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Chapter 1
Achieving constitutional recognition
1.1
This is a progress report by the Joint Select Committee on
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples to the
44th Parliament.
1.2
The committee tabled an interim report on 15 July 2014. In that report, the committee expressed a view that a
successful referendum proposal on constitutional recognition of Aboriginal and
Torres Strait Islander peoples will need to meet three primary objectives. The
committee remains of the view that in order to be successful, a referendum
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.
1.3
Based on the content of written submissions and public hearings so far,
the committee is convinced of the benefits of recognising Aboriginal and Torres
Strait Islander peoples in the Constitution.
1.4
The committee notes that the Final Report of the Aboriginal and Torres
Strait Islander Act of Recognition Review Panel (the Review Panel) found that
levels of community support for constitutional recognition had increased
between August 2013 and August 2014.[1]
However, the committee shares the Review Panel's concern that while support for
recognition grew, awareness of the proposed referendum fell from 42 per cent to
34 per cent during the same period.[2]
1.5
The committee is of the view that action is needed to focus the nation's
attention on, and build momentum towards, what would be a significant change to
our founding document. The committee agrees with the Review Panel's
recommendation that:
A ‘circuit breaker’ needs to be rapidly identified to settle
the final form of words and draw debate on the model to a conclusion. This
will build a sense of national urgency and provide renewed certainty that the
country will proceed to a referendum.[3]
1.6
Ultimately, a referendum proposal must take the form of a
bill submitted to Parliament and that bill must be passed by an absolute
majority in both houses.[4]
It is therefore imperative that the wording of that bill be capable of
achieving near-unanimous parliamentary support. The committee considers that
in order to achieve that unanimity, the House of Representatives and the Senate
should each set aside a full day of Parliamentary sittings to debate concurrently
the three options for constitutional recognition of Aboriginal and Torres
Strait Islander peoples put forward in this report.
Recommendation 1
1.7
The committee recommends that each House of Parliament set aside a full
day of sittings to debate concurrently recommendations of the Joint Select
Committee on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples as set out in this report with a view to achieving near‑unanimous
parliamentary support for and building momentum towards a referendum to
recognise Aboriginal and Torres Strait Islander peoples in the Constitution.
Disqualification from voting (section 25)
1.8
Section 25 of the Constitution contains a formula for allocating
parliamentary seats for each state according to population. The section contemplates reducing a state's representation in Federal
Parliament should that state remove the right to vote at state elections from
certain residents based on their race,[5]
as follows:
25 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.
1.9
The committee is persuaded by written submissions and submissions
given at public hearings that section 25 is no longer necessary.[6] The committee agrees that its repeal 'involves the removal of a vestige of racial
concepts and practices that have no place in contemporary Australia.'[7]
Recommendation 2
1.10
The committee recommends repealing section 25 of the Constitution.
Recognition of languages
1.11
In its interim report, the committee considered the recommendation of the Expert Panel on Constitutional
Recognition of Indigenous Australians (Expert Panel) to include a declaratory
provision in relation to Aboriginal and Torres Strait Islander languages,[8] a new section along the
following lines:
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.[9]
1.12
Based on the content of written submissions and public hearings
so far, the committee is of the view that the recognition of Aboriginal and
Torres Strait Islander languages would be better achieved by other means.
Recommendation 3
1.13
The committee recommends not inserting the Expert Panel's
proposed new section 127A.
Power to make laws with respect to people of any race (section 51(xxvi))
1.14
Section 51(xxvi) of the Constitution provides the 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:
51 Legislative Powers of the Parliament
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
1.15
As noted in the interim report, the words 'other than the aboriginal
race in any State' were repealed at referendum in 1967, allowing the
Commonwealth to make special laws for Aboriginal and Torres Strait Islander
peoples.[10]
1.16
The committee is of the view that the
Commonwealth no longer requires the power to make laws with respect to people
of any race. In addition, the committee has received overwhelming evidence that
it is no longer acceptable for the Commonwealth to make laws with respect to
race, and recommends the repeal or amendment of section 51(xxvi) in order
to remove the constitutional reference to race.[11]
Recommendation 4
1.17
The committee recommends the repeal or amendment of section 51(xxvi) to
remove the reference to race.
