Healing the Hurts of Racism: Why and How our
Constitution Must Change
Submission to the Expert Panel for Constitutional Recognition of Indigenous
Peoples
Brooke Greenwood
4th Year Arts/Law Student at the ANU, Past Co-Convenor of ReconciliACT
(www.reconciliact.org.au)
SUMMARY: This submission addresses each of the questions asked by the Expert Panel
regarding Constitutional Change. It begins by arguing that the current Constitution is out of
step with contemporary Australia and that reform to recognise Indigenous Australians in our
Constitution is imperative. Symbolic preambular recognition alone is insufficient, and must
be matched by substantive reform in the body of the Constitution. In particular, a new head
of power, if formulated correctly, is the best method of reforming the problematic ‘race
power’ and this should be proposed in conjunction with a racial Equality and Nondiscrimination provision. The submission suggests specific forms for both a new head of
power and an Equality and Non-Discrimination provision. The submission concludes that the
political and pragmatic hurdles of passing such reforms at a referendum are real and should
be considered, but should not serve to constrain or dilute the final proposal. A substantive
and comprehensive reform which reflects a balance of ideals and pragmatism will provide a
powerful endorsement for a more reconciled Australia.
APPENDIX: In the appendix to this submission I have attached an essay which I wrote for a
university course at the ANU, specifically on the subject of the creation of a new head of
power. It inspired parts of this submission and can be referred to for more detail.
Submission to the Expert Panel
Brooke Greenwood, 26 September 2011
1. THE NEED FOR CONSTITUTIONAL RECOGNITION
 Would recognition of Aboriginal and Torres Strait Islander peoples in Australia’s Constitution
more accurately reflect our national identity?
 Does the Constitution adequately reflect who we are as a nation today?
The Australian Constitution is a relic of the past which does not accurately reflect our contemporary
national identity. Instead, it reflects the virulent racism inherent in Australian society at the time of
Federation and the exclusionary context in which the new Commonwealth was formed.1 The
Constitution has historically failed to protect Indigenous peoples from discriminatory and racist
legislation in the States and, since 1967 it has enabled the Commonwealth itself to enact such
discriminatory legislation.2 In its current form, the Constitution both fails to acknowledge the
important place of Indigenous Australians in our society. It also remains a legal mechanism for
continued discrimination through Federal legislation, a threat which remains all too present in the
lives of Indigenous peoples today. As such, Constitution reform to recognise Aboriginal and Torres
Strait Islanders is vital and long overdue. Comprehensive constitutional recognition has the capacity
to heal the relationship between Indigenous and non-Indigenous Australians, to address historical
injustice as well as current disadvantage and to ensure that our foundational legal and political
document adequately reflects contemporary Australian culture and beliefs.
2. SYMBOLIC RECOGNITION ALONE IS NOT ENOUGH
 How should Aboriginal and Torres Strait Islander peoples be recognised in the Australian
Constitution?
 How important are each of the forms of recognition outlined in the discussion paper?
 Should recognition be included in a preamble to the Constitution or should it be in the body
of the Constitution?
Comprehensive constitutional recognition of Indigenous peoples cannot be achieved through
symbolic preambular recognition alone, but must also involve reform of the substantive provisions in
the body of the Constitution.3 In particular, recognition requires the curtailment of the continuing
capacity for racial discrimination, most operative in the Commonwealth’s current head of power to
make laws with respect to race, in s51(xxvi) (the ‘race power’). Constitutional reform must also
retain adequate scope for future governments to protect and uphold the specific rights of
Indigenous people in Australia. Anything less than substantive change would make a mockery of this
important opportunity to change our Constitution: it would reinforce public ignorance of the real
danger of discriminatory laws inherent in the current constitution; it would make it more difficult for
such necessary change to be effected in the future; and it would contribute to further division and
misunderstanding between Indigenous and non-Indigenous Australians. We cannot afford to
recognise Indigenous Australians in a merely superficial and ineffectual way.
1
Larissa Behrendt, ‘The 1967 Referendum: 40 Years On’ (2007) 11 Australian Indigenous Law Review 12, 12.
Kartinyeri v The Commonwealth (1998) 195 CLR 337.
3
Megan Davis and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a More Inclusive
Constitution or Entrenching Marginalisation?’ (2010) 33 University of NSW Law Journal, 240.
2
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Brooke Greenwood, 26 September 2011
3. THE FORM OF SYMBOLIC RECOGNITION
 If there were to be a statement recognising Aboriginal and Torres Strait Islander peoples’
place in our nation what should be included in the statement?
 Should recognition of Aboriginal and Torres Strait Islander peoples be accompanied by a
Statement of Values? If so, what values that underlie our society and democracy would be
important to include in a Statement of Values
A Statement Recognising Indigenous Peoples
A statement recognising Aboriginal and Torres Strait Islander peoples in the Constitution is a unique
opportunity to correct the silence and exclusion of Indigenous peoples in our founding document.
Thus, the form of any statement should be aimed at making Indigenous people’s voices audible in
our founding document by addressing what Indigenous Australians feel is necessary to heal from the
racism of the past and framing this in their words.
As a non-Indigenous Australian I cannot know exactly what this entails. It is clear to me, however,
that in order to have any value at all symbolic recognition must not shy away from the realities of
our past. A courageous and true account of basic historical facts would be healing for both
Indigenous and non-indigenous Australians. At minimum, it must contain:




Positive recognition of the longevity and richness of Aboriginal culture and society
Clear and true acknowledgement of the prior settlement of Australia by Indigenous Peoples
Clear and true acknowledgement of the displacement of Indigenous peoples and the lasting
pain this has caused.
A statement that in the face of this history which has separated us, Indigenous and nonIndigenous Australians commit to a relationship of reconciliation, respect and dialogue,
recognising that the health and strength of our nation will be forged in partnership.
Given that the only legal value of a preamble lies in its limited interpretative role,4 the insertion of a
non-interpretation clause similar to in the Victorian and Queensland Constitutions, would be
demeaning and unnecessary.
