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Chapter 2
Discussion of forms of constitutional wording
Guide to this chapter
2.1
This chapter discusses issues
put to the committee in its consideration of possible draft forms of wording
relating to constitutional recognition of Aboriginal and Torres Strait
Islander peoples. Notably, drafting issues arise in relation to several
existing or possible constitutional provisions, including:
-
the provision as to races disqualified
from voting at Commonwealth elections if they are so prohibited in their state
(section 25 of the Constitution);
-
the Commonwealth's current power to
make laws with respect to people of any race (section 51(xxvi) of the
Constitution);
-
a proposed new Commonwealth power to
make laws with respect to Aboriginal and Torres Strait Islander peoples, and
alternative forms of that power (such as the Expert Panel's proposed new
section 51A or other replacement section 51(xxvi));
-
a possible new provision addressing the
possibility of the Commonwealth legislating in a racially discriminatory way;
-
a possible statement recognising
Aboriginal and Torres Strait Islander peoples, either alongside the Commonwealth's
proposed new legislative power or in a preamble or opening statement to the
Constitution; and
-
a statement recognising Aboriginal and
Torres Strait Islander languages.
Expert Panel on Constitutional Recognition of
Indigenous Australians
2.2
In discussing draft forms of constitutional
wording, the committee notes the significant work done by the Expert Panel on
Constitutional Recognition of Indigenous Australians (the Expert Panel), and the range of views canvassed in its 2012 report
Recognising Indigenous Australians in the Constitution.[1]
2.3
Following public statements by the Coalition,
the Australian Labor Party and the Australian Greens in support of
constitutional recognition of Aboriginal and Torres Strait Islander peoples,
Prime Minister Julia Gillard appointed the Expert Panel in December 2010 to
consult on the best possible options for a constitutional amendment.
2.4
The Expert Panel was intended to have broad
membership across the social and political spectrum, informed by nominations
from the public.[2]
Led by co-chairs Professor Patrick Dodson and Mr Mark Leibler AC, the Expert
Panel conducted over 250 consultations around Australia, with the aim of
building public awareness of constitutional recognition.
2.5
The Expert Panel report provides the
Parliament with a comprehensive option for constitutional change. Their five
recommendations are set out at Appendix 2 to this interim report. In relation
to the proposed new legislative power to make laws with respect to Aboriginal
and Torres Strait Islander peoples, the alternatives to the Expert Panel's
proposal that are discussed in the text of this interim report are set out in
Boxes 1–5.
Multi-partisan support
2.6
The committee agrees with the Expert Panel
that 'the current multiparty support creates a window of opportunity to
recognise Aboriginal and Torres Strait Islander peoples in and eliminate
race-based provisions from the Constitution.'[3] The committee is guided by the
experience of the Expert Panel that:
For many Australians, the failure
of a referendum on recognition of Aboriginal and Torres Strait Islander peoples
would result in confusion about the nation's values, commitment to racial
non-discrimination, and sense of national identity. The negative impact on
Aboriginal and Torres Strait Islander peoples would be profound.[4]
2.7
The committee notes that strong multi-partisan
support for constitutional recognition of Aboriginal and Torres Strait Islander
peoples has been in existence for the last four Parliaments.
2.8
The Prime Minister
the Hon Tony Abbott MP expressed his commitment to honour the pledge of
previous parliaments to the recognition of Aboriginal and Torres Strait
Islander peoples in the Constitution in his 2014 Australia Day address:
We will
also begin a national conversation about amending our Constitution to recognise
Aboriginal peoples as the first Australians. This should be another unifying
moment in the history of our country.[5]
2.9
The previous Coalition Prime Minister the Hon
John Howard OM AO had proposed a 'new Reconciliation' in an address at the
Sydney Institute on 11 October 2007. The former Prime Minister proposed a
referendum:
...to
formally recognise Indigenous Australians in our Constitution—their history as
the first inhabitants of our country, their unique heritage of culture and
languages, and their special (though not separate) place within a reconciled,
indivisible nation.[6]
2.10
Former Prime Minister the Hon Kevin Rudd
accepted a statement of intent from over 8 000 Aboriginal people in Arnhem Land
in 2008, and pledged his support for recognition of Indigenous peoples in the
Constitution.[7]
2.11
In 2010 former Prime Minister the Hon Julia
Gillard signed agreements with the Australian Greens, Mr Andrew Wilkie MP and
then independent Member of Parliament Mr Rob Oakeshott, committing to a
referendum to recognise Aboriginal and Torres Strait Islander peoples in the
Constitution during the 43rd Parliament or at the following
election.[8]
2.12
The need for bipartisanship is one of the
'five pillars to a successful referendum' discussed by Professor George
Williams AO and Mr David Hume, alongside popular ownership, a sound and
sensible proposal, comprehensive public education and the distribution of
information using a range of media.[9]
Disqualification from voting (section 25)
2.13
The Expert Panel's first recommendation was
the repeal of section 25 of the Constitution, which it described as 'a racially
discriminatory provision that contemplates the disqualification of all persons
"of any race" from voting in State elections.'[10] Section 25 of the
Constitution is as follows:
Provision as
to races disqualified from voting
For the purposes of the last section, if by the law of any
State all persons of any race are disqualified from voting at elections for the
more numerous House of the Parliament of the State, then, in reckoning the
number of the people of the State or of the Commonwealth, persons of that race
resident in that State shall not be counted.
