Where to next for Indigenous constitutional recognition? – by Professor Megan Davis

Professor Megan Davis

Professor Megan Davis outlines the extensive work and recommendations of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples. Overwhelming support in favour of the principle of racial equality was clear and the Panel’s role was to reflect what the community was thinking. Debate will continue on the Panel’s recommendations.

On 19 January the Panel on the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution handed its report to the Prime Minister. The Panel was formed in 2010 by Prime Minister Julia Gillard to report to government on possible options for constitutional change to give effect to Indigenous constitutional recognition, including advice on the level of support from Indigenous people and the broader community for each option. The Panel had representation from all sides of politics, had Indigenous and non-Indigenous representation and included diverse business and community leaders including a former federal Liberal senator, the Director of the Cape York Institute and a former head of the Business Council of Australia, to name a few. The PM’s announcement followed indications of bipartisan support, or indeed multi-party support, for recognition of Aboriginal and Torres Strait Islander peoples in the Constitution.

Background

It is important to note that the Panel’s work is not in isolation; it is one of many reports written over the past 30 years dealing with the issue of recognition and what form recognition should take in terms of constitutional revision. Recommendations for recognition have originated from many different bodies, including but not limited to:

  • Senate Standing Committee on Constitutional and Legal Affairs, 1983
  • Constitutional Commission, 1988
  • Social Justice Package, 1992–1995
  • Constitutional Convention, 1998
  • Council for Aboriginal Reconciliation, 2000
  • Senate Legal and Constitutional Affairs Committee, 2003
  • Australia 2020 Summit, 2008
  • House of Representatives Standing Committee on Legal and Constitutional Affairs, 2008

It is also important when considering the Panel’s recommendations that they are not divorced from the terms of reference which required that the process involved leading a broad national consultation and community engagement program to seek the views of a wide spectrum of the community.

Consulting widely

During 2011, the Panel adopted numerous approaches to seek these views: publishing a discussion paper, developing a website and holding public meetings and events. In addition, a short film summarising the discussion paper was translated into 15 Aboriginal and Torres Strait Islander languages and; interpreters of Aboriginal and Torres Strait Islander languages were at consultations, as needed and where possible. Between May and October 2011, the Panel conducted a national program which included the formal public submissions process and travelling around Australia participating in public meetings. Finally, the Panel also had to note the implications of any proposed changes to the Constitution and to seek advice from constitutional law experts.

During its second meeting in Melbourne in March 2011, the Panel agreed on four principles to guide its assessment of proposals for constitutional recognition of Aboriginal and Torres Strait Islander peoples, that each proposal must:

  1. contribute to a more unified and reconciled nation;
  2. be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
  3. be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
  4. be technically and legally sound

To test community responses to our proposed recommendations, the Panel adopted a number of strategies, including engaging Newspoll. The Panel also held a series of high-level focus groups in October and November 2011 with Aboriginal and Torres Strait Islander leaders in Adelaide, Brisbane, Broome, Cairns, Canberra, Darwin, Hobart, Melbourne, Perth, Sydney and Thursday Island, in order to further test proposed recommendations. These discussions were important in meeting our criteria on proposed recommendations – that they be of benefit to, and accord with, the wishes of Aboriginal and Torres Strait Islander peoples.

The Panel also consulted with those lawyers and scholars who practice in constitutional law and have technical knowledge of the Constitution and what it means, in order to consider unintended consequences of our recommendations. The Panel held a number of legal roundtables: two in Sydney, two in Melbourne and one each in Brisbane and Perth, attended by some 40 barristers and academics with expertise in constitutional law. And we also held roundtables with government lawyers and other government officials at state and territory level. Finally, we held a roundtable discussion in Sydney attended by 20 representatives from non-governmental organisations.

Recommendations

Recommendation 1: That section 25 be repealed

Section 25 is a provision which contemplates the possibility of State laws disqualifying people of a particular race from voting at State elections. There is multi-party support for the deletion of section 25 and universal agreement among commentators that it should be deleted.

Recommendation 2: That section 51(xxvi) be repealed

In regard to section 51 (xxvi) many would recall that this was amended in a 1967 referendum to remove the words ‘… other than the aboriginal people in any State…’. This removal gave the federal parliament the power to make laws with respect to Indigenous peoples. The panel was persuaded by many submissions, community consultations and consultations with constitutional experts that there is substantial High Court jurisprudence to support the argument that there is nothing in section 51 (xxvi) to prevent its adverse application against a people of any race. This was a source of surprise and shock in the broader Australian community and dominated consultations and submissions.