A General Statement of Values
While a general Statement of Values would be beneficial in our constitution the wording of such a
statement has the potential to divide Australians and detract from the fundamental purpose of
recognising Aboriginal and Torres Strait Islanders.5 I believe that a general Statement of Values
should be postponed for a future referendum and that the focus should clearly be maintained on
correcting the silence of the Constitution with respect to Indigenous Australians.
4
Kruger v Commonwealth (1997) 190 CLR 1 (‘Stolen Generations Case’), quoted in Ibid 260.
Mick Dodson, ‘Constitutional Recognition of Indigenous Australians’ (Speech delivered for the Senate
Occasional Lecture Series at Parliament House, 5 August 2011).
5
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Brooke Greenwood, 26 September 2011
4. THE FORM OF SUBSTANTIVE RECOGNITION
(a) Repeal of s25
 Should Section 25 be deleted from the Australian Constitution to remove the suggestion that
an Australian voter could be excluded from voting on the basis of race?
There is no doubt that s25 is an inherently racist and embarrassing provision. Its repeal is necessary
and desirable. However, given that it has no real practical effect because it is worded to impose a
disadvantage on States who exclude people of a certain race from voting, repeal of s25 should not
be elevated to a position of priority in determining the final proposal. A far more pressing issue is the
discriminatory effect of s51(xxvi). If the capacity for substantive change is limited it is s51(xxvi)
which should be made the focus of the reform rather than s25.
(b) Reform of Section 51 (xxvi)
 Should Section 51(xxvi) (the race power) of the Constitution be repealed or amended to
ensure that laws cannot discriminate against Aboriginal and Torres Strait Islander
Australians?
Similar to s25, the language of and intention behind s51 (xxvi) is clearly racist. As interpreted by the
High Court in Kartinyeri v The Commonwealth,6 s51 (xxvi) (the ‘race power’) authorises the
Commonwealth to enact discriminatory laws, allowing them to impose disadvantages on Indigenous
peoples.7 Despite many who suggest the Parliament would never use the power in such a way, this
threat is all too present and real in the lives of Indigenous people, most recently demonstrated
through the ease with which the Racial Discrimination Act 1975 was displaced in the Northern
Territory Intervention legislation of 2007. Thus, there is a clear need for the reform of s51(xxvi) and
one which is considerably more urgent than reform of s25.
Despite this pressing need for reform of s51(xxvi), neither complete repeal nor amendment are likely
to fully solve the problems associated with the race power, and indeed may create new ones for
Indigenous people. Amending the races power so that it can only be used to authorise laws which
are for ‘the benefit’ of Aboriginal and Torres Strait Islanders would place the power to determine
what laws may be ‘beneficial’ firmly in the hands of either Parliament or the judiciary. Given the
inherently political nature of this question, it is possible that the courts would deem the issue nonjusticiable and, except in extreme cases of ‘manifest abuse’, defer to the judgement of Parliament.8
Such a deferral would be entirely counterproductive to base reasons for amending s51(xxvi) in the
first instance, namely to protect against Parliament’s ability to enact discriminatory legislation.
Furthermore, the amendment of s51(xxvi), poses a second problem by maintaining a provision
framed in the outdated language of race and reflecting the racist notions which influenced the
creation of the provision over a hundred years ago. As the Hon Robert French has argued, ‘the
6
(1998) 195 CLR 337.
The Hon Justice Robert French, ‘The Race Power: A Constitutional Chimera’ in Hoong Phun Lee and George
Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003), 180, 204.
8
Kartinyeri v The Commonwealth (1998) 195 CLR 337, 411 (Kirby J).
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fundamental objection to the false taxonomy of humanity that is contained in racial identification
can only be met by removing the race power entirely from the Constitution’.9
However, repeal without a replacement power would intolerably limit the Commonwealth’s broad
law making capacity with respect to Indigenous Australians. It would be difficult to find
constitutional support for some existing beneficial legislation such as the Native Title Act 1993,
which has been upheld solely under the races power.10 Other powers, most notably, the external
affairs power in s51(xxix) may not be sufficient to support the varied kinds of legislation in respect of
Indigenous people which exist or may be desirable in the future. This is especially the case as it is
unclear whether the external affairs power can support the implementation of international
declarations, including the UN Declaration on the Rights of Indigenous Peoples (DRIP), which would
form an important basis for legislation in the future.
Given these two challenges, reform of s51(xxvi) must fulfil 3 requirements:
1. It must clearly protect against the capacity to enact discriminatory laws;
2. It must retain the broad law making capacity of the Commonwealth with respect to
Indigenous peoples; and
3. It must abolish the racist language and intentions inherent in s51(xxiv).
(c) A New Head of Power
 If a new head of power is created to replace the race power, should this be based on culture,
historical disadvantage, the unique place of Aboriginal and Torres Strait Islander peoples as
the descendants of the original owners and occupiers of Australia, or some other category?
The repeal of s51(xxvi) and the simultaneous creation of a new head of power with respect to
Indigenous peoples has the capacity to fulfil each of these 3 requirements but only if it is worded
correctly.
The wording of a new head of power simply ‘with respect to Aboriginal and Torres Strait Islanders’,
as first proposed by the 1988 Constitutional Commission and endorsed by the Hon Robert French,11
would serve to abolish the racist language of s51(xxvi) and retain broad law making capacity;
however it arguably leaves open the possibility that such a power could authorise detrimental or
discriminatory laws as well as beneficial ones, as was the case in Kartinyeri.12
A new power to make laws with respect to ‘culture, historical disadvantage and the unique place of
Aboriginal and Torres Strait Islander peoples as descendants of the original owners and occupiers of
Australia’ as suggested by the Expert Panel is a form which fulfils all 3 requirements. A power framed
in these terms would be less likely to authorise discriminatory laws as these would arguable be
9
French, above n 7, 208.
