Constitutionally entrenched advisory body, or treaty?

JULY 23, 2017

"We have two choices: to back the Referendum Council recommendation or stand by the Uluru statement. The two positions are at odds. Whereas Uluru called for a national body; the body to be constitutionally entrenched; a treaty; a truth and justice commission, and a commission to oversee treaty talks, the Referendum Council only supported a constitutionally entrenched advisory body.

As far as the Referendum Council is concerned, the government need to do nothing until after a referendum – no creation of a national body now (via legislation), no designated seats, no 3% of GDP talks at all. Everything turns on a referendum at some unknown future time. What are we meant to do in the meantime?

The alternative is to push for the Uluru agenda now, not wait. We need to push Uluru on the Federal politicians and ignore the Referendum Council. Let the Council pursue its simple agenda while we pursue ours.

If the proposed advisory body got up, unlike a treaty, it would affect nothing. It creates no rights for Aboriginal people and imposes no obligations on government. It could not make laws, or prevent another NT intervention. Parliament would decide who would be on the body and what the body could do. Parliament could even install the Federal government’s hand-picked advisory group to fill the positions.

Or the government could completely ignore the referendum result and not install any entity at all. There is an existing precedent. Section 101 of the constitution provides ‘There shall be an inter-state commission’ – pretty clear wording – yet no such commission exists. Governments are free to install such bodies or not. Constitutionally providing for an advisory body does not obligate government to establish one. It merely authorises government to do so if it wants.

As a body charged with monitoring Federal parliament actions, it would be less effective than either media scrutiny, Senate committees or Aboriginals elected to the Parliament. We can all sit at home and monitor federal parliament.

This all shows that the quest for security of tenure of any Aboriginal entity is hopeless so long as parliamentary supremacy applies. We can waste a lot of time trying to find ways to stop governments dumping national bodies, but we will have no success. We are better to begrudgingly accept that reality and get on with establishing a new national body, pushing for 3% of GDP to be set aside for it, establish designated seats in parliament, and push for a treaty.

A treaty can return all crown lands to Aboriginal people, subject to existing interests and understanding that governments will still have jurisdiction over those lands (parliamentary supremacy again). A treaty can result in our own institutions being set up, recognition of customary law, some degree of autonomy and a greater say over culture, education and social programs aimed at benefiting our people. It is a far better prospect than pushing for a constitutionally entrenched advisory body."

Michael Mansell


Aboriginal Provisional Government