2.14
Section 25 contains a 'formula for calculating
the distribution of funds and the apportionment of parliamentary seats to the
states on the basis of the size of their populations'.[11] Professor George Williams explained
that:
...where a State disqualifies the
people of race from voting in its elections, the people of that race are not to
be counted as part of the State's population in determining its level of
representation in the Federal Parliament.[12]
2.15
Mr Bain Attwood and Mr Andrew Markus commented
that 'the exclusion of Aboriginal people from
this calculus suggests a racial assumption on the part of the makers of the
Australian Constitution.'[13] Professor
Williams further observed that:
Although the section thus acts as a
penalty, it does so by acknowledging that the States can disqualify people from
voting due to their race. This reflects the fact that at Federation in 1901,
and for decades afterwards, States denied the vote to Aboriginal people.[14]
2.16
Professor Anne Twomey has noted that 'it is
worth looking back at its ancestry', including the relationship of section 25
to the 14th amendment of the United States Constitution which
penalises any State that denies certain voting rights by reducing the amount of
votes that State has in the federal House of Representatives.[15] The
committee is aware, however, that '...consultations
and submissions to the Expert Panel, overwhelmingly supported the repeal
of the section,'[16]
and that:
The reasons most frequently
provided in support of the removal of section 25 were that it is racially
discriminatory, is outdated, and serves no useful purpose in contemporary
Australia.[17]
2.17
The committee notes the symbolic value of
removing references to 'race' from the Constitution, language that Professor Mick Dodson AM has described as
'discredited' and reflecting 'outdated, outmoded concepts.'[18] Section
25 in particular has been described as 'racist'[19] and 'odious'.[20] The committee is not persuaded of the
section's ongoing utility, and considers that it can be removed without
consequential effects to the Constitution.
Power to make laws with respect to people of any race
2.18
The principal legislative powers of the
Commonwealth exercised by the Parliament are set out in sections 51 and 52. Section 51(xxvi) of the Constitution provides the relevant
head of power for the Commonwealth to legislate for the people of any race for
whom it is deemed necessary to make special laws, as follows:
The Parliament shall, subject to this Constitution, have
power to make laws for the peace, order, and good government of the
Commonwealth with respect to:
(xxvi) the people of any race, other than the
aboriginal race in any State,* for whom it is deemed necessary to make
special laws;
*removed by referendum 25 in 1967
2.19
The words 'other than the aboriginal race in
any State' were repealed at the 1967 referendum, which had the effect of allowing
the Commonwealth to make special laws relating to Aboriginal and Torres Strait
Islander peoples. The result was described
judicially by the Hon Sir Gerard Brennan AC KBE QC as 'an affirmation of the will of the Australian people that
the odious policies of oppression and neglect of Aboriginal citizens were to be
at an end.'[21]
2.20
Despite this legacy, section 51(xxvi) of the
Constitution is still considered one of the provisions that contemplates
discrimination against Aboriginal and Torres Strait Islander peoples.[22] The
divided High Court decision in Kartinyeri v Commonwealth[23] (Hindmarsh Island Bridge
case) is discussed as establishing the proposition that section 51(xxvi) could
be used to enact laws that discriminate against the people of any race.[24]
2.21
The Expert Panel reported that 'a large
majority supported change' in relation to section 51(xxvi).'[25] As noted above, removing references
to 'race' from the Constitution has considerable symbolic value.[26] Further,
the committee is of the view that amending or repealing and replacing section
51(xxvi) to remove the possibility of the Commonwealth making laws about Aboriginal
and Torres Strait Islander peoples that discriminate against them, alongside
repeal of section 25, could give effect to substantive change of the kind that
has wide public support.
2.22
Contemplating the amendment or repeal of
section 51(xxvi), the committee has necessarily had regard to its social and
legal implications. In particular, the committee is mindful of the public
significance of the 1967 referendum, and its legacy as a positive reform for Indigenous
affairs.[27]
For example, it has been put to the committee
that it could be seen as inconsistent to, on one hand, remove the power to make
laws with respect to the people of any race, and on the other hand, insert a
power to make laws with respect to Aboriginal and Torres Strait Islander
peoples (as recommended by the Expert Panel).
