Beyond including a provision for a First Nations Voice in the Australian Constitution, this chapter considers three other forms of constitutional recognition raised by stakeholders throughout the inquiry, namely:
the repeal of section 25 of the Australian Constitution;
the repeal, amendment, or replacement of section 51(xxvi) of the Australian Constitution; and
an extra-constitutional declaration of recognition, which has been proposed as an alternative to a statement of recognition within the Australian Constitution.
Repeal of section 25
As explained in the Committee’s interim report, section 25 and section 51(xxvi) of the Australian Constitution both contain references to outdated notions of race.
Section 25 contemplates a state disqualifying all members of a particular race from voting in a state election. It provides that those persons disqualified from voting due to their race shall not be counted when determining the number of representatives of that state in the Parliament.
The Expert Panel on the Constitutional Recognition of Indigenous Australians (2012) and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2015) both recommended repealing section 25.
However, the Referendum Council’s final report made no recommendations in relation to section 25. It noted that section 25 was understood by delegates at the regional dialogues to be a ‘dead letter’ addressed to past historical circumstances and its removal would therefore confer ‘no substantive benefit’ on Aboriginal and Torres Strait Islander peoples.
While stakeholders acknowledged that section 25 is unlikely to be used today—noting that its use would contravene the Racial Discrimination Act 1975 (Cth)—many still expressed support for its repeal.
In a joint submission to the inquiry, the current and former Aboriginal and Torres Strait Islander Social Justice Commissioners asserted that various consultation processes have demonstrated that ‘there is near unanimous agreement to remove the racism of section 25’.
Allens Linklaters explained the history of calls for the repeal of section 25:
Recommendations for the repeal of section 25 date back as far as the 1959 Parliamentary Joint Committee on Constitutional Review. Its removal was also recommended in the Constitutional Conventions 1973-85, and again in the Final Report of the Constitutional Commission 1988.
Councillor Alf Lacey, Mayor of the Palm Island Aboriginal Shire Council, characterised the repeal of section 25 as ‘low hanging fruit’ and suggested that this simpler form of recognition could help build support for the more complicated constitutional enshrinement of a First Nations Voice.
Father Frank Brennan SJ AO also felt that the repeal of section 25 is important and achievable, ‘it is an outdated blot on our Constitution.’
Allens Linklaters submitted that ‘section 25 of the Constitution no longer accords with community values of contemporary Australia’ and that any referendum to enshrine a First Nations Voice in the Australian Constitution should also seek the repeal of section 25.
In a joint submission, Associate Professors Matthew Stubbs and Peter Burdon of the University of Adelaide Law School, suggest section 25 should be repealed because it contemplates the disenfranchisement of voters based on an outdated notion of race:
…while s 25 remains in the Constitution, the whole document is tainted by the fact that it envisages the possibility of racial disenfranchisement. Moreover, Aboriginal and Torres Strait Islander peoples were the chief victims of such discrimination. It is therefore appropriate to remove s 25 from the Constitution.
Others characterised the repeal of section 25 as symbolic recognition that would not meaningfully improve the lives of Aboriginal and Torres Strait Islander peoples.
Ms Teela May Reid, a ‘proud Wiradjuri and Wailwan woman’ and a lawyer, asserted that ‘symbolic recognition has been rejected by First Nations and will be rejected by the Australian people’:
Symbolic recognition includes constitutional recognition in the form of… removing s 25 of the Australian constitution…
Unless constitutional recognition provides real change on the ground in local communities, it will be rejected by First Nations. There is no point pursing reform if it provides no practical change to the status quo.
Similarly, the New South Wales Aboriginal Land Council supported the reform of section 25 and section 51 (xxvi) of the Australian Constitution:
We believe that further consideration of repealing and replacing section 25 and 51 (xxvi) of the Constitution is needed, particularly if a referendum is proposed.
Consideration of section 51(xxvi)
Section 51(xxvi) of the Australian Constitution—sometimes referred to as the ‘races power’—provides the head of power for the Commonwealth to make laws for people of particular racial groups. It was amended at a referendum held in 1967 to repeal the qualification ‘other than the aboriginal race in any state’. This had the effect of enabling the Commonwealth to make laws relating to Aboriginal and Torres Strait Islander peoples. Since the 1967 referendum, the federal Parliament has enacted laws pursuant to section 51(xxvi) in areas including cultural heritage and native title.
