AUTUMN REPORTER 2012

AUSTRALIAN LAW STUDENTS’ ASSOCIATION 1 Editorial

Welcome to the Winter edition of ALSA Reporter 2012. The theme of this issue is Constitutional Recognition of the Rights of Australian Indigenous Peoples, in context of the upcoming referendum on this issue. A successful referendum is a rare sight in Australia, and a properly-informed electorate is prerequisite to the passing of effective changes to the Constitution. I hope that this edition allows you to lead the community in informing yourselves and others of the legal issues involved.

I wish to convey my deepest thanks to the contributors of this publication, and to my colleagues who helped in its preparation.

Australian Law Students’ Association Winter Reporter 2012

Editor Palak Thaker

Cover image courtesy of Adrian van Leen, Perth, WA rgbstock.com

DISCLAIMER: The articles and opinions expressed in this publication are not necessarily those of the Australian Law Students’ Association or of the Editor.

2 CONTENTS

GEOFFREY WINTERS A Word from the President 4

ANNE TWOMEY Indigenous Constitutional 5 Recognition – The New Debate

THE HON. Constitutional Change and 13 MICHAEL KIRBY Australia’s First Peoples AC CMG

ELLEN JOY Implying Rights in s 51A: 26 Going Beyond Indigenous Recognition in the Constitution?

SHIREEN MORRIS Why we Need Constitutional Reform: Recognition and 32 Equality

GEORGE WILLIAMS Winning the Referendum to 39 Recognise Aboriginal Peoples in the Constitution

APPENDIX Expert Panel 45 Recommendations

Sponsors 48 3 A Word from the President

GEOFFREY WINTERS President Australian Law Students’ Association

Welcome to the Winter edition of inform ourselves in order to contrib- ALSA Reporter, our bi-annual academ- ute to the debate on this issue. Let me ic publication that disseminates legal thank all of those who have contribut- academic and professional commen- ed to this edition. tary on contemporary issues of inter- As our term at ALSA draws to a close est to law students. and the new committee steps in, I Many law students say that the aim would like to thank all law students of achieving justice motivated their who have taken an interest in ALSA, choice to study law. I’m sure we can from reading its publications, follow- all recall reading Michael Kirby’s judg- ing its education advocacy drives and ments with excitement and awe. Re- releases, and attending ALSA Confer- gardless of where we pursue our ca- ence 2012 in Melbourne. All of the reers, it is important to be occasionally initiatives driven by the team and by reminded of our desire to effect jus- those who have taken an interest in tice. The constitutional recognition of ALSA this year illustrate that law stu- Indigenous rights is an area of histori- dents are a motivated and hard-work- cal injustice, but one which can poten- ing bunch, and that we are sure to tially be changed, with an informed have an impactful legal fraternity in society, within the coming year. As the future. I hope that you find the law students, we have the chance to following conversation enlightening.

4 Indigenous Constitutional There are four proposed amendments. Recognition – The Two are relatively simple and uncontroversial and the other two are New Debate complex and contentious.

ANNE TWOMEY Repeal of s 25 of the Constitution The University of The first proposal is the repeal of s 25 Sydney of the Constitution. Section 25 is the last remaining remnant of Andrew Inglis Clark’s attempt to include in the Constitution the rights protection set The Report of the Expert Panel out in the US 14th amendment. Clark’s on Constitutional Recognition of attempt to include a ‘due process’ and Indigenous Australians is not an ‘equal protection of the law’ clause in end point – it is a starting point for the Constitution fell at the last hurdle a discussion about how Indigenous during the Constitutional Convention constitutional recognition should be debates of the 1890s, turning into the achieved. Before the Panel’s report rather innocuous s 117 instead. Section was issued, debate was focused upon 25, however, survived, picking up the the question of whether there should 14th amendment’s protection of the be such recognition and if so, whether voting rights of emancipated slaves. it should take the form of preambular It punishes States by reducing their recognition or substantive provisions federal representation if they disqualify in the text of the Constitution. Now the people of any race from voting. that we have the proposed words of These days there is a misconception a constitutional amendment set out that it is a ‘racist’ provision. In fact it on the page, they can be analysed is the only anti-racism provision in the and discussed and their consequences Constitution. Nonetheless, there is can be debated. This adds a further little harm in it being repealed at this dimension to the debate and it is this stage, given that the likelihood of a dimension that will be discussed in this State disqualifying people from voting article.

5 on the ground of race is next to zero.1 that money must be spent to ensure their preservation and protection. The true intention behind this provision is Recognition of languages unclear.