2.23
The committee has considered the possibility
that the new legislative power could be framed 'based not on race but on the
special place of those peoples in the history of the nation.'[28] After considering this particular issue,
the Expert Panel concluded that:
The need for a specific head of
power with respect to Aboriginal and Torres Strait Islander peoples arises
because of their unique place in the history of the country and their prior and
continuing existence.[29]
2.24
The committee considers that a policy question
remains about whether there is popular support for Parliament having the power
to make laws in order to benefit the people of any race, other than Aboriginal
and Torres Strait Islander peoples.[30]
Professor Williams has expressed an opinion that the Commonwealth's legislative
power may not be required in relation to 'other races'.[31]
2.25
Considering the legal implications of
repealing section 51(xxvi), the committee has had regard to the view that the
repeal, without any replacement section, would have the effect of removing the
Commonwealth's authority in section 51 to legislate about people of a
particular race 'for whom it is deemed necessary to make special laws',
including for Aboriginal and Torres Strait Islander peoples.[32] On this point, the committee was advised other possible heads of power exist
to legislate with respect to Indigenous people, notably:
The Commonwealth can also employ
its external affairs power in s 51(xxix) of the Constitution to enact laws
that implement provisions of treaties that Australia has ratified which are
relevant to indigenous peoples and their rights and interests.[33]
2.26
Notwithstanding other possible heads of power,
it was put to the committee that repealing section 51(xxvi) carries some risk
of invalidating legislation relating to Aboriginal and Torres Strait Islander
peoples previously enacted in reliance on that power, which may include:
-
World Heritage Properties
Conservation Act 1983;
-
Aboriginal and Torres Strait
Islander Heritage Protection Act 1984;
-
Native Title Act 1993; and
-
Corporations (Aboriginal and Torres
Strait Islander) Act 2006.[34]
2.27
For this reason, the committee agrees with the
Expert Panel that changes to the existing terms of section 51(xxvi) should be
accompanied by a new legislative power in order to achieve continuity with the Commonwealth's power to make laws for
Aboriginal and Torres Strait Islander peoples. The Expert Panel reasoned that
'as a seamless exercise, such laws would continue to be supported by the new
power... from the time of repeal of the old power', but that this may warrant
further consideration by government.[35]
Power to make laws with respect to Aboriginal and
Torres Strait Islander peoples
2.28
The committee has considered a number of forms
of wording that could change the form or wording of section 51(xxvi) and continue
to allow the Commonwealth to make laws with respect to Aboriginal and Torres
Strait Islander peoples. The alternatives that have been put to the committee
are discussed in the text of this interim report and set out in Boxes 1–5.
2.29
The Expert Panel recommended the repeal of section
51(xxvi) alongside the insertion of a new section 51A as 'a new grant of
legislative power' that would allow the Commonwealth to make laws with respect
to Aboriginal and Torres Strait Islander peoples[36] (see Appendix 1). The Expert Panel
noted that this provision was suggested by the Constitutional Commission in
1988.[37]
Mr Neil Young QC agreed with the Expert Panel that 'the power should be
expressed, broadly simply, as a power to legislate 'with respect to Aboriginal
and Torres Strait Islander peoples'.[38]
2.30
The committee considers there to be some merit
in the Expert Panel's view that an advantage of proposed new section 51A is
that it could incorporate language of recognition into the legislative power.[39] Language of recognition is discussed
in this interim report from paragraph 2.65.
Legislative power with a prohibition
of racial discrimination
2.31
It has been put to the committee that a
proposed new section 51A could also incorporate a prohibition of racial
discrimination by the Commonwealth in making laws with respect to Aboriginal
and Torres Strait Islander peoples. The alternative new section 51A, in Box
1 below, would give the Commonwealth power to make laws with respect to
Aboriginal and Torres Strait Islander peoples, but only so long as those laws
did not 'discriminate adversely against them'.[40]
2.32
It has been put to the committee that the
addition of the word 'adversely' could limit the type of laws that may be made
by the Commonwealth to those that do not have an adverse discriminatory effect
on Aboriginal and Torres Strait Islander peoples, while allowing for the
continued enactment of laws that give effect to 'special measures' to
overcome disadvantage and the effects of past discrimination.[41] This
is discussed further in this interim report from paragraph 2.56.
Legislative
power in a new chapter
2.33
It has been put to the committee that instead
of the Expert Panel's proposed section 51A, the power to make laws with
respect to Aboriginal and Torres Strait Islander peoples could be framed as a
new chapter of the Constitution, for example Chapter IIIA Aboriginal and
Torres Strait Islander Peoples.[42]
An option that would amend the Constitution in this way is included in Box 2
below.
2.34
The option of inserting a new chapter into the
Constitution includes a new subsection (2) which would confine the
Commonwealth's power to make laws that are 'specially applicable to Aboriginal
and Torres Strait Islander peoples' to those that do not discriminate adversely
against them. Like the proposed new section 51A discussed above, this
subsection could incorporate language from the Expert Panel's proposed new
section 116A (discussed further from paragraph 2.44 of this interim report).