The Expert Panel and the previous Joint Select Committee both recommended replacing section 51(xxvi) with new provisions designed to:
replace the constitutional authority currently provided by section 51(xxvi) which enables the Commonwealth to legislate with respect to Aboriginal and Torres Strait Islander peoples; and
prohibit Commonwealth legislation or Executive action which adversely discriminates on the basis of race.
However, the Referendum Council’s final report made no recommendations in relation to section 51(xxvi). The report explained:
Amending or deleting the race power was ranked low in many Dialogues and rejected in other Dialogues. Delegates understood there was no iron clad guarantee that Parliament could be prevented from passing discriminatory laws that single out Aboriginal and Torres Strait Islander peoples for adverse treatment.
Many participants at the dialogues felt it was too risky to amend section 51 (xxvi) because it could not be assured that the judicial interpretation of words such as ‘benefit’ or ‘advancement’ would accord with the desires and aspirations of the affected peoples.
Delegates were concerned that section 51 (xxvi) had empowered significant legislation in cultural heritage protection, land rights and native title that may be placed at risk. Similar concerns were raised by the Joint Select Committee in relation to the implications of altering or deleting section 51 (xxvi) upon the Native Title Act.
There was no significant appetite for removing the word ‘race’. Dialogues understood that although the concept of ‘race’ was a social construction, removing the word ‘race’ and inserting ‘Aboriginal and Torres Strait Islander Peoples’ does not alter the adverse discriminatory potential of the race power. Therefore, removing the word ‘race’ was not regarded as an improvement on the status quo of the people affected.
Yet throughout the inquiry, the Committee did hear ongoing support for the repeal, amendment or replacement of section 51(xxvi) amongst Aboriginal and Torres Strait Islander peoples and the broader community.
Repealing section 51(xxvi)
In a joint submission to the inquiry, the current and former Aboriginal and Torres Strait Islander Social Justice Commissioners submitted that the ‘starting proposition’ for constitutional change should include repealing section 51(xxvi).
The Commissioners asserted that constitutional change should be a priority and would complement the actions identified in the Statement from the Heart:
The pursuance of constitutional reform should not be a substitute for responding to the Uluru Statement.
Nor should responding to the Uluru Statement be a substitute for pursuing constitutional reform.
The Commissioners suggested that section 51 (xxvi) has been, and continues to be, used to negatively discriminate against Aboriginal and Torres Strait Islander peoples. For example, through:
The confirmation of extinguishment of native title between 1975 and 1992 (with commitments made in 1993 to remedy this through the implementation of other measures of restitution which were subsequently not met).
The removal of heritage protection laws for a group of Aboriginal people due to their unwillingness to consent to a development.
The winding back of rights to negotiate on native title about some land tenures, following the High Court’s decision in Wik that Aboriginal interests in land may continue to co-exist with other tenures.
The acquisition of Aboriginal property without consent and the removal of the protection of racial discrimination laws from all Aboriginal people in the Northern Territory (and some parts of Queensland) through the Northern Territory Emergency Response legislation.
The Commissioners asserted that ‘these examples make clear that the Australian Constitution enables and permits racial discrimination to occur in the twenty-first century’ and that enabling provisions, such as section 51(xxvi), need to be removed:
These examples, unfortunately, indicate that the potential for the Constitution to be used in this way is not merely theoretical, but something that has been actively utilised by successive Parliaments.
We are unable to identify another country that provides the constitutional power to discriminate in this way.
Our reputation as a country that respects the rule of law and human rights is reduced by the continuation of racially discriminatory power in our Constitution. There remains a pressing need for the removal of such provisions from our Constitution.
Mr Mick Gooda, who served as Aboriginal and Torres Strait Islander Social Justice Commissioner from 2010 to 2016, suggested the repeal of section 51(xxvi) would be of benefit to all Australians.
However, Mr Gooda did acknowledge that section 51(xxvi) may need to be replaced by a new provision providing constitutional authority for the passage of Commonwealth statute for the benefit of Aboriginal and Torres Strait Islander peoples:
I’m sure there are a lot of people in this country smarter than me who can make suggestions about how we [rework section 51(xxvi) to provide for positive legislation], but I think the fundamental issue is: the start of the process, as recommended by the Expert Panel, is around the referendum on removing the race power.
Mr Gooda suggested that a referendum to repeal section 51(xxvi) should be conducted while a co-design process to finalise the detail of The Voice is underway. Mr Gooda went on:
I think the quicker we move to that—it’s almost a precursor: let’s fix up the race power; we need bipartisan support for that. I think you can get bipartisan support for removing the race power in Parliament.
