In­dige­nous leader Mick Dod­son.

The di­rec­tor of the ANU Na­tional Cen­tre for In­dige­nous Stud­ies, Pro­fes­sor Mick Dod­son, talks to Karen Mid­dle­ton about why recog­ni­tion should be sec­ondary to rid­ding the con­sti­tu­tion of racist pow­ers.

The Saturday Paper - - Contents | The Week - Karen Mid­dle­ton

Karen Mid­dle­ton What do you think of the out­come of the Ref­er­en­dum Coun­cil’s con­sul­ta­tions and Uluru process?

Mick Dod­son In my view it is a lit­tle dis­ap­point­ing. It’s not that I dis­agree with the rec­om­men­da­tions. They are things we ought to pur­sue. But I think it’s a bit back-to-front. We’ve had al­most five years now talk­ing about and do­ing things re­gard­ing the con­sti­tu­tion. It’s clear the prob­lem we have is with our con­sti­tu­tion, and the re­port of the Ref­er­en­dum Coun­cil does not ad­dress it. Our con­sti­tu­tion at its heart is racially dis­crim­i­na­tory. Sub­sec­tion 26 of sec­tion 51 al­lows the par­lia­ment to pass laws that can dis­crim­i­nate against any Aus­tralian on the ba­sis of race. That’s the prob­lem. There’s also an­other sec­tion, sec­tion 25, which con­tem­plates the pos­si­bil­ity that states can ban peo­ple from vot­ing – dis­en­fran­chise them – on the ba­sis of race.

Now, in a mod­ern democ­racy like ours, we wouldn’t ex­pect to have those pro­vi­sions in our con­sti­tu­tion in the

21st cen­tury. Racism is a scourge across the world. We shouldn’t be boast­ing about it in our con­sti­tu­tion. The Uluru re­sult doesn’t deal with that. How are we ex­pected to deal with that? My un­der­stand­ing of the whole process and the terms of ref­er­ence of the Ref­er­en­dum Coun­cil was to deal with these ques­tions. I’m dis­ap­pointed be­cause it doesn’t.

KM You were part of fa­cil­i­tat­ing very early con­sul­ta­tions, is that right?

MD There were three peak meet­ings be­fore the re­gional con­sul­ta­tions, and all of those meet­ings dis­cussed the work the ex­pert panel had es­tab­lished. It had an ex­ten­sive re­port and made nu­mer­ous rec­om­men­da­tions. There were two par­lia­men­tary in­quiries; there’s been dozens of opin­ion pieces, scholas­tic pa­pers, other eru­dite writ­ings about the is­sues. Much of that was cov­ered in those peak meet­ings.

KM But not then in the con­sul­ta­tions?

MD Well, I don’t know what hap­pened in the con­sul­ta­tions. If you read the orig­i­nal re­port of the ex­pert panel, it’s not that easy to plough your way through it. And you’re dealing with com­plex, not just le­gal but so­cial, cul­tural and lan­guage is­sues. I don’t know what hap­pened at Uluru. But I’m dis­ap­pointed by the re­sult be­cause it’s not go­ing to deal with the con­sti­tu­tion.

The idea that we go cap in hand to the par­lia­ment and ask them to set up a rep­re­sen­ta­tive body is not dealing with our racist con­sti­tu­tion. Sec­ondly, if we’re talk­ing about a treaty and hav­ing some sort of recog­ni­tion of at least a residuum of In­dige­nous sovereignty, this con­cedes our sovereignty up­front. [It sug­gests we] go to the par­lia­ment and say: “Please lis­ten to us.”

I didn’t give per­mis­sion to Uluru to cede my sovereignty. I think there’s an el­e­ment of a sort of resid­ual sovereignty that’s left that will en­able us to at least get some au­ton­omy or some self-gov­ern­ment – some way of shar­ing power. The prob­lem with our pol­icy ap­proach is we don’t have any power in the game. It’s all up there on the hill.

KM Are you con­cerned that if it is en­trenched in the form pro­posed, that it could ac­tu­ally be a back­ward step?

MD Yeah. I think it’s say­ing: “Well, you’re the sov­er­eign one. We want you to deal with us de­cently.” It’s not say­ing: “Hang on a minute, we didn’t con­cede any sovereignty to you. You came and took the place off us with­out our con­sent. Can we sit down and talk about that?”

KM Do you have any con­cerns that un­der this pro­posal the state­ment of recog­ni­tion won’t be in the con­sti­tu­tion at all?

MD Well, no. My po­si­tion has been against a state­ment of recog­ni­tion in the con­sti­tu­tion be­cause I think that’s un­re­al­is­tic and too hard to get in and we’re never go­ing to agree on the words. So per­haps that’s okay if you want to leg­is­late some sort of state­ment through the par­lia­ment, that’s fine. But do some­thing about the con­sti­tu­tion that gets rid of the racist el­e­ments.

KM It’s per­haps ironic that be­fore the 1967 ref­er­en­dum – hailed as a great step for­ward for In­dige­nous rights – In­dige­nous peo­ple were ex­cluded from that race power. One of the changes made in ’67 was to re­move that ex­clu­sion so now laws can be made to the ben­e­fit and the detri­ment of In­dige­nous peo­ple.

