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Constitutional Recognition Of Indigenous Education And Perspective

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Question:

Discuss about the Constitutional Recognition of Indigenous Education and Perspective.
 
 

Answer:

Introduction:

The present paper is going to identify and elaborate the reason behind the opposition by a growing number of Indigenous activists to the proposal of recognizing Australia’s Indigenous people in the Commonwealth constitution. Earlier the constitution of Australia has been intended to integrate Australia under the original agreement of the Australian people though it could not take place because the first people or the aboriginals have not been included in the particular agreement. In time of drafting the Australian constitution, unfortunately the Aboriginal and the people of Torres Strait Island were excluded from the meeting and discussion. Moreover, the Australian constitution itself discriminated against the Aboriginal and Torres Island people and therefore they have continuously failed to protect the rights of the aboriginals and the Torres Island people. Further, previously the Australian constitution did not even bother to prevent the RDA’s suspension for the territory emergency response of the northern Australia.

It is essential to mention that over years, the constitutional recognition has been a steady topic for all the prime ministers such as Kevin Rudd, Jillian Gillard, Tony Abbot and John Howard. The topic of constitutional recognition for the sake of the Aboriginals has become an electoral campaign by the aforementioned prime ministers. The expert panel established by Jillian Gillard to make report regarding the kind of change and referendum in the Commonwealth constitution. As per the recommendations made by the expert panel, there is the urgent need removing two particular sections from the Commonwealth constitution, which are section 25 and section 51. According to section 25, the state can prohibit people from voting based on their individual race. On the other hand, according to section 51, laws can be passed for supporting discrimination against individuals based on racism. Furthermore, according to the recommendation made by the expert panel, a new referendum should be made that will insert three new sections, which would be section 51 A, section 116 A and section 127 A. The incorporation of section 51 A would help to recognize as well as preserve the fundamental rights of the Aboriginals and at the same time would push the ability of the Australian government to pass laws for giving benefits for the Indigenous individuals. The insert of the section of 116 A would prohibit any kind of racial discrimination by the Australian government against the Aboriginal people. Moreover, the incorporation of section 127 A will help in recognize the language of the Aboriginal to be the first tongue of the nation, while at the same time would confirm English to be the national language of the country.

Nevertheless, at the penultimate stage, unfortunately the government found lack of support from both the Indigenous and non-indigenous people as most of them wished not to lose the existing valuable works of the panel. Henceforth, the representatives of the federal house found the necessity to pass a bill that is now known as the Aboriginals and Torres Strait Islander Peoples Recognition Act. The act has been passed in order to provide support for recognizing the rights of the Aboriginal and Torres Island people. According to the aforementioned act’s introduction, the Indigenous and the Torres Island people should be considered as the initial inhabitants of Australia. Through the particular Bill, the Australian parliament acknowledges the suggestions and significant work as well as the proposal for the Indigenous people by the expert panel. The preamble of the act says that the Australian government would be responsible for making a national consensus for recognizing and acknowledging the rights of the Aboriginal people in the constitution. Most significantly, the parliament has the faith on the particular Bill and thinks that the Bill will act as a potential measure in bringing the required change in the Commonwealth constitution.

It is to consider in this respect that along with several positive included in the Aboriginals and Torres Strait Islander Peoples Recognition Act, there are some flaws too. The Bill strongly shows positive sign in recognizing the history, culture, heritage as well as languages of the Indigenous people of the nation. However, the Bill has not covered the necessity to protect the rights of the Indigenous people, their predominant relationship with the nation. The Bill is gradually growing a dissenting voice and it is being anticipated that the reason behind such occurrence is the idea of declining the wish of substantive recognition of the indigenous people. It has been understood further that that the panel’s intention has been mainly to give symbolic recognition by declining the substantive one. The issue that has been actually estimated to be mitigated by the Bill - is the gap between the utilization of social provision, employment, education and health rights of the indigenous and non-indigenous people. The powerlessness of the native people of the nation and the government’s treatment of the Aboriginals to be the “second class” citizens of the country has still not been addressed properly. Thus there is the need of a clause that would specifically address the aforementioned gap.