The Institute for Public Affairs also argued in favour of repealing section 51(xxvi), suggesting that other provisions could be relied upon to provide constitutional authority for federal native title legislation.
Amendment of section 51(xxvi)
A second option for reforming section 51(xxvi) of the Australian Constitution was proposed by Associate Professors Stubbs and Burdon.
Associate Professors Stubbs and Burdon submitted that section 51(xxvi) should be repealed, arguing that a power to make laws on the basis of race ‘has no basis in contemporary Australian society’. However, they also went on to suggest it was appropriate that the Commonwealth Parliament continue to have a power to make laws ‘directed to the protection and advancement’ of Aboriginal and Torres Strait Islander peoples.
They therefore suggested that section 51(xxvi) could be amended by substituting its reference to the outdated notion of ‘race’ with the more acceptable premise of ‘peoples’:
The first option would be a minimalist change – amend s 51(xxvi) to read ‘Aboriginal and Torres Strait Islander peoples’. This has the advantage of simplicity, and would effectively preserve the status quo in terms of the Commonwealth Parliament’s legislative power in respect of Aboriginal and Torres Strait Islander Australians.
Associate Professors Stubbs and Burdon suggested that this ‘minimalist change’ to section 51(xxvi) would be more likely to be acceptable to the public than replacing section 51(xxvi) with a power ‘conditioned by a constitutional guarantee against adverse discrimination’. This option is discussed in the next section.
This proposal was reiterated in a submission from Associate Professors Stubbs and Burdon along with other members of the Public Law and Policy Research Unit at the University of Adelaide:
The basis for the differential rights of Aboriginal and Torres Strait Islander peoples is in a culturally unique connection to country based on traditional laws and customs. Aboriginal and Torres Strait Islander communities have maintained separate identities from a time prior to the introduction of a foreign legal system. These bases for difference are not sourced in a difference of ‘race’.
They went on to suggest that updating this language in the Australian Constitution would complement the establishment of a First Nations Voice. Associate Professors Stubbs and Burdon explained:
Ultimately, the Uluru Statement from the Heart directs attention to the First Nations Voice to the Parliament, focussing on the empowerment of Aboriginal and Torres Strait Islander people to speak for themselves, rather than asking the courts to enforce a protective guarantee. This solution is arguably both more democratic and more empowering for Aboriginal and Torres Strait Islander Australians – but it must be noted that this places a heavy moral (though not legal) burden on the Commonwealth Parliament to ensure it listens to and respects the First Nations Voice to the Parliament.
Replacement of section 51(xxvi)
The Committee also heard from stakeholders advocating for section 51(xxvi) to be replaced by a new constitutional provision or provisions.
Reconciliation Tasmania asserted that the recommendations of the Expert Panel (2012) remain valid, are consistent with the Statement from the Heart, and should be pursued. It noted that the Expert Panel’s recommendations included:
the repeal of section 51(xxvi);
the insertion of a new section 51A to provide constitutional authority for the Commonwealth Parliament to enact legislation for peace, order and good governance with respect to Aboriginal and Torres Strait Islander peoples, and which recognises their status as the first Australians;
the insertion of a new section 116A prohibiting discrimination on the grounds of race, colour, ethnicity or nationality without precluding legislation aimed at overcoming disadvantage; and
the insertion of a new section 127A recognising both English and Aboriginal and Torres Strait Islander languages.
Reconciliation Tasmania argued that the Expert Panel’s recommendations are capable of being supported at a referendum.
Professor George Williams AO of the University of New South Wales Faculty of Law also supported the replacement of section 51(xxvi) with a provision providing the Commonwealth with the authority to pass legislation for the benefit of Aboriginal and Torres Strait Islander peoples:
This section [51(xxvi)] should be replaced with a general power to make laws in respect of Aboriginal and Torres Strait Islander peoples, subject either to a general guarantee against racial discrimination or a more specific requirement that the power not be used to make laws that discriminate adversely against Indigenous peoples.
Allens Linklaters submitted that ‘the race power could be repealed and replaced by a power to make laws in respect of Aboriginal and Torres Strait Islander peoples’.
The Indigenous Peoples Organisation recommended repealing section 51(xxvi) and inserting:
... a new power over ‘Aboriginal and Torres Strait Islander peoples’ and an overarching freedom from racial discrimination’.
