5.1
This chapter provides a brief overview of recent initiatives aimed at progressing the constitutional recognition of Aboriginal and Torres Strait Islander peoples, including:
the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (2012);
the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2013);
the Referendum Council (2015); and
the Uluru Statement from the Heart (2017).
5.2
It also outlines major recommendations for constitutional recognition arising from these initiatives. These recommendations are listed in Appendix C.
Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution
5.3
In 2010, the Gillard Government appointed an Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution to examine and report on ‘possible options for constitutional change, including advice as to the level of support from Indigenous people and the broader community for each option’. In performing this role, the Expert Panel was tasked with:
conducting broad consultation to seek the views of a ‘wide spectrum of the community’;
working closely with existing organisations with expertise in relation to this issue; and
raising awareness about the importance of Indigenous constitutional recognition.
5.4
The Expert Panel was also required to ‘have regard to’:
‘issues raised by the community in relation to Indigenous constitutional recognition’;
forms of constitutional change likely to attract widespread support;
the ‘implications of any proposed changes to the Constitution’; and
the ‘advice of constitutional law experts’.
5.5
The Expert Panel’s membership comprised ‘Australians from Indigenous and non-Indigenous communities and organisations, small and large business, community leaders, academics, and members of Parliament from across the political spectrum’.
5.6
The Expert Panel delivered a final report in 2012 recommending changes to the Constitution and a preferred approach to conducting a referendum to achieve these changes. These recommendations are discussed in more detail in the second half of the chapter.
Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
5.7
In 2013, the Australian Parliament appointed a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples to ‘inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition’. In conducting this inquiry, the Committee was charged with considering:
the recommendations of the 2012 Expert Panel;
mechanisms to build support for constitutional recognition of Indigenous Australians; and
the creation of an advisory group, including Aboriginal and Torres Strait Islander peoples, to work with the Committee.
5.8
However, the Committee chose to disregard the final of these considerations as it believed ‘wider consultation with Aboriginal and Torres Strait Islander leaders, communities and organisations would provide broader input into the committee’s work’.
5.9
The Committee made ten recommendations including:
that sections 25 and 51(xxvi) be repealed;
that new sections be inserted to:
provide the power to legislate with respect to Aboriginal and Torres Strait Islander peoples;
recognise their unique cultural heritage languages, and their status as the first Australians; and
to prevent racial discrimination; and
that constitutional conventions and a referendum be held to enact these changes.
5.10
These recommendations are discussed in more detail in the second half of the chapter.
Referendum Council
5.11
The Referendum Council was jointly appointed by the Prime Minister Malcolm Turnbull and the Leader of the Opposition Bill Shorten in December 2015.
5.12
The Council was tasked with building on the work of the 2012 Expert Panel and the 2013 Joint Select Committee by advising the Prime Minister and the Leader of the Opposition on ‘next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution’. Its membership comprised Indigenous and non-Indigenous Australians from ‘a range of expert fields and backgrounds’.
5.13
In late 2016 and early 2017, the Referendum Council conducted a series of Regional Dialogues around Australia to canvass and debate options for the recognition of Aboriginal and Torres Strait Islander peoples. Each dialogue involved an average of 100 First Nation delegates with a total of 1 200 delegates participating throughout the process. The Referendum Council described the Regional Dialogues as ‘the most proportionately significant process that has ever been undertaken with First Peoples’.
5.14
The Regional Dialogues culminated in a national constitutional convention at the base of Uluru involving over 250 delegates, representative of the Regional Dialogues. At the end of the convention all but seven delegates endorsed the Uluru Statement from the Heart. The Statement is discussed in more detail in the next section.
5.15
Shortly after the national convention, the Referendum Council published a final report making two recommendations:
that a constitutionally enshrined ‘First Nations Voice to the Commonwealth Parliament’ be established to represent Aboriginal and Torres Strait Islander peoples and to monitor the use of section 122 and section 51(xxiv) of the Constitution; and
that an ‘extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments’ to ‘articulate a statement of recognition to unify Australians’.
5.16
These recommendations are discussed in more detail in the second half of the chapter.
