minister Gillard appointed Mark Leibler and Pat Dodson to chair an expert panel to meet with and consult with Aboriginal and Torres Strait Islander people and other Australians to talk about what should be the key things we need to consider as a parliament that should be included in a question, to put to the Australian people, about the recognition of Aboriginal and Torres Strait Islander people. This is that journey, of taking it to the next step. We are interested in hearing what it is you have thought about and what you have thought about in terms of the five recommendations of the expert panel.

Senator Siewert and I have both had the privilege of being members of not only the expert panel but also the joint select committee of the last parliament and then on this joint select committee. Our task is to continue the work until 30 June next year when we will present a final report to the parliament that reflects many of the comments you make from the consultations we undertake and possibly the form of words the government should consider about the way in which Aboriginal and Torres Strait Islander people are incorporated or built into the Constitution, to undo the failure to include Aboriginal and Torres Strait Islander people in the 1890s and in 1900. This is the beginning of that journey. The format we have adopted in the Kimberley is that if members of the public presenting to us have questions for the panel then the panel is more than happy to answer those questions as well as respond to the comments you wish to contribute. I welcome Mr Neil Carter of KALACC. 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 I invite the elders with you to indicate their names and the capacity in which they are appearing. Then I will invite members of the committee to put questions to you.

Mr Carter : I am the Kimberley Aboriginal Repatriation Officer and I am one of the senior staff for the Kimberley Aboriginal Law and Culture Centre.

Mr Street : I have been the chair of KALACC for nearly 1½ years now.

Mr Brown : I have grown up in Fitzroy Crossing and I am Walmajarri. I advise KALACC and the land council.

Mr Wise : I am Walmajarri and I come from Christmas Creek basin.

CHAIR: Thank you. It is tremendous to have elders present to the committee along with Mr Carter. Mr Carter, do you have an opening statement?

Mr Carter : I have spoken to the elders and we have discussed the recognition of Aboriginal people as the first people of this country. In the Constitution, words like 'recognition', 'acknowledgement' and 'respect' all mean healing.

Our elders here have suffered disengagement from their country. They have been taken away and removed from their country. Joe was taken from his country and placed on the banks of the river here at Fitzroy Crossing, with nowhere to stay. This was after the award wages came in. We think the Constitution should recognise those things. There should be some words in the Constitution that reflect those things that happened in the past so that they will not happen again.

KALAAC is a Kimberley wide Aboriginal organisation that tries to maintain and continue our strong culture, our connection to the land and our language. We think there should be something in the Constitution that cares for and protects those things that make us Aboriginal people. We feel that, if we do not have anything in the Constitution that protects and reflects our connection to the land, our culture, our language, our Aboriginality, our ownership, and the recognition that we were here first will be lost and it will not be fully recognised that we were the first people here. We are Aboriginal people and we feel that there should be some sort of wording in the Constitution to acknowledge that we are Aboriginal people who still have a strong connection to the land, we still have our culture and we still have our language.

CHAIR: In your statement you talked about language. There are two sections that have language recorded and referred to. On page 43, section 51A talks about recognition of and acknowledging Aboriginal and Islander peoples and there are four subsections, which are 'Recognise', 'Acknowledge', 'Respect' and 'Acknowledging'. Also, section 127A is headed 'Recognition of languages'. I am interested in your views on that. Under that section it says:

(1) The national language of the Commonwealth of Australia is English

(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, as part of our national heritage.

Is that set of words less or more important than the words that you just talked about in 51A?

Mr Carter : Can I get another copy? The pages here are all mixed up.

CHAIR: We will give you a copy of the book. You will find it much easier having it in the report form. When you get the report you will see it on page 43. It is the recommendations of the expert panel. If you look at that third point, it covers the points that you made. If we turn over the page to section 127A there are two sections that refer to language. I would be interested in your comments with regard to which is the stronger from your perspective—51A or 127A?

