When I first left Australia, like most people leaving their country for the first time, I began to romanticise about my homeland. I had never seen so many homeless people in my life as I saw on my first walk from Harvard Law School to Harvard Square -- and four out of five of them were black. It amazed me that within Ivy League academia, race as it pertained to African-Americans was so much a part of the critical rhetoric; while in this elite environment that assumed that every man could be President, issues of class seemed to be completely overlooked.
Filled with nationalist sentiment towards `the battier', I would gain great pleasure from telling Americans about Australia's workers' rights, strong union tradition and safety-net welfare. But these things that I held so dearly and ideally about Australia eroded with the changeover from the Keating to the Howard Government. When I finally returned to Australia six years later, it was a country with more shareholders than union members.
Nowhere was my opinion forced to change more, than in relation to rights protection in Australia. I had always thought that the legislative frameworks of the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 would provide adequate protection against discrimination, and that it was therefore unnecessary to have entrenched constitutional protections like those within the United States Constitution. The precarious nature Of this legislative framework was revealed to me as I watched developments in Australia surrounding the recognition of native title. The political debates surrounding judicial pronouncements on native title included calls for the repeal of the Racial Discrimination Act 1975 to prevent its protection of Indigenous property interests. This vulnerability was further highlighted in the passing of legislation in 1997 that precluded the application of the Act to various aspects of native title interests.
As constitutional lawyer George Williams notes in his book Human Rights under the Australian Constitution, the framers of the Australian Constitution intended to create a framework that would discriminate on the basis of race -- both in relation to Indigenous people (who were to be confined to missions and reserves) and later to potential immigrants (who were to be kept out if they were not white). At the dawn of the twentieth century, it was assumed that Aborigines were a dying race and predominant views about Aboriginal people were racist, whether benevolently or malevolently so; Aboriginal status under law was that of ward rather than citizen. Australia is still burdened by its lack of rights protections; and this burden falls heaviest on Indigenous Australians.
The High Court in Kruger v. Commonwealth (1997) noted that the Australian Constitution is not a document that guarantees equality. The Kruger case was a claim by, inter alia, five members of the stolen generation for compensation based on their removal from their families under government legislation that was part of a race-based assimilation policy. In his judgement, Justice Dawson stated that `the plain matter of fact is that the common law has never required as a necessary outcome the equal, or non-discriminatory, operation of laws'.
The Constitution, with its intended racial difference, has left Australia in a human-rights wasteland. Unlike Canada, the United States, South Africa, New Zealand and the United Kingdom, there is no Bill of Rights in Australia, constitutionally or legislatively. Aboriginal rights remain vulnerable to legislative extinguishment and we have seen, especially in relation to the Native Title Amendment Act 1997, that the government can be precisely so inclined to exert such a power to the detriment of Aboriginal people.
This concern for the vulnerability of Indigenous rights in Australia led me to explore Indigenous rights protections in Canada. In the United States, the political agenda and rights protections of Native Americans seemed eclipsed in national debates by the more politically organised and more visible African-Americans, but in Canada there was more attention paid to Indigenous rights within national political debates. There is constitutional, legislative, judicial and political recognition of the rights of Aboriginal people in Canada, namely:
-- a specific constitutional protection of `Aboriginal and treaty rights'
-- a recognised inherent right to self-government, which forms the basis of government policy in relation to Aboriginal people
-- a common law fiduciary obligation owed by the government to Indigenous peoples in relation to certain dealings and legislative acts.
The judicial developments within Canada have also given rise to duties owed by the Canadian government to negotiate and consult with aboriginal peoples who may have their rights infringed by legislative action. All of these rights have the constitutional protection of section 35 of the Constitution Act 1985.
It is important to note that these strong protections of Indigenous rights have not led to an Indigenous utopia. Socio-economic statistics are on par with those of Australian Aborigines. There are First Nations communities that have no running water; and one needs only to look at the Royal Commission on Aboriginal Peoples to see the disparity between aboriginal peoples in Canada and all other Canadians. The violent backlash to a recent Supreme Court determination on fishing rights illustrates the extent of societal conflict and antagonism towards Indigenous rights.
Despite the imperfections of the Canadian system, it offers several possible routes in which Indigenous rights may be better protected in Australia. What the experience in the Kruger case and the overriding of the Racial Discrimination Act 1975 provisions in the Native Title Amendment Act 1999 show is that legislative whims to infringe Indigenous rights need to be tempered. The best way to do this is with a specific constitutional protection like the one provided in the Canadian Constitution Act 1985.
The result of the recent Republic and Preamble Referendum shows the problem for constitutional protection of specific rights for pragmatists. The Australian electorate is traditionally resistant to constitutional amendments, rarely voting to pass them. And Indigenous rights are a contentious political subject that would have trouble gaining the broad support needed. This was evident in the proposed Preamble where the relation of Indigenous peoples to their lands was described by the inoffensive, legally neutral term `kinship'. This term, so minimal as to be mere rhetoric, was rendered the more impotent by being specifically excluded from use as an interpretive tool when deciphering the content of the Constitution. The Preamble would not have assisted in countering the pervasive racism and lack of equality principles running through the document. And even this minimal, merely symbolic approach was not achieved.
While I believe that constitutional protection is desirable and the best possible protection of Indigenous rights in Australia, I concede that in the short term it remains merely an aspiration. Similarly, a Statement of Indigenous Rights, developed by the Indigenous community, could give political direction to governments, Indigenous leaders, and rights activists even though it is unlikely, given the current political climate, that such a statement could gain legal weight.
The Republic Referendum showed that there would be an uphill battle for any proponents of constitutional change. A first step, to avoid the probable failure of a constitutional Bill of Rights, would be a Bill of Rights in legislative form, as has been adopted in New Zealand and the United Kingdom. Not only does this have the advantage of being a minimalist approach, it also has the added attraction of being a process that could engage the public in the content of the Bill, giving Australians a greater interest and feeling of association with and ownership of the outcome. This would help to create a culture of rights protection in the Australian psyche and perhaps help to shift some popular misconceptions about Aboriginal rights being special rights. The ability of a legislative Bill of Rights to engage broad political participation from the Australian public has been emphasised by George Williams in his book A Bill of Rights for Australia.
A legislative Bill of Rights offers a minimalist, more flexible and achievable political goal. A general equality clause applying to all Australians would greatly favour Indigenous Australians without the need to argue for specific rights protections. Institutional entrenchment, and ideally, in the long term, constitutional entrenchment of a Bill of Rights would benefit Aboriginal people to the greatest extent.
It is unacceptable at the end of the twentieth century that Australia has the lowest standard of rights protection. The challenge of the twenty-first century will be to change this and to bring Australia up to world standards in the protection of human rights, especially those of Australia's Indigenous people. A legislative Bill of Rights would be a positive place to start.
Larissa Behrendt is an Aboriginal and Torres Strait Islander Post-Doctoral Fellow at the Law Program, Research School of Social Sciences, Australian National University, Canberra.
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|Date:||Feb 1, 2000|
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