Legislative
power by 'subject matter'
2.35
The Commonwealth's power in section 51(xxvi) to
make laws with respect to the people of any race is legally characterised as a 'persons
power'. The aliens power in section 51(xix) and the corporations power in
section 51(xx) are other examples of persons powers.[43] Professor Geoffrey Lindell explained
that a persons power:
...requires the law to deal with
things or activities which help to differentiate or identify the persons referred
to in the power from other persons who are not referred to in the power.[44]
2.36
Persons powers can be contrasted with the
remainder of the Commonwealth's legislative powers in section 51 which are
organised by 'subject matter', for example, the power to make laws with respect
to 'postal, telegraphic, telephonic, and other like services' (section 51(v))
and 'lighthouses, lightships, beacons and buoys' (section 51(vii)). The
committee has been advised that the validity of laws made under a subject
matter power is determined by applying a different common law test. Those laws will
be valid as long as there is a 'sufficient connection' between the law and a
particular subject matter.[45]
2.37
It was put to the committee that section
51(xxvi) could be replaced by a legislative power defined by reference to
relevant subject matter.[46] The subject matter power
would need to be broad enough to cover all subject matters on which it is desirable
to enable legislation, and drafted to include existing legislation in relation
to the protection of Indigenous heritage, native title and Aboriginal and
Torres Strait Islander corporations.[47]
2.38
A subject matter power would necessarily be
narrower in scope than a power allowing the Commonwealth to legislate with
respect to Aboriginal and Torres Strait Islander peoples. Professor Twomey has
commented that a persons power 'is too wide
and has the potential to be used in a detrimental or oppressive manner'.[48] Professor Twomey has argued that the
Commonwealth's legislative power should be limited to:
....those subjects in relation to
which the Commonwealth presently relies upon the race power, which can be
justified as being governed by national laws, rather than State laws, and which
are related to the special status of Aboriginal and Torres Strait Islander
peoples as being the first peoples of Australia.[49]
2.39
An example of a new section recognising
Aboriginal and Torres Strait Islander peoples and providing the Commonwealth
with legislative power defined by subject matter appears below in Box 3.
2.40
The committee recognises the challenges of
drafting a subject matter power, as noted by
Professors Rosalind Dixon and George Williams who queried 'whether such a list
can ever hope to include all topics of potential future significance to
Aboriginal people.[50]
Mr Neil Young QC also noted that 'it is very
difficult to arrive at a list of subject matters that is sufficiently
comprehensive' and acknowledged 'an inherent difficulty with a catch-all
expression such as "other like things"'.[51]
Replacing section 51(xxvi) of the
Constitution
2.41
It has been put to the committee that a
further alternative drafting option for the Commonwealth's legislative power
could be to simply revise paragraph (xxvi) of section 51 of the
Constitution. This proposal is included in Box 4 below.
2.42 Like the proposed new chapter and new section
51A discussed above, the committee has considered a view that this form of
words could prohibit racial discrimination against Aboriginal and Torres Strait
Islander peoples by the Commonwealth using the words 'but not so as to
discriminate adversely against them'[52] (discussed further from paragraph
2.56 of this interim report).
2.43
While the Expert Panel refers in proposed
section 51A to 'Aboriginal and Torres Strait Islander peoples', Professors
Dixon and Williams would frame the power in relation to 'Aboriginal and Torres Strait
Islander people' in the singular. They argued this 'removes the possibility
that it might not extend to laws for Aboriginal people as individuals or
sub-groups of Aboriginal people (such as Aboriginal women or youth).'[53] The committee notes that this
question was considered in the Hindmarsh Island Bridge case.[54] There, the High Court concluded that
the phrase 'the people' included 'any members of that class'.[55] Mr Neil Young QC suggested that 'the
word "peoples" will be construed in much the same way as
"people"' and that 'there is no compelling reason to depart from the
language recommended by the Expert Panel.'[56]
The Expert Panel's proposed new section 116A
2.44
The Expert Panel proposed a prohibition of
discrimination by the Commonwealth, a State or a Territory in new section 116A
(recommendation 4 in Appendix 1). Professor Davis has contended that the
'practical need for' a prohibition of racial discrimination:
...is based on real experiences of
Indigenous people of discrimination at the hands of the Commonwealth
Parliament. For example, the Northern Territory Emergency Response, the Native
Title Act and the Wik amendments. These were commonly cited as examples in
community consultations [by the Expert Panel] in Aboriginal communities.[57]
2.45
In 1975 the Commonwealth Parliament legislated to prohibit adverse
discrimination on the basis of race (inter alia).[58]
This principle enjoys broad community support. The question remains as to
whether this should be prohibited in the Constitution which would preclude
legislative override of any judicial decision that was consequent on the
amendment.