Mr Carter : I am still trying to catch up. We are looking at the recommendations on the—

CHAIR: Proposed section 51A is 'recognition of Aboriginal and Torres Strait Islander peoples,' and then it has those four key areas.

Senator SIEWERT: Particularly the one that says: 'Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.'

CHAIR: And then look over the page to proposed section 127A.

Mr Carter : Yes. It states:

… "national language" of Australia is English, but also that "Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage".

What was the question?

CHAIR: Which do you feel is the better way of capturing the words? We have got: 'Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples,' or what is in proposed section 127A.

Mr Carter : I reckon the first one. 'Respecting' is a good word—to respect something. But, in the end, what does that mean? What does that really mean to our people? With the first settlement of our country, we did not have any respect. But now to turn around and say, 'Okay, we respect your continuing culture, language and heritage of the Australian and Islander people'—I think it is good to respect something, but how do you show your respect?

Senator SIEWERT: I understand what you are saying. These are the recommendations of the expert panel. Proposed section 51A deals with 'respecting continuing cultures language and heritage.' Then going on from what you were just talking about, what do you do next? That is why proposed section 127A was put in because that is more a 'doing' thing. So, combined, all the amendments would acknowledge and respect languages and then proposed section 127A says that (1) English is the national language English and (2) that Aboriginal languages are the original Australian languages, a part of our national heritage. It takes it a step further. We have had a lot of push-back on proposed 127A, mainly around that first dot point that says English is the national language. The committee's interim report is trying to find a way forward. If some people do not like that proposed section 1, how do we do what you are just suggesting, Mr Carter, which is acknowledging and respecting? What is the 'doing' bit then of the changes around language? I think that is the nub. You have just put your finger on the nub of the issue. Maybe you need to think about it, talk about it and give us a submission or something around what you think we should be doing.

Mr Carter : Yes. For our people up here, English is a second language. To us it is not the national language.

Senator SIEWERT: And that is the push-back we have had.

CHAIR: That is a point that a lot of people have made.

Mr Carter : So, how can we fix that? We teach language in schools up here. I think the national language of Australia is English but it should be accepted that Aboriginal people have their own language. To a lot of still-strong cultural and traditional Aboriginal people in this country, English is not their national language. These guys here can talk, in their language, to people right through the desert and right down to the central part of Australia. If you count these people, with their language, that is nearly half or a third of Australia that speaks a different language to English. They can understand the desert mob.

Mr Street : We are mixed language, and we all can understand one another. Whenever we want to speak English, we use English, and they can understand.

Mr Brown : When we started to talk about these things yesterday, we got Scott, who works for us, and we put all these things together. Maybe Scott will talk about our work.

Mr Herring : The first thing I will say is that this process is a really difficult process, and I suppose in some ways it is a really good indication of operating in two worlds, because here we see the real government way of doing things, with microphones and recorders and that sort of thing. When these men—and KALACC women as well, but these are the men we have at the moment—sit down and talk, quite often we are out on country, or sitting around at KALACC, out the back there. People can sit around and talk, and conversations, discussions, have their own way of going. So, here, it is actually really hard to get to the heart of the matter and to hear from these men. But just as we were talking about that language issue before, about getting to the nub of the language issue—and the group of people here now probably talked for about two hours yesterday—Mr Brown talked about what is really strong about recognising people: what stronger right will people get? And I think it comes down to that thing about, 'So what?', if these words go into the Constitution. We did have a look at appendix 2, at those recommendations. I suppose people are asking: if we are going to recognise that the First Australians were here, if we are going to acknowledge the continuing relationship of traditional lands and waters and culture and language, what does that actually really mean?

That is one of the main questions I wrote down: 'Recognise black feller. What does that mean?' These are the words that came out yesterday. When we started talking I was a bit confused because Mr Brown started talking about native title. I thought that this was not actually to do with native title. But I think what Mr Brown was saying—and a lot of work was done on that through the courts and so on—is that now people are finding the concept of native title, the words that are written down, does not give people land rights.