In the Native Title Act Case, the court found the Native Title Act 1993 (Cth) (with the exception of s12)
upheld under s51(xxvi) and did not find it necessary to consider other powers; Western Australia v The
Commonwealth (1995) 183 CLR 373, 490 (‘Native Title Act Case’).
11
1988 Constitutional Commission, cited in Davis, above n 3, 254; French, above n 7, 208.
12
Law Council of Australia, Constitutional Recognition of Indigenous Australians, Discussion Paper (2011) 15.
10
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absurd and irrelevant to addressing ‘culture’, ‘historical disadvantage’ or the ‘unique place of
Aboriginal and Torres Strait Islanders’. Keeping in mind the goal of retaining the broadest possible
legislative power for the Commonwealth, the wording of a new power should incorporate all three
of these factors.
However, it is important to recognise that even such a provision requires that the ultimate
determination of which laws are in relation to ‘culture’, ‘historical disadvantage’ or the ‘unique
place’ of Indigenous peoples, would remain with the Parliament and the judiciary. A possibility which
attempts to allow Indigenous peoples a more significant role in this determination is to frame a
specific power in terms of a requirement for meaningful consultation and participation of Indigenous
peoples in the formulation of any law. For years Indigenous activists have pointed to lack of
consultation and participation in the laws which govern their lives as a fundamental reason for the
propagation of ineffective and paternalistic legislation, even where it may be well intentioned.13 The
advantages of placing Indigenous peoples, rather than Parliament or the Judiciary, in a position of
evaluating the ‘benefits’ of particular laws for their communities, should not be underestimated and
would arguably be facilitated by the recent creation of a peak representative body, the National
Congress of Australia’s First Peoples.14 However, a specific power formulated in these terms would
face the difficulties of defining ‘meaningful consultation’ and balancing the diverse and at times
polar perspectives amongst Indigenous peoples themselves. ‘Consultation’ is a notion which has not
been clearly defined, at least not in a legal sense, and would thus be problematic in the Constitution.
Overall, the most appropriate and effective form would be to empower the Commonwealth to make
laws with respect to ‘culture, historical disadvantage and the unique place of Aboriginal and Torres
Strait Islander peoples as the descendants of the original owners and occupiers of Australia’.
(d) An Equality and Non-Discrimination Provision
 Should the Constitution be amended to ensure that no laws can be made which discriminate
against any Australian on the basis of race?
The insertion of a general racial Equality and Non-discrimination provision in the Constitution would
provide a powerful symbolic message as well as substantive commitment to ending racial
discrimination and ensure beyond doubt that a new power could not be used to discriminate.
However, similar to the discussion above of a new head of power, the form of any such provision is
of the utmost importance. There are two considerations. Firstly, as Larissa Behrendt has pointed out,
any Equality and Non-discrimination provision must be written so as to ‘adhere to the principle that
affirmative action mechanisms aid in the achievement of non-discrimination’.15 A provision which
simply provided for ‘racial equality’ would run the risk of frustrating Indigenous peoples’ claims to
substantive equality and undermine the capacity of the Commonwealth Parliament to legislate in
order to protect or advance the specific rights of indigenous peoples as a way of addressing
historical disadvantage. One example of an Equality and Non-discrimination clauses which balances
13
Larissa Behrendt, Achieving Social Justice, (The Federation Press, 2003) 125.
Created in 2010, see Welcome to the Congress Site, National Congress of Australia’s First Peoples
<http://nationalcongress.com.au/welcome/>
15
Behrendt, above n 13, 159.
14
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the need to protect equality as well as providing scope for substantive rights is contained in Section
9 of the South African Constitution.16
A second challenge arises in determining whether an Equality and Non-discrimination provision
should apply only to racial discrimination or apply broadly to a wide variety of groups, similar to the
South African clause which prohibits discrimination on a variety of grounds including ‘race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language and birth.’17 However, this would give rise to similar
problems as a broad Statement of Values in a preamble – it would divide the populous on issues
outside the scope of recognition of Indigenous peoples, weakening the ability to pass a provision
which would be of benefit to Aboriginal and Torres Strait Islanders. Thus, in line with the Expert
Panel’s discussion paper and the Law Council of Australia, this submission argues for a ‘general
guarantee of racial equality and non-racial discrimination’, leaving the important but controversial
consideration of a general guarantee of equality ‘for another day’.18
Finally, some have suggested that an Equality and Non-discrimination provision is an alternative to
the repeal of s51(xxvi) and the creation of a new head of power, because if added to the constitution
it would ensure that s51(xxvi) was interpreted so as to restrict the Commonwealth’s law making
capacity to non-discriminatory laws. However, an Equality and Non-discrimination provision alone
would not meet the 3rd requirement necessary for real reform of s51(xxvi), as it would mean that the
racist language of the provision was retained. Similarly, if s51(xxvi) was repealed and an Equality and
Non-discrimination provision inserted, the Commonwealth would have lost its broad law-making
capacity, the 2nd requirement. Thus, an Equality and Non-Discrimination provision should be viewed
in addition to a new head of power, not in its place.
(e) An Agreement-Making Power
 Should an agreement-making power be created in the Constitution?
 Are there options for Constitutional recognition of Indigenous Australians not contained in
this paper that the Panel should consider? If so, what are they?
The fact that no treaties were signed with between British colonisers and Indigenous Australians at
colonization has been an immense barrier to the recognition of Aboriginal and Torres Strait Islander
peoples in Australia and to their ability to claim both basic citizenship rights and specific rights with
respect to sovereignty and self determination. In other countries, such as the United States, Canada
and New Zealand, original treaties have formed the basis for more equitable relationship between
Indigenous peoples and the State and served a fundamental purpose in cementing recognition of the
special status of First Nations peoples.
The issue of a treaty in Australia is important and should be considered. The creation of an
agreement-making power based on the form of s105A, while not purporting to implement a treaty,
Section 9, South African Constitution, cited in Adrien Katherine Wing, ‘The South African Constitution as a
Role Model for the United States’ <http://www.law.harvard.edu/students/orgs/blj/vol24/Wing.pdf>
17
Section 9(3) South African Constitution cited in ibid.
