Yesterday John Howard announced that he will, if re-elected, hold a referendum to amend the preamble of the Australian constitution to include a “statement of reconciliation” and to “recognise indigenous Australians”
The first thing to note about the proposed change to the constitution is that it is legally meaningless. The preamble of the constitution contains no specifics and is not a basis for any legal framework. It is just a – preamble. It cannot be referred to to make or amend laws as the rest of the constitution can.
The key legal issues of land rights, customary law and sovereignty will not be included in Howard’s (or copy-cat Rudd’s) “acknowledgement”.
Howard’s media comments today included recognising Aboriginal people as the first “inhabitants” of Australia, which even James Cook and Joseph Banks “acknowledged” on the Endeavor voyage. But like Cook and Banks, Howard is incapable of acknowledging indigenous sovereignty or customary law, not even considering the possibility of “prior” sovereignty.
John Howard says constitutional change would include indigenous Australia’s “special, but not separate place within a reconciled and indivisible nation.”
Since the 1967 referendum allowing Aboriginal people to be recorded in the census and empowering the federal government to make laws about Aboriginal people, white Australia has been prepared to accept Aboriginal people as equal citizens; equal to white people, equal subjects of the crown. The racial discrimination laws of the 1970s gave full rights of white Australia to people of all cultures, and outlawed the removal of these “equal” rights, but they did not acknowledge any indigenous rights such as Aboriginal land rights or Aboriginal customary law which are not rights enjoyed by all Australians. The anti discrimination laws are also Terra Nullius assimilation laws.
When Eddie Mabo proved to the High Court that his family owned their block of land since before Captain Cook the court accommodated this in terms of English common law. It refused to acknowledge any legal rights or interests inherent in Torres Strait customary land law and how it connects to all other areas of life. White land law gave white notion of land rights (native title) and black law remained invisible and repressed.
The Howard government has thwarted any possibility of land rights by wrecking native title law, has essentially outlawed customary law and has very recently opposed the U.N. declaration on indigenous rights. What is left for Howard to “recognise”?
Having smashed all legal acknowledgement of indigenous rights this constitutional amendment will be a celebration of the victory of white supremacy, an arrogant assertion that indigenous people now have nowhere to go except into the white mainstream. This is certainly not reconciliation.