Last week I got involved in a debate on the Pollbludger which was sparked by one poster there who set out a range of acts a government could pursue that might alleviate social and economic disadvantage faced by Aboriginal people and Torres Strait Islanders. The debate swerved off into a couple of other areas, some of which I was happy enough to go along with.
It made me realize, though, that even a relatively short distance from active participation in these issues (I was last employed in what could be somewhat vaguely characterized as an Indigenous Affairs policy role about three years ago) can lead to a bit of disconnection with how people actually feel about the direction governments are taking on these issues. It wasn’t so long ago that I was deeply aware of how keenly the Aboriginal Australians I know feel the need for recognition of prior ownership/custodianship/(insert other contestable term here) beyond an apology and beyond native title.
My initial response, reproduced but in an amended form below, was solely aimed at the suggestion (with apologies for any nuances lost in summation to the author, who goes by the pseudonym Boerwar) that there should be a referendum of Aboriginal people and Torres Strait Islanders to determine what, if any, form of institutional recognition of prior sovereignty should be created in Australia, be it the creation of new sovereign states, or some degree of autonomy within the Commonwealth.
I don’t suggest that this type of constitutional reform is ever likely to happen. Nothing I have seen about the temperament of non-Indigenous Australians or their elected representatives suggests to me that they will ever endorse significant constitutional reform of any kind. Hypothetical debates such as this require a form of ‘suspension of disbelief’.
It’s been a little while since I read up on debate, so apologies if the discussion below is a little out of date.
For the time-poor amongst you, the gist of the following is:
– I prefer an integration of the legal heritages of Indigenous and non-Indigenous (common law/Westminster) systems under a unified constitution to regional autonomy approaches.
– At essence this is because I think the pluralistic legal system that is proposed by virtue of autonomy recreates unhelpful conflicts of laws.
– I agree with the suggestion inherent in the arguments of autonomy proponents that legislative representation is an important consideration but prefer the notion of dedicated seats to dedicated legislatures.
It is quite right to point out that prior to the invasion and conquest of Australia’s Aboriginal peoples and Torres Strait Islanders there was no unitary state or state-like entity that covered the entire continent. To ‘negotiate and sign a treaty’, then, might be more appropriately considered as a series of treaties with those Aboriginal and Torres Strait Islander peoples whose systems of laws have survived. However, this itself raises the issue of the conflict between peoples whose pre-invasion system of laws has survived and those whose have not, with various degrees of survival in between. There has not yet, that I have seen, been an adequate solution proposed for how Aboriginal and Torres Strait Islanders resolve this conflict. Indeed, this is a fundamental reason for the requirement on Australian governments to continue with social programs which effectively redistribute wealth to Aboriginal and Torres Strait Islander communities, families and individuals despite the opportunities afforded to some for economic advancement as a result of the recognition of native title.
One associated problem then is how national, democratic decision-making can possibly represent the differing interests of disparate landrights-holders (whose views are rarely unanimous, more frequently consensual, and sometimes internally disputed by minority sections) and non-landrights holders. Certainly it isn’t clear to me that the outcome of a majority vote in a national referendum of Aboriginal and Torres Strait Islander peoples could bind dissenters, particularly if that dissent was clearly discernable along regional lines. This problem may be largely immaterial, though, if a referendum was to find that Aboriginal and Torres Strait Islander peoples prefer regionally based lawmaking bodies without a central, overarching legislature.
The essential problem with discussions of autonomy, in my non-Indigenous opinion, is that it would create a plurality of legal systems within a single state. This would ultimately create conflicts-of-laws that could stem from the very basis of citizenship. Whose legal rights prevail in a civil law dispute where the disputants might claim rights under either one of two systems? Or would there be an enforced, mandatory acquiescence to one system for all such disputes? Similarly, in criminal prosecutions, would the power of a new autonomous (to whatever degree) state trump the rights of a defendant, allowing for the forced imposition of corporal punishment on a citizen that wished to invoke universal human rights under the Commonwealth? Would rights of appeal flow to non-Indigenous superior courts, such as the Federal and High Courts?
Further, the creation of a new state or series of states (in the sense of new nations) is an interesting idea, but hardly ‘reconciliatory’. I wonder if this would effectively entail a rejection of ‘reconciliation’? My preference would be to look at how we can more effectively reconcile and better attain substantive social and economic equality, but that’s just me and I wouldn’t get a vote in the proposed referendum.
It appears preferable to me that the process of negotiation of treaties incorporate recognition of shared legal dynamics. That is to say that we look to where the pre-existing and introduced legal systems have coalesced on mutually agreeable principles and standards. It is largely, if not entirely, agreed now (if we accept for the moment that there may at one time have been some basis for a culturally relativistic assertion of prior rights), for example, that the sexual abuse of children is not acceptable and criminal.
The commonalities about how laws are made and enforced (that is, different processes are used for these two exercises of societal/state power), the principles that inform the rights and responsibilities in such laws, and even the substance of what constitutes such branches of the law as criminal, family and property law now far outweigh the differences between Aboriginal and Torres Strait Islander systems and the introduced Common and Statute laws of the Commonwealth. This is because both types of system have proven themselves dynamic enough to incorporate elements of the other.
This leads me to conclude that constitutional change that incorporates a treaty should include statements to the effect that the legal authority of the Commonwealth of Australia derives from the fusion of our Indigenous and non-Indigenous legal heritages.
Now, perhaps such amendment to the Constitution could also include some restructuring of Australia’s representative institutions. Again, though, I see no reason that this should involve the creation of a pluralistic legal system with all the complexities and conflicts that would be inherent to such a system. Indeed, there is a now long stream of political advocacy which would see Australian federalism redesigned in a way that could be consistent with an appropriate recognition of surviving prior sovereignty, and that is a reconfiguration of the states.
If, as I suggest, it is more likely that regional legislative bodies would appropriately represent the interests of Aboriginal and Torres Strait Islander peoples than a national legislature, then why not restructure our existing States to conform with the boundaries of such recognition of regions? Such a restructure could incorporate consideration of the merits of our three tiers of government, and would meet the objectives of both advocates of federal reform and recognition of prior Indigenous sovereignty.
It would, in my opinion, be appropriate for there to be dedicated legislative positions in such legislatures (and, for that matter, the Commonwealth parliament) for Aboriginal and Torres Strait Islander people. However, this highlights again the tension between landrights-holders and non-landrights holders in any given region. That is, how would such arrangements ensure that the accepted legal/constitutional rights of minority, intra-Indigenous groups are preserved within a structure in which landrights holders are numerically superior? In particular, how would the rights and interests of Aboriginal and Torres Strait Islander people who either have no extant landrights or whom live in localities outside their traditional landholdings be represented in any legislative body?
I don’t have answers for these questions, and in truth the same issues confront any minority group in any democracy. I would argue, though, that these questions again highlight the problems of pluralistic systems. In effect, under a dual- or multi- legal system state, intra-Indigenous minorities could be doubly disadvantaged, enjoying no net increase in rights and potentially suffering from falling through the cracks of two systems. Alternatively, minorities who may still enjoy some greater rights that flow from land may only do so as long as they live within the territorial boundaries of their landholdings.
Clearly it is not for me to presume to advise Aboriginal peoples and Torres Strait Islanders about how to resolve their own conflicting positions on these issues. However, if we consider that for there to be any progress on such matters some form of agreeable proposal must be arrived at between Indigenous and non-Indigenous Australians, I’m prepared to assert my views on a path forward. I hope that it is in this spirit that these views will be considered.