18
Law Council of Australia Report, above n 12, 15.
16
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would provide a much needed structure and expectation around the need for consultation and
participation of Indigenous people in decisions about their future, would provide a protection
against the displacement of important agreements and would provide a powerful new mandate for
negotiating the diverse and evolving demands of Indigenous communities.
I have not done the requisite research to make comment on the form of such a provision, nor its
political viability but I fully support the ideas behind it and feel that such a provision would be of
enormous value to our Constitution and to setting up a more equal, respectful and dialogue-based
relationship between Indigenous and non-Indigenous Australians.
5. GETTING A ‘YES’ VOTE AT THE REFERENDUM
 Is there anything else you would like to add?
So far in this submission, I have considered the various proposals only in light of their legal merit and
not for their political viability and the pragmatic concerns which arise in putting them to the
Australian people at a referendum. George Williams and David Hume assert that in order to pass a
referendum, proposals must be considered in terms of five ‘pillars’ of success based on the history of
changing the Australian Constitution: bipartisanship, popular ownership, popular education, sound
and sensible proposals and a modern referendum process.19 I believe that given Australia’s dismal
record of constitutional change, it is critical that the above proposals also be assessed and selected
in light of the ‘pillars’ put forward by Williams and Hume.
It must be acknowledged that the political hurdles of passing reforms at a referendum pertain
particularly to any proposals which call for substantive reform, rather than merely symbolic change
to the Constitution as substantial reforms are more likely to meet with opposition. Concerns have
particularly been raised in relation to the viability of a new head of power, which it is suggested will
face problems of bipartisan and broader public endorsement. Although legally untrue, a provision
giving the Commonwealth specific power to legislate on Indigenous issues could be perceived as
bestowing an unfair advantage on Indigenous people, compounded by the fact that the complexity
of the legal justification for a new power offers those in opposition ample ammunition to mislead
the public on its effects.
In light of these difficulties, some have suggested that the general racial Equality and Nondiscrimination provision would be a more effective way of addressing the problems inherent in
s51(xxvi). If it is true that such a measure was more likely to pass, it would be best to put our
energies in this direction. However, there are serious questions relating to the political viability of a
non-discrimination provision, some very similar to those affecting the creation of a specific power,
including complexities of wording, and the reluctance of Australians to pass provisions which are
perceived as bestowing unfair advantages or ‘extra’ rights on Indigenous peoples.
Given that almost all options for substantive reform will meet with opposition, it would be ludicrous
to give up on the idea of a replacing s51(xxvi) with a specific head of power, or indeed any of the
19
George Williams and David Hume, People Power: The History and Future of the Referendum in Australia
(UNSW Press, 2010) 239.
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Brooke Greenwood, 26 September 2011
substantive proposals, simply because it poses pragmatic difficulties for the success of a
referendum. As the discussion above has proved, a correctly formulated power is legally sound and
urgently required to ensure against discriminatory legislation. We must use the advice offered by
Hume and Williams not as a justification to discard or water down proposals, but to inform the way
we ‘sell’ them to the public, and strengthen the process of public education and involvement, for
example separating different proposals for recognition into separate questions and using innovative
strategies and various communication methods to engage people. The structure and methods of the
Expert Panel are already a step in the right direction towards engaging public ownership of proposals
and diffusing bipartisan opposition.
Finally, I believe that the above proposals should not be considered as ‘either or’ options but rather
in combination. Although the public should be allowed to decide on each question separately, a
combination of proposals will provide more meaningful and lasting recognition for Indigenous
peoples.
CONCLUSION
Recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution is long
overdue and urgently necessary. True recognition requires not just symbolic recognition in the
preamble, although this is significant, but also substantive change of discriminatory provisions and
reform to maintain a broad capacity for Indigenous rights and demands to be met by our national
Parliament. Of particular importance is the need to reform s51(xxvi) and the best means of doing so
is not amendment nor simple repeal of the section but replacement with a new head of power.
Similarly, a racially specific Equality and Non-discrimination provision would enhance the viability
and interpretation of a new head of power just as an agreement making power would provide more
meaningful and lasting scope for advancement of the relationship between Indigenous and nonIndigenous Australians. Of course these proposals must be weighed and selected for their political
viability, and considerable thought must be placed on how to present them to the Australian people.
In this analysis, the advice of Hume and Williams should take a central place. Ultimately however,
the proposal put to the people must not be constrained or diluted by political considerations but
must retain the strength and vibrancy of ideals. It must be powerful enough to ignite pride in our
Indigenous past for all Australians. If the Expert Panel has the strength and integrity to propose a
substantive and comprehensive reform, and to make informed recommendations on how this
should be presented to Australians, it will provide a powerful endorsement for a more reconciled
Australia.
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APPENDIX 1: ESSAY ON A NEW HEAD OF POWER
“Should a specific constitutional head of power with respect to Indigenous peoples be
created in the body of the Australian Constitution and if so how?”
I INTRODUCTION
Recognition of Aboriginal and Torres Strait Islander peoples20 in the Constitution is vital in
order to project our outdated founding document into the twenty first century. The Gillard
government’s promise to pursue a referendum reflects the understanding that
comprehensive recognition has the capacity to heal the relationship between Indigenous
and non-Indigenous Australians, to address historical and current injustice and to ensure
that our foundational legal and political document adequately reflects contemporary
Australian beliefs. It is increasingly recognised that this cannot be achieved through
symbolic recognition alone, but must also involve reform of the substantive provisions of
the Constitution.21 In particular, recognition requires the curtailment of the continuing
capacity for racial discrimination, most operative in the Commonwealth’s current head of
power to make laws with respect to race under s51(xxvi) (the ‘race power’). It also requires
the provision of adequate scope for future governments to protect and uphold the specific
rights of Indigenous people in Australia. One important proposal to address this dual
challenge has been the replacement of s51(xxvi) with a specific head of power to make laws
with respect to Indigenous peoples.
