Formal response to “A National Conversation about
Aboriginal and Torres Strait Islander Constitutional
Recognition – Discussion Paper – May 2011”
By Glenn Shaw and Jamie Round
Table of Contents
1.
Historical Context ................................................................................................................. 2
2.
Proposed ideas contained in the Discussion Paper ................................................. 3
3.
Response to proposed ideas ............................................................................................ 4
Idea 1:
Statement of Recognition in the Preamble ................................................... 4
Idea 2:
Statement of Recognition in the body of the Constitution ..................... 4
Idea 3:
Statement of Values in a preamble ................................................................. 5
Idea 4:
Statement of Recognition and Statement of Values in the body of
the Constitution ............................................................................................................................ 5
Idea 5:
Repeal or amendment of the ‘race power’ .................................................... 5
Idea 6:
Repeal of Section 25 .............................................................................................. 6
Idea 7:
Agreement-making power ................................................................................... 6
4.
Further Considerations ....................................................................................................... 7
5.
General Comment ................................................................................................................ 7
6.
Preferred Position ................................................................................................................. 8
1. Historical Context
There has since the early 1900’s been a clear commitment from Aboriginal and Torres
Strait Islander people for our formal recognition in the Australian Constitution.
Following three (3) separate referendums we saw some amendments to the Constitution
in may 1967 with the following being agreed:
“ Section 51…………….
(xxvi) the people of any race, other than the aboriginal race in any State, for whom it is
deemed necessary to make special laws;
And
Section 127…………..
127 Aborigines not to be counted in reckoning population
In reckoning the numbers of people of the Commonwealth, or of a State or
other part of the Commonwealth, aboriginal natives shall not be counted.”
While these amendments may, at the time of the Referendum have seemed fair and
reasonable, the comments made by Noel Pearson in that:
“The original Constitution of 1901 established a negative citizenship of the
country’s original peoples. The reforms undertaken in 1967, which resulted in the
counting of Indigenous Australians in the national census and the extension of the
races power to Indigenous Australians, can be viewed as providing a neutral
citizenship for the original Australians. What is still needed is a positive
recognition of our status as the country’s Indigenous peoples, and yet sharing a
common citizenship with all other Australians.”
are valid and pose the question as to whether we in fact have full citizenship rights, as
there is a view within the Aboriginal community that we have not as yet achieved full
citizenship.
The comment made by Patrick Dodson at the Vincent Lingiari Lecture in 1999 in “Until
the Chains are Broken” which reads:
There have been many sunsets since Gough Whitlam trickled a handful of red soil
into the hand of the old man…Have we seen consistent progress since that
symbolic moment? Have we continued to advance? Have we ‘gone forward
together as mates?’ as the old man wished at the time. Or do we still have to
learn to follow his road; to learn to stand up for rights; learn to struggle for the
achievement of real recognition; learn to go forward and to do it together. Do we
still have to learn the meaning of mateship? Are we still chained to the past?
are at the very core of the current discussion, and are a clear articulation of the views of
many Aboriginal people.
The debate is greater than constitutional recognition of Aboriginal people, but should be
logically extended to include the principles of not only “equality” but also “equity”
because one does not necessarily equate to the other.
As a community we have seen the current debate considered by such representative
bodies as:
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National Federation of Land Councils
National Aboriginal and Islander Legal Services Secretariat
National Aboriginal Congress
Reconciliation Council
Aboriginal and Torres Strait Islander Section 13 Committees:
o National Treaty Think Tank
o National Treaty Support Group
 National Congress of Australia’s First Peoples
yet we still see the debate continuing some 40 years since the issue was first raised
within the Aboriginal community.
If we use this as an indicator of the commitment from Government[s] to progress the
discussion to a final and agreed outcome, then we could easily assume we are entering
into a debate which is circular and will end up back on the agenda in 5 to 10 years,
however given the changes in the thinking of ordinary Australians and the ongoing
commitment for change by Aboriginal people, we may see the struggle for recognition
coming to a positive conclusion.
2. Proposed ideas contained in the Discussion Paper
The Discussion Paper proposes a series of 7 options to consider which are:
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Idea 1 Statement of Recognition in a preamble
Idea 2 Statement of Recognition in the body of the Constitution
Idea 3 Statement of Values in a preamble
Idea 4 Statement of Recognition and Statement of Values in the body of the
Constitution
Idea 5 Repeal or amendment of the ‘race power’
Idea 6 Repeal of Section 25
Idea 7 Agreement-making power
We will seek to address each of these options separately and then summarise as to what
our preferred position is.
A further consideration is for the current discussion to go beyond symbolic value and
seek to progress discussions which have real meaning. We have seen politicians from all
political persuasions speak of “practical reconciliation” or “real change” yet there has
been little action outside of those hollow symbolic gestures.