 

It should be considered that a clause, which will be convenient for addressing the gaps in the Bill, should abide the fundamental principles of the substantive law. It is known that the chief purpose of the substantive law is to develop a set of legal rights, which will successfully govern the behavior of the society. Henceforth, it can be definitely said that more than a symbolic recognition, there is the need for a substantive recognition as it is the discriminating behavior of the people towards the Aboriginals, which should amended at first. In this context, it is essential to mention that there is the need for reinforcing the “right to freedom of expression”, because of the fact that the expression performs as an effective instrument in promoting as well as protecting the fundamental common rights of people. Numerous Indigenous activists are opposing currently to the decision of making constitutional recognition as most of their opinions urge that they need a substantive recognition rather than a symbolic one. As per the most common anticipation regarding the contradictory behavior of several Indigenous people, the opposition is taking place as there is well-founded fear of losing the sovereignty among the Aboriginals. The anticipation is agreeable as the recognition of the constitution by the initiative of the Bill would not address the substantive need of the Indigenous society.    

On the other hand, over last few years, the bipartisan at the federal level started to show support for the Aboriginal people of Australia and proposed to amend the constitution for pursuing betterment for the Torres Island people. In the month of August in 2010, the “Bipartisan support” has been declared again by the major parties in terms of election commitment in the election at federal level. Very recently, the proposal for bringing amendment in the Australian constitution is evoked and the necessity to recognize the involvement of the Indigenous people of Australia in the commonwealth constitution has been offered again. Nevertheless, unfortunately this time a growing number of activists belonging to the Indigenous community are showing opposite reaction as they are continuously opposing to such a proposal for amendment. In this context, it is essential to mention that the people belonging to the Torres Strait Island and to the Indigenous community continuously fights and struggle for obtaining their rights acknowledged by the people and Government of Australia. The most possible reason behind such contradictory behavior of the Aboriginal people of Australia is supposed to be the well-founded fear.

Prior to find out and elaborate the reasons behind the contradictory behavior towards the amendment of Australian constituent, it is essential to identify the fundamental issues found in the Australian constituent regarding the rights for the Aboriginal people of the country. Therefore, it is essential to mention that the Australian constituent came into enforcement in the 1st January in the year 1901. Instead of holding acknowledged rights and equal provision for the people of Australia, the constituent lack involvement of the Aboriginal people. The Australian constituent constantly showed discrimination for the marginalized people of the society and the constituent not even recognize the place of the Aboriginals in terms of the traditional owners of Australia as well as the first people. It is shameful as well to denote that the Australian constitution does not hold a “Bill of rights” for the Aboriginal people. Therefore, understandably for a long time, the Indigenous people are living an uncertain life that is vulnerable for any kind of exploitation as well as violation against human rights.  

However, later in the year 1967, the discriminatory clauses long pursued by the Australian government have been amended by the “1967 referendum”. The main problem with the Australian government has been their silence and lack of intention to acknowledge the long history of the Indigenous people and their existence in the land. It has been suggested by several activists that age old Australian constitution is required to be amended and in order to amend that there is the need for national votes. The referendum, which is the representation of the national vote, has been pursued by several Indigenous and even non-Indigenous people of Australia for over the last decade. The contradictory matter, which is prohibiting the accomplishment of the proposal of acknowledging the rights of the Aboriginal people are different opinions coming from different Indigenous activists. It is controversial as per the reason that a disappointing extent of different opinions on the proposal for constitutional recognition are coming from both the Indigenous and non-Indigenous people.

In this respect, it is to mention that two separate groups of people have gradually formed regarding the amendment decision for the Australian constituent. One group that is in favor of the proposal for constitutional recognition and the other that oppose, the constitutional recognition for the sake of Indigenous people.  It has been found out that according to the group that has been in favor of the proposal believe that the amendment would provide benefit to the Aboriginal and Torres Island people of Australia. According to the particular group, the constitutional reform will address the history of the exclusion made by the Indigenous people of Australia. Moreover, they believe the amendment of the constitution would make improvement in the sense of social and emotional well-being as well as self worth of the Aboriginal people individually and the Indigenous community as part of the Australian national identity. Most significantly, the particular group anticipates that the amendment enshrine all kinds of non-discrimination practiced by the constitution and will thereafter build a positive relationship that will be based on respect as well as trust for Aboriginals.

 


On the other hand, the party, which is showing opposition against the amendment, is saying that the constitutional recognition would not aid the everyday disadvantages faced by the Aboriginals. Furthermore, according to the opposing group, the recognition of the Indigenous rights in terms of amendment is a “token gesture” and after the recognition there is chance that the Aboriginals would be governed by an “illegitimate government”. It has been understood that the chief reason behind the opposition is that most of the Indigenous activists still consider the constitutional recognition to be a threat for the sovereignty of the Aboriginal people. It has been further identified that according to the Indigenous activists who are strongly opposing the constitutional recognition, the amendment will prove another type of assimilation. Most importantly, the activists opposing the proposal for amendment thinks that the act of recognition is an act of racism too.[23] They believe that the non-indigenous people who are proposing to bring the recognition are only doing it for the pursuing a principle, which says that no individual should be singled out based on racism.

