To: Topic: From: Referendum Council Submission on Constitutional Reform Rowena Bullio Torres Strait Island Delegate Date: 17 May 2017 Introduction The following is a summary of discussions with Aboriginal and Torres Strait Islander people of the Cairns community I had the opportunity to consult with, and my views reflecting the Torres Strait Island regional dialogue. Finally, my considerations outlining the respective options on constitutional reform as per regional dialogue agenda. Opinions put forward by community members may well reflect what is already known to the Referendum Council, and reflective of discussions at regional dialogues and or relayed to other delegates and to the Council. At the time of my initial participation at the Cairns regional dialogue, my knowledge of the constitutional reform were minimal to non-existent, though I am aware that the little knowledge I possess now, and given my participation at the twelfth regional dialogue in the Torres Strait Islands, my understanding is far greater than many community members. However, I am mindful of my lack of legal knowledge and understandings of the Australian Constitution and have to the best of my ability and capacity, learn through reading relevant materials provided by the Referendum Council, and ask questions at the regional dialogues. Therefore, my commitment and participation in the process as a Torres Strait Island delegate and a participant of the Cairns regional dialogue at the Uluru National Convention, resonates deep through the respect of my / our Elders, leaders, families and children. Relaying the information back to the people with respect to the agreed outcome at Uluru are important processes for a consistent message. My position is for ongoing community engagement to benefit and advance Australia s First Nation people through effective decision-making and lawmaking by Aboriginal and Torres Strait Islander peoples, ensured by non-discriminatory laws 1
that enable our people to enact without prejudice. Additionally, with scope to pursue the issue of sovereignty for First Nation s people in a form of a treaty or an agreement of some type. Aboriginal and Torres Strait Island people in the Cairns area have advised me in my consultation of their eagerness to be a participant in the processes of constitutional reform. What has been profoundly consistent though are the sentiment of First Nations people disappointment to the low key promotion of the regional dialogue with respect to the Cairns forum of which I was a participant. There is skepticism due to the limited knowledge on the options for constitutional reform accessible to Aboriginal and Torres Strait Islander people, echoed by community members; given the government s bipartisan support, and time lines that are indicative of government, community members feel the government has already ascertained a position and outcome. More in depth communication strategies and time to understand the options and political implications to make informed decisions and contribute, is a strong message from the community members I spoke with. A resounding argument put forward by those whom I consulted, is that any amendment to the Constitution must not compromise or impinge Aboriginal and Torres Strait Islander people from pursuing treaty negotiations. The issues are pertinent to a treaty between Australia s First Nations and the Commonwealth of Australia British Crown. The Makarrata has been mentioned, to continue the flames lit by our forefathers to right the wrongs of the past through effective community engagement processes. There is a real opportunity to engage with our people by our people, in one of the most significant era of our times on a national agenda of such fundamental importance. At a time when globalisation has shaped our existence through the binds of technology and neo-liberal economies, Aboriginal and Torres Strait Islander people maintain our existence through a sovereign right that is an embedded mindset. As powerful as the sovereign mind is, the lifestyle begs a change for the better; the search for a way to engage in a participatory capacity through unified, inclusive processes, are based on a unified vision and informed decision-making. Negotiated land ownership and or access to significant sites and economic independence, and power to 2
make effective decisions based on our cultural heritage, are inherent rights of Australia s First Nations people that continue to rise to the top of discussions. Torres Strait Islands is a unique region with a cosmology that has maintained interrelationships with two Indigenous peoples of Cape York Peninsula and Papua New Guinea s southern coastline. Greater regional autonomy appears to have unanimous support from Torres Strait Island people in the Torres Strait and mainland Australia. It is important to note that religion in terms of Christianity plays an important role in Torres Strait patriarchal society, influencing politics and leadership. Inherent of both Aboriginal and Torres Strait Island peoples in contemporary times, are the interplay between Indigenous religion, politics and holistic healthcare management. Politics and governance in developing First Nations peoples within a developed country, demands the cultural relativity it deserves, to fully comprehend the issues and the solutions. The decolonising processes that are currently occurring with our people in Australia s liberal democracy are highlighted further through the constitutional reform national discussions of self-determination. When the basic needs and voices of Torres Strait Island people are filtered through the instruments of policies and political processes, it becomes problematic, and measures become systematic failures through government administration. My perspective as a mainland Torres Strait Islander with regards to the Torres Strait region, are to support isolated island communities that