Power to make laws with respect to Aboriginal and Torres Strait Islander
peoples
1.18
While recommending the repeal or amendment of
section 51(xxvi) to remove the reference to race, the committee considers that
the Commonwealth should retain an ability to make laws with respect to
Aboriginal and Torres Strait Islander peoples in
order to preserve the operation of the following pieces of existing legislation:
- 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.[12]
Recommendation 5
1.19
The committee recommends that the Parliament consider three
structural options for constitutional recognition of Aboriginal and Torres
Strait Islander peoples that follow, noting the committee's view that any
proposal must preserve both existing Commonwealth laws relying on section
51(xxvi) and the Commonwealth's power to make laws with respect to Aboriginal
and Torres Strait Islander peoples.
OPTION 1 – New section 51A with a
broad prohibition of racial discrimination incorporating the Expert Panel's
section 116A amendment
1.20
The committee noted in its interim
report that section 51(xxvi) of the Constitution is still considered to contemplate discrimination against Aboriginal and
Torres Strait Islander peoples.[13]
The divided High Court decision in Kartinyeri
v Commonwealth[14]
(Hindmarsh Island Bridge case) is considered by many submissions to the
committee as establishing the potential for section 51(xxvi) to be used to
enact laws that discriminate against people of a particular race.[15]
1.21
Based on the content of written submissions and submissions at public
hearings so far, it is clear that the possibility of racial discrimination is
of critical importance to Aboriginal and Torres Strait Islander peoples in
contemplating constitutional change. Aboriginal and Torres Strait Islander
peoples have referred consistently to the dispossession of their land, the loss
of their languages and the destruction of their cultures since colonial
settlement. Aboriginal and Torres Strait Islander witnesses referred to their
long experiences suffering racial discrimination and their desire for a constitutional
protection against future discrimination.
1.22
A prohibition of racial discrimination is perceived by Aboriginal and
Torres Strait Islander peoples as real and substantive constitutional change
deserving support from all Australians, as another step on our national journey
of reconciliation. Co‑Chair of the Expert Panel Mr Mark Leibler AC
submitted that:
At every single consultation that we held, there was a
reference to substantive recognition—'We want substantive recognition.' What
did that mean? It turned out that substantive recognition means something to
preclude racial discrimination.[16]
1.23
Mr Leibler AC submitted to the committee that 'if we do not give effect
to something that is important to Aboriginal and Torres Strait Islanders, we
are wasting our time to begin with.'[17]
This view was shared by a large number of other witnesses.[18]
1.24
The committee considers that Parliament should consider the Expert
Panel's proposed new sections 51A and 116A. The former provides the
Commonwealth with the power to make laws with respect to Aboriginal and Torres
Strait Islander peoples and gives effect to recognition of Aboriginal and
Torres Strait Islander peoples, and the latter prohibits racial discrimination
by the Commonwealth, states and territories in the exercise of either
legislative or executive power.
1.25
The committee notes a lack of public support for the fourth line of
preambular language proposed by the Expert Panel, which reads 'Acknowledging
the need to secure the advancement of Aboriginal and Torres Strait Islander
peoples.'[19]
In its interim report, the committee discussed that the legal meaning of
advancement[20]
does not equate to popular understanding of the term. For example, the 2013 Youth Report on Constitutional Recognition,
RECOGNISE THIS,[21]
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'.[22]
1.26
Accordingly, the committee recommends that Parliament consider as a
first structural option a new section 51A without the fourth line of preambular
language recommended by the Expert Panel, and new section 116A as recommended
by the Expert Panel, along the following lines:
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;
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.
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;
1.27
Also, the committee received submissions that noted an amendment to constitutionally
prohibit racial discrimination by any of the Commonwealth, states and
territories would represent a significant change to the Constitution.[23]
OPTION 2 – New section 51A with a
limited prohibition of discrimination by the Commonwealth against Aboriginal
and Torres Strait Islander peoples
1.28
Noting paragraph 1.27 above, the committee recommends that Parliament
consider a proposed new section 51A to allow the Commonwealth to make laws with
respect to Aboriginal and Torres Strait Islander peoples and to prohibit
discrimination against them by the Commonwealth in the exercise of its
legislative power.
1.29
The proposed new section 51A in Option 2 would remove the fourth line of
preambular language used by the Expert Panel (as discussed above in paragraph
1.25), and incorporate subsection (2) of the Expert Panel's proposed new
section 116A, along the following lines:
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;
(1)
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.
(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 Aboriginal and Torres Strait Islander peoples.
