This conversation provides Australians with a rare window of opportunity to remedy the illegitimacy of non-indigenous occupation and rule of this land. Non-indigenous Australians have inherited from their forbears an encumbered estate. The British colonisers seized without right to do so the sovereignty and lands of the indigenous peoples, and in time, as measures to impose their white regime on indigenous peoples, their culture and even their children. The past cannot, of course, be undone so there are limits to the extent that the debts on this estate can be repaid, but unless they are repaid to the extent possible they will remain as sources of grievance for this land’s indigenous peoples and thus as barbs to the consciences of non-indigenous Australians. If, however, these debts are repaid to the satisfaction of the indigenous peoples, a basis will thereby have been laid for the founding of a truly united nation. The submission that follows addresses the seven ‘Ideas’ canvassed in the Discussion paper. In principle, I believe maximalist approaches rather than minimalist ones should be preferred on each because the latter are likely to be inadequate repayments of the relevant debts, and thus to leave grounds for enduring grievance.

Ideas 1 and 2: Statements of Recognition

Since the contents of any Preamble would be non-binding, I believe that a statement of recognition should be included in the body of the Constitution. Moreover, I think it should be linked with Idea 7 which discusses the conferral of shared ‘agreement making powers’. Both are warranted as gestures towards the restoration of stolen sovereignty to indigenous peoples. Recognition, though belated, of their sovereignty would take the form of enshrinement in law of the power to enter binding agreements with governments in Australia on the matters canvassed in the Discussion paper as well as on other matters that may emerge in this discussion. Shared power would imply, if not a treaty, at least something equivalent. If a treaty is still under contemplation, I believe it should be incorporated in the Constitution at this point.

Ideas 3 and 4: Statements of Recognition and Statement of Values in the body of the Constitution

I think any such statement should have binding as well as symbolic value. Symbolism is extremely important in inspiring commitment, as the response to the Rudd apology showed. However, if it is not backed by binding commitments, such symbolism can easily become a source of despair and cynicism for those who placed their hopes in it.

It would be important, I think, to identify in such a statement both the things that distinguish indigenous and non-indigenous peoples and the things that can now unite them. Neither indigenous nor non-indigenous culture has remained unchanged since colonization. It would be important for each group to consider those changes and to express their beliefs and hopes about how their traditional values can be integrated into their present ways of life, and how this can be done to ensure harmony between indigenous and non-indigenous Australians.

Idea 5: Repeal or amend the ‘race power’

Since ‘race’ is a nineteenth century notion which has no scientific basis, I believe that it should be purged from the Constitution in any twenty-first century revision. To retain it is to perpetuate in Australian law the false notion that there is a scientific foundation for discrimination between peoples so labeled. Australia’s indigenous peoples should rather be referred to as the First Peoples of this nation, and governments should be empowered to make laws for their benefit in virtue of this status. Some such laws may be warranted by the disadvantage they suffer as a result of colonization and its enduring effects, but others may be warranted by whatever measure of sovereignty is restored to them. The example of New Zealand may be followed, for example, in reserving certain places in the parliaments of this country for its indigenous peoples. Another possibility worth contemplating would be to revise our system for appointing Governors and the Governor-General to require consultation with State and Federal advisory committees on which indigenous peoples have, if not majority representation, at least significant representation.

Idea 6: Repeal of Section 25

The repeal of this section is entailed in the recommendation in the previous para. of purging the Constitution of the term ‘race’.

Idea 7: Agreement-making power

As indicated under previous headings, I believe that this idea affords the greatest potential of all for remedying to the extent possible the wrongs bequeathed by the past, and building a reconciled and united Australian nation. The idea’s virtue is not just that it restores a measure of sovereignty to indigenous peoples but also that it founds future policy development on ‘agreements’. By definition, agreements between equals cannot be imposed; the things that they propose can happen only if the relevant parties agree to them. Agreements also require negotiations, and effective negotiations can only take place where there is mutual respect; indeed negotiation can create such respect between the relevant parties. Agreements can, of course, be dishonoured, and in unequal situations, forced on the weaker party. The protection against such things promised by this Idea, however, is the enshrinement of the power to make such agreements in the fundamental law of the nation. My hope would be that such enshrinement would sign the death warrant for the ‘whitefella knows what’s best for the blackfella’ approach to policy making that has blighted indigenous affairs since colonization. Instead, properly used, it would require policy making in this area to be a matter of securing agreements between the relevant governments and indigenous groups. To this end, the Constitutional amendment enshrining this power should grant indigenous groups an entitlement to demand from governments the initiation of processes to reach such agreements when they seriously disagree with prevailing or proposed government policy. This should not, of course, be the only circumstance in which such processes should be initiated; one would hope that governments would make good use of this instrument to construct better relations with indigenous peoples in a wide range of policy matters.

At Federation our Constitution deleted this country’s indigenous peoples from the nation’s identity. This infamous deed has haunted the national conscience ever since, and has brought shame upon us from the world at large. The 1967 Referendum made a significant contribution towards redressing the racist injustice of that act, but our history since that time has only made most Australians more aware of the dubious nature of our claims to legitimacy as a nation. Opportunities to influence public consciousness on such matters, and to take effective measures to redress some of the wrongs recognized, are historically rare. Each of our cultures has something to offer the other. A non-indigenous visitor to Alice Springs, for example, will be immediately struck by the fact that the white population lives largely off the black culture. This is evident in the pervasive presence of aboriginal art work, the tours to aboriginal sites and even the explanation of aboriginal culture by white owners and managers. But aboriginal educational institutions all around the country express their desire to grow in whitefella learning. It would be facile to claim that a convergence of aspirations is growing at great pace, and that it is only a matter of time until they are achieved. But those aspirations can be stirred and sustained by efforts to mobilize them, and no better opportunity has yet presented itself to this nation for such mobilization than the current proposal for revising our Constitution.

Thank you for the opportunity to present my thoughts to you in this Discussion.

Submission to National Conversation from Dr. Michael LeahyPage