3. Response to proposed ideas
Idea 1:
Statement of Recognition in the Preamble
The first matter is that the Constitution of Australia Act -1901 (the Constitution) does
not in its current form contain a Preamble and is this may be because anything
contained within it would have no legal enforceability. If this is the case then any
Preamble would merely be to establish a “Background” or “Set of Principles” under which
the Constitution could be read or interpreted.
Any such Statement of Recognition may be viewed as a “soft option” for Government but
it may placate the conservative thinkers within the broader Australian community while
providing little more than a “token gesture” to Aboriginal 1 people.
Any consideration of having a Statement of Recognition in the Preamble, should be
considered as being additional to any other substantive amendment or inclusion in the
body of the Constitution and not as the only option advanced.
Idea 2:
Statement of Recognition in the body of the
Constitution
The inclusion of a “Statement of Recognition” in the body of the Constitution is an
imperative. Any such statement would need to be couched in such terms so as to clearly
recognise the inherent rights of Aboriginal people and clarify the fact that Aborigines
have at no time agreed to or ceded our Sovereign rights over Australia.
This may make the inclusion of such a statement within the body of the Constitution
difficult, however any limitations imposed in such a statement would by default limit its
effect and ultimately it legal enforceability.
While a Statement of Recognition is in itself a positive consideration, there is the issue of
what such a statement may be, and whether it would include the following:
1. Recognition of Aboriginal people as either “First Peoples” or “First Nations
Peoples”.
a. The term “First Nations Peoples” is well known and is generally viewed as
a reference to the Indigenous people of Canada.
b. The term “First Peoples” is one used in Australia and has been used in
reference to the National Congress of Australia’s First People
2. If either term were to be used, there would be a need for it to be interpreted
within the Constitution so as to ensure there was no ambiguity as to its use.
a. Use of such terms however may offer an opportunity to commence the
debate as to “Status” and “non-Status” as was the case in relation to
amendments to the Indian Act2 of Canada in 1985
1
2
The use of the word “Aboriginal” can be read to mean Aboriginal and or Torres Strait Islander
Bill C-31, An Act to Amend the Indian Act, to bring it in line with the Canadian Charter of Rights and
Freedoms, and again in 2011 with the coming into force of Bill C-3: Gender Equity in Indian Registration Act.
i. Any debate on “Status” and “non-Status” Aborigines would
undoubtedly distract from the core discussion and would we believe
be opposed by the vast majority of Aboriginal people.
ii. Such a debate may however be proposed by those opposing such
recognition of Aboriginal people in the Constitution as it would
automatically create division within the Australian and possibly the
Aboriginal community, thus resulting in an outcome where any
proposed referendum may be unsuccessful.
3. Aboriginal people should as a matter of process have the opportunity to
determine the manner in which we individually or as a collective are described
within the social and political area’s within Australia and internationally.
Idea 3:
Statement of Values in a preamble
As with comments on a Statement of Recognition in the Preamble, the same would
apply, in that this is a “soft option” and is unlikely to have any legal enforceability.
Idea 4:
Statement of Recognition and Statement of Values in
the body of the Constitution
When we consider the inclusion of a “Statement of Values” what in real terms does this
mean?
It says within the “Discussion Paper” that “adding a Statement of Recognition or Values
to the existing text of the Constitution. This will have symbolic value” if it’s only purpose
is symbolic, then why would we consider seeking to progress such an amendment.
Idea 5:
Repeal or amendment of the ‘race power’
There has been at least once occasion where the race power was used to the detriment
of the Aboriginal community and this related directly to the High Court Decision on
Hindmarsh Island.
In December of 1995 the Ngarrindjeri people lodged an application for heritage
protection of the bridge site under the Aboriginal and Torres Strait Islander Heritage
Protection Act.
Judge Jane Mathews was appointed by Senator Rosemary Crowley on 16 January 1996
to report on the application. Mathews concluded that there was insufficient evidence that
the construction of the bridge would desecrate the area.
In response the Liberal Government introduced the Hindmarsh Island Bridge Act, 1997.
This Act states that "The Heritage Protection Act does not authorise the making of a
declaration in relation to the preservation or protection of an area or object from any of
the following activities: (a) the construction of a bridge, and associated works ... in the
Hindmarsh Island bridge area."
The legislation was challenged in the High Court 3 by a group of Ngarrindjeri women
claiming the Commonwealth did not have power to make laws to the detriment of
Aborigines.
The challenge failed with the court definitively stating that in section 51 (xxvi) of the
Constitution, "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, for whom it is deemed necessary to make special
laws" permitted legislation detrimental to Aborigines.
If we use Hindmarsh Island and an indicator as to the application of the “race powers”
there is a clear case for it to be amended to alleviate its application to the detriment
effect by allowing for legislation or public policy which would have detrimental effect on
people based on race.
