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Monday, 11 February 2013
Page: 810


Mr ZAPPIA (Makin) (16:54): I too take this opportunity to speak to the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. This legislation follows the report titled Recognising. Aboriginal and Torres Strait Islander peoples in the Constitution, which was presented about a year ago. I note that the member for Page, who was a member of the expert panel that put together that report, is in the chamber. I say to her on behalf of all of her colleagues that it is, indeed, an excellent report. I have read through it and I believe it sums up the situation of Indigenous people of this country very well.

When I think about Australia's identity and what distinguishes Australia from other nations, the first thing that comes to my mind is the Australian Indigenous people—the Aboriginal and Torres Strait Islander people of this country: people whose attachment to this land dates back tens of thousands of years; people with a fascinating and, indeed, unique culture. Since 1788, the place of Aboriginal and Torres Strait Islander people in the Australian story has been controversial and at times divisive. Since colonisation, Australia does not have a proud history in its treatment of the Indigenous people. It is a history littered with government policy and decisions based on prejudice and ignorance. One only has to look at the speeches of Prime Ministers Edmund Barton and Alfred Deakin to understand the racist thinking of the time. Nor was the racism directly and solely meant for the Indigenous people of this land. In fact, I suspect that most of it was intended towards other people. Policies which in hindsight have been discriminative, racist and heartless arose as a result of thoughts in that era.

In recent decades, however, there has been considerable effort to recognise the rights and equality of Indigenous people in Australia. The 1967 referendum, land rights, Mabo and Indigenous political representation have all been commendable examples of changing attitudes throughout this country, yet many other efforts have had only limited success when assessed against the often substantial resources committed. The issue of Indigenous recognition in the Australian Constitution is a prime example of that. Few people expressly opposed the proposition, yet following through with constitutional recognition has proved incredibly difficult. I heard the speech by the member for Wentworth and he made that very point. He quite rightly also made the point that not only has it proven to be very difficult in the past but also it is likely to be very difficult in the future. That may be partly explained by the broader issue about the difficulty of amending the Australian Constitution. Only eight propositions out of 44 put to the Australian people have been successful. I suspect, however, that it has more been about a lack of commitment by politicians at all levels across Australia. The rhetoric and the platitudes have not always been matched by the necessary commitment and effort required, in a similar way to the lack of commitment that we are seeing on the question of local government recognition.

Indigenous Australians are understandably cautious about the latest proposal. Recognition of Australia's Indigenous people in Australia's Constitution will be more than just a symbolic or patronising gesture. The Australian Constitution sits as the foundation document of Australia's legal framework. It provides a framework for Australian laws and the responsibilities of federal and state governments. It is the founding document of our nation. The absence of any recognition of Indigenous people in the Australian Constitution is a denial of the truth about the origins and history of Australia and perpetuates an injustice that may have been accepted in 1901 but it has no place in Australia today.

Indigenous recognition in the Australian Constitution will recognise the rightful place of Indigenous people in the Australian story, but it will do much more than that. Constitutional recognition, reconciliation and Closing the Gap all intersect. Reconciliation will never be complete without truthful recognition of Indigenous people in Australia's history and its future. Importantly, every act of reconciliation will break down barriers to Closing the Gap strategies. Acknowledging injustice and grievances can be a powerful step in the reconciliation process.

That is why former Prime Minister Kevin Rudd's national apology was so important in unifying Australia. The Prime Minister's Closing the Gap statement on Wednesday, 6 February, only last week, highlighted progress made in overcoming Indigenous disadvantage and hardship. The statement also reaffirms the considerable disadvantage that continues to exist throughout Indigenous communities—the kind of disadvantage that led to the Northern Territory intervention policy. I believe that the Northern Territory intervention policy is well intentioned, but it will be some time before a proper evaluation of it can be made. My expectation is that there will be some initial benefits, and those who support the policy will point to those benefits as evidence that the policy is working. There are concerns, however, that over time there will be ways found to circumvent the policy, and just as prohibition did not stop the consumption of liquor in the US, the intervention may result in corruption and illegal activity in order to get around it.