lack significant access to resources, and excessive high cost of living on account of isolation. Furthermore, my views as stated at the Torres Strait Island regional dialogue, are for discussions on some form of treaty or proclamation from the Torres Strait Island nation, to Australia s Aboriginal peoples by recognising the settlement of our people on Australia s First Nation lands. The colonial tool of divide and rule have long lasting affects with our Aboriginal and Torres Strait Island peoples, and giving the rightful recognition and respect to our Aboriginal nations, I believe will bring some degree of enhanced relationship and greater unity for both our First Nations peoples. The voice of Torres Strait Island women are being heard more, i.e. the voices are getting louder as more women and young girls are and are becoming educated in disciplines that warrant advocacy across the spectrum of Torres Strait Island society. Torres Strait is a patriarchal society and the rise of Torres Strait Island women s voice is a measure of some 3
change developing in this culture. As a woman, I am an advocate for girls receiving quality education and pursuing further education particularly at the tertiary level. It is also my belief that Torres Strait Island men hold their position as leaders of their families and clans, with the flexibility of opening up opportunities for Torres Strait Island women to pursue education and programs to enhance personal and community development. The gender discourse and youth agency is a sensitive one for Torres Strait Island people, in terms of expected cultural and social norms. Culture given the season and the times, can be pliable to survive the changes that are impacting on established familial and societal foundations for Torres Strait Island people. These discussions requires our people to participate, contribute and listen to all sections of our Torres Strait Island society, through a process of respect, love and empathy. Thank you to the Referendum Council and the Secretariat for the hard work and political leadership before the Australian Government and before Aboriginal and Torres Strait Islander peoples through nationwide regional dialogues. I and many of the delegates that participated in the Torres Strait Island regional dialogue were impressed in the seamless coordination and organisation of the CRIC team, in terms of the logistical processes associated with travel, accommodation and transport. Particular acknowledgement to Co-Chair Pat Andersen for tenacious leadership, and a heart blessed with an abundance of love with a head of wisdom. Thank you to Noel Pearson for demonstrating clarity to our people by breaking high level terminology and its meaning and implication, to its simplest forms. Thank you also to Kenny Bedford and Josephine Bourne for incredible diligence and emotional intelligence to facilitate such a challenging forum with our people in the Torres Strait. Options Constitutional Reform `1. Statement of Acknowledgement The Australian Constitution is a legal binding document that administers the distribution of powers between the Commonwealth, State and Territories, and sets out the overarching 4
law-making which is the responsibility of the Federal Government and of the role of the Federal Government. For a Statement of Acknowledgment to be included in the Constitution, does make a compassionate provision of stating words that may be profoundly accurate historically, however does not substantiate a legal intention for Australia s First Nation people to perform a level of decision-making, either autonomously and or in conjunction with the Australian Government. The statement of acknowledgement does not carry any legal weight. The problem increases though when everyday Australians acknowledge the statement as a form of recognition that may be all that is required from an Australian ill-informed of the political and legal discourse surrounding what it actually means. There is no time for smoke screens that may well and truly give rise to further misunderstandings towards Australia s First Nation s political aspirations. If whatever questions are submitted to a referendum and are successful, this would demonstrate a mandate from the Australian people to the Australian government and politicians at every tier, to then develop documents of significant carriage. Negotiations for a statement of acknowledgment could then be written into e.g. Local Governments coupled with educational processes and campaigns. Possibly the statement of acknowledgement be an addendum to the Constitution as a result of a successful referendum. My view though is to leave the statement of acknowledgement out of the Constitution. 2. Head of Power Power to make laws for Aboriginal and Torres Strait Islander Peoples Prior to the Cairns and Torres Strait Island regional dialogues, as stated earlier, my knowledge of the Australian Constitution were limited. My views on Section 51 of the Australian Constitution require further informed discussions to fully comprehend the political implications as it relates to the Federal Government making judgment and passing racial discriminatory laws. The Hindmarsh Island Bridge Act 1997 was a pivotal discourse on the rights of First Nations peoples on their cultural integrity and sovereign rights, when the Federal Government overruled the decision based on Section 51 of the Australian Constitution. The Head of Power ultimately can make laws under Section 51 to benefit areas relating to Aboriginal and Torres Strait Islander people, and the Federal Government can make laws that 5