2.46
The Expert Panel reported that based on their
consultations:
...there is widespread support in the
Australian community for a constitutional amendment to entrench the prohibition
of racial discrimination. By operation of the Racial Discrimination Act and
section 109 of the Constitution, the States and Territories are already
effectively subject to a constitutional prohibition on legislative or executive
action which discriminates on the ground of race. The Commonwealth Parliament,
on the other hand, is not.[59]
2.47
The Expert Panel stated that grounds for
discrimination would be the same as those used in the Racial Discrimination
Act 1975 (Commonwealth): 'race, colour or ethnic or national origin.'[60] Professor Davis explained that:
Australia’s commitment to the
principle of racial non-discrimination is reflected in the Racial Discrimination Act 1975 (Cth) and is accepted in legislation and policy in all Australian
jurisdictions. By constitutionalising
non-discrimination, only the Commonwealth Parliament will have an additional
burden placed on it.[61]
2.48
The Expert Panel contended that governments
would still be able to pass laws and make decisions that use citizenship or
nationality as criteria, for example, decisions about Australia's defence and
or immigration.[62]
2.49
The Expert Panel articulated that this
approach would be consistent with international jurisprudence, including in
relation to aboriginal rights in Canada, and would recognise the special position
of Aboriginal and Torres Strait Islander peoples in Australia. The Expert Panel
explained the way the proposed prohibition would allow for beneficial laws to
be enacted:
The inclusion of an exception for
'special measures' would minimise the risk that a general non-discrimination
clause would invalidate laws for the benefit of Aboriginal and Torres Strait
Islander peoples. While Australians are wary of the overuse of affirmative
action policies which are perceived to unfairly favour one group of people over
others, the approach proposed by the Panel is one that is needs-based, rather
than one based on Aboriginal or Torres Strait Islander identity.[63]
2.50
It was put to the committee that careful
consideration should be given to any general prohibition of racial
discrimination in the form recommended by the Expert Panel. Professor Williams
has noted that:
The practical impact of these constitutional changes would be
significant. A freedom from racial
discrimination in the Australian Constitution applying to all laws and programs
would mean that a law or program could be challenged in the courts if it
breached the guarantee.[64]
2.51
The Expert Panel's proposed prohibition of
racial discrimination would create an exception from discrimination law to
enable the Commonwealth, States and Territories to implement laws and measures
that address past discrimination, commonly referred to as 'special measures'.[65] The committee has been advised that
special measures already enacted under section 51(xxvi) might include laws
relating to truancy, alcohol management and native title.
2.52
The committee has given consideration to how
the Expert Panel's proposed new sections 51A and 116A would work together in
practice. Mr Neil Young QC reasoned that the two new sections could establish a
complex test, by which:
For a law to be valid, it must fall
within the broad power conferred by s 51A, perhaps as limited by its
preamble, and it must not offend against the prohibition on discrimination in s
116A(1). Alternatively, if it offends against that prohibition, the question
will arise whether it falls within the exception in s 116A(2).[66]
2.53
The committee has been advised that a proposed
new section 116A 'is likely to have wide-reading application and be heavily
litigated.'[67]
2.54
Professor Megan Davis has commented that
public support for proposed section 116A has varied, noting:
...those who are well
rehearsed in publicly and traditionally opposing a bill of rights or a charter
of rights or judicial activism, immediately opposed section 116A and similarly
those who have publicly and traditionally supported rights entrenchment or
bills of right, have supported section 116A.[68]
2.55
Mr Neil Young QC expressed a view that:
The proposed enactment of s 116A
may complicate the objective of recognising Aboriginal and Torres Strait
Islander peoples in an appropriate way within the Constitution.[69]
Discrimination
against Aboriginal and Torres Strait Islander peoples
2.56
The committee is mindful of the Expert Panel's
view 'that recognition of Aboriginal and Torres Strait Islander peoples will be
incomplete without a constitutional prohibition of laws that discriminate on
the basis of race.'[70]
In reaching this conclusion, the Expert Panel referred to the argument of Mr
Noel Pearson that:
Elimination of racial
discrimination is inherently related to Indigenous recognition because Indigenous people in Australia, more than any other group,
suffered much racial discrimination in the past... Still today, we are
subject to racially targeted laws with no requirement that such laws be beneficial,
and no prohibition against adverse discrimination.[71]
2.57
The committee has received evidence of
community support for a prohibition of racial discrimination, however it notes
mixed levels of support for proposed new section 116A and the potential for divisive
debate about its merit. The committee considered whether prohibiting racial
discrimination against Aboriginal and Torres Strait Islander peoples could be
achieved without the need to enact section 116A.
2.58
It has been put to the committee that a prohibition
of discrimination could be incorporated into the Commonwealth's power to make
laws with respect to Aboriginal and Torres Strait Islander peoples, using the
words 'but so as not to discriminate adversely against them,' whether the
legislative power was in the form of a new section, chapter or a replacement
section 51(xxvi).[72]
2.59
By way of example, proposed new section new 51A
(in Box 2 on page 12 of this interim report) would provide that:
The Parliament shall, subject to
this Constitution, have power to make laws for the peace, order and good
government of the Commonwealth with respect to Aboriginal and Torres Strait
Islander peoples, but not so as to discriminate adversely against them.[73]
2.60
Professors Dixon and Williams have argued that
'a replacement [legislative] power should not enable the enactment of laws that
discriminate on the basis of race.'[74]
2.61
The committee has advice that by including the
word 'discriminate', laws made in reliance on the proposed new power would be
interpreted in line with existing discrimination law,[75] noting that the meaning of the term
in the context of a constitutional legislative power could remain somewhat
uncertain. It was put to the committee that
while discrimination may not have a settled meaning at common law, it has been
interpreted by the High Court in a constitutional context (for example, in Maloney
v the Queen).[76]
2.62
Comparing the scope of this proposal with the
Expert Panel's proposed new section 116A, Professors Dixon and Williams
have commented:
...a power and guarantee in this form
would offer significantly narrower protection than the proposed
section 116A. It would only apply to Commonwealth, and not State and
Territory, laws. It would also not protect all people from racial
discrimination, only the Aboriginal people referred to in the power.[77]
2.63
The committee has already heard unequivocal
evidence of community support for a prohibition of racial discrimination to be
included in the Constitution. The committee has also heard evidence that highlights
the risks and implications that might flow from the Expert Panel's
proposed new section 116A.