So, Section 51 A is a proposal that was designed to include a statement of recognition as introductory words to a new head of legislative power replacing section 51 (xxvi). The Panel decided to place a statement of recognition in a preamble to the substantive power replacing the race power because of the unanimous view that you cannot have a preamble to the UK Act; and the panel was persuaded by submissions regarding challenges/problems with placing a preamble at the beginning of the Australian Constitution. One challenge is the political reality that lots of groups would want to be included in such a preamble and many in consultations were keen to avoid the experience of 1999. Also, it was drawn to the Panel’s attention there would be interpretative consequences of placing a preamble at the beginning of the Constitution.

Furthermore Aboriginal and Torres Strait Islander peoples almost universally did not want a preamble at the beginning of the Constitution especially if it contained a no-legal effect clause, viewing that as tokenistic. This idea – a no-legal effect clause – was similarly rejected in the consultations of the broader Australian community; many felt it would be a meaningless exercise to go to the effort of recognition yet at the same time saying it has no effect.

We were satisfied that such an option met our criteria including that it must be of benefit to, and accord with, the wishes of Aboriginal and Torres Strait Islander peoples; be technically and legally sound.

Recommendation 3: That a new ‘section 51A’ be inserted, along the following lines:

Section 51A 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;
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.

Recommendation 4: That a new ‘section 116A’ be inserted, along the following lines:

Section 116A Prohibition of racial discrimination
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Recommendation 5: That a new ‘section 127A’ be inserted, along the following lines:

Section 127A Recognition of languages
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

Explaining section 51A: ‘advancement’

One particular aspect of section 51 A that has drawn public commentary is the use of the word ‘advancement’. It was obvious to the Panel from its consultations and submissions that there was strong community support for qualifying any new power to make laws for Aboriginal and Torres Strait Islander peoples so that, as a matter of interpretation, the purpose of the power is clear. The Panel then had to decide what language could be used in order to textually confine the power – keeping in mind that the Panel chose to place ‘advancement’ not in the substantive power but in the preamble. Submissions and consultations recommended the use of ‘benefit’, ‘advancement’ and ‘for the betterment of the Aboriginal people’.

An alternative approach, suggested in the submission of Allens Arthur Robinson, was for a new power to make laws with respect to ‘the culture, historical disadvantage and unique place of Aboriginal and Torres Strait Islander peoples’. It was submitted that this approach would avoid a debate about ‘advancement’ or ‘benefit’. Another idea popular in Aboriginal and Torres Strait Islander communities was for a requirement that ‘the free, prior and informed consent’ of a group is obtained before legislation could be enacted for that group; consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

One submission from the Aboriginal community stated that:

Section 51(xxvi) needs to be addressed; ‘benefit’ is a very subjective word so to address the issues around the race power we may need a clause to be added to section 51(xxvi) that stipulates it can only be exercised with the ‘free, prior and informed consent’ of that particular race

Another submission:

Regarding benefit: has there been much discussion on how Aboriginal people could determine what benefit is? It is a legalistic framework but at least it opens up the question whereas now it is all dictated by the state

The Panel’s recommendation was something along the lines of ‘advancement’; further explanation for this is available in the report, including its meaning in the context of Aboriginal law and policy, for example, its use in the preamble to the Native Title Act 1993. The Panel was also advised that ‘advancement’ is widely used in legal contexts, particularly in the area of trusts and testamentary provisions, and provides a legal criterion with which courts are familiar.

Non-discrimination

The other recommendation that has attracted significant commentary is the racial non-discrimination provision. It has been labelled a ‘back door’ bill of rights and a ‘one clause’ bill of rights. The Panel is not advocating a bill or statement of rights. The view of the Panel is that a non-discrimination clause is an integral part of a package of amendments to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.

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. Many submitted to the Panel that discrimination is a very familiar concept for the courts, and so applying it in a new context isn’t a great stretch. Only the Commonwealth Parliament will have an additional burden placed on it and ordinary Australians we consulted quite liked that idea. As Professor Cheryl Saunders pointed out in the Conversation, the prohibition of discrimination is a familiar concept in the Constitution in other contexts.

