Chapter 1

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Chapter 1 Introduction and overview of the Bill

1.1 On 28 November 2012, the Parliament agreed that a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples be appointed to inquire into and report on steps that can be taken towards a successful referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples.

1.2 The Parliament asked that, as part of this work, the committee consider the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, with a view to securing strong multi-party support for the passage of the Bill through Parliament.

1.3 Along with a preamble, the Bill has three substantive parts:

(a) a statement of recognition by the Parliament, on behalf of the people of Australia, of Aboriginal and Torres Strait Islander peoples (clause 3);

(b) a requirement for the Minister with responsibility for Indigenous Affairs to commence a review of support for a referendum to amend the Constitution within a particular timeframe (clause 4); and

Conduct of this inquiry

1.4 The committee advertised the inquiry on its website and in The Australian, The Koori Mail and the National Indigenous Times. The committee received 24 submissions, which are listed at Appendix 1.

1.5 The committee also held a public hearing in Sydney on 22 January 2012. The names of witnesses who appeared at the hearing are at Appendix 2.

1.6 The committee thanks all who contributed to the inquiry.

Policy context and background to this inquiry

The work and recommendations of the Expert Panel

1.7 In December 2010, the government appointed an Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (the Expert Panel). The Expert Panel was asked to investigate and report to the Government on the options for constitutional recognition of Aboriginal and Torres Strait Islander peoples that would be most likely to obtain widespread support across the Australian community.

1.8 To prepare its report, and to help build public awareness of the issue of constitutional recognition, throughout 2011 the Expert Panel led a broad national consultation and community engagement program. This process included:

extensive consultations in communities, towns and cities across Australia, with an emphasis on capturing the views of as many Aboriginal and Torres Strait Islander people as possible;
individual discussions with high-level stakeholders;
a formal public submissions process, with written submissions added to the Expert Panel's You Me Unity website;
the commissioning of Newspoll to undertake quantitative and qualitative research to help build an understanding of the likely levels of community support for various options for constitutional recognition; and
advice from leading practitioners of constitutional law to ensure the various proposals for constitutional recognition considered by the Expert Panel were technically and legally sound.

1.9 The Expert Panel delivered its report, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, to the Prime Minister on 19 January 2012. The report recommended a referendum on the following constitutional changes:

(a) the removal of section 25 – which contemplates the possibility of State laws disqualifying people from voting at State elections on the basis of their race;

(b) the removal of section 51(xxvi) – which can be used by the Commonwealth to enact legislation to discriminate for or against people on the basis of their race;

(c) the insertion of a new section 51A – to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government's ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples;

(d) the insertion of a new section 116A, banning racial discrimination by the Commonwealth; and

(e) the insertion of a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country's first tongues, while confirming that English is Australia's national language.

1.10 The Expert Panel, referring to the record of unsuccessful referendum proposals in Australia, also concluded that the government and the Parliament should, prior to holding a referendum, consider whether the circumstances would be conducive to its success. On this point, the Expert Panel suggested that:

...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.[1]

1.11 The Expert Panel made a series of recommendations in its report on the process leading to a referendum, including steps to ensure cross-party and broad community support for constitutional change. In part, these recommendations were based on the Expert Panel's view that 'achieving a successful referendum outcome should be the primary consideration of the Government and Parliament.'[2]

The Joint Select Committee and the Bill

1.12 When the government established the Expert Panel in December 2010, it repeated a commitment made following the 2010 election to hold 'a national referendum on this issue during the term of the current government or at the next Federal election.' However, in introducing the Bill, the Minister for Families, Community Services and Indigenous Affairs stated that the government agreed with the Expert Panel 'on the importance of holding a referendum at a time when it has the most chance of success.' According to the Minister, the government also recognised that 'there is not yet enough community awareness or support for change to hold a successful referendum at or before the next federal election.'[3]

1.13 The Bill and the establishment of the Joint Select Committee are both intended, at least in part, to help build community awareness and support for constitutional change and maintain momentum towards a successful referendum.

1.14 For its part, the Bill, according to the Explanatory Memorandum, will 'enable all Australians to become familiar with formal recognition of Aboriginal and Torres Strait Islander peoples ahead of constitutional change.'[4]

1.15 As the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) reported in its submission, the Bill:

...was drafted in consultation with Aboriginal and Torres Strait Islander leaders, and key individuals and organisations involved in the movement towards constitutional recognition of Aboriginal and Torres Strait Islander peoples, including former members of the Expert Panel.'[5]

1.16 As the Minister outlined in her second reading speech, the committee has been asked to consider the Bill as its first order of business. Thereafter, the committee will:

...work to build a secure, strong, multipartisan parliamentary consensus around the timing and specific content of referendum proposals for Constitutional recognition of Aboriginal and Torres Strait Islander peoples.

The committee will also engage with Aboriginal and Torres Strait Islander people and the broader community to secure their support for specific referendum proposals for constitutional recognition.[6]

1.17 As the Explanatory Memorandum makes clear, the Bill is intended only as an interim step towards recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. It is not intended to serve as a substitute for constitutional recognition.[7]

Overview of the Bill

Preamble

1.18 A preamble to the Bill indicates that the Parliament is committed to 'building the national consensus needed for the recognition of Aboriginal and Torres Strait Islander peoples in our Constitution.' It further states the Parliament's belief that 'this Act is a significant step in the process towards achieving constitutional change.'[8]

1.19 The preamble also acknowledges 'the important work of the Expert Panel,' while recognising that 'further engagement with Aboriginal and Torres Strait Islander peoples and other Australians is required to refine proposals for a referendum and to build support necessary for successful constitutional change.'[9]

Clause 3: Statement of recognition

1.20 Clause 3 provides for the recognition by the Parliament, on behalf of the people of Australia, of:

(a) the original occupation of Australia by Aboriginal and Torres Strait Islander peoples;

(b) the ongoing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; and

1.21 As discussed in the next chapter, this statement largely reflects recommendation 3 of the Expert Panel.

Clause 4: Review

1.22 Clause 4 legislates for a review of support for a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.

1.23 This review must be initiated by the Minister within 12 months of the commencement of the Act, and the resulting report must be provided to the Minister at least six months prior to the expiration of the Act. (The Act expires two years from its commencement.) Clause 4 essentially prescribes the terms of reference for the review.

Clause 5: Sunset provision

1.24 As noted above, the Bill is intended as a step towards, rather than a substitute for, constitutional recognition.

1.25 In support of this intention, the Bill includes a two-year sunset provision at clause 5 to ensure that:

...legislative recognition of Aboriginal and Torres Strait Islander peoples does not become entrenched at the expense of progress towards the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution.[10]

1.26 A note within the Bill states that the sunset provision is intended to provide the Parliament and the Australian people with a date by which to consider the readiness of Australians to approve a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.

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