2.64
The committee has heard that constitutional protection
from racial discrimination for Aboriginal and Torres Strait Islander peoples could
be achieved in a number of ways, including by preventing the Commonwealth,
States and Territories from discriminating on the grounds of race, colour or
national or ethnic origin, as proposed by the Expert Panel’s recommended
section 116A, or by a targeted provision that would prohibit the Commonwealth
from making laws that discriminate adversely against Aboriginal and Torres
Strait Islander peoples. At this early stage of its inquiry, the committee is
in favour of incorporating a prohibition of racial discrimination into the
legislative power.
Recognition in a preamble or opening statement
2.65
The Expert Panel gave detailed consideration
to recognising Aboriginal and Torres Strait Islander peoples in a preamble or
opening statement to the Australian Constitution.[78] Ultimately, rather than insert a
preamble or opening statement, the Expert Panel recommended incorporation of
preambular language into the legislative power.[79] This reflects the Expert Panel's
experience that:
During consultations, many people
expressed concern about preambular recognition being a ‘tokenistic’ gesture or
‘merely symbolic’, and argued instead for substantive change to the
Constitution.[80]
2.66
The committee has considered other legal forms
that could give effect to preambular language, including a preamble to the
Constitution, an opening statement to the Constitution, preambular language to
a new section 51A and an Act of Recognition.
Preamble
2.67
During Expert Panel consultations, a number of
structural questions were raised about recognising Aboriginal and Torres Strait
Islander peoples in a preamble at the beginning of the Australian Constitution.
The Expert Panel concluded.
...that there is too much uncertainty
in having two preambles—the preamble to the Imperial Commonwealth of Australia
Constitution Act 1900, by which the Parliament at Westminster enacted the
Constitution in 1900, and a new preamble. The Panel found there are too many
unintended consequences from the potential use of a new preamble in
interpreting other provisions of the Constitution and there was next to no
community support for a ‘no legal effect’ clause to accompany a preamble. The
Panel has concluded, however, that a statement of recognition of Aboriginal and
Torres Strait Islander peoples in the body of the Constitution would be
consistent with both principles.[81]
2.68
Professor
Twomey has noted a practical difficulty in that 'while a referendum may be used to amend the Constitution itself, it is
doubtful that it could be used to amend the preamble to this British Act of
Parliament'.[82]
2.69
The Hon Robert Ellicott QC has summarised some
of the challenges of drafting any preamble or opening statement:
...it would, in my view, need to be
preceded by a broad debate about whether there should be a preamble and, if so,
what it should contain. It does not seem to me to be consistent with the notion
of a preamble to amend the Constitution solely for the purpose of inserting a
statement in a preamble which only deals with indigenous recognition... it would
need to be accompanied by general statements which describe the context within
which the Constitution was framed and reveals the connection between a
recognition of our indigenous people in that context.[83]
2.70
It has been put to the committee that the
unintended consequences of a preamble may not be as significant as the Expert
Panel considered, as the role of preambles is well defined in the Australian
legal system. High Court Justice the Hon Stephen Gageler has commented
extra-judicially that:
Traditionally, the preamble to an
Act of Parliament has been treated as having only a limited legal effect. The
proper function of a preamble is to explain and recite certain facts which are
necessary to be explained and recited before the substantive provisions
contained in an Act can be understood.[84]
If the statute is ambiguous, the
preamble may be used as an aid to interpretation... if the words of a section in
an Act are plain and unambiguous, their meaning cannot be cut down by the
preamble.'[85]
Statement
of recognition
2.71
The Expert Panel recommended that the
Commonwealth's power to make laws with respect to Aboriginal and Torres Strait
Islander peoples contain 'its own introductory and explanatory preamble'.[86]
This would 'link' a statement of recognition directly to the legislative powers
of Parliament in section 51, rather than inserting the statement as a preamble
to the Constitution.[87]
This general approach is used in the forms displayed in Boxes 1–3 of this interim
report.