disable and disempowers Australia s First Nations people. My question though is what defines citizenship for all Australians, and what defines citizenship for Australia s First Nations people under the Australian Constitution? It is in my view with further discussion at the Uluru National Convention, to delete and replace Section 51 to give power to Aboriginal and Torre Strait Islander peoples, to make legal decisions that affect the livelihood of our people. Understanding the legal responsibility and sovereignty of the Commonwealth, it may or would be prudent to make decisions in cohesion with the Commonwealth. My views though are my current knowledge of this option for constitutional reform, and require further exploration. 3. A constitutional prohibition against racial discrimination This particular option for consideration is consistent with the Head of Power Section 51 of the Australian Constitution, making special laws for Aboriginal and Torres Strait Islander people. It is with caution of the legal and political implications that require further exploration at the Uluru National Convention to make informed judgements on this option for constitutional reform. Admittedly the Federal Government is not bound to non-discriminatory decision-making when passing laws pertinent to Aboriginal and Torres Strait Islander people, therefore it is incumbent of the Commonwealth not to racially discriminate against any race, particularly Australia s First Nations peoples, with reference to Section 51 of the Australian Constitution. My views are that the Constitution must safeguard Australia s First Nation peoples through a clause that binds the Federal Government of non-discriminatory laws that harm the livelihood and cultural integrity of our people, consistent with a new section replacing Section 51. Additionally the wording must ensure there is scope to pursue treaty or agreement provisions for Australia s First Nations people with the Commonwealth. 6
4. An Indigenous Voice to Parliament It is long overdue for political will to occur for First Nations people to be included in lawmaking within the Commonwealth Parliament, as per appropriate changes to the Australian Constitution. Globally, democracy faces a juncture where the rise of nationalism and populism are resonating at the polling booth with incredible results that are not inclusive of minorities, distinguishing particular social classes. Irrespective of the Australian Government s signatory to the United Nation s Declaration on the Rights of Indigenous Peoples, there is no political will to pursue the formal processes on the political agenda. To make provisions for an Indigenous Voice in Parliament, obviously implies the voiceless cries of Aboriginal and Torres Strait Island people within the political Australian community, that are problematic when designing policies and programs for our people. Political participation is an imperative of democracy and the political aspirations of First Nations people continue to be suppressed under layers of political processes and objectives by the Australian Government. Does inserting a clause as per the removal and replacement of Section 51 of the Australian Constitution, carry the legal and political participation of our people in making special laws for our people, override the political aspirations of First Nations people to maintain sovereignty? Will the broader Australian community hear the diverse voices of First Nation s people and embark on a colloquial cry you can t have your cake and eat it too? The polarisation of Australia s First Nation s people are evident in the whole constitutional reform discourse; and becomes more so when we as First Nation s people demonstrate our political participation in the Commonwealth Parliament. It will undoubtedly establish a legal foundation for First Nation s people s future generation in effective decision-making at the highest level. Developing a model that reflects the intent and elected office bearers, is yet to be discussed with First Nation s people from my perspective. Further exploration and consultation is needed to ascertain all the options on the agenda for constitutional reform. My views are that an Indigenous Voice in Parliament is fundamental to keeping politicians accountable to the rights of First Nation s people, through mandatory political processes with an Indigenous Voice that has and demonstrates integrity and has support of the majority of First Nation s people. It is crucial in making a distinction of two 7
Indigenous peoples of Australia Aboriginal people and Torres Strait Island people. This distinction is echoed in a respectful way by the two First Nations people. 5. Deleting Section 25 An expression of my views pertaining to deleting Section 25 is limited in this instance. I am inclined to explore this legal intent further and question the implications of this option, due to my limited knowledge. My views are for further exploration on the legal ramifications of this particular option to make an informed decision. In closing, I continue to be approached by community members who have no, or limited knowledge, of the options on the table for constitutional reform considerations. It is a sensitive time, as many Aboriginal and Torres Strait Islander people metaphorically see the constitutional reform recognising Australia s First Nation people, as a half-hearted measure to rectify 1778 first fleet illegal occupation of First Nation s land, sea and airspace disregarding Indigenous sovereignty. This process has made me think long and hard about the options at hand, as the issue of trust plague myself and many with regards to the Australian Government intent for constitutional reform. I am first generation Torres Strait Islander to be born on the mainland, I come from a large kinship system of Torres Strait Island families and cosmology. Australia is my home I am a Cairns girl - but my home is not my ancestral identity. There is an opportunity to participate in the political processes and I am humbled to have been elected as one of ten people from the Torres Strait Island regional dialogue, therefore have an enormous responsibility to participate and contribute with integrity at the Uluru National Convention. 8