While the Indigenous Peoples Organisation suggested that a guarantee against racial discrimination was a ‘standard feature’ of other Constitutions, it explained:
There is a possibility that a freedom from racial discrimination might be interpreted by the High Court to strike down laws and programs that provide special benefits or recognition to Aboriginal people and Torres Strait Islanders. It might be held that these discriminate against non-Indigenous people. This could affect programs which, for example, provide accelerated entry into university in order to redress the long-term shortage of Indigenous doctors and lawyers.
As such, the Indigenous Peoples Organisation recommended that any such guarantee should be made ‘subject to a clause stating that it does not affect laws and programs aimed at redressing disadvantage’:
The freedom would not only protect Indigenous Australians, it would protect everyone in Australia from any law that discriminates against them on the basis of their race.
The Indigenous Peoples Organisation also suggested provisions that would ‘provide specific recognition of language rights or a combination of symbolic and practical measures that might relate to Indigenous culture’:
Such proposed amendments would recognise Indigenous peoples in a positive way in the Australian Constitution for the first time.
However, the Cape York Institute noted that the proposal to insert an anti‑discrimination provision in the Australian Constitution has historically lacked broad political support:
A racial non-discrimination clause was rejected by many politicians after the Expert Panel recommended it in 2012, for exactly the same reason: concerns about empowering the High Court and creating legal uncertainty, to the detriment of parliamentary supremacy.
Three variations of a racial non-discrimination clause were again recommended by the Joint Select Committee in 2015. The approach was then repudiated by the Committee’s Chairman, Liberal MP, Ken Wyatt, who told the public such a clause would not succeed because it was already being opposed in his own party.
Australia has never succeeded in implementing any new constitutional rights clause. Previous attempts have failed.
Australia has not even succeeded in implementing a legislated federal bill of rights, let alone a new constitutionally entrenched rights clause.
The Cape York Institute also pointed out that the Statement from the Heart does not call for an anti-discrimination provision:
Through the Uluru Statement from the Heart, Indigenous people have told Australia what kind of constitutional reform they want. They have asked for a constitutionally guaranteed voice. This is a sensible and pragmatic request. If Indigenous people pushed a racial non-discrimination clause yet again, it would again be rejected by politicians, and they would end up with constitutional minimalism (mere symbolism, without any kind of constitutional guarantee) – which they do not endorse and which failed in 1999…
Extra-constitutional declaration of recognition
As noted in the Committee’s interim report, the Referendum Council also recommended an extra-constitutional declaration of recognition to be passed by all Australian Parliaments on the same day:
The Council further recommends:
That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.
The Referendum Council stated that, along with the establishment of a Makarrata Commission and a process to facilitate truth telling, an extra constitutional declaration was a matter of ‘great importance’ to Aboriginal and Torres Strait Islander peoples.
According to the Council, delegates at the regional dialogues felt that the declaration should be an ‘expression of national unity and reconciliation’ and include ‘inspiring and unifying words articulating Australia’s shared history, heritage and aspirations’:
The Declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity.
Evidence received by the Committee also highlighted community support for an extra-constitutional declaration of recognition.
Mr Keith Thomas, Chief Executive Officer of the South Australian Native Titles Services, expressed support for the proposal on the basis that it aligns with the oral story telling traditions of Aboriginal and Torres Strat Islander peoples:
We believe this resonates with the oral traditions of First Nations to tell the true story of these lands and waters and also unify First Nations, colonisers and migrants to jointly build better futures.
Mr Paul Wright, National Director of the Australians for Native Title and Recognition (ANTaR), felt that a declaration issued concurrently by all Australian parliaments would be a ‘great start’ to the recognition of Aboriginal and Torres Strait Islander peoples. In a submission to the inquiry, ANTaR asserted that a declaration would be a ‘powerful demonstration of our collective desire and commitment to the ongoing process of reconciliation in Australia’:
This would put us on a more sure footing as we tackle the priority issues of closing the gap in health inequality, life-expectancy disparities, shameful world-leading incarceration rates and the work required to avoid creating a new stolen generation through state-managed child removal.
Professor Anna Yeatman, Institute for Culture and Society, Western Sydney University, asserted that an extra-constitutional declaration of recognition is more than mere symbolism. She felt that it could transform Australians’ understanding of their nation and history:
The full significance of this recommendation is missed if it seems to be ‘merely’ symbolic. It is actually a claim for the re-constitution of the Australian people as a political entity... [It] is a claim for a postcolonial reconstruction of the Australian people, one that includes the ancient first nations of Australia, settlers of British heritage, and Australians of ‘immigrant’, multicultural heritage.