2.72
Rather than in a preamble or an opening
statement, the Expert Panel concluded that including a statement of recognition
in the body of the Constitution would be the option 'most likely to avoid
unintended consequences', explaining:
Such an approach would incorporate
the statement in the body of the Constitution, and ensure that the purpose of
the new power was clear. Any current or future High Court would use the
language in the adopted preambular or introductory part of section 51A to
interpret the new legislative power. This would avoid the risk of a statement
of recognition being used to interpret other sections of the Constitution, and
avoid a discontinuity between the preamble to and body of the Constitution.[88]
2.73
The committee notes that the Expert Panel
found that:
There was strong support for a
statement of recognition in the body of the Constitution. People who advocated
this referred to the possibility of practical legal outcomes, and the symbolic
strength of recognition in the Constitution ‘proper’.[89]
2.74
The committee heard views in support of a
legislative power that contains a preambular statement of recognition. For
example, Professor Twomey expressed a view that:
It would avoid concern about the
content of the preamble affecting the interpretation of other parts of the
Constitution or the creation of broad constitutional implications... It would
fulfil the role of providing constitutional recognition of Aboriginal and
Torres Strait Islander peoples, but it would not be seen as tokenistic, as it
would introduce a substantive change in the text of the Constitution.[90]
2.75
Another view has been put to the committee
that it would be structurally novel to include a statement of recognition in an
individual provision of the Australian Constitution, and that it is unclear how
the High Court would apply the statement in relation to the provision.
2.76
The committee has received evidence that
concerns remain with the wording of the statement of recognition proposed by
the Expert Panel. In particular, there is a lack of popular ownership of the
term 'advancement'. The term is used in the fourth line of preambular language
to the Expert Panel's proposed new section 51A,
in the line italicised below:
Recognising that the
continent and its islands now known as Australia were first occupied by
Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing
relationship of Aboriginal and Torres Strait Islander peoples with their
traditional lands and waters;
Respecting the continuing
cultures, languages and heritage of Aboriginal and Torres Strait Islander
peoples;
Acknowledging the need
to secure the advancement of Aboriginal and Torres Strait Islander peoples;[91]
2.77
The term 'advancement', popularly understood
as meaning improvement or development, has a wide usage and a particular
meaning at international law. Professor Twomey has commented that:
...'advancement' in the sense used by
the United Nations Committee on the Elimination of Racial Discrimination, means
bringing a racial group up to the same level of enjoyment of human rights and
fundamental freedoms as others. It is not simply directed at the giving of a
'benefit' to a group.[92]
2.78
In the 2013 Youth Report on Constitutional
Recognition, RECOGNISE THIS,[93] it was submitted that 'the term
"advancement" does not adequately reflect Indigenous peoples' right
to self‑determination as it implies that governments can determine what
is best for us'.[94]
The committee has heard that an alternative word to 'advancement' could be used
that better reflects the views of Aboriginal and Torres Strait Islander
peoples.
2.79
The Expert Panel explained that their
rationale for using the term 'advancement' was that it would 'confine' the
Commonwealth's power to make laws for Aboriginal and Torres Strait Islander
peoples to laws that have a 'beneficial purpose'.[95] The Expert Panel envisaged that if
challenged, a Court would assess whether the law, taken as a whole, 'would
operate broadly for the benefit of the group of people concerned', rather than
'whether each and every member of the group benefited.'[96] The Expert Panel did not consider
that this increased legal risk for the Commonwealth, noting that
the term is 'widely used in legal contexts.'[97]
2.80
It was alternatively put to the committee that
existing legal use of the term 'advancement' may justify its inclusion in the
proposed language of recognition. Professors Dixon and Williams considered the
use of the term 'advancement' in the constitutions of the Republics of South
Africa and India, and commented:
While the context for its use would
be different in Australia, it is likely that the High Court would interpret it
similarly to authorise measures designed to redress inequality and achieve more
forward-looking goals such as economic empowerment. This could enable the
making of laws for native title as well as new forms of title designed to
advance Aboriginal equality in different ways.[98]
2.81
The committee notes that the Expert Panel, in
considering the relationship between any prohibition of racial discrimination
and a proposed new legislative power, commented that:
...there would be less need to
qualify the preamble to the proposed replacement power in 'section 51A' with a
word like 'advancement' if a racial non-discrimination provision with a special
measures exception were to be included as part of the constitutional
amendments.[99]
Introductory
statement to the Constitution
2.82
Another alternative approach to a preamble put
to the committee was to incorporate a statement of recognition as an
introductory statement to the Constitution. This could achieve some of the
outcomes sought to be achieved by a preamble in recognising Aboriginal and
Torres Strait Islander peoples and overcome the structural difficulty.[100]
2.83
The language used in the preamble to the
Constitution of the Republic of South Africa was suggested as an example of
what might be incorporated into an Australian context along the following
lines:
We,
the people of AustraliaÂ:
Recognising that the continent and
its islands now known as Australia were first occupied by Aboriginal and Torres
Strait Islander peoples;
Acknowledging the continuing
relationship of Aboriginal and Torres Strait Islander peoples with their
traditional lands and waters; and
Respecting the continuing cultures,
languages and heritage of Aboriginal and Torres Strait Islander peoples;
Acknowledging our collective
history and shared future;
Honouring those who have fought for
justice and freedom;
Respecting those who have worked to
build, develop and protect our country;
Commit ourselves to this
Constitution.
