Symbolic recognition not the way forward
To celebrate three years since First Nations Peoples came together on May 26, 2017 to create the Uluru Statement from the Heart, National Indigenous Times has invited champions of the movement to write about what the Statement means to them.
Today’s champion is Gemma McKinnon, a proud Barkindji woman and talented lawyer who worked on the regional dialogues that resulted in the Statement as it’s known today.
I spent six months running working groups at the Referendum Council’s 12 regional dialogues that culminated in the delivery of the Uluru Statement from the Heart to the Australian people.
My working group focussed on suggested amendments to the race power. As a public lawyer I had always understood the controversial nature of the race power. The fact that the Australian Federal Parliament has the power to make laws for any race of people is usually shocking to anyone hearing it for the first time.
Many see it as a black mark on our Constitution—maintaining a power that refers to the antiquated concept of ‘race’ seems in itself embarrassing.
The race power is often, and some will argue ‘correctly’ referred to as the ‘races power’, because it technically gives Parliament the power to makes laws about any race of people.
However, in practice, since 1967 when the power was amended to include Aboriginal and Torres Strait Islander people, it has only been used to make laws about us.
The Section 51A amendment contemplated by the Expert Panel and subsequent parliamentary committees would effectively remove the reference to ‘race’ and replace it with ‘Aboriginal and Torres Strait Islander people’, maintaining an ability to make laws for us (like the Native Title Act 1993) but not providing any protection against laws to our detriment.
This isn’t likely to have any practical implications. It calls a spade a spade and removes an outdated word from the Constitution but does not offer any substantial change to the status quo.
This is why it was determined inadequate as a form of ‘constitutional recognition’ at the dialogues.
However, it was the race power working groups who originated the idea that a First Nations Voice should guide the Parliament on its use of the race power.
This stroke of genius came after hours of playing with constitutional language in attempts to steer the race power’s use towards the creation of laws that benefit First Nations people.
However, each well-crafted amendment would inevitably land back at the same place—it should not be up to non-Indigenous judges to determine what is or is not ‘for our benefit’.
Experience had certainly indicated that despite ‘good intentions’, the consensus of the First Nations community does not always coincide with that of the Parliament.
The idea of a body made up of representatives from First Nations across the country seemed to fit the brief. Accountable to the mob, they would determine when they thought the controversial race power should be used.
This week, reflecting on the concept of Reconciliation and thinking about the years since the Uluru Statement from the Heart was delivered, I return to the overwhelming rejection by Uluru of symbolic recognition.
Australian governments have become comfortable with the idea of symbolic forms of Reconciliation. We have endured years of lemon myrtle-dusted morning teas, flag raisings, and screenings of Rabbit Proof Fence, yet institutionalised racism prevails everywhere I look.
The idea that First Nations people deserve a constitutionally enshrined role in our political system is deemed repugnant by the political elite like Turnbull and Wyatt. Symbolism has got us nowhere.
Keep your coins, I want change.
By Gemma McKinnon