20
The author would like to acknowledge that the names ‘Aboriginal’ and ‘Torres Strait Islander’ were
bestowed post- colonisation. Indigenous Australians were and are a diverse peoples, identifying in different
manners and by varied names. For the purposes of clarity and continuity ‘Indigenous peoples’, ‘Indigenous
Australians’ and ‘Aboriginal and Torres Strait Islander peoples’ will be used in this submission.
21
Megan Davis and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a More Inclusive
Constitution or Entrenching Marginalisation?’ (2010) 33 University of NSW Law Journal, 240.
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This submission weights the benefits and challenges of creating a new head of
power, ultimately arguing that it is the best way of reforming s51(xxvi). Correctly
formulated, a new power would ensure that Federal Parliament retains broad scope to
legislate on matters of importance to Indigenous people, whilst at the same time protecting
from the kinds of discriminatory laws which remain an all too present and actual threat
under the current Constitution.22 This submission begins by setting out the case for a new
power; charting the failures of the 1967 referendum as evident in the High Court’s current
interpretation of s51(xxvi) and demonstrating the problems inherent in a outright repeal or
amendment of the section. A second part considers the form of a new head of power,
examining those proposed to date as well as suggesting a form restricted by the
requirement of consultation. Finally, the submission addresses the pragmatic hurdles which
might impede the success of a new head of power at a referendum and briefly examines the
need for a new provision to be considered as part of a broad scheme of reform, rather than
as an all-encompassing solution. Although there are real pragmatic hurdles to be faced in
passing a new head of power, it would form a critical part of any comprehensive recognition
of Indigenous people in our Constitution. For this reason it is a reform which, in my opinion,
is worth fighting for.
II THE CASE FOR A NEW POWER
A The ‘Racist’ Power
The racist implications of the current interpretation of the race power and its
incompatibility with the objectives of the 1967 referendum are fundamental motivations for
22
Megan Davis and Nicole Watson, ‘”It’s the Same Old Song”: Draconian Counter-Terrorism Laws and the Déjà
Vu of Indigenous Australians’ (2006) 5(1) Borderlands e-Journal.
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Constitutional change. Originally, s51 (xxvi) authorised the Federal Government to make
laws with respect to “the people of any race, other than the Aboriginal race in any State, for
whom it is deemed necessary to make special laws.”23 By creating this section, the framers
of the Constitution intended Parliament to be able to restrict and control ‘inferior races’, a
notion which is ‘clearly racist’ by current standards.24
In the 1967 referendum an overwhelming 90 per cent majority of the Australian
people voted to amend s51(xxvi) by removing the exclusion of Aboriginal people in the
original wording of the section. At the time, it was believed that allowing the Federal
Parliament to make laws regarding Indigenous peoples would enable the Commonwealth to
protect them from the discriminatory laws in place in many States.25 However, rather than
expressly ensuring that the power was used for their benefit, as was arguably intended, the
referendum left s51(xxvi) silent on the issue of what kinds of laws the Commonwealth could
validly pass.26
Given this lack of express indication, the High Court in Kartinyeri v The
Commonwealth27 interpreted s51(xxvi) as enabling the Federal Parliament to make a broad
range of laws with respect to Indigenous peoples, including discriminatory laws. 28 In his
dissenting judgement, Kirby J argued that this interpretation was dramatically incompatible
with the intentions of the 1967 Referendum, which many people believed was intended to
23
George Williams, ‘The Races Power and the 1967 Referendum’ (2007) 11(SE) Australian Indigenous Law
Review 8.
24
Ibid.
25
Sean Brennan and Larissa Behrendt, Lisa Strelein and George Williams, Treaty (The Federation Press, 2005)
56.
26
Ibid 57.
27
Kartinyeri v The Commonwealth (1998) 195 CLR 337.
28
The Hon Justice Robert French, ‘The Race Power: A Constitutional Chimera’ in Hoong Phun Lee and George
Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003), 180, 204.
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prevent discrimination of Indigenous peoples.29 However, it has generally been accepted
that the proposition to be drawn from the majority judgements and applied in future cases
is that s51(xxvi) authorises the Commonwealth to enact discriminatory laws, allowing them
to impose either benefits or disadvantages on Indigenous peoples.30 Indeed, the race power
subsequently formed part of the authorisation for the Northern Territory Intervention
legislation, which suspended the Racial Discrimination Act 1975 and denies Indigenous
people in the Northern Territory certain rights enjoyed by their non-Indigenous
counterparts.31
Such an interpretation of s51(xxvi) and the legislation it has already given rise to
make it clear that further Constitutional change is essential in order to substantively protect
Indigenous Australians from discrimination and ensure that Australia is no longer ‘one of the
few nations on earth that has a constitutional provision designed for the apartheid era of
White Australia’.32
B The Dangers of Amendment or Repeal
Despite this pressing need for reform of s51(xxvi), neither complete repeal nor amendment
are likely to fully solve the problems associated with the race power. Firstly, amending the
race power so that it can only authorise laws for ‘the benefit’ of Aboriginal and Torres Strait
Islanders risks placing the power to determine what laws may be ‘beneficial’ firmly in the
hands of either Parliament or the judiciary. As Justices Gummow and Hayne argued in
Kartinyeri, the distinction between ‘benefit’ and ‘detriment’ can be subtle and, if included in
29
Kartinyeri v The Commonwealth (1998) 195 CLR 337, 413 (Kirby J).
French, above n 11, 204.
31
The Hon Michael Kirby AC CMG, ‘Constitutional Law and Indigenous Australians: Challenge for a Parched
Continent’ (Speech delivered at the Discussion Forum on Constitutional Change: Recognition or Substantive
Rights, Old Parliament House Canberra, 22 July 2011) 19-20.
32
Ibid, 5.
