Diane Spooner and Kirsty Magarey, Law and Bills Digest
Constitutional recognition of Indigenous peoples and of local government, were both considered by the 43rd Parliament, but neither measure was put to a referendum in the September 2013 election. Consideration of the constitutional recognition of Indigenous peoples now has a legislative framework, and its precise form and timing is set to be debated in the new Parliament and more widely. The status of local government in the Constitution will continue to be of concern and interest, and may be affected by future High Court decisions.
Constitutional change by way of referenda held under section 128 of the Australian Constitution is difficult, due to the requirement for a ‘double majority’ (a majority of people in a majority of states). As result, referenda that do not have widespread and bipartisan support are unlikely to succeed. Only eight out of 44 referenda have been successful.
The question of recognition of local government has been put to referendum unsuccessfully twice before, in 1974 and 1988. The recognition of Indigenous people in the Constitutional preamble was put as part of the referendum on an Australian Republic in 1999. It was unsuccessful, as were two attempts to remove section 25 of the Constitution (which countenances racially discriminatory voting arrangements) in 1974 and 1988.
The Constitution Alteration (Local Government) 2013 was passed and came into effect in 2013. The purpose of this Act was to amend section 96 of the Constitution to make specific provision for the granting of financial assistance to local government bodies. There was subsequent argument about the Government providing uneven funding for the respective yes and no case for the referendum.
The proposed amendment to section 96, with the added words in bold, was:
96 Financial assistance to States and local government bodies
During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State, or to any local government body formed by a law of a State, on such terms and conditions as the Parliament thinks fit.
Ultimately, the Government decided not to put the local government question to the Australian people in the September 2013 election—on the grounds that it was unlikely to succeed. This was due in part to the negativity surrounding the funding of the arguments for and against the proposal and the short time frame to conduct an education program.
By not proceeding with the referendum there will be continuing legal and constitutional uncertainty about Australian Government funding programs, such as the school chaplaincy scheme, which was rejected by the High Court.
If the Government again wishes to propose a referendum for recognition of local government, the Parliament will be required to pass another Bill to meet the requirements of section 128 of the Constitution. The current Act in effect lapses, due to the election being called. Section 128 requires a law proposing a constitutional amendment to be passed by an absolute majority of each House of the Parliament; this means the current Parliament, not the previous Parliament.
After various considerations of the possibility of putting a constitutional referendum recognising Indigenous people, the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 commenced on 27 March 2013.
As well as providing a parliamentary endorsement of certain principles, this Act provides for an administrative review which will consider the readiness of the Australian public to support a referendum to amend the Constitution so that it recognises Aboriginal and Torres Strait Islander peoples. The review will consider proposals for constitutional changes taking into account the work of the Expert Panel on Constitutional Recognition and Reconciliation Australia.
The Expert Panel’s January 2012 recommendations included:
- putting a single question to seek approval to amend the Constitution by removing race based sections (section 25, on responses to the exclusion of people from voting on the basis of race and section 51(xxvi), which gives the Commonwealth its race power) and
- creating provisions for the elimination of race discrimination, the ‘advancement’ of Aborigines and Torres Strait Islanders and the protection of their language and culture.
During consideration of the Act, there were concerns expressed that further reviews were unnecessary and that leaving open the final form of words to be put in a referendum was unwise. However, for the sake of bipartisan support, the decision was taken to pass the Act, with the precise form of the recommendations for change, and the final wording for any referendum proposal still to be decided. The Act simply acknowledges the work of the Expert Panel and gives some of its recommended wording parliamentary endorsement.
The more controversial aspects of upcoming discussions are likely to include whether an anti-discrimination clause should be inserted in the Constitution, and whether to provide for the advancement of Indigenous peoples.
The need to come to an agreed approach and, in particular, to agree on the precise wording of any proposed constitutional amendment, will be vital to the success of any future referendum.
The legislation ceases two years after it commenced (which will be March 2015). The review, which must be established before 27 March 2014, is required to report six months before that sunset clause—by 27 September 2014.
R Lundie, Constitutional Alteration (Local Government) 2013, Bills digest, 147, 2012–13, Parliamentary Library, Canberra, 2012.
K Magarey and J Garden, Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, Bills digest, 74, 2012–13, Parliamentary Library, Canberra, 2013.
D Weight, Commonwealth expenditure: legality and scrutiny, Briefing Book, Parliamentary Library, 2013.
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