Professor Gregory Craven, Vice-Chancellor and President of the Australian Catholic University, also supported the prospect of an extra-constitutional declaration of recognition. He suggested that the declaration could be made to help garner public awareness and support for the constitutional enshrinement of a First Nations Voice.
Uphold & Recognise proposal for a declaration of recognition
Uphold & Recognise submitted a comprehensive proposal for an extra-constitutional declaration of recognition. The proposal is set out in, A Fuller Declaration of Australia’s Nationhood.
In that document, Uphold & Recognise argued that, ‘together with other substantive reforms for constitutional recognition of Australia’s Indigenous peoples, the adoption of a declaration of recognition will complete the process of recognition by creating a symbolic moment that unifies all Australians’.
Uphold & Recognise contended that both Aboriginal and Torres Strait Islander peoples and the broader Australian public should be involved in drafting a declaration. It suggested that a public competition, similar to the process used to select the Australian flag, could be held to seek a draft declaration from the public:
There are historical examples of similar processes working well. In 1901, a competition was held inviting suggestions for a national flag for the new Australian nation. Over 32,000 entries were received, and five entries were sufficiently similar to be declared joint winners. A similar process could be adopted, encouraging everyone to have their say about the declaration of recognition. Such a competition could result in a shortlist of five versions of a declaration from which the final text could be chosen or refined.
… It would be appropriate to engage an accomplished poet to assist in refining the best entries in the national competition.
Uphold & Recognise suggested that eight themes common to past attempts to draft an Australian declaration of recognition could inform any new draft. The themes comprise:
Recognition of the traditional owners of the land that comprises modern Australia;
Acknowledgment of their ongoing connection to their traditional lands and waters;
Affirmation of the heritage, culture and languages of Australia’s Indigenous peoples;
Reverence for the oldest continuing civilisation in the world;
Reflection about the past mistreatment of Indigenous peoples;
Recitation of the values shared by Australian citizens;
Recognition of the institutions central to Australian government; and
Recognition of the contribution of waves of immigration to a multicultural society.
Uphold & Recognise felt that the adoption of an extra-constitutional declaration of recognition should occur after any other constitutional reform to recognise Aboriginal and Torres Strait Islander peoples. It felt that the declaration should be adopted by the Australian Parliament, but also could involve state and territory parliaments and proposed two options for making the declaration:
Amendment of the Australia Acts to insert a new section 18 reciting the declaration;
A Declaration of Recognition Act authorising the Governor-General to proclaim the declaration in response to a petition to Parliament calling for the declaration.
A Declaration of Recognition Act
Uphold & Recognise suggested that a declaration of recognition could be circulated and eventually tabled in the Commonwealth Parliament as a petition. Parliament could then respond to the petition by passing a Declaration of Recognition Act authorising the Governor-General to issue a Proclamation Adopting the Declaration of Recognition:
Aboriginal people have a proud history of petitioning Parliament, most famously through the Bark Petitions from the Yirrkala people, who petitioned Parliament in 1963 to recognise their land rights…
Once the drafting process has settled the text of the declaration of recognition, it could be reproduced in Recognition Books which would be circulated around Australia. In this way, Australian citizens could sign the books to signify their support for the declaration, and to petition the Australian Parliament to adopt it. Once a sufficient number of people have signed the Recognition Books, they would then be tabled in Parliament as a petition calling for the adoption of a declaration of recognition.
The Parliament could then respond to this petition by passing a Declaration of Recognition Act, which would authorise the Governor-General to issue a Proclamation Adopting the Declaration of Recognition.
The Committee believes there would be broad political support for recognition of Aboriginal and Torres Strait Islander peoples comprising:
the repeal of section 25; and
the rewording of section 51(xxvi) to remove the reference to ‘race’ and insert a reference to ‘Aboriginal and Torres Strait Islander peoples’.
While the Committee has observed some support for these changes among Aboriginal and Torres Strait Islander peoples, the findings of the Referendum Council indicate these changes do not have widespread support in the absence of other, more substantive changes.
Similarly, while the Committee believes there would be some support for an extra-constitutional declaration of recognition, this is unlikely to be supported by Aboriginal and Torres Strait Islander peoples in the absence of some form of constitutional recognition.