In addition, non-discrimination is also contained in many constitutions around the world. There is also a wealth of overseas jurisprudence and international law on this issue, on which the courts can draw. There is a chapter in the report that captures the comparative experience of a racial non-discrimination provision. The fact is that the submissions to the Panel overwhelmingly supported a racial non-discrimination provision and argued in favour of the principle of racial equality: and it was our job to reflect what the community was thinking.

Many submissions argued that there must be allowance for measures to address disadvantage and ameliorate the effects of past discrimination is a necessary aspect of a racial non-discrimination provision; and recognition of the distinct rights of Aboriginal and Torres Strait Islander peoples is a necessary part of ensuring equality before the law. Given its extensive consultations with Aboriginal and Torres Strait Islander communities, the Panel developed an insight into the devastating impact of discriminatory policies upon Aboriginal communities. The view of the Panel was that such a provision was reasonable. The practical need for this is based on real experiences of Indigenous people of discrimination at the hands of the Commonwealth Parliament, eg the NTER, the Native Title Act and Wik amendments. These were commonly cited as examples in community consultations in Aboriginal communities.

Newspoll conducted national surveys of Australians on the topic of constitutional recognition of Aboriginal and Torres Strait Islander peoples and related issues of constitutional reform. The final Newspoll survey confirmed that, as at 28 October 2011, 80 per cent of respondents were in favour of amending the Constitution so that there is a new guarantee against laws that discriminate on the basis of race, colour or ethnic origin.

Conclusion

In terms of the response to our recommendation on non-discrimination, it has been somewhat predictable in that 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.

Still, the success of the 1967 referendum, at which a record high of 90 per cent support was secured, is a reminder that constitutional change in relation to Aboriginal and Torres Strait Islander peoples can gain the support of a significant majority of Australians. And 1967 referendum is viewed as a ‘peoples’ movement’. The Panel found that the success of the 1967 was a source of immense pride in Indigenous communities and the broader community and 1967 was frequently raised at community consultations both in Aboriginal communities and the broader community, particularly with caution expressed about the timeframe of this current potential Indigenous referendum question. Having said that, I think there is too much emphasis on 1967 as somehow informing any future referendum on this question. 1967 was particularly influenced by many external geo-political factors that are not at play today and it would be ahistorical to ignore the impact of these. Also, social media was not a factor and there is an unquestioned assumption that social media will enhance the persuasiveness of a manufactured ‘grassroots’ campaign; this may not be the case.

In the meantime, the PM has announced that Reconciliation Australia in consultation with other bodies will commence a public awareness campaign on this issue and more importantly, debate and political negotiations will continue on the Panel’s recommendations. I can safely say that the view of the Panel is the same as Tony Abbott who said the Panel’s recommendations should be ‘the first word, not the last word, in what should be put to the Australian people’.

Professor Megan Davis is Professor of Law and Director, Indigenous Law Centre, Faculty of Law at the University of New South Wales, and an expert member of the United Nations Permanent Forum on Indigenous Issues.

An audio file of this is available on ABC Radio National’s Big Ideas website.

2 thoughts on “Where to next for Indigenous constitutional recognition? – by Professor Megan Davis”

  1. The Constitution can’t legitimately recognise Aborigines and Torres Strait lslanders until it first recognises a women’s jurisdiction through provision of a women’s legislature. Recognition without a women’s jurisdiction is an obvious and blatant fraud as anyone familiar with these traditions would know. Unfortunately the government’s Expert Panel proved entirely bereft of expertise on either male privilege or women’s business so their conclusions can only be considered irrelevant to the essence of the discussion.

  2. I am still trying to get my head around this…as it stands and has continually stood for 226 odd yrs…..that while the invaders (Britain)…claimed our lands for the crown, at no time through the years of our resistance did any of our tribes/mobs concede or surrender to that invasion, thus meaning that we have through all this time maintained our sovereign rights to this country and thus to our individual countries. But if we are now RECOGNISED within the Australian constitution, which in actual fact is not a true stand alone constitution in its own right but an act within the British parliament…that, THAT RECOGNITION means we have agreed to the domination, thus surrendering our sovereign rights and we then have nothing to stand on and are forever more under their laws thus then eliminating our rights to protest over stolen lands, culture, language etc etc. We are then…in the true sense of the word…British subjects and not a captured people’s??? What then happens to the whole land rights issues and how does this effect mobs who have won land right cases like TI and mainland mobs??? If that’s what this all means then I will not willingly give away my sovereign rights to our lands or to what’s left of my culture. Can you please address this for me.

    Thanks

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