2.84
The committee has not yet received direct evidence of community views on
recognising Aboriginal and Torres Strait Islander peoples in an introductory
statement, and invites this at its upcoming public hearings and as written
submissions.
Further
Act of Recognition
2.85
It was further put to the committee that a
constitutional amendment to give the Commonwealth power to make laws with
respect to Aboriginal and Torres Strait Islander peoples could be worded so as
to require the Commonwealth to legislate on the subject of recognition,
including recognising Aboriginal and Torres Strait Islander languages. This
proposal is shown in Box 5 below.
2.86
It was suggested to the Expert Panel
that 'legislative recognition could have a useful role in public education in
the lead-up to a referendum'.[101] Ultimately, the Expert Panel did not recommend a
legislative approach, noting that:
Unlike a constitutional statement
of recognition, an Act of Parliament would not be entrenched, and a later
Parliament could repeal or amend any statement contained in the Act... The Panel
would be concerned if legislative action were to be used as a substitute for,
or distract from, a referendum on constitutional recognition.[102]
2.87
To counter this concern, it was suggested that
legislation of recognition could be given similar status to the Australia
Act 1986 (Commonwealth) and the Australia
Act 1986 (UK), parallel
legislation enacted 'to bring constitutional arrangements affecting the
Commonwealth and the States into conformity with the status of the Commonwealth
of Australia as a sovereign, independent and federal nation'.[103]
2.88
The committee has not yet received direct evidence of community views on
recognising Aboriginal and Torres Strait Islander peoples in a Further Act of
Recognition, and invites this at its upcoming public hearings and as written
submissions.
Recognition of languages
2.89
The committee has considered the Expert
Panel's recommendation to include a declaratory provision in relation to the
importance of Aboriginal and Torres Strait Islander languages, proposed new section 127A in Appendix 2 to this interim report. A new
section along the same lines was suggested to the Expert Panel by the Cape York
Institute, to be 'supported by legislative reform to protect and revitalise
indigenous languages and promote English literacy'.[104]
2.90
The Expert Panel observed that:
...recognition of Aboriginal and
Torres Strait Islander languages as part of our national heritage gives
appropriate recognition to the significance of those languages, especially for
Aboriginal and Torres Strait Islander Australians, but for all other
Australians as well. The Panel has also concluded that the recognition of
English as the national language simply acknowledges the existing and undisputed
position.[105]
2.91
It has been put to the committee that it is
important for any referendum question to contain proposals that are 'sound and
sensible'.[106]
Former Deputy Leader of the Liberal Party the Hon Mr Peter Reith recommended
that good proposals should contain 'a genuine problem and a reasonable
solution.'[107]
Professor Williams and Mr David Hume warned against asking 'different
questions' in the same proposal, arguing:
Different ideas should not be
lumped together in the one referendum question. The history or referendums in
Australia shows that this is a recipe for failure. The effect is to ensure that
opposition to individual ideas is aggregated against the joint proposal.[108]
2.92
Mr Neil Young QC advised the committee that in
his view, 'proposed section 127A is purely declaratory' as 'it is not a
source of power and it is not expressed to be a constraint on the exercise of
legislative power'.[109] In relation to proposed
new section 127A, Professor Twomey noted that 'the
uncertainty and ambiguity surrounding this provision...may also prove distracting
in a referendum'.[110]
2.93
Based on its work so far, the committee does
not favour including a provision along the lines of section 127A in a draft referendum proposal. It was put to the committee that the purpose of section
127A could be otherwise achieved in a statement of recognition within one of
the forms of wording shown in Boxes 2–5 of this interim report.
2.94
The committee has received evidence that the
effect of the languages provision could be further strengthened by incorporating
a line of preambular language.[111] Indeed,
the Expert Panel explained that:
To a considerable extent,
constitutional recognition of Aboriginal and Torres Strait Islander languages
overlaps with the question of the content of a statement of recognition... and
the conferral of a head of power to make laws with respect to Aboriginal and
Torres Strait Islander peoples.[112]
2.95
Further, it has been put to the committee that
languages could be recognised in a further Act of Recognition, should the
government pursue that option alongside constitutional change (see Box 5 on
page 26 of this interim report).
Committee view
2.96
Based on its work so far, the committee is of
the view that a successful referendum on Indigenous constitutional recognition
will need to meet three primary objectives. To be successful at a referendum,
the committee considers that a successful proposal must:
-
recognise Aboriginal and Torres Strait
Islander peoples as the first peoples of Australia;
-
preserve the Commonwealth's power to
make laws with respect to Aboriginal and Torres Strait Islander peoples; and
-
in making laws under such a power, prevent
the Commonwealth from discriminating against Aboriginal and Torres Strait
Islander peoples.
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