An Aboriginal treaty would “”imperil our sovereignty and place the very existence of our nation at risk,” the former Chief Justice of Australia, Sir Harry Gibbs, said last night.
There was no need for a treaty of special constitutional rights for Aboriginal people and Torres Strait Islanders, Sir Harry said.
He was speaking at the inaugural conference of the Samuel Griffith Society in Melbourne. The society, named after the first Chief Justice, aims to preserve the Constitution by ensuring full public debate before it is amended.
Also at the conference, a former judge of the Queensland Supreme Court accused the present High Court of social engineering.
Sir Harry said this generation was “”not responsible for the crimes and blunders of the past” and “”should not be racked with guilt”.
Aboriginal people were not a sovereign people and should not receive international recognition as such. He warned against suggestions that in the future some areas in northern Australia might become separate nations.
He acknowledged that the condition of many Aboriginal people today was lamentable and they had special needs which our society should meet. But there was ample legislative power to do that without a change in the Constitution or a constitutional provision that gave them special rights not based on individual needs but on race.
Sir Harry rejected the idea that the Constitution needed radical rewriting for the centenary of federation or that Australia should be a republic.
His view of federalism was: “”nothing should be done by the Commonwealth that could be done equally well by the states themselves”.
That was the principle for which the European Community was striving.
“”With the bureaucratic genius for meaningless jargon they call it the principle of subsidiarity,” he said.
The reserve powers of the Crown were necessary in any system of responsible government. The events of 1975 were an anathema to some, but the powers had been used in Tasmania and Queensland in the past five years in a way recognised by all as impartial.
Sir Harry rejected a Bill of Rights “”because no human mind can foresee the effect which a court may ultimately give to general words intended to guarantee a right.”
The present federal system gave more rights than most countries with Bills of Rights.
The Constitution could be changed in a limited way: the states should have greater financial power; the Commonwealth’s foreign-affairs power could be restricted so it did not impinge on domestic matters and the industrial-relations power was unsatisfactory in its present form.
Mr Peter Connolly, QC, a former judge of the Queensland Supreme Court said the High Court in two leading cases had not decided “”right according to law.” He said Section 92 of the Constitution had guaranteed an individual right to free trade across state boundaries in Australia until May, 1988. Then the High Court has reinterpreted it. “”The court paid no regard whatever to the views of their predecessors,” he said.
“”Yet such is the lethargy of the Australian people that there has been little criticism of the decision,” he said.
He attacked the court for what he called overruling the principle that Australia had been possessed by the Crown in 1788 in the Mabo decision earlier this year. That decision recognised indigenous title, and said that it had always been in existence.
“”What rational suggestion can be made to bring home to the justices of the High Court that their deliberate social engineering does not command universal admiration or indeed respect.”