Uluru Statement from the Heart
5.17
As discussed in the previous section, the Uluru Statement from the Heart arose from a national constitutional convention conducted by the Referendum Council following a series of Regional Dialogues in 2016-17. The Uluru Statement from the Heart was issued towards the end of this convention with the support of all but seven of the over 250 delegates in attendance.
5.18
The Uluru Statement from the Heart reflected ‘some of the ideas and proposals advanced by Indigenous and political leaders, and constitutional experts over many years’. It called for the establishment of a First Nations Voice enshrined in the Constitution and a Makarrata Commission to oversee agreement-making between governments and First Nations and truth-telling about Aboriginal and Torres Strait Islander people’s history. It described the form of constitutional recognition favoured by Aboriginal and Torres Strait Islander peoples without outlining specific models for the recommended Voice or the Makarrata Commission.
5.19
These recommendations of the Uluru Statement from the Heart are examined in detail in Chapters 2, 3, and 6 of this report.
Recommendations of recent constitutional recognition initiatives
5.20
This section of the report briefly outlines the major recommendations for constitutional recognition arising from recent initiatives aimed at progressing the constitutional recognition of Aboriginal and Torres Strait Islander peoples. It is not intended to be exhaustive.
Repeal of section 25 and section 51(xxvi)
5.21
Section 25 and section 51(xxvi) of the Constitution both contain references to outdated notions of race.
5.22
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.
5.23
Section 51(xxvi)—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 1967, the federal Parliament has enacted laws pursuant to section 51(xxvi) in areas including cultural heritage and native title laws.
5.24
The Expert Panel and the Joint Select Committee both recommended repealing section 25 and section 51(xxvi) of the Constitution.
5.25
The Expert Panel argued that ‘... in order to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, there was a case for removing the two provisions that contemplate discrimination against them (as well as against people of any so called “race”)’.
5.26
The Joint Select Committee similarly recommended the repeal of section 25 and section 51(xxvi) of the Constitution and the establishment of a replacement head of power to make laws with respect to Aboriginal and Torres Strait Islander peoples.
5.27
The Referendum Council’s final report made no recommendations in relation to section 25 or section 51(xxvi) of the Constitution. It noted that section 25 was understood by regional dialogue delegates 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. Repealing or amending section 51(xxvi) was rated as a low priority in many of the Regional Dialogues conducted by the Council and was rejected in others. The Council noted that delegates discussed the discriminatory potential of section 51(xxvi) but were concerned in relation to the judicial interpretation and implications on existing legislation of any changes to the provision.
Replacement of section 51(xxvi) and a prohibition of racial discrimination
5.28
The Expert Panel and the Joint Select Committee both proposed the insertion of new sections into the Constitution to:
replace the head of power 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.
5.29
The Expert Panel proposed two new sections to be inserted into the Constitution via referendum. It recommended a new ‘section 51A’ be inserted after section 51 as follows:
Recognition of Aboriginal and Torres Strait Islander peoples
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;
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.
5.30
The Expert Panel also recommended the insertion of a new section 116A into the Constitution to prohibit the Commonwealth, a state, or a territory from discriminating ‘on the grounds of race, colour or ethnic or national origin’, but not precluding it from legislating ‘for the purpose of overcoming disadvantage’.
5.31
In making these recommendations, the Expert Panel argued that this approach:
incorporates a statement recognising Aboriginal and Torres Strait Islander peoples as the first Australians through the new section 51A;
removes unacceptable references to race by repealing section 51(xxvi);
avoids jeopardising existing or future Commonwealth legislation with respect to Aboriginal and Torres Strait Islander peoples by replacing the head of power provided by the current section 51(xxvi) with the new section 51A;
clarifies, through the use of the word ‘advancement’ in section 51A, that laws passed under this head of power should be assessed on the basis that they operate for the benefit of the group of people concerned; and
provides a constitutional prohibition, through the new section 116A, on Commonwealth legislative and executive action and laws that discriminate on the basis of race.
5.32
The Joint Select Committee proposed three different options for a head of power to replace section 51(xxvi) of the Constitution and to prohibit the Commonwealth from legislation or executive action which adversely discriminates on the basis of race.
