Terra Nullius no more – Australia approaches constitutional recognition of its indigenous population

by Rhodri C. Williams

The BBC yesterday picked up on a curious piece of legislative news from Australia, with the lower house of Parliament having unanimously passed a bill presenting a constitutional IOU to the country’s indigenous population. In effect, the legislator agrees to lead from the front in seeking to drum up popular support for constitutional recognition of Aborigines and Torres Straits Islanders, and to act on that support as soon as it is there:

“I do believe the community is willing to embrace the justice of this campaign because Australians understand that indigenous culture and history are a source of pride for us all,” Australian Prime Minister Julia Gillard said. “This bill seeks to foster momentum for a referendum for constitutional recognition of Aboriginal and Torres Strait Islander peoples.”

The bill comes as part of a longer term process of reconciliation dating back to the early 1990s, when a Royal Commission was set up to examine Aboriginal deaths in custody and the Australian High Court belatedly disowned the terra nullius doctrine that had premised the takeover of aboriginal land on the demeaning idea that it was not truly occupied by other human beings. This tradition of emphatic non-recognition of Aboriginal peoples was symbolically reversed in 2008 by then-Prime Minister Kevin Rudd’s groundbreaking apology to the Aboriginal and Torres Strait Islander peoples:

We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians. …. A future where all Australians, whatever their origins, are truly equal partners, with equal opportunities and with an equal stake in shaping the next chapter in the history of this great country, Australia.

The present bill is admirably short and pithy. In its Article 3, entitled ‘Recognition’ it sets out a series of propositions that are revolutionary only in their self-evidentness:

(1) The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

(2) The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

(3) The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

It then goes on to mandate the Prime Minister to “consider the readiness of the Australian public” to support a constitutional referendum on recognition of Aboriginal peoples and take steps to that effect within 12 months from its entry into force. The explanatory memorandum goes on to explain in somewhat more detail the thinking behind this somewhat unorthodox legislative approach: 

This Bill reflects an intention to pursue meaningful change to the Constitution that echoes the hopes and aspirations of Aboriginal and Torres Strait Islander peoples and unites the nation.  It is one part of the ongoing conversation that needs to happen in the lead up to constitutional change. In particular, the Bill will enable all Australians to become familiar with formal recognition of Aboriginal and Torres Strait Islander peoples ahead of constitutional change.

A review provision sets out a process for Parliament to consider next steps towards constitutional recognition, while a sunset provision ensures that legislative recognition does not become entrenched at the expense of continued progress towards constitutional change.

The Bill is not intended to be a substitute for constitutional recognition.  ….  The Bill does not restrict the scope of future issues for debate in regards to constitutional recognition of Aboriginal and Torres Strait Islander peoples.

In the annals of the law and society debate, this Bill may come to represent something of a hallmark. As a legislative attempt to encourage consensual change rather than simply ram change home based on an argument of necessity, it stands out both in its transparency and in the relatively sophisticated mechanism it seeks to set up. It also represents a sterling example of new constitutional approaches to managing diversity that posit a more sustainable relationship through transparent, participatory and open-ended processes than through foreclosing such processes with an unalterable compact.

There is of course a risk that this type of legislation may be seen as an attempt by the Government to play for time or appease reactionary elements in society. On the other hand, accommodating minority demands always imposes a cost on the majority (or in any event prevents the majority from externalising such costs any longer). If Australia’s current moral redistribution and its political and economic consequences are to be sustainable in a democratic system, then it is imperative that bills such as the present one help to undergird moral necessity with political consensus.

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One response to “Terra Nullius no more – Australia approaches constitutional recognition of its indigenous population

  1. Just came across another interesting piece in the BBC focused on the separate but related issue of multiculturalism as a result of immigration in Australia:
    http://www.bbc.co.uk/news/world-asia-21468892
    The article quotes author Tim Soutphommasane as arguing that Australia “now rivals Canada as the world’s most successful multicultural country.” Curiously, however, the analysis focuses only on immigration-driven multiculturalism, rather than the issue of accommodation of indigenous peoples and their claims to land and autonomy (which Canada also shares with Australia).
    However, Canada will always have a clear claim to more complexity (if not more success in resolving it) based on the fact that they also have a non-indigenous national minority in the form of the Quebecois. Prend ça, Aussies!

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