Submission to the Expert Panel for Constitutional Recognition of
Aboriginal and Torres Strait Islander Peoples
Alice McBurney, 4th Year Arts/Law student at the Australian National University
.
There have been two great themes to our struggle:
citizenship rights, the right to be treated the same as
other Australians, to receive the same benefits, to be
provided with the same level of services; and Indigenous
rights, the collective rights that are owed to us as distinct
peoples and as the original occupiers of this land.
Lowitja O’Donoghue, former Chairperson
of the Aboriginal and Torres Strait Islander
Commission
I.
Introduction
The proposal for constitutional reform to recognise Aboriginal and Torres Strait Islander
peoples has long been on the agenda of Indigenous leaders and peoples.1 However, discussions
regarding constitutional recognition of Indigenous peoples in Australia have been sporadic,
piecemeal and highly general.2 The establishment of the Expert Panel on Constitutional Recognition
of Indigenous Australians to consult with the Australian public regarding possibilities of
constitutional change is an exciting opportunity for Australia to address historical injustices and the
out-dated racism that is embodied in our current Constitution.
Whilst it is acknowledged that preambular recognition of the place of Indigenous peoples in
the nation is important, it is contended that such recognition must be accompanied by recognition
of Indigenous rights within the operative provisions of the Constitution. It is concerning that
discussions at the political level have been limited to the recognition of Indigenous peoples within
the preamble because this would be “of little if any practical effect.”3 In order to create long-term
positive change within Australian society, in order to heal the hurts of the past for both Indigenous
and non-Indigenous Australians, constitutional recognition of Indigenous peoples needs to ensure
substantive protection of Indigenous rights, rather than tokenistic acknowledgement. For this
reason, whilst I am in support of preambular recognition and a statement of values as an important
component of constitutional reform to recognise Aboriginal and Torres Strait Islander peoples, this
submission will focus on the possibilities of substantive reform within the body of the Constitution.
1
Communiqué to the Australian Government from Yolgnu and Bininj Leaders at Yirrkala, 23 July 2008.
Available at http://www.youmeunity.org.au/downloads/6360dba9a10c03ef9669.pdf;The Barunga Statement,
presented to Prime Minister Bob Hawke by the Central and Northern Land Council, 1988. Available at
http://www.barungafestival.com.au/statement.html; The Kalkaringi Statement developed by the Combined
Aboriginal Nations of Central Australia at the Kalkaringi Constitutional Convention, 1998. Available at
www.clc.org.au/media/issues/governance/kalkaringi_statement.html.
2
Megan Davis and Dylan Lino, ‘Constitutional Reform and Indigenous People’ (July/August 2010) 7:19
Indigenous Law Bulletin 3, 4.
3
Law Council of Australia, ‘Constitutional Recognition of Indigenous Australian’ (Discussion Paper, Law Council
of Australia, 2011) 13.
1
II.
The Need for Constitutional Reform
Our Constitution still contains provisions that allow for adverse discrimination on the basis of
race. Section 25 suggests that an Australian voter could be excluded from voting on the basis of race.
This is an example of express and overt adverse discrimination on the basis of race. The races power
contained in s51(xxvi) allows for the Commonwealth to make laws with respect to “the people of
any race for whom it is deemed necessary to make special laws.” This provision was subject to
reform during the 1967 referendum, which removed the words “other than the aboriginal race”
from the text of s51(xxvi) and empowered the Commonwealth to make laws with respect to
Indigenous peoples on the basis of their status as a racial group. The Yes vote advocates believed
that this constitutional change would result in the passing of laws in the interests of Indigenous
peoples.4 In Tasmanian Dams, Brennan J acknowledged that the original form of s51(xxvi) permitted
adverse discrimination against racial groups,5 however commented on the need to reinterpret the
power in light of the 1967 referendum, which was “an affirmation of the will of the Australian
people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end,
and that the primary object of the power is beneficial.”6 Despite the overwhelmingly positive
symbolism of the 1967 referendum, the resulting silence on the rights of Indigenous peoples allowed
for s51(xxvi) to be used to pass laws detrimental to Indigenous people,7 which was supported by the
High Court’s interpretation of the power in Kartinyeri.8 The Hon Robert French, after detailed
analysis of High Court jurisprudence on s51(xxvi) concluded that there was nothing in the power “to
prevent its adverse application to Australian citizens simply on the basis of their race.” 9 For these
reasons, s25 and s51(xxvi) must be repealed in order to eliminate the out-dated and highly
problematic use of race as a criterion in the Constitution that permits adverse discrimination on the
basis of race.