Therefore, it can be said that the main reason due to which the Indigenous activists are opposing the proposal of amendment is that they believe that there should be substantive recognition and not any symbolic recognition. In this context, it is essential to mention that the Australian government has been urging for pursuing a constitutional recognition of the Indigenous and the people of Torres Island from the year 2007. According to Robbie Thorpe – the veteran Gunnai activist, the inclusion of the first nation people into the reformed constitution would be equal to the act of tacking the Indigenous people back the policy that is known as the “White Australia policy”. According the particular activist, if the nation would finally amend the constitution it would ultimately push the Aboriginals to give up their sovereignty. On the other hand, the territory of Aotearoa has also started reviewing and amending the constitution for the benefit of the Aboriginal people. The amendment of the constitution has been decided to incorporate both the “Bill of rights” and the founding document of the nation that is known as “treaty of Waitangi”. It is however, unfortunate to denote that the evidence of agreement with the Aboriginals or the first nation’s people as well as the original “Bill of rights” is missing from the legal groundings of Australia.

On the other side, the constitutional conversation from the side of New Zealand that has been instigated by the Maori party have two chief focuses, which are the Treaty’s role and the representation of the Maori people in the government. Henceforth, it is indicative of the fact that the importance of the involvement of the Aboriginals in the nation’s constitution has been recognized by the neighbor nation – New Zealand too. Nevertheless, as per the opinion of Bob Weatherall, the chairman of the center of the Indigenous cultural policy, the proposed amendment in the Australian constitution would be another example of the paternalistic policy of the government. According to the chairman of the center of the Indigenous cultural policy, the recognition of the Indigenous’ rights in terms of amendment in the commonwealth constitution would only be a symbolic recognition. Furthermore, it has been understood from Bob Weatherall's opinion against the constitutional recognition that instead of the proposal of the amendment, there will be no change in the condition of the Aboriginal people. It has been further understood that the amendment will be a mere act that would be only imposed upon the indigenous people and the dominant society made by the non-indigenous people would continue to deprive the first nation people in the ground of fundamental freedom.

 


In this context, it is necessary to note down that David Leyonhjelm who is known to be the senator has been recognized recently as the first politician who has boldly broken the push of the bipartisan support for the constitutional recognition. According to Mr. Leyonhjelm, the new identification of the foundation document is a “perverse racism”. On the other hand, there is Gary Johns who have argued about the fact that legislatively Aboriginal people have been recognized a long time ago. Through legislations like native title as well as the heritage protection law the Mr. Johns believe that the recognition has been undergone a long time ago. It is unfortunate though at the same time sets the evidence that there is still numerous government bodies who are not even ready to pursue the constitutional recognition. Therefore, it is indicative of the fact that the declination of the desire for substantive recognition of the Aboriginal people and persuasion of the symbolic recognition should not be accomplished. It can be said the symbolic recognition would only be helpful in showing apparently that there would be no racial behavior and discrimination against the people of the Indigenous community and the individuals of the Torres Island. A symbolic recognition would not be able to completely mitigate the dominance of the non-indigenous citizens over the Aboriginals. Therefore, there is the need for substantive recognition too.

However, as per one of the well-known layer and author for the Indigenous people of Australia - Larissa Behrendt, the ongoing argument that constitutional recognition would highly impact on the sovereignty of the Indigenous people is not considerable and correct legally. Further she has mentioned that the inherent sovereignty cannot be taken easily by anything and the current constitutional reform does not have any potential aspect that can possibly undermine the particular ability for the Torres Island people to penetrate into the treaty. Therefore, it is understandable that not all activists from the Indigenous ground are entirely opposing the constitutional recognition though it is an indication that there is the dire need for a substantive reformation.

