Unfinished
Business: Strategies and Lessons for Reform
Summary of paper delivered to the National Treaty Conference
Canberra,
27-29 Aug
George Williams
[Full
version PDF - 133KB - Final version forthcoming in the
Australian Indigenous Law Reporter]
The idea of a Treaty between indigenous people and the wider Australian community has been put back on the political agenda, by ATSIC chair, Geoff Clark, the Council for Aboriginal Reconciliation, and others. But if the campaign for a Treaty is to succeed, it will need to learn from the failures of the republic and Bill of Rights campaigns.
A Treaty could be the lynchpin of the next stage in the reconciliation process. It might open up the Australian political and legal system, which, since Federation, has largely excluded indigenous peoples. In many other nations, a Treaty is the accepted way of achieving an appropriate settlement on governance and other issues between the settler and indigenous inhabitants. In fact, Australia is the only Commonwealth nation that does not have a Treaty with its indigenous peoples.
The development of a clear political or legal strategy for achieving a Treaty should be an immediate goal. We could draw some salient lessons for this strategy from two other long-standing reform debates - those over a Bill of Rights and an Australian republic. The attempt to achieve structural change to Australias public law system in these two areas suggests the following:
Focus on the long and not the short term - a longer-term approach is needed that extends beyond any one political cycle.
Not just politicians - people other than our elected representatives must be involved in the reform process.
Incremental, not immediate change - the lack of community understanding of complex public law reform issues requires a gradual approach.
Reject minimalism - minimalism rightly failed as a strategy at the 1999 referendum.
Community ownership and involvement - any major structural reform ought to have a strong grassroots base from an early stage.
Community education - Australians possess an appalling lack of knowledge about their system of government. It will be near impossible to gain support for major change unless it is underpinned by adequate community education.
Draft a model that can be understood in the community - reform should be able to be communicated simply and effectively to a community audience.
Develop support Australia-wide - to be successful a referendum needs to gain support in all Australian states.
Seek bi-partisan support - major constitutional reforms are almost never achieved without bipartisan support.
Tackle the reform process along with the reform - even with strong community support, structural legal change can be difficult to achieve. Community support will not translate into outcomes unless the process by which such change is addressed is also effective.
Debate over a Treaty must be conducted in a way that takes account of the long-term prospects of reform. Deep and complex issues raised by this debate, such as sovereignty and reform of the existing constitutional structure, must be tackled along with any consultative process.
In the shorter term, an appropriate outcome is a heightened awareness among Australians about the relevant issues and about the range of possible models. Australians should also be made aware of why a Treaty would be appropriate for the reconciliation process, and why it might be seen as a matter of unfinished business.
In the medium term, there should be significant public debate over the types of models that are proposed, and formal community consultation should be undertaken through conventions and plebiscites.
In the long term, the Treaty process should lead to the drafting of an instrument that would represent the first significant legal outcome in an ongoing Treaty process. It would be a mistake to think that any initial instrument, or even a referendum, could satisfy all of the aspirations of any of the parties. The process must be a generational one.
Professor George Williams
Anthony Mason Professor Director,
Gilbert & Tobin
Centre of Public Law
Faculty of Law
University of New South Wales
Sydney NSW 2052 Australia
NOTE: All the papers from the National Treaty Conference will be available soon on the Treaty Now website: http://www.treatynow.org