30
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s51(xxvi), would give rise to ‘definitional argument in the legislature and the courts as to the
scope of [Parliament’s] legislative power’.33 Given the inherently political nature of this
question, it is possible that the courts would deem the issue non-justiciable and, except in
extreme cases of ‘manifest abuse’, defer to the judgement of Parliament.34 Such a deferral
would be counterproductive to the basic reasons for amending s51(xxvi), namely to protect
against Parliament’s ability to enact discriminatory legislation. Furthermore, amendment of
s51(xxvi), would maintain a provision framed in the outdated language of race and reflecting
the racist notions which influenced the creation of the provision over a hundred years ago.
As the Hon Robert French has argued, ‘the fundamental objection to the false taxonomy of
humanity that is contained in racial identification can only be met by removing the race
power entirely from the Constitution’.35
Repeal without a replacement power, however, would also pose a danger by limiting
the Commonwealth’s ability to pass laws benefiting Aboriginal and Torres Strait Islander
peoples. Not all laws passed under s51(xxvi) have been discriminatory, indeed it has been
used to pass some of the most significant laws protecting the rights of Indigenous peoples.
One example is the World Heritage Properties Conservation Act 1983 (Cth), which provides
for the protection of Indigenous sacred sites and prevented the construction of the Franklin
River Hydroelectric Dam in a place of spiritual significance for Aboriginal people.36 It has
been argued that even if the races power was repealed, other powers, in particular the
33
Kartinyeri v The Commonwealth (1998) 195 CLR 337, 383 (Gummow and Hayne JJ).
Kartinyeri v The Commonwealth (1998) 195 CLR 337, 411 (Kirby J).
35
French, above n 11, 208.
36
Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’).
34
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external affairs power in s51(xxix), would support this legislation under the principle of dual
characterisation.37
However, not all beneficial laws may be supported under other powers, and it
remains uncertain whether these laws, most notably the Native Title Act 1993 (Cth), would
be upheld if s51(xxvi) is repealed.38 It is possible that Australia’s recent endorsement of the
UN Declaration on the Rights of Indigenous Peoples (DRIP), which sets out a comprehensive
list of rights specific to Indigenous people, will provide broader scope for legislation such as
the Native Title Act to be supported under the external affairs power.39 Nevertheless, as a
declaration endorsed by a resolution of the UN General Assembly, the DRIP is considered an
instrument of less than treaty status, posing problems for its implementation under the
external affairs power which has traditionally supported the implementation only of
treaties.40 Obiter statements in R v Burgess and the Tasmanian Dam Case suggest that the
power may extend to the implementation of non-treaty instruments such as international
recommendations and draft conventions41 however this remains undecided after the
Industrial Relations Act Case.42 Given this uncertainty in the law, reliance on the external
affairs power can be no more than a gamble, leaving hard-won land rights in a risky position
and limiting the possibilities for the government to give effect to the most important
37
In the Tasmanian Dams Case it was found by a majority (Mason, Murphy, Brennan, Deane JJ and Gibbs CJ)
that provisions of the Act were supported under both the external affairs in s51(xxix) and the race power in
s51(xxvi), Commonwealth v Tasmania (1983) 158 CLR 1, 5-8.
38
In the Native Title Act Case, the court found the Native Title Act 1993 (Cth) (with the exception of s12)
upheld under s51(xxvi) and did not find it necessary to consider other powers; Western Australia v The
Commonwealth (1995) 183 CLR 373, 490 (‘Native Title Act Case’).
39
Australia endorsed the Declaration on the Rights of Indigenous Peoples in 2009, see Aboriginal and Torres
Strait Islander Social Justice Commissioner, Declaration on the Rights of Indigenous Peoples, Australian Human
Rights Commission, <http://www.hreoc.gov.au/social_justice/international_docs/2011_EMRIP
_declaration_gooda.html>
40
R v Burgess; Ex parte Henry (1936) 55 CLR 608, 687 (Evatt and McTiernan JJ).
41
R v Burgess; Ex parte Henry (1936) 55 CLR 608, 687 (Evatt and McTiernan JJ); Commonwealth v Tasmania
(1983) 158 CLR 1, 171 (Murphy J) 258 (Deane J).
42
Victoria v Commonwealth (1996) 187 CLR 416, 508 (‘The Industrial Relations Act Case’).
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international instrument regarding Indigenous peoples. While these are just two concrete
examples, they serve to demonstrate a broader dilemma, namely that a complete repeal of
s51(xxvi) would limit the Federal Government’s law making capacity in a way detrimental to
Indigenous peoples.
III THE FORM OF A NEW POWER
Based on the above, reform of s51(xxvi) must serve three purposes; it must repeal the
language of race in the current provision, protect against discriminatory legislation and
retain Parliament’s broad legislative power regarding Indigenous Australians. The
replacement of s51(xxvi) with a specific power with respect to Indigenous peoples has the
capacity to fulfil each aim, but only if the form of a new power has been carefully
considered so as not to give rise to similar problems of misinterpretation as in relation to
s51(xxvi).
A The Form Proposed by the 1988 Constitutional Commission
The first proposal for a new head of power was made by the 1988 Constitutional
Commission which recommended empowering the Commonwealth government to make
laws with respect to ‘those groups of people who are, or are descended from, the
Indigenous inhabitants of different parts of Australia’.43 This proposal was endorsed by the
Hon Robert French who noted that ‘such laws are based not on race but on the special place
of those peoples in the history of the nation’.44 According to these formulations, the main
advantage of a specific head of power lies in its replacement of the language of ‘race’
explicit in s51(xxvi) by directly tailoring the provision to Indigenous peoples. Furthermore,
43
44
1988 Constitutional Commission, cited in Davis, above n 2, 254.
French, above n 11, 208.
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this form of a new specific power would retain the Commonwealth’s broad law making
capacity regarding Indigenous peoples.
However, a new power tailored simply ‘with respect to Aboriginal and Torres Strait
Islander peoples’ arguably leaves open the possibility that such a power could authorise
detrimental or discriminatory laws as well as beneficial ones, as was the case in Kartinyeri.45
Similarly, any attempt to word a power so as to limit it to authorising laws for the ‘benefit’
of Indigenous peoples raises the same dangers of non-justiciability as discussed above.