III.
A new head of power for Indigenous peoples?
The elimination of s51(xxvi) would leave limited scope for the Commonwealth to pass laws
with respect to Aboriginal and Torres Strait Islanders, except perhaps via the external affairs power.
However, it is contended that for the Australian Government to be able to effectively reconstitute its
relationship with Indigenous peoples, it needs to be able to pass legislation specific to Indigenous
peoples and in order to avoid uncertainty, a provision empowering the Commonwealth to make laws
with respect to Aboriginal and Torres Strait Islander peoples should be inserted into the Constitution.
The Hon Robert French argued that such a power would not be open to adverse discrimination on
the basis of race because laws made under it would be “based not on race but on the special place
4
Brian Attwood and Andrew Markus, ‘Representation Matters: The 1967 Referendum and Citizenship’ in J
Altman and M Hinkson (eds), Citizenship and Indigenous Australians: Changing conceptions and possibilities
(Cambridge University Press, 1998) 118 -119.
5
See George Williams, ‘Race and the Constitution: From Federation to Reconciliation’ (2000) 38:4 Osgoode
Hall Law Journal 643.
6
Commonwealth v Tasmania (1983) 158 CLR 1, 537.
7
For example, the passing of the Native Title Amendment Act 1998 (Cth), which prevented the Racial
Discrimination Act 1975 (Cth) from applying to certain sections of the Native Title Act 1993 (Cth).
8
Kartinyeri v Commonwealth (1998) 195 CLR 337.
9
The Hon Justice Robert French, ‘The Race Power: A Constitutional Chimera’ in H.P. Lee and George Winterton
G (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 180, 206.
2
of those peoples in the history of the nation.”10 Unlike the 1988 Constitutional Commission and as
endorsed by the Hon Robert French, the wording of the new power could not be limited to
“Aboriginal and Torres Strait Islander peoples.” Rather, the new head of power should be based on
the 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. However, even if the
new provision contained this wording, it would still be up to our legal system, Parliament and the
courts, to determine the meaning of the words. In order to ensure that the new head of power is not
used to discriminate adversely against Indigenous peoples, there needs to be additional protective
mechanisms inserted into the Constitution to ensure that it is used on the basis of equality and
consent.
IV.
A Constitutional Treaty-Making Mechanism
RECOMMENDATION 1: It is proposed that a new power to make laws with respect to Aboriginal and
Torres Strait Islander peoples should be inserted only if it is expressly subject to a constitutional
treaty-making provision. It is not envisaged that the national treaty would contain substantive
content, but instead a procedural framework to facilitate the negotiation of treaties with Indigenous
peoples at the local or regional level and then provide these agreements with legal protection.11 The
treaty should have three components:
a) A framework for negotiation, which outlines the structures and policies that are required to
guide more specific treaty-making. It has been suggested that this could include the possible
content of the treaties, minimum standards, rights of Indigenous peoples that underpin the
process, a body to oversee negotiations and dispute settlement and funding mechanisms.12
b) Legal force and protection of the treaties entered into in accordance with the framework.
c) Avenue for ongoing discussion between Indigenous peoples and the Commonwealth with
regards to their relationship to the State and the ability to change treaties given legal force if this
change occurs in accordance with the negotiation framework.
The importance of enshrining a treaty-making mechanism in the Constitution is reflected in the
creation of the Australian state on the doctrine of terra nullius. The Australian state was built on the
pretence that there were no pre-existing systems of social and political organisation and a treaty
was never entered between the colonisers or the original inhabitants. For these reasons, the
Australian state does not have a legitimate source of power with respect to Indigenous peoples. The
insertion of a head of power with respect to Aboriginal and Torres Strait Islander’s, would be
inappropriate in the absence of such a treaty-making mechanism, because it would be placed in the
exclusive hands of the Australian state, namely Parliament and the judiciary. Furthermore, the
The rejection of the doctrine of terra nullius in Mabo necessitates the need to “engage with the
underlying lack of consent sought from or provided by Aboriginal and Torres Strait Islander peoples
to the acquisition of sovereignty by the Crown.”13
10
Ibid 208.
12
Sean Brennan, Larissa Behrendt, Lisa Strelein, George Williams, Treaty (Federation Press, 2005) 132.