1.30
In its interim report, the committee noted that the prohibition of
racial discrimination proposed by the Expert Panel would allow for the
enactment of laws for the benefit of Aboriginal and Torres Strait Islander
peoples, or special measures:
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.[24]
1.31
Subsection (2), as drafted above, is designed to ensure that laws that
are designed to be special measures are not inadvertently prohibited by
subsection (1).
1.32
This option is limited expressly to prohibit racial discrimination by
the Commonwealth in the exercise of its legislative power in relation to
Aboriginal and Torres Strait Islander peoples. The committee notes that it
would not limit the legislative power of state and territory parliaments.
OPTION 3 – Redraft section 51(xxvi)
to allow the Commonwealth Parliament to make laws with respect to Aboriginal
and Torres Strait Islander peoples with the option of enacting an Act of
Recognition
1.33
In its interim report, the committee noted a proposal to frame a
constitutional amendment so as to require the
Commonwealth to legislate on the subject of recognition, including recognising
Aboriginal and Torres Strait Islander languages in an Act of Recognition, along
the following lines:[25]
51 Legislative Powers of the
Parliament
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) Aboriginal and Torres Strait Islander
peoples, and within this power must enact and maintain and Act of Recognition.
1.34
The committee has received and accepted advice that, while there are few
limits on alterations that can be made to the Constitution at referendum, there
are a broad range of 'problems and uncertainties' with an amendment that
compelled the Parliament to legislate on a particular topic.[26]
For example, it is uncertain how the requirement to enact and maintain an Act
of Recognition would be enforced, or how disagreement would be resolved between
members of Parliament on the enactment or form of that Act.[27]
Professor Anne Twomey identified a number of unanswered questions about an
amendment that compelled an Act of Recognition, including:
Who would decide what amounted to ‘recognition’? What if
Parliament passed a law that it entitled an ‘Act of Recognition’, but a court
decided that it did not involve adequate recognition, or it included other
matter that should not be ‘tacked on’ to a special law of this nature? What if
the law was amended in the future in a way that lessened the nature of the
‘recognition’? Would the obligation only be to enact such a law once, or would
there be a perpetual obligation to maintain it in existence? Could it be
amended or repealed, and if repealed, would it have to be replaced by another
Act of Recognition at the same time?[28]
1.35
Further, Professor George Williams discussed the uncertain effect that
an Act of Recognition would have on future constitutional interpretations,
considering that:
Ordinarily, legislation enacted in accordance with the
Constitution does not itself impact upon interpretation of that document. It is
not clear whether this would be the case for an Act of Recognition, due to its
unusual status. It is possible that the Court might view the Act of Recognition
as a quasi‑constitutional instrument that justifies greater reference to
it in constitutional interpretation, statutory construction and common law
development.[29]
1.36
Noting this advice, as a further alternative to the two options
discussed above, the committee recommends that the Parliament consider a new
section 51(xxvi) providing a power to make laws with respect to Aboriginal and
Torres Strait Islander peoples, along the following lines:
51 Legislative Powers of the
Parliament
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) Aboriginal and Torres Strait Islander
peoples.
1.37
This power would allow, but not require, the Parliament to enact an Act
of Recognition.
1.38
The committee notes that 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'.[30]
1.39
In addition, in a submission to the
committee, Mr Damien Freeman and Mr Julian Leeser propose a declaration of
recognition 'decoupled from the Constitution' following a public competition to
draft 'a historical and aspirational statement of no more than 300 words'.[31]
In their view, a declaration would 'recognise the place of [Aboriginal and
Torres Strait Islander peoples] in our history, and the enduring value of their
culture for Australia.'[32]
Timing
1.40
The committee is also required to build parliamentary consensus around
the timing of referendum proposals for constitutional
recognition of Aboriginal and Torres Strait Islander peoples. The committee is
of the view that the momentum for recognition will only build once the proposed
wording is publicly known, and therefore recommends that a referendum take
place at or shortly after the next federal election in 2016.
Recommendation 6
1.41
The committee recommends that a referendum to recognise Aboriginal and
Torres Strait Islander peoples in the Constitution take place at or shortly
after the next federal election in 2016.
1.42
The Review Panel recommended that Parliament should amend the Aboriginal
and Torres Strait Islander Recognition Act 2013 so that the Act does not
sunset in March 2015. The committee agrees that the Act should be extended to
align with the proposed timing of a referendum.
Recommendation 7
1.43
The committee recommends that the Aboriginal and Torres Strait
Islander Peoples Recognition Act 2013 should be extended to align with the
proposed timing of a referendum.
Mr
Ken Wyatt AM MP
Chair
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