Constitutional recognition, representation and affirmative action in India

Indigenous Australians have been seriously disadvantaged for far too long. It’s time for a treaty and a radical affirmative action program to close the gap in one or two generations. There are significant lessons to be drawn from India’s pioneering Constitution, the first to specifically commit to affirmative action.

Indigenous disadvantage started with the arrival of the First Fleet and the false declaration that the continent was ‘terra nullius’, effectively denying Aboriginal Sovereignty and classifying them as non-human fauna, a status codified in the 1901 Constitution, which gave the Commonwealth powers relating to “any race, other than the Aboriginal race” and stated “in reckoning the numbers of people ….aboriginal natives shall not be counted”! This prohibition applied until the 1967 referendum!

Their entrenched exclusion and disadvantage and their appalling treatment by law enforcement agencies ignited “Black Lives Matter”, which rightly focuses on protecting Black Lives. However, “Making Black Lives Better” through affirmative action is an imperative too. We can learn from India’s program, the first to be enshrined in a Constitution. India too had millions treated as inferior sub-humans for millenia – ‘untouchables’, ‘outcasts’ below the four Hindu castes, Dalits – ‘the oppressed’ – as they prefer to be called. The program reserved 25% of government jobs, educational places and elected seats for them and some disadvantaged tribes, approximately equal to their combined percentage of the population.

Australia’s 1901 Constitution excluded the Indigenous, although, to be fair, it was enacted when colonial attitudes dominated. India’s was enacted nearly 50 years later, when beliefs in equal rights were ascendant. However, even in 2020, Indigenous Australians remain our most disadvantaged group! Australia could draw from India’s experience, although enshrining anything in our Constitution would be significantly harder. India’s Constituent Assembly enacted their Constitution, including affirmative action. Here, Constitutional Recognition needs a successful referendum, probably requiring nationwide support of Government, Opposition and other parties. For practical reasons, only principles should go into our Constitution, with details in normal legislation.

Australia would also need a Treaty, negotiations for which Indigenous Australians have requested through their ‘Uluru Statement of the Heart’, which proposes a “Makarrata … coming together after a struggle” Commission, “to supervise a process of agreement-making”. As a first step, the Australian Parliament could acknowledge the Statement, agree to Treaty negotiations and appoint a Committee to represent the Government in them. A treaty also requires financial consideration for both the occupation and use of Australia’s land and waters (on top of the Mabo Native Title settlements) and the untold suffering inflicted on Indigenous Australians since 1788, something the Statement calls the “structural nature of our problem’’ and “torment of our powerlessness”. Some of the payments could go into an affirmative action fund managed jointly under the Makaratta Commission, its objective being significant improvement in the quality of life of Indigenous Australians within a defined number of generations, a far more ambitious target than the slow-moving ‘Closing the Gap’ program.

The most encouraging lesson from India’s experience is that reserving seats is fairly straightforward, implementable at normal elections of each jurisdiction A major difference however, is that the percentage of seats reserved in India was 25%, the proportion of disadvantaged groups, but similar representation for Indigenous Australians would be only 3.3% for both Federal Houses and from 29.5% in the Northern Territory to between 0.9% and 5.5% in the States and ACT. The large share in India gave disadvantaged groups massive political clout. In Australia, it would be much less, comparable to smaller minority parties like the Greens, Australian Democrats and One Nation. However, skillful bargaining in tight situations, as Senator Harradine demonstrated, could yield substantial concessions. Moreover, the symbolic meaning of proportionate representation would be phenomenal and further enhanced by making those elected to reserved seats part of what the Statement calls the ‘First Nations Voice’.

India’s reservation of places in government educational institutions and jobs enabled substantial numbers to gain formal qualifications and attain senior positions in most services, including the elite Judiciary and Foreign Service. Preferred entry for Indigenous Australians into educational institutions must also have high priority. With jobs, while affirmative action should be implemented throughout the public service, agencies which significantly impact on the lives and wellbeing of Indigenous Australians must come first. More Indigenous Australians in law enforcement agencies, the judiciary and the legal and prison systems are essential to address the issues that sparked ‘Black Lives Matter’. Aboriginal Affairs, Health, Education, and Social Security departments also urgently need Indigenous staff. Their active involvement will give Indigenous clients greater confidence in the equity of the system. More importantly, it will help make non-Indigenous colleagues significantly more culturally aware and respectful. Percentage targets for Indigenous representation should be differentially set at levels necessary for adequate impact. They could also vary to reflect the percentages of Indigenous clients of each department.

The Indian experience had a few problems, which Australia should minimise:

1. A sizeable number of poorer members from ‘non-disadvantaged’ groups, e.g. caste Hindus, worsened. With our low numbers, the problem could be alleviated by means-tested support programs.

2. While reserved student places and jobs were meant to be temporary, they became permanent because governments could make extensions easily. Australia could set a time limit, based on the chosen number of generations, with extensions only granted until percentage targets are met.

3. The program excluded the private sector, which there, just as in Australia, the bulk of jobs are. Mandating reservation of private jobs in a free economy is impractical. Instead, governments here could secure commitments from business using the leverage of contracts and subsidies. Peak business bodies should also encourage adoption of ambitious Reconciliation Action Plans, which already involve commitment to “meaningful opportunities” for Indigenous Australians.

With political and public goodwill, the suggested reforms are eminently doable. It’s been over 200 years since Australia was invaded. Surely a Treaty which recognises Indigenous Australians as Aboriginal Sovereign Nations and provides affirmative action to make Black Lives Better is long overdue.

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Neville J Roach AO Former Chairman of Australian Government’s Business (Migration) Advisory Panel.

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