Idea 6:
Repeal of Section 25
If the final recommendation, following consultation were to repeal Section 25 it may be
viewed by some as a reasonable outcome, however it would not address the need to
ensure there should be no laws which could be detrimental to a group of people based
on race. The other concern we have is that any amendment to Section 25 may offer an
opportunity to progress a debate on a Bill of Rights and while this may have a level of
support across the Australian population, history tells us such Bills generally end up
codifying rights rather than protecting them.
It is our view that any action in relation to Section 25 should focus upon clarifying this
Section and removing its ability to be used to make special laws which are detrimental to
Aboriginal people.
Any such laws should be mindful of the principles of protecting the social, cultural,
political, economic, physical and spiritual well-being of Aboriginal people.
Idea 7:
Agreement-making power
If we were to seek a specific insertion to extend the current Agreement making power to
include Aboriginal people, our options are;
1.
2.
3
Amend Section 105Aof the Constitution to provide Agreement making powers for
Aboriginal people; and/or
Amend the current blank Section 127 of the Constitution in similar terms as
Section 105A and set out the framework for any possible agreements which would
be negotiated at the Commonwealth level
a. The framework should be consistent with international Conventions
including:
i. International Labour Organisation Convention 169 (ILO 169)
ii. International Convention on Civil and Political Rights (ICCPR)
iii. United Nations Convention for the Elimination of all forms of
Racial Discrimination (CERD)
Kartinyeri v The Commonwealth [1998] HCA 22
iv. United Nations Draft Declaration on Indigenous Rights
3. The amendment including the framework should be structured to ensure the
Commonwealth will be required to draft enabling legislation for enforcement
which in turn will require complimentary legislation at the state level.
4. The framework must provide the opportunity for agreements to be negotiated
at varying levels such as:
a. Commonwealth
b. State
c. Regional; and
d. Local
4. Further Considerations
While there is an opportunity to include an “Agreement making power” in the
Constitution, this does not specifically address the obvious opportunity to establish a
framework for the progression of the Treaty debate as was progressed in the early
1990’s. The Treaty debate was progressed via two committees established by Aboriginal
and Torres Strait Islander Commission (ATSIC) which were the National Treaty Think
Tank (NTTT) and National Treaty Support Group (NTSG).
While the NTTT and NTSG were disbanded by Government prior to formalising a final
position, there was general consensus within the NTTT that the preferred way forward
could be in the form of a “Political Settlement”
If, following consultation there is support for including Agreement making powers in the
Constitution, it would be ideal if there were enabling legislation progressed by the
Commonwealth so as to allow the respective State Governments to amend their State
Constitutions to encompass the same principle[s].
5. General Comment
Given the comments as provided above, there are other matters which need to
be clarified in regard to progressing to a Referendum on the issue[s]. Which are:
1. We should as much as possible take from the lessons learned
internationally and give due consideration as to the differing forms of
recognition of Indigenous people and they manner in which their rights
and interests have been both protected and reflected.
2. We should remain mindful that any comments, once compiled may be
forwarded to a Government Committee either within the House of
Representatives, the Senate or a Joint Committee who would have the
capacity to hold public meetings, take submissions and report back to
Parliament. This may be a lengthy process with little or no return to those
who are actively participating in the process.
3. Following the consultation process the Australian Government may want
to progress a plebiscite to clarify the form and content of any question[s]
to be placed before the Australian community by way of a referendum.
This too would extend the timelines in achieving an outcome.
6. Preferred Position
Our preferred position is as follows:
1. There should be a “Statement of Recognition” in the Constitution and this
statement should confirm the recognition of the inherent Sovereign rights
of Aboriginal people.
2. That Section 25: Race Power be amended to ensure it cannot be used to
the detriment of any particular group based on race.
3. That there be an insertion/amendment to the Constitution at either
Section 105A or Section 127 which will allow for the Making of
Agreements with Aboriginal people and that a framework for such an
Agreement be clearly articulated.
a. The first consideration should be for a Constitutional Amendment
enabling the negotiation of an Treaty/Agreement/ /Makarrata
i. As part of the Agreement process the concept as proposed by
Michael Mansell whilst sitting as a member of the NTTT in
that there be a “Political Settlement” as an act of good faith
is something which should be advanced as a matter of
priority.
4. That there be dedicated seats in both houses of Parliament specifically for
Aboriginal people elected by Aboriginal people
a. Scheduling of elections for both houses would be aligned with the
current election processes
b. Dedicated seats should however not be limited to Federal elections
but should be at the State, Territory and Local Government levels
also.
5. That any amendment to the Constitution be structured in such a way that
the Aboriginal community be ensured it will be transposed into any future
arrangements should the Commonwealth of Australia seek to progress
toward a Republic in the future.