The second simple proposal is proposed Repeal of the race power and insertion s 127A. It declares that English is the of a power to make laws with respect national language of Australia, but that to Aboriginal and Torres Strait Islander Aboriginal and Torres Strait Islander peoples languages are the ‘original Australian languages, a part of our national heritage’. This provision is rather The third, more complex, proposed mysterious, because it is not clear what amendment is the repeal of the race it is intended to do. Constitutional power in s 51(xxvi) of the Constitution provisions normally have some kind and the insertion of proposed s 51A. of effect – they establish institutions, It has a preamble that recognises confer powers, limit powers or establish the prior occupation of Australia by mechanisms for achieving change. This Aboriginal and Torres Strait Islander provision merely makes a statement. peoples, acknowledges their continuing relationship with their traditional lands and waters, declares respect for their If all that is intended is some kind of continuing cultures, languages and symbolic recognition, it could have been heritage and acknowledges the need included in the preamble to proposed s to secure their ‘advancement’. It then 51A.2 It has, however, been given its confers upon the Commonwealth own substantive provision. Presumably Parliament the power to make laws it is intended that in the future some ‘with respect to Aboriginal and Torres kind of implication will be drawn from Strait Islander peoples.’ this provision - perhaps that ‘original’ languages must be taught in schools or cannot be excluded from schools, or On its face, this conferral of power is unlimited. The words are plain and 1 See further: Anne Twomey, ‘An obituary for s 25 of the Constitution’ (2012) 23 Public Law clear. There is no express requirement Review 125. that this power only be exercised for 2 Note, however, the contention discussed the benefit of Aboriginal and Torres below that some aspects of the preamble are intended to have a substantive, rather than Strait Islander peoples. Nor does symbolic, effect. 6 there appear to be any ambiguity in the grant of power that could lead a All of these assumptions are court to consult the preamble to the contestable and there can be no provision as a means of resolving the guarantee that a court would interpret ambiguity. However, the Expert Panel’s s 51A in the manner assumed by the report shows that it intends the word Panel. For example, in relation to the ‘advancement’ in the preamble to act first assumption, where the words of a as qualification on the power.3 provision are plain and unambiguous it remains contentious whether resort can be had to any preamble in order to The Panel has made a number of establish that there is ambiguity. Some assumptions about the way proposed judges would in such a case apply a s 51A would be interpreted by the textual approach without regard to courts. The first is that a court would the preamble,5 whereas others would have regard to the preamble in order to look to the preamble to see the general determine the ‘purpose’ of the power. purpose of the provision and allow The second is that this ‘purpose’ this to influence their interpretation.6 would define the scope of the power Betting all your money on the High and operate as a limitation on the Court taking a purposive approach Commonwealth’s legislative power. rather than a textual one is a high-risk The third is that the court would ‘defer gamble. This is especially so given that to legislative judgment’ to a degree the argument might be rightly made and that this deference would involve that if the power granted was intended confining its assessment of the validity to be qualified this could have been of the Bill to whether the law as a whole was ‘beneficial’, rather than individual Constitution,(January, 2012), pp 150-1. provisions. The fourth assumption 5 Wacando v Commonwealth (1981) 148 CLR 1, 15-16 (Gibbs CJ). See also: Salkeld v Johnson is that in making this assessment the (1848) 2 Exch 256; 154 ER 487, 499, where Pollock court would consider whether the CB stated that while the preamble is undoubtedly law was ‘broadly for the benefit of the part of the Act and may be used to explain it, ‘it cannot control the enacting part, which may, and group concerned’ rather than for every often does, go beyond the preamble’; and Powell member of the group.4 v Kempton Park Racecourse Co [1899] AC 143, 157 where the Earl of Halsbury stated that ‘if an enactment is itself clear and unambiguous, no 3 Expert Panel on Constitutional Recognition preamble can qualify or cut down the enactment’. of Indigenous Australians, Recognising Aboriginal 6 Wacando v The Commonwealth (1981) and Torres Strait Islander Peoples in the 148 CLR 1, 23 (Mason J). See also: D Pearce and Constitution,(January, 2012), pp 150-1. R Geddes, Statutory Interpretation in Australia (6th 4 Expert Panel on Constitutional Recognition ed, LexisNexis, 2006), p 153; and Anne Winckel, of Indigenous Australians, Recognising Aboriginal ‘The Contextual Role of a Preamble in Statutory and Torres Strait Islander Peoples in the Interpretation’ (1999) 23 MULR 184, 187-91. 7 said in the text of the provision and not formed part of the debate about that a deliberate decision was made the provisions. What other aspects of not to do so. the preambular recitals are intended to override Commonwealth legislative power? The second assumption – that the notion of ‘advancement’ in the preamble would qualify the power The next assumption concerns so that the Commonwealth could deference by the courts to the only make laws respecting the Parliament and that the courts will ‘advancement’ of Aboriginal and look to whether the law as a whole is Torres Strait Islander peoples – is beneficial, rather than its individual also contestable. The preamble to s provisions. If one looks at comparative 51A merely acknowledges a ‘need to cases concerning the race power and secure the advancement of Aboriginal the ‘special measures’ provision of the and Torres Strait Islander peoples’. It Racial Discrimination Act 1975 (Cth), does not say that Commonwealth laws one sees that the courts have been must do this or may only do this. It all over the place in their exercise of simply acknowledges that there is a deference to Parliament. Sometimes need without suggesting prescriptive they merely consider whether a requirements or constraints upon Parliament could ‘reasonably’ have power. reached the conclusion that the law is for ‘advancement’.7 In other cases they consider the ‘purpose’ of the law Further, it is not clear why only one or apply a proportionality test8 while in word in one recital of the preamble yet others they defer to Parliament’s should qualify the power. Why not judgment and retain for themselves a the other parts of the preamble? supervisory power to deal only with For example, is it intended that the ‘manifest abuse’.9 It is anyone’s guess as preambular acknowledgement of the to how the High Court would approach ‘continuing relationship of Aboriginal this issue, especially given that the and Torres Strait Islander peoples with constraint upon legislative power is their traditional lands and waters’ would override any requirement in 7 See, eg: Gerhardy v Brown (1985) 159 CLR native title laws that claimants prove in 70, 138 (Brennan J). 8 See, eg: Kartinyeri v Commonwealth(1998) court their continuing relationship with 195 CLR 337, [45] (Gaudron J); Gerhardy v Brown their traditional lands and waters? This (1985) 159 CLR 70, 149 and 153 (Deane J). 9 See, eg: Western Australia v may well be the case, but it has so far Commonwealth (1995) 183 CLR 373, 460. 8 not express but is instead implied from courts have upheld the validity of these a preamble. As for whether the Court laws on the ground that they are for would look to whether the law as a the advancement of Aboriginal women whole is one for ‘advancement’, this and children because they protect leads to all sorts of difficult questions them from domestic violence and about partial repeal and amending abuse.12 However, the issue remains laws which tip the entire principal Act contentious, particularly in relation to into the zone of ‘non-advancement’ or the Northern Territory intervention. ‘insufficient advancement’, resulting in Many of those who support Indigenous its invalidity.10 constitutional recognition do so with the aim of preventing the enactment of laws such as those concerning the The fourth assumption – that a court Northern Territory intervention. It would assess a law by reference remains to be seen whether laws that to whether it was generally for the restrict the rights of an Aboriginal advancement of a ‘people’ rather people in order to protect and advance than for each member – probably has the interests of a sub-group of that a stronger foundation, but it does still ‘people’ would be supported by this give rise to difficulties in interpretation. head of power. First, there is the difficulty of trying to define a ‘people’ and who belongs to it.11 Secondly, laws directed at aiding A further issue arises as to how specific sub-groups of a people, such proposed s 51A would interact with as laws concerning alcohol bans or other constitutional provisions. Would restrictions in Aboriginal communities, any limit on the exercise of the power have been challenged on a number of so that it can only support laws for occasions on the ground that they are the ‘advancement’ of Aboriginal and not ‘special measures’ because they Torres Strait Islander peoples, also are not for the ‘advancement’ of the affect other heads of power under people of the Aboriginal race. So far the Constitution, such as s 122? The Expert Panel’s report is contradictory 10 See further: Kartinyeri v Commonwealth on this point. On the one hand it (1998) 195 CLR 337. 11 Note that the term ‘peoples’ already has argued that proposed s 51A would limit a meaning in international law and that this word has most likely been employed in the proposed 12 R v Maloney [2012] QCA 105; Morton v amendment in an attempt to attract the application Queensland Police Service (2010) 240 FLR 269; of the right to self-determination set out in art 1 and Aurukun Shire Council v CEO Office of Liquor of the International Covenant on Civil and Political Gaming and Racing [2010] QCA 37. See also: Rights. Bropho v Western Australia [2007] FCA 519.