I suppose they are asking that question: if the words go into the Constitution, what is it really going to mean? Does it mean we recognise you, that we recognise culture? What is it going to mean? There are many questions raised by these men. The other point they made a couple of times was the idea that recognition is really good and understanding that prior to white people being in Australia there was a governance model in place. There were bosses who looked after people. The way they did it would have looked quite different from how things operate out of Canberra and Perth, but they certainly had their own governance model through culture and protocols and those types of things.

As much as anything, they had questions. But the points they raised were, funnily enough, very similar to the recognising, acknowledging and respecting that had come from the expert panel. I guess they are wondering what that now will mean. Am I pretty close with that, Mr Brown?

Mr Brown : Yes. It is that question and what we are going to get out of you sitting over there. This is the first time we have been here, but everywhere from [inaudible]. We look after ourselves and we want to know more about what is going to happen. All the words that have come out of government to regulate Aboriginal people in the past, right up to today in 2014, what else is there? That is the question I would put.

Mr Carter : To add to what Joe is saying, and from our discussion yesterday, we have heard a lot of things from the government. We have had these sorts of meetings before—talks on native title and those things. But with this, the Constitution and recognition of Aboriginal people, what is it that is going to change? What is going to happen after we are recognised in the Constitution? That is basically what Joe is saying. What will happen?

When we spoke yesterday we spoke about recognising somebody. Even today we talked about 'We understand that you came from this country first. That camp you are sitting in, you were there first. But we can come and move you out of that camp, if there is gold sitting under your camp.' This is what we were talking about the [inaudible] thing. Putting it in my own words, out of discussions yesterday with the recognition of our people and respecting our culture and everything, it all comes down to healing. That is what we want. That is what Aboriginal people want out of the Constitution—the correcting of things that happened in the past. The wording should be in the Constitution that reflect that healing.

The boss who is sitting here, I cannot walk onto Joe's land without his permission. I cannot go to his community. Even though I am the same tribe as he is, I have to get permission to go there because I recognise him as the elder and the boss of that place that he lives on. This is the sort of thing that should be worded in the Constitution—the ground level recognition. That will bring about healing of what happened in the past. Like Joe and all of us, I was born on Moola Bulla station, a government-run station where my parents were sent. When the government sold it to a private station manager, we were kicked off there and we did not know where to go. We came from Moola Bulla down to here and stayed at Old Cherabin station but we were asked to leave. That was my mother's country. The Constitution should have wording that deals with those issues that we have been through.

CHAIR: I hear what you are saying. There are two parts to this. The Constitution is like the rule book that the Australian government has to play by. That is the framework they have to have regard to when they make laws. They have to have regard to the Constitution. The things that you are talking about in terms of land and other things that will flow come out of legislation that either a state or a territory parliament puts into place, or the federal government. Each state and territory has its constitution. The states and territories are fortunate in that they are able to change their constitutions by the parliament. The Australian government cannot change the Constitution; it can only put a question to the Australia people. The only way it can be changed is if every Australian agrees with the question. And that includes our people; they would need to agree with it. And if the majority plus the majority of states agree with it, that gets put into the Constitution.

When the Australian government makes laws, it must consider what is in the Constitution. When it does not, an individual can appeal to the High Court. A good example of this is a parent in Queensland who objected to school chaplains in schools. He took it to the High Court. The High Court looked at the Constitution and considered that the government had not abided by the Constitution, so that program was unconstitutional because there was no act to cover that funding. So it is unconstitutional. The government has failed to meet what is in the rule book, so it unravelled or came undone. By inserting recognition of Aboriginal and Torres Strait Islander people into the Constitution, it means that the Australian governments of the future will have to consider legislation. One of the things that was put to the expert panel was that with the intervention in the Territory the Commonwealth government set aside the Racial Discrimination Act and put in place the intervention. What they are saying is, 'We want something in the Constitution that the government cannot just set aside. It has got to sit down and work with people to find a solution before it passes an act.' That is what they are saying to us. The people we have been talking to are saying, 'Yes, we want to be recognised. We want the Constitution to recognise that we were here 40,000 to 60,000 years ago and we have still got things that are important to us—our culture, our languages and so on.'