It could not be ignored in this respect that one of the reasons behind opposing the proposal for amendment that says it would be an “irrelevant distraction” is true. It should be kept in mind that the initial purpose of the symbolic recognition of the constitution is to make the Indigenous people feel good for having recognition of their right. It is therefore should not be neglected that the symbolic recognition would detrimentally shift the focus of the people from demanding their rights in every social aspect to a mere feeling of being recognized finally. In this respect it is to mention that, in the year 2015, a proposal for recognizing rights of the Indigenous people of Australia in symbolic way outside the constitution has been made by Noel Pearson. The proposal indicates that instead of being “purely symbolic”, the amendment should provide the opportunity of establishing a legislative body, which will be “constitutionally-entrenched” of elected Aboriginal leaders. It is unfortunate that such a doable and fruitful proposal had been finally dismissed by the final report of the Joint select committee.

 


Therefore, it can be said with a coherent understanding that there are fears well-founded behind opposing the proposal for amendment and the fears are not valueless. The reasons are henceforth understandably the fear of losing sovereignty, the futileness of the symbolic recognition and the fear of losing rights in future to fight for gaining recognitions of rights in true terms. The most significant aspect, which is essential more to consider than recognizing the chief reasons behind the opposition of the amendment is that the opposition should not be taken lightly. It is understandable from the above discussion and elaboration that there is the need for a substantive reformation as symbolic recognition would only acknowledge the rights of the Aboriginals and Torres Island people and would not be capable enough any potential and practical change in the society. Therefore, there is the need for involving a set of substantive law for bringing change in the discriminating behavior of the Australian society against the Indigenous people as the chief desire of every Aboriginal people is to get honorable treatment from the society at first.

Thus, from the above paper it can be concluded that for a long time the persuasion for changing the constitution is being a staple concern though implementation of laws like the Aboriginals and Torres Strait Islander Peoples Recognition Act could not potentially bring any change. Moreover, it has been understood that the new initiative of amending the constitution would not be fruitful either as per the reason that it would only bring symbolic recognition whereas the actual need is the need of substantive recognition. On the other hand, the paper has also indicated that the reason of losing sovereignty is also there among the opposing Indigenous groups. Therefore, it can be concluded that along with the symbolic recognition, in terms of amendment substantive recognition should also be accomplished. It can be suggested that the parliament can think of bringing change in the constitution by considering the proposal made by Noel Pearson in the year 2015. It is because with the accomplishment of the proposal, the rights of the Aboriginals would be recognized truly as there will be elected Aboriginal leaders to suggest the Australian government.

 

References

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Brennan, Frank. "Contours and prospects for Indigenous recognition in the Australian Constitution and why it matters." (2016) AUSTRALIAN LAW JOURNAL 90.5: 340-354.

Burton, Kelley, Thomas Crofts and Stella Tarrant, Principles of Criminal Law in Queensland and Western Australia (Lawbook, 2011)

Davis, Megan. "Indigenous Australians and the Constitutional Project: The Politics of Discrimination and Why Recognition Is Not Enough." (2014) S. Cross UL Rev. 17: 3.

Davis, Megan. "Indigenous constitutional recognition from the point of view of self-determination and its exercise through democratic participation." (2015) Indigenous Law Bulletin 8.19: 10.

Hocking, Rachael, and S. Brown. "Indigenous campaign builds against constitutional recognition." (2014) ABC News Online 10.

Kelly, Dominic. "Recognition from the right." (2016) Meanjin 75.3: 17.

Kildea, Paul, and A. J. Brown. "The Referendum That Wasn't: Constitutional Recognition of Local Government and the Australian Federal Reform Dilemma." (2016).

Langton, Marcia. "The question of constitutional recognition: Marcia Langton talks to David Leyonhjelm." (2015) Meanjin 74.3: 156.

Macklem, Patrick, and Douglas Sanderson, eds. From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights. (University of Toronto Press, 2016)

McKenna, Mark. "Tokenism or belated recognition? Welcome to Country and the emergence of Indigenous protocol in Australia, 1991–2014." (2014) Journal of Australian Studies 38.4: 476-489.

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Racial Discrimination Act 1975

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Davies, Megan, Its Our Countries (Melbourne University Publishing, 2016)

Royer, Ludivine. "Using One’s Right of Inspection: Australia, the United Nations, Human Rights and Aboriginal People." (2014) Revue LISA/LISA e-journal. Littératures, Histoire des Idées, Images, Sociétés du Monde Anglophone–Literature, History of Ideas, Images and Societies of the English-speaking World 12.7.

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Williams, George. "Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution." U. Tas. L. Rev. 34 (2015): 114.

Wood, Asmi. "Confluence of the Rivers: Constitutional Recognition of Australia’s First Peoples." (2017) Peacebuilding and the Rights of Indigenous Peoples. Springer International Publishing,. 89-103.

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