MD Sub­sec­tion 26 was never meant to cap­ture In­dige­nous Aus­tralians. It was aimed clearly at aliens who came to the coun­try and to deal with them. It was de­signed to dis­crim­i­nate against aliens. And when we took the ref­er­ence out it ex­posed us to that ca­pac­ity of the par­lia­ment. I think this sec­tion has fa­cil­i­tated the en­act­ment of five dif­fer­ent pieces of racially dis­crim­i­na­tory leg­is­la­tion by the par­lia­ment, each di­rected at Abo­rig­i­nal and Tor­res Strait Is­landers only.

KM Does that mean we’ve been talk­ing about the wrong thing all along in fo­cus­ing on recog­ni­tion?

MD It’s all been a bit back-to-front. The prob­lem with the con­sti­tu­tion is the dif­fer­en­ti­a­tion on the ba­sis of race. Sub­sec­tion 26 al­lows racism. It doesn’t say there has to be spe­cial laws for the ben­e­fit of peo­ple. It can be for their ben­e­fit or detri­ment. There was no in­ten­tion to treat peo­ple equally when they wrote the sec­tion be­cause they wanted to treat aliens dif­fer­ently.

KM Well, what hap­pens now?

MD Noth­ing’s go­ing to hap­pen be­cause nei­ther the Lib­eral Party nor the La­bor Party sup­port what’s come out of Uluru.

KM Do we start the process again?

MD I don’t know what we do. But I thought this was about re­form­ing the con­sti­tu­tion, not go­ing cap in hand to the par­lia­ment and say­ing, “Please can I have some of the power?”

KM How wide­spread among In­dige­nous Aus­tralians do you think your view is?

MD I don’t know. There are peo­ple who share my view. I think we should get rid of 25 and sub­sec­tion 26 and say, “Well, there is no dif­fer­en­ti­a­tion on the ba­sis of race. All ci­ti­zens un­der this in­stru­ment must be treated equally.” Now, there’ll be a lot of fear­mon­gers run­ning around say­ing, “Well, this will crash, that will crash.

The Na­tive Ti­tle Act will be de­stroyed.” Therein lies the treaty. “We can fix your prob­lem. Sit down and talk to us about it. Let’s ne­go­ti­ate our way through this.”

It gets to the Uluru re­sult by a dif­fer­ent path. The prob­lem with the Na­tive Ti­tle Act, for ex­am­ple, is it sus­pends the Racial Dis­crim­i­na­tion

Act. We as ci­ti­zens are not equal be­cause we are un­able to use the Racial Dis­crim­i­na­tion Act to pro­tect our­selves against racism. They deny us our right to call racism out. So what’s the prob­lem here? Let’s work out a res­o­lu­tion to this. We call it a treaty. I don’t give a rat’s what you call it. Let’s sit down and work out a set­tle­ment here, a de­cent hu­man hon­ourable set­tle­ment.

I think there’s some­thing in the Aus­tralian psy­che that goes back to coloni­sa­tion and the way in which present­day Aus­tralia came by the coun­try and there’s fear of fac­ing up to that truth. Peo­ple from an­other coun­try came to this coun­try in 1770 and said, “We’re go­ing to have that, that’s ours.” They didn’t ask for con­sent, they didn’t speak to us. They planted the flag. They said, “We’re go­ing to have this”, and then they pro­ceeded to colonise it. They dis­pos­sessed peo­ple of their coun­try, they took kids away, they slaugh­tered peo­ple, they banned cul­tural prac­tice, they banned lan­guage. They put peo­ple into con­cen­tra­tion camps, com­pounds, re­serves, gov­ern­ment sta­tions. They im­pris­oned the sur­vivors of the colo­nial prac­tice.

And some say it’s still go­ing on. That’s why I think there’s a fear.

Be­cause that was wrong and we haven’t re­dressed it. It’s what many of us call the un­fin­ished busi­ness. That’s where I think the fear comes from – deep down within what Henry Reynolds calls “the whis­per­ing in our hearts”. Deep in the whis­per­ing in our hearts, we don’t want to con­front these wrongs and be called to ac­count for them. It’s not about blam­ing peo­ple; it’s about ask­ing peo­ple to come with a good heart and say, “Let’s fix this busi­ness.” It needs to be fixed.

KM So what should hap­pen to the re­sults of the con­sul­ta­tions? Should they just be put to one side?

MD I’m not say­ing put aside the re­sults of the Ref­er­en­dum Coun­cil’s re­view ex­er­cise. I’m just say­ing they’re ar­seabout. Let’s do that af­ter we sort out the con­sti­tu­tion. And if that has reper­cus­sions – for ex­am­ple, some leg­is­la­tion might fall be­cause it’s racially dis­crim­i­na­tory and I don’t know why we’d want to be racially dis­crim­i­na­tory – let’s sit down and talk about how we might best come to an agreed po­si­tion on those is­sues.

This takes us to a treaty. And the idea of a “Makar­rata com­mis­sion” – I call it a

• treaty com­mis­sion – it does that work.

This is an edited tran­script from A Month of

Satur­days at the Na­tional Mu­seum of Aus­tralia.

Di­rec­tor of the ANU Na­tional Cen­tre for In­dige­nous Stud­ies Mick Dod­son, AM.

KAREN MID­DLE­TON is The Satur­day Pa­per’s chief po­lit­i­cal cor­re­spon­dent.

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