Indigenous people, local government and other constitutional issues

Diane Spooner, Law and Bills Digest Section

Constitutional recognition of Indigenous people

During the course of the election campaign both major parties made announcements about constitutional recognition of Indigenous people. The Coalition promised to hold a referendum at the 2013 election on the wording of a preamble in the Constitution to recognise Indigenous Australians, and the ALP promised to set up an expert panel to build support for the constitutional recognition of Indigenous people.

In the agreement with the Greens reached with the Government since the election, they will work together and with other parliamentarians to ‘hold referenda during the 43rd Parliament or at the next election on Indigenous constitutional recognition and recognition of local government in the Constitution’. The Greens announced that they would be consulting widely with Indigenous organisations and constitutional experts on the nature of the constitutional recognition.

Amendment to the preamble of the Constitution is different from amending the Constitution itself, although it is generally accepted that the same process of holding a referendum would be necessary under section 128 of the Constitution. The way the agreement above is couched suggests that amendment to the preamble is the intended approach in relation to Indigenous recognition, and amendment to the actual Constitution is the intended approach in relation to local government recognition. A preamble does not have direct legal effect or give rise to substantive rights and obligations but may be used as an aid to interpretation or to resolve ambiguities.

During the 42nd Parliament, the House of Representatives Standing Committee on Legal and Constitutional Affairs conducted its Inquiry into Constitutional Reform. One chapter of its report was devoted to Indigenous recognition and nation building through a new preamble.

Recognition of Aboriginal and Torres Strait Islanders in the preamble was put to a referendum in 1999, as part of a whole new preamble. The proposed preamble included that the Australian people commit to ‘honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’. The relevant Bill also amended the Constitution to make it clear that the preamble had no legal effect and could not be used to interpret the Constitution or any laws of the Commonwealth. However, the referendum was unsuccessful. Victoria and Queensland have similar recognition in their constitutions, and New South Wales is in the process of doing so as well.

There are strong views that the racist and redundant section 25 of the Constitution should be repealed at the same time as any referendum on these issues. This provision has reference to disqualification from voting of a person on the basis of his or her race.

Constitutional recognition of local government

The question of constitutional recognition of local government has unsuccessfully put to the people in referenda, twice.

In 1974 the question put was whether people approved a proposed law to alter the Constitution to enable the Commonwealth to borrow money for, and to grant financial assistance to, any local government body (financial recognition). The Bill was opposed by the Liberal and Country parties in the House of Representatives.

In 1988 the question put was whether people approved a proposed law to alter the Constitution to recognise local government. The actual proposed provision to be inserted was in the following terms: ‘Each State shall provide for the establishment and continuance of local government bodies elected in accordance with its laws and empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the state’ (institutional recognition). The Liberal/National Party opposed the amendment. This proposed amendment was not for the Commonwealth to have a direct relationship with the local government tier of government, but was rather seeking to entrench the existing situation of local governments being creatures of the states. In other words, it was not seeking to cut the States’ middleman role. Another option could be for symbolic recognition where local government could be referenced in the preamble as being acknowledged as being part of the governance structure of the nation.

Constitutional change

Constitutional change by way of referenda held pursuant to section 128 of the Constitution is difficult except when there is widespread and bipartisan support. Only 8 out of 44 have been successful. In essence, to be successful a proposed law must be passed by an absolute majority of both Houses, or by one House twice, and at a referendum passed by a majority of people as a whole and by a majority of the states (that is, at least four of the six).

An absolute majority of the House of Representatives will be 76 votes; in the Senate it is 39. In the new Parliament it may be of some significance that either chamber could go solo on constitutional change, without the support of the other, if it can achieve an absolute majority. In this Parliament the opportunity to do so in either chamber is quite novel.

The Speaker’s vote in the House of Representative could be of vital and critical importance. Under section 40 of the Constitution the Speaker does not vote except when the numbers are equal, then he or she has a casting vote. There is a view that the Speaker who does not have full voting rights should not be included in the number of votes required for an absolute majority which would reduce the number to 75 votes in the House.

The other aspect of this is that under the agreements with the Greens and Independents, the Speaker and Deputy Speaker can participate in Private Member’s Business but cannot vote. It is possible in the new Parliament that a Private Member’s Bill can achieve sufficient support in the House, for example Mr Katter’s Bill on Constitution Alteration (Just Terms) or Mr Abbott’s bill to overturn the Wild Rivers Act 2005 (Qld) (which it should be noted, does not entail constitutional change).

Library publications and key documents

Australian Local Government Association, Constitutional recognition of local government, http://www.alga.asn.au/constitutionalrecognition/pdf/ExplanatoryNotes.pdf

S Bennett, The politics of Constitutional amendment, Research paper, no. 11, 2002–03, Parliamentary Library, Canberra, 2003, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fprspub%2F2AP96%22

House Standing Committee on Legal and Constitutional Affairs, Reforming our Constitution, a roundtable discussion, 23 June 2008, House of Representatives, http://www.aph.gov.au/house/committee/laca/constitutionalreform/report.htm.

M Garrily and G Williams, ‘Recognition of local government in the Commonwealth Constitution’,
Public Law Review, 21, 2010, p. 164.

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