Law Council of Australia, ‘Constitutional Recognition of Indigenous Australian’ (Discussion Paper, Law
Council of Australia, 2011) 13.
13
3
The prospect of treaties often conjure secessionist conceptions of sovereignty and selfdetermination, however, they don’t necessarily mean this in the context of the Indigenous claims.14A
constitutional treaty would merely outline a framework in which negotiations regarding the
relationship between Indigenous people and the state could proceed within the bounds of the
Australian state.15 Until the fiction of terra nullius has been constitutionally recognised by a treatymaking mechanism “our occupancy of this land, our very right to be here, is tainted by the
aggression against Aborigines by which it was established.”16
V.
An Equality and Non-Discrimination Provision
RECOMMENDATION 2: It is proposed that a new head of power with respect to Aboriginal and
Torres Strait Islander peoples should only be inserted if it is expressly subject to an equality and nondiscrimination provision. The equality and non-discrimination provision should have 3 components:
a) Statement that all legislation should be underpinned by the principles of equality and nondiscrimination;
b) Acknowledgement that the achievement of equality and non-discrimination can require positive
discrimination;
c) A guarantee of recognition and legal protection of recognised Indigenous rights such as native
title and those that are recognised or negotiated in the future.
There is no guarantee that the new head of power could not also be interpreted by the
courts as enabling the Commonwealth to pass legislation adverse to Indigenous peoples. Even with
an express limitation, such as with respect to “matters beneficial to” or “the benefit of” Aboriginal
and Torres Strait Islander peoples, the decision as to what constitutes beneficial would remain in the
hands of Parliament and the courts. To protect against the possibility of such adverse discrimination,
such a head of power should also be expressly subject to an equality and non-discrimination
provision. It is important to note that the insertion of an equality and non-discrimination provision
would be beneficial to all Australians, not just Indigenous peoples. An equality and nondiscrimination provision would prevent the new head of power from being used for adverse
discrimination.
However, it is clear that a traditional equality and non-discrimination provision would be
insufficient to protect Indigenous rights. It would need to incorporate the fact that the achievement
of equality, particularly with respect to a group that has historically experienced dispossession,
destruction and discrimination, often requires measures of positive discrimination. The current
Government does employ measures of positive discrimination to carry out their policy of “closing
the gap” between Indigenous and non-Indigenous Australians. In addition, it is important that such a
provision enables the recognition of Indigenous peoples for their unique historical and cultural
difference, rather than merely the assimilation of Indigenous peoples into the ‘modern’ state
through mechanisms of socio-economic development. To do this, it must provide legal protection to
recognised Indigenous rights, such as native title and rights that are recognised or negotiated in the
future. The protection of Indigenous rights, which arise due to a person’s status as a descendent of
first peoples are just as important as substantive equality within our system of governance. There is
a causal connection between the recognition and protection of rights and Indigenous well-being.
Adequate protection of Indigenous interests must extends beyond orthodox notions of equality and
non-discrimination to the recognition and protection of Indigenous difference.
14
Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (Federation Press, 2003)
18.
15
Bain Attwood and Andrew Markus, 1967 Referendum: Race, Power and the Australian Constitution
(Aboriginal Studies Press, 2nd edition, 2007) 75.
16
H.C. Coombs, Aboriginal Autonomy: Issues and Strategies (Cambridge University Press, 1994) 143.
4
VI.
Conclusion
Constitutional reform to recognise Indigenous peoples in the Constitution requires time,
education and wide consultation with all sectors of Australian society, particularly Indigenous
peoples.17 It may be important for the consultation and educational functions of the Expert Panel to
be extended beyond the 43rd Parliament in order to ensure that unlike the case of the 1967
referendum, we get it right. This submission has argued that whilst symbolic recognition of
Indigenous peoples within the Constitution is important, it must be coupled with substantive
changes within the body of the Constitution that will act to protect Indigenous rights. It is proposed
that s25 and s51(xxvi) should be repealed. A head of power with respect to Indigenous peoples
should be inserted into the Constitution and expressly based on the 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. This power should be expressly subject to a constitutional
treaty-making mechanism and an equality and non-discrimination provision, as outlined above.
17
The 1995 Social Justice Package reports from ATSIC, the Council for Aboriginal Reconciliation and the
submission of the then Aboriginal and Torres Strait Island Social Justice Commissioner, Mick Dodson all
emphasised the importance of education, consultation and negotiation processes in the lead up to
constitutional reform.
5