I am also told that intervention is causing considerable resentment amongst many of the Indigenous people. Addressing core problems through education, awareness and inclusion would very likely have much better long-term benefits than protectionist laws which attempt to control behaviour. Whilst disadvantage continues, many of Australia's Indigenous people will continue to feel resentment, continue to feel discriminated against and continue to focus on past injustices. So Closing the Gap will heal wounds and enable reconciliation, and conversely reconciliation will help close the gap. Both will be enhanced by constitutional recognition of Australia's Indigenous people. This legislation, the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, is an important step in that process. It follows the work of the expert panel that I referred to in my opening remarks. Cognisant of the track record of constitutional change, the government wants to ensure that any proposal for Indigenous recognition has the best chance of success. With that in mind, this bill establishes a process for consulting with the Australian people, getting the wording of the proposed constitutional change right and overcoming procedural concerns as obstacle to a successful referendum.

Last year I was asked to address a forum organised by the City of Salisbury on the question of Indigenous recognition in the Australian Constitution. The Hon. Robyn Layton AO, QC, former Supreme Court justice, currently co-chair of Reconciliation South Australia and, in fact, South Australian of the year, Professor Peter Buckskin, Dean of Indigenous Scholarship, Engagement and Research at the University of South Australia, and Khatija Thomas, Commissioner for Aboriginal Engagement, also spoke at the forum and shared their expert perspectives on the constitutional change and the process required. It was an interesting discussion. I came away from the forum with two clear observations. Firstly, whilst the City of Salisbury team had gone to considerable efforts to organise the event, the numbers participating, although as well as expected, reflected the general lack of interest in the matter. The attendance at the forum was consistent with many other forums that I have attended with respect to Indigenous issues. The point I make is that regardless of how much we try it is quite often very difficult to engage the broader Australian community in questions and issues relating to the Indigenous people of this land. That is certainly one of the observations that I came away with.

Secondly, there was, from memory, unanimous agreement from those present that whilst Indigenous constitutional recognition should occur, there was still considerable work to be done to ensure that a referendum on the question would be successful. The concerns expressed on the night were consistent with the concerns that have been expressed in this place and previously in other places and at other times. It is extremely difficult to change our Constitution. It is even more difficult to change our Constitution when we are dealing with a matter relating to the Indigenous people of this land.

Whilst I note that the states of Queensland, New South Wales and Victoria have all acknowledged Australia's Indigenous people in their state constitutions, I am also conscious of the difficulty that we face in changing the Australian Constitution. In fact I understand that attempts in 1944, 1974, 1988 and 1999 to change the Constitution with respect to Australia's Indigenous people all failed. The only successful attempt was in 1967 and I understand that it was overwhelmingly successful, in fact the most successful change to any Constitutional matter in the history of the nation. I suspect there was also a very good reason for that, and the changes made at a time, I think, were quite logical and understood by the Australian people as being changes that should be made without there being any disagreement from any quarters.

Whilst the Mabo High Court decision of 1992 led to the Native Title Act and the establishment of an Indigenous Land Fund and the delivery of a social justice package, I believe that it also raised profound questions about the Australian Constitution and in particular the moral and legal requirements for Indigenous recognition. For example, if Indigenous ownership pre-dates British occupation, are those lands exempt from colonial law, and what other rights therefore pre-date the Australian Constitution? Such questions will continue to remain unresolved and these are questions about the sovereignty of this nation. I note that the expert panel made some comments about that in the report—very good comments, I might add—but questions remain unresolved and in fact they are questions that now arise, in my view, as a result of the Mabo decision. Furthermore, the Australian Constitution cannot continue to remain silent on a matter which the High Court has now ruled on and which contradicts a critical presumption on which, I understand, the Australian Constitution was framed.

I conclude with a couple of other observations. I note that in many of the recommendations, including some of the propositions put forward by the expert panel, words like 'recognise', 'acknowledge' and 'respect' feature in any proposed wording that may be put to the Australian people as the words that we ought to adopt with our Constitution. I note that the word 'rights' is never mentioned. I do not know how others in the future will interpret words like 'recognise', 'acknowledge' and 'respect' unless you attach specifics to those words. If you do not, then, quite frankly, it will also leave a degree of ambiguity about what the Constitution says about our Indigenous people. It seems to me that if the word 'rights' is not mentioned, and is never going to be mentioned, then the Indigenous people of this land, the Aboriginal and Torres Strait Islanders, will continue to feel aggrieved. Perhaps, as other nations have done, it is time for this nation to also strike a treaty with the Indigenous people of this land. At least that will then enable Indigenous people and the non-Indigenous people to move forward with a degree of certainty about the rights of each party. With those comments I commend the bill to the House and once again extend my thanks to the expert panel for the work that they have put into presenting their report to the House.