B Two Alternative Forms
One proposal which provides a solution to this problem calls for a new power with respect
to ‘culture, historical disadvantage and/or the unique place of Aboriginal and Torres Strait
Islander peoples as the descendants of the original owners and occupiers of Australia’. 46 A
power framed in these terms would be less likely to authorise discriminatory laws as these
would arguably be absurd and irrelevant to addressing ‘culture’, ‘historical disadvantage’ or
the ‘unique place of Aboriginal and Torres Strait Islanders’. Keeping in mind the goal of
retaining the broadest possible legislative power for the Commonwealth, the wording of a
new power should incorporate all three of these factors. However, it is important to
recognise that even such a provision requires that the ultimate determination of which laws
are in relation to ‘culture’, ‘historical disadvantage’ or the ‘unique place’ of Indigenous
peoples, would remain with the Parliament and the judiciary.
45
Law Council of Australia, Constitutional Recognition of Indigenous Australians, Discussion Paper (2011) 15.
Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples, ‘A National
Conversation About Aboriginal and Torres Strait Islander Constitutional Recognition’ Discussion Paper (2011)
19.
46
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A second possibility, which attempts to allow Indigenous peoples a more significant
role in this determination, is to frame a specific power in terms of a requirement for
meaningful consultation and participation of Indigenous peoples in the formulation of any
law. For years Indigenous activists have pointed to lack of consultation and participation in
the laws which govern their lives as a fundamental reason for the propagation of ineffective
and paternalistic legislation, even where it may be well intentioned.47 The advantages of
placing Indigenous peoples, rather than Parliament or the Judiciary, in a position of
evaluating the ‘benefits’ of particular laws for their communities, should not be
underestimated and would arguably be facilitated by the recent creation of a peak
representative body, the National Congress of Australia’s First Peoples.48 However, a specific
power formulated in these terms would face the difficulties of defining ‘meaningful
consultation’ and balancing the diverse and at times polar perspectives amongst Indigenous
peoples themselves. ‘Consultation’ is a notion which has not been clearly defined, at least
not in a legal sense, and would thus be problematic in the Constitution.
C Conclusion on Form
Overall, while issues relating to consultation and participation of Indigenous peoples remain
important to true recognition within the existing legal and political structure, these would
be difficult to represent in a Constitutional head of power. Thus, the most appropriate and
effective form would be to empower the Commonwealth to make laws with respect to
‘culture, historical disadvantage and the unique place of Aboriginal and Torres Strait
Islander peoples as the descendants of the original owners and occupiers of Australia’.
47
Larissa Behrendt, Achieving Social Justice, (The Federation Press, 2003) 125.
Created in 2010, see Welcome to the Congress Site, National Congress of Australia’s First Peoples
<http://nationalcongress.com.au/welcome/>
48
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IV THE ‘BEST’ OPTION?
Ideally, a specific power of this form should be created in the Constitution to replace
s51(xxvi). However, the Expert Panel will be called upon to assess not only the advantage of
a new power but also its practical feasibility and its relationship to a broader scheme of
proposed changes. This submission offers a brief overview of concerns and
recommendations regarding the creation of a specific power in light of these considerations.
A Pragmatic Hurdles
Australia has a dismal record of Constitutional change, passing only 8 out of 44 referendums
since federation.49 George Williams and David Hume assert that in order to pass a
referendum, proposals must be considered in terms of five ‘pillars’ of success:
bipartisanship, popular ownership, popular education, sound and sensible proposals and a
modern referendum process.50 Based on William and Hume’s analysis, Michael Kirby
suggests that a proposal for the repeal and replacement of s51(xxvi) would face challenges
in garnering both bipartisan and broader public endorsement.51 Opposition leader Tony
Abbott has historically opposed substantive amendments on the basis that they may ‘create
new rights’ and ‘give more rights to one group of Australians than to others’.52 Although
legally untrue, a provision giving the Commonwealth specific power legislate on Indigenous
issues could be perceived as bestowing an unfair advantage on Indigenous people,
compounded by the fact that the complexity of the legal justification for a new power offers
those in opposition ample ammunition to mislead the public on its effects.
49
Robert Menzies quoted in Kirby, above n 14, 2.
George Williams and David Hume, People Power: The History and Future of the Referendum in Australia
(UNSW Press, 2010) 239.
51
Kirby, above n 14, 20-21.
52
Tony Abbott quoted in Davis, above n 2, 258.
50
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In light of these difficulties, some have suggested that a general racial equality and
non-discrimination provision would be a more effective way of addressing the problems
inherent in s51(xxvi).53 It is true that if such a measure was more likely to pass, it would be
best to put our energies in this direction. However, there are serious questions relating to
the political viability of a non-discrimination provision, some very similar to those affecting
the creation of a specific power, including complexities of wording, and the reluctance of
Australians to pass provisions which are perceived as bestowing unfair advantages or ‘extra’
rights on Indigenous peoples.54
Given that almost all options for substantive reform will meet with opposition, it
would be ludicrous to give up on the idea of replacing s51(xxvi) with a specific head of
power simply because it poses pragmatic difficulties for the success of a referendum. As the
discussion above has proved, a correctly formulated power is legally sound and urgently
required to ensure against discriminatory legislation. We must use the advice offered by
Hume and Williams not as a justification to discard or water down the proposal for a specific
provision, but to inform the way we ‘sell’ the reform to the public, and strengthen the
process of public education and involvement, for example separating different proposals for
recognition into separate questions55 and using innovative strategies and various
communication methods to engage people.56 The structure and methods of the Expert
Panel are already a step in the right direction towards engaging public ownership of
proposals and diffusing bipartisan opposition.
53
Megan Davis, ‘Indigenous Rights and the Constitution’ (2008) 7(6) Indigenous Law Bulletin 6, 8.
Kirby, above n, 14 18.
55
Williams, above n 33, 255.
56
Ibid, 251.
54
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B Is it Enough?