5.33
All three proposals recommended by the Joint Select Committee contain a similar statement of recognition to that outlined in the Expert Panel’s recommended section 51A. Indeed, the first proposal recommended by the Committee is simply section 51A and section 116A, with the removal of the provision in section 51A which suggests that legislation enacted under the head of power should be for the benefit of the group of people concerned. In recommending this proposal, the Committee cited negativity associated with the word ‘advancement’ as well as uncertainty around the legal interpretation of the word. It characterised section 116A as a broad prohibition of discrimination, offering protection to all Australians by limiting the constitutional capacity of the Commonwealth, states, and territories to discriminate.
5.34
The second and third options for a replacement head of power presented by the Joint Select Committee are also modelled on section 51A with its statement of recognition, but exclude section 116A which prohibits racial discrimination. Instead a new section 80A, proposed for insertion after Chapter III of the Constitution, qualifies the Commonwealth power to legislate in relation to Aboriginal and Torres Strait Islander peoples with the words, ‘but so as not to discriminate against them’.
5.35
Similarly a new section 60A, proposed for insertion after Chapter I of the Constitution, asserts that ‘a law of the Commonwealth, a State or a Territory must not discriminate adversely against Aboriginal and Torres Strait Islander peoples’. In proposing these two approaches, the Joint Select Committee noted that, unlike the Expert Panel’s proposed section 116A, section 80A and section 60A confine the prohibition on racial discrimination to Aboriginal and Torres Strait Islander peoples. It also highlighted that section 80A limits the constitutional capacity of the Commonwealth without impacting the states and territories, whereas section 60A extends this limitation to all jurisdictions.
Proposals for a statement of recognition
5.36
As discussed in the preceding section, the Expert Panel and the Joint Select Committee both recommended that a statement recognising Aboriginal and Torres Strait Islander peoples be incorporated into the Constitution as a component of a new head of power to replace section 51(xxvi). The Expert Panel and the Committee both felt that this approach would attract broader community support and involve fewer legal risks than other proposals, such as including a statement of recognition in the preamble to the Constitution.
5.37
In addition to including a statement of recognition in the proposed section 51A, the Expert Panel recommended the insertion of a new section 127A in the Constitution to recognise Aboriginal and Torres Strait Islander languages as the ‘original Australian languages’. This approach contrasts with that espoused by the Referendum Council which recommended an extra-constitutional declaration of recognition, to be enacted by legislation passed by all Australian parliaments (ideally on the same day).
5.38
The Referendum Council suggested that, ‘A Declaration of Recognition should be developed, containing inspiring and unifying words articulating Australia’s shared history, heritage and aspirations’. In making this recommendation, the Council noted that a declaration was endorsed in most of its Regional Dialogues whereas a statement of recognition or acknowledgement in the Constitution was rejected. The Council noted concerns among First Nation delegates in relation to sovereignty and also about the content of any statement of acknowledgement.
Proposals for an Indigenous advisory body
5.39
As acknowledged above, the Referendum Council and the Uluru Statement from the Heart both called for the establishment of an Indigenous representative body to advise Parliament in relation to Aboriginal and Torres Strait Islander affairs, known as the First Nations Voice.
5.40
The Referendum Council recommended that The Voice be enshrined in the Constitution, with its structure and functions to be set out in legislation, including a specific responsibility to monitor the use of the heads of power in section 51 (xxvi) and section 122 of the Constitution. In making this recommendation, it noted that, ‘the proposal for the enhanced participation of Aboriginal and Torres Strait Islander peoples in the democratic life of the Australian state, especially the federal Parliament, is not a new one’. It claimed that advocacy for better Indigenous representation has been, ‘equally prominent in Aboriginal political advocacy as a racial non-discrimination clause’.
5.41
In its final report, the Expert Panel did consider several proposals for mechanisms, structures, or bodies to advise the Parliament on laws and policies affecting Aboriginal and Torres Strait Islander peoples, but did not make recommendations in relation to these proposals. The Joint Select Committee on Constitutional Recognition also considered a proposal for an advisory council made up of Aboriginal and Torres Strait Islander peoples. However, it suggested that the proposal would benefit from further consultation, particularly with Aboriginal and Torres Strait Islander peoples, and made no recommendation.