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Conventions are fundamental to the constitutional systems of parliamentary democracies. Unlike the United States which adopted a republican form of government, with a full separation of powers, codified constitutional structures and limitations for executive and legislative institutions and actors, Britain and subsequently Canada, Australia and New Zealand have relied on conventions to perform similar functions. The rise of new political actors has disrupted the stability of the two-party system, and in seeking power the new players are challenging existing practices. Conventions that govern constitutional arrangements in Britain and New Zealand, and the executive in Canada and Australia, are changing to accommodate these and other challenges of modern governance. In Westminster democracies, constitutional conventions provide the rules for forming government; they precede law and make law-making possible. This prior and more fundamental realm of government formation and law making is shaped and structured by conventions.
There have been two great themes to our struggle: citizenship rights, the right to be treated the same as other Australians, to receive the same benefits, to be provided with the same level of services; and indigenous rights, the collective rights that are owed to us as distinct peoples and as the original occupiers of this land.
Lois O'Donoghue, chairperson of the Aboriginal and Torres Strait Islander Commission, 1996
Since the late 1960s there has been little improvement in the life situations and health of Aborigines. Incarceration rates remain much higher for Aborigines than for non-Aborigines, and poverty affects a much higher percentage of Aborigines than non-Aborigines.
But politically, the period since the late 1960s has witnessed some significant changes in the conception of Aboriginal rights. Indeed the concept of ‘Aboriginal rights’ itself has gained currency in the last quarter century, a fact brought about by the concerted political action of Aborigines. From the 1960s the formal Commonwealth and State restrictions that denied Aborigines any meaningful status as Australian citizens were slowly abandoned. These legislative changes at both levels coincided roughly with the timing of the 1967 referendum, a fact that probably explains why the referendum is accorded the status of citizenship maker.
Legal changes in the period since Aborigines were accorded formal citizenship status have resulted now in the acknowledgment that Aborigines possess certain rights that do not pertain to other Australians.
The rights and disabilities of Australian citizens … are not to be found in the Nationality and Citizenship Act. Those rights and disabilities are to be found in the general law of Australia which is made up of the common law and Federal and State statutory laws …
Being born in Australia … the aborigine is an Australian citizen. But to ascertain what rights Australian citizens, including aborigines, have and to what disabilities they are subject, it is necessary to look to the general law.
As the above advice of Attorney-General Garfield Barwick made clear, the 1948 citizenship legislation gave no new citizenship rights to Aborigines. The legislation theoretically made Aborigines Australian citizens, but they were citizens who had no right to vote in Western Australia, Queensland, the Northern Territory or federally, and their access to social security was extremely limited. Even if the new legislation had given new rights to Aborigines, Australia's federal system of government still rendered a person's citizenship status dependent upon the rights accorded to him or her at State level. Barwick himself at one stage made reference to there being ‘nine different “citizenships” in Australia’. The power to determine a person's citizenship status did not rest with the Commonwealth alone.
So when political support was given to the idea that Aborigines should in a meaningful sense become Australian citizens, this in practice required changes on a number of fronts.
A citizen, according to Aristotle's famous definition which has shaped western political thinking, is one who shares both in ruling and in being ruled. Citizens as rulers exercise collectively the political prerogatives of authoritative power over the polity, while the self-same body of individuals are the subjects of such rule. This ideal was severely limited in practice for Aristotle and other ancient thinkers, because they thought that most people lacked either the qualities necessary for participating in political life or the privileged circumstances of a leisured life that would enable cultivation of such qualities and make political participation feasible.
The democratisation of politics in modern times has entailed a fundamental reaffirmation of the ancient ideal of citizenship. Democracy entails free and equal individuals forming themselves into a political community in which they, the people, have final authority to rule and in which they constitute government accordingly. As Rousseau expressed it succinctly, the individual is equally a member of the sovereign body that makes fundamental law and a member of the subject body that obeys it. This virtuous circle of citizenship links both sides of the political equation, restraining and civilising political authority on the one hand and on the other ennobling civil obedience because the citizen is obeying the will of a larger collective of which she or he is an active member.