The problem that the committee will have is the set of words that we have to put together so that, when it becomes part of the Constitution, 20 or 30 years down the track the High Court cannot find adversely. What are saying is that we do not want governments to do adverse things. What we want them to do is to construct the things that make life better for Aboriginal and Torres Strait Islander people. If you are asking how that will change what happens in your community every day, it does not. But it formally recognises the continuous linkage that Aboriginal and Torres Strait Islander people have had to the land long before 1788. That is the idea behind recognition. For four prime ministers to say that they want recognition in the constitution, that is a major shift for Australia, because you have got four of our prime ministers committed to it.

The expert panel's challenge was to find some words in the recommendations that they could bring back to the Prime Minister. And they did that. Trish Crossin, who chaired this committee before me, started the process, but we had to go to an election so that stopped and it has been reconvened as a committee. Senator Siewert, myself and about five others have now got the task of talking with people about what you think and what you think we should consider when we put together the final report. You have raised some very good points this morning that will help us, and Mr Carter, you made a couple of comments that probably need us to strengthen respecting the continuing cultures, languages and heritage in the way you describe what the elders have talked about. Our problem is: we do not have the chance to sit and yarn with you at the community level. That is what it really means. If we had the time then we should visit KALACC and sit with the elders and with those who wanted to be here. We should spend a day with them, or half a day, where we just sit and have a yarn about each of the sections of the recommendations. But we are unable to do that.

There is a group called Recognise which have started that process. I think the important thing is: when you do ask us questions and raise issues, it causes us to reflect or to think about what you have said and what the elders have said to us this morning as well. And that is important and we will take that on board. That is why we have a setting like this instead of your own community, so we can record the voices of people, that we can go back to and review what was said so that we try to capture that the best way we can in our report.

Mr Carter : In our meeting yesterday we spoke about the word 'constitution' and the elders here understand that 'constitution' means the rules that the government is going to set down on recognising our people. Their question was: 'What is that going to mean for us? After this constitution has gone through, where will that leave our elders?' They said that it should be strongly put that our language, culture and connection to the land are things that are really important to our people and they should be put in the Constitution.

CHAIR: We will take that on board. That will be part of our discussions as a committee when we have finished the series of consultations. We have two reports to write. We have a progress report that we will table in December and then we will have our final report. In the one in September we will say what is coming out of consultation with community. One thing that we have heard in Broome, here and in Halls Creek is that there is not enough information on the ground in community and that we should be talking about this in the same way we talk about the football.

Mr Carter : Exactly. I think our festival, which is coming up in September, would be a good time for the Recognise people to come and talk. This is a very important issue with our elders up here. They all say that it is good to be recognised as the first people of Australia and that it is about time. The way what we were treated in the past was as if we were part of the fauna—how we were moved around, kicked around and moved around our lands and treated as aliens on our own lands—and now that the government realises this it is going to recognise us in the Constitution as the first people of Australia. That is all good, but this needs to be explained to a lot of our people properly on the ground—like sitting down and talking about football. It makes us feel good in a way that we are finally recognised as the first peoples of Australia, but it needs to be explained where this will lead to, what is going to happen, what good is going to come out of it and what healing is going to come out of all this.

CHAIR: Mr Carter, you mentioned 'first peoples of Australia', but some Aboriginal people we have heard from so far have asked us to stop using the term 'first Australians' because they said Australia did not exist until 17880—

Mr Carter : Exactly.

CHAIR: and they are the 'first nations' of this land. That is the terminology that we have been asked to use. Do you have a view on that?

Mr Carter : The word 'Australia' should not be there. We were not recognised as Australians until—

CHAIR: 1967.

Mr Carter : Yes.

