I am the first to admit that Australian treatment of indigeonous people has been abhorent and disgraceful. However, unlike Peter Lewis, I do not believe that the Constitution is a good place to address recognition of the Aboriginal people.
First of all, the Constitution is not an Australian document. The Constitution of Australia Act 1900 is actually legislation fully debated, passed and given royal accent by the Parliament of the United Kingdom of England, Scotland, Wales and Ireland. That icon of Australiana, Queen Victoria of the House of Saxe-Coburg-Saafeld consented for the union of English colonies in Australia and New Zealand to form into a new nation of the Commonwealth Of Australia as a dominion of the British Empire.
Secondly, if you read the Constitution, you will find such gems such as
- it is optional that the colonies of New Zealand and West Australia to join the Commonwealth, while no authority for the Northern Territory to join.
- The Governor General is the most politically powerful role in the government of Australia, while there is no mention of the Prime Minister nor of the Ministry.
- Many of the functions of Federal Government we take for granted are in fact specificly barred by the Constitution, the Commonwealth is restricted to only the powers given to it by s51 of constitution.
I am the first to aurgue as Constitutions go, The Commonwealth of Australia Act 1900 is one of the better documents that has survived 111 years of challenges. As a vessel of reconciliation? Not so much. Since we recognise that Aboriginals are citizens of Australia (well technically the Crown) in the 1967 referendum, we have done what we need to do to fix racial problems of the act.
And while I think a Treaty between Aboriginals and the Crown would be great symbolism, any treaty would be dubious at best and illegal under international law at worst.
Take the Treaty of Waitangi. Under strict international law, the treaty is illegal. Because the treaty is only binding on the Maori tribes who signed the actual document. There was no Maori representative for the whole of the Maori Nations, and the Treaty was not included into Statute Law of either New Zealand or the United Kingdom. This does not weaken the document as the basis of New Zealand today, but recognition on the power and validity of the treaty only became de juer in the 1970's, and was generally ignored or nullified by the courts prior to that.
If there was a universally recognised representative of the First People, authorised to negotiate and sign on behalf of all the Australian Aboriginal tribes (and Torres Strait Islanders), and the resulting treaty is passed by both house of the Australian Parliament, we have a binding treaty. Anything else is not worth the paper it is written on.
Mabo did more to fix the right the wrongs of the past. By recognising traditional land use, it removes the Terra Nullis label which allowed colonial Australia to seize land. I would like to see somehow using Mabo v Queensland become the basis of a reconciliation document. Orations like the my Redfern Speech and Kevin Rudd's parliamentary Apology do more to highlight the issue, especially since a constitution change will no doubt devolve into a polarised farce given the political makeup of all major parties.
We have mishandled our fellow citizens for over two hundred years, lets not exasperate it with a half arsed symbol.