Finally, a new specific power should not be considered to the exclusion of other options for
reform. Other proposals may enhance the viability and interpretation of a new power and
also in combination provide a more meaningful and lasting recognition for Indigenous
peoples. For example, a racial equality and non-discrimination provision would provide a
powerful symbolic message as well as substantive commitment to ending racial
discrimination and ensure beyond doubt that a new power could not be used
discriminatorily. Similarly, non-binding recognition in a preamble would be helpful to set out
underlying principles such as the need for meaningful consultation and participation of
Indigenous people, which as mentioned above are less adapted to entrenchment in
substantive provisions. Alone these changes may be insufficient, but together they will
provide a powerful endorsement for a more reconciled Australia.
V CONCLUSION
The creation of a specific power with respect to Indigenous peoples is the best way to
reform the discriminatory and outdated race power in s51(xxvi). It should be an imperative
and crucial part of any referendum proposal put to the Federal Parliament and ultimately,
the Australian people. Its particular form should be considered carefully and structured
clearly so as to avoid the interpretative pitfalls witnessed in the Kartinyeri case. In order to
achieve this, the final form should imbue the Commonwealth with the power to make laws
with respect to ‘culture, historical disadvantage and the unique place of Aboriginal and
Torres Strait Islander peoples as the descendants of the original owners and occupiers of
Australia.’ The pragmatic challenges of ensuring that such a provision passes at a
referendum are significant and should be acknowledged but not deter the proposal.
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Similarly, a new power should be part of a broader scheme for constitutional reform which
addresses the balance between symbolic and substantive recognition as well as providing
future opportunities for discourse and the advancement of Indigenous rights.
Comprehensive recognition of Indigenous peoples in our Constitution requires more than
one substantive change and most probably it will require ongoing and dynamic reform
beyond the upcoming referendum. The abolishment of s51(xxvi), the symbol of our racist
past, and its replacement with a new and inclusive power for change would be a formidable
start.
Word Count: 3,009
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BIBLIOGRAPHY
A Articles/Books/Reports
Attwood, Brian and Andrew Markus, The 1967 Referendum: Race, Power and the Australian
Constitution (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2007)
Brennan, Sean, Larissa Behrendt, Lisa Strelein and George Williams, Treaty (The Federation
Press, 2005)
Behrendt, Larissa, Achieving Social Justice, (The Federation Press, 2003)
Behrendt, Larissa, ‘The 1967 Referendum: 40 Years On’ (2007) 11(SE) Australian Indigenous
Law Review 12
Chesterman, John and Brian Galligan, Citizens Without Rights: Aborigines and Australian
Citizenship (Cambridge University Press, 1997)
Clarke, Jennifer, Patrick Keyzer and James Stellios, Hank’s Australian Constitutional Law:
Materials and Commentary (LexisNexis Butterworths, 8th ed, 2009)
Davis, Megan, ‘Indigenous Rights and the Constitution’ (2008) 7(6) Indigenous Law Bulletin 6
Davis, Megan and Nicole Watson, ‘”It’s the Same Old Song”: Draconian Counter-Terrorism
Laws and the Déjà Vu of Indigenous Australians’ (2006) 5(1) Borderlands e-Journal
Davis, Megan and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a
More Inclusive Constitution or Entrenching Marginalisation?’ (2010) 33 University of NSW
Law Journal, 239
23
Submission to the Expert Panel
Brooke Greenwood, 26 September 2011
French, Robert, ‘The Race Power: A Constitutional Chimera’ in Hoong Phun Lee and George
Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003),
180, 204.
Harris, Bede, A New Constitution for Australia (Cavendish, 2002)
Williams, George, ‘The Races Power and the 1967 Referendum’ (2007) 11(SE) Australian
Indigenous Law Review 8
Williams, George and David Hume, People Power: The History and Future of the Referendum
in Australia (UNSW Press, 2010)
B Cases
Commonwealth v Tasmania (1983) 158 CLR 1 (‘The Tasmanian Dam Case’)
Kartinyeri v The Commonwealth (1998) 195 CLR 337 (‘The Hindmarsh Island Bridge Case’)
R v Burgess; Ex parte Henry (1936) 55 CLR 608
Victoria v Commonwealth (1996) 187 CLR 416, 508 (‘The Industrial Relations Act Case’)
Western Australia v The Commonwealth (1995) 183 CLR 373, 490 (‘Native Title Act Case’)
C Legislation
Native Title Act 1993 (Cth)
World Heritage Properties Conservation Act 1983 (Cth)
D Other
24
Submission to the Expert Panel
Brooke Greenwood, 26 September 2011
Aboriginal and Torres Strait Islander Social Justice Commissioner, Declaration on the Rights
of Indigenous Peoples, Australian Human Rights Commission,
<http://www.hreoc.gov.au/socia
l_justice/international_docs/2011_EMRIP_declaration_gooda.html>
Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples,
‘A National Conversation About Aboriginal and Torres Strait Islander Constitutional
Recognition’ Discussion Paper (2011)
House of Representatives Standing Committee on Legal and Constitutional Affairs,
Parliament of Australia, Reforming our Constitution: A Roundtable Discussion (2008)
Kirby, Michael, ‘Constitutional Law and Indigenous Australians: Challenge for a Parched
Continent’ (Speech delivered at the Discussion Forum on Constitutional Change: Recognition
or Substantive Rights, Old Parliament House Canberra, 22 July 2011)
Law Council of Australia, Constitutional Recognition of Indigenous Australians, Discussion
Paper (2011)
Patrick Dodson, ‘Can Australia Afford Not to be Reconciled’ (Speech delivered at the
National Indigenous Policy and Dialogue Conference, 19 November 2010)
Welcome to the Congress Site, National Congress of Australia’s First Peoples
<http://nationalcongress.com.au/welcome/>
Indigenous Law Centre, Constitutional Reform and Indigenous Peoples: Options for
Ammendment to the Australian Constitution – Reasearch Brief no. 3 (2011) Faculty of Law
University of New South Wales, < http://www.ilc.unsw.edu.au/>
25