Mr Street : This has been talked about by a lot of Prime Ministers but every time the Prime Minister is changed people on the ground always say, 'What's going to be next with another Prime Minister? What is going to change?' But on the ground for Aboriginals it never changes; we are still in the one place.

CHAIR: Mr Street, I think the thing that we have to change is the way that governments and government officers do business with community. That is an important step as well. The message that will be taken back to the Prime Minister is that we have heard from people in two communities, very strongly, that there is an expectation that recognition is fine but the way in which government does business with Aboriginal people in the community and on the ground is not at its best and needs change.

Mr Street : That is right.

CHAIR: If there is no further comment, can I thank you for attending today and giving evidence. Sorry; Mr Wise?

CHAIR: If there is no further comment—

Mr Wise : I would like to say a little bit about people and the country, land, where we come from, language, black and white. We are all together. First place, people coming to take land, got a boat and somebody's word saying that black fella wasn't here. Some times I heard first people did not come into this land with a boat and nothing was here, and go back to England and saying, 'Nobody is there, it's good country, we want to go back there again.' Not true, black people were here' and I'm just saying to you to give me a hand to know black people were here.

Mr Coates : This is terra nullius and how white people can see Australia to have nobody here. He is asking the question—

CHAIR: That changed with the High Court decision in Mabo. Mabo said that terra nullius was not true.

Mr Wise : Yes, all right. Mabo case, people did not recognise properly. We are still like several black people here in this land. We come from island and people where I come from, where my family comes from [inaudible] where we are living and standing. Together people understand what we are doing and what we are saying to our own land. We are three people. White man come in and make three people, because another one has gone back to black, other one family, you know.

CHAIR: What you are saying is that with recognition of Aboriginal and Torres Strait Islander people in the Constitution that means the rule book will now say that this is accepted by all Australians, that it will always be in the Constitution saying that Aboriginal people have been here long before 1788. It will mean that it reinforces that the country was not empty, that there were Aboriginal groups or cultures right across the diversity of Australia. That is what Recognise will do.

Mr Wise : Today people will understand.

CHAIR: There is a growing awareness. There are a lot more Australians who accept a true history of this country.

Mr Wise : Feels like nothing still happening to us. We are not recognising by government people. We will see what is happening.

CHAIR: Part of it is to do with the way government officers do business with the community.

Mr Wise : Yes, we are living in a community and we do not still understand. We still separate people. Nobody knows how we are living, you know? The government knows everything, just like we're living together here—like people work and otherwise. It's still not good enough. We're still not together, you know? Really, I would like to see somebody, government people, to understand, to know one another—understand one another, live and work together; be good friends and understand.

CHAIR: Well, let us hope that the referendum and the recognition make everyone aware of how we need to work together and walk together, and sit and yarn—not tell each other what needs to be done but sit and yarn about the things that should be worked on.

Mr Wise : Like he has got a separate mind. He is thinking a different thing in his mind. He does not know my mind, you know? You do not know what sort of an idea he's got, and I have got something in my mind.

CHAIR: That is why yarning is important—because if you and I have a yarn then you are able to tell me what your ideas are, I can then tell you what mine are, and then you and I can work out a way that our two ideas can come together. And that is what we hope will happen out of Recognise.

Mr Wise : That is what I am thinking. We all, you and me, want to make one mind together, to think as one, one word. We are there together. Talk it out. And we are one—number one. One voice.

CHAIR: Yes. I thank you for your words of wisdom. We will go back over what has been said this morning. Certainly, we will ask Recognise to come up here when you have your festival and have a sit-down with you—not have stalls. They need to sit down and have the yarns. They need to talk about the things that you have in mind and what they know and then share them and come to a common agreement. I thank you very much for coming this morning. Mr Carter, if you want to make a formal submission, KALACC is welcome to. Certainly, if you forward that to the secretariat, the committee will note your submission and we will consider the information contained within that submission. Thank you very much for being here this morning.

Mr Carter : We will probably do that around our festival, when more of our elders from throughout the Kimberley are together.

CHAIR: That is fine. Thank you.