9 s 122, just as s 51(xxxi) is now taken head of power would need to be found to do.13 On the other hand, the Panel (and could no longer be found in the explained that it placed the recitals race power if it was repealed as part of as a preamble to s 51A, rather than a the same referendum package). preamble to s 51 or to the Constitution as a whole, in order to prevent their application to other provisions of the This is perhaps the most contentious of Constitution.14 It would seem unlikely all the proposed amendments. This is in that the preamble to s 51A would be part because it goes beyond laws with interpreted as imposing a limit on other respect to Aboriginal and Torres Strait heads of power, but the issue remains Islander peoples as it deals with human uncertain. rights generally, affecting all members of the Australian community. It has the potential to give rise to objections Prohibition of racial discrimination across the spectrum – from those who object to constitutionalising (and therefore effectively freezing) rights The fourth proposed amendment is the in the Constitution and having them insertion of a s 116A in the Constitution. interpreted and applied by courts rather It would prohibit discrimination by the than Parliaments, to those who object Commonwealth, a State or Territory, that it does not go far enough, because on the grounds of race, colour or it is confined to race, colour and ethnic ethnic or national origin. It would, or national origin and does not include however, not preclude ‘the making of discrimination on the ground of sex or laws or measures for the purpose of age or disability or religious affiliation. overcoming disadvantage, ameliorating This raises issues as to why one form the effects of past discrimination, or of anti-discrimination is privileged over protecting the cultures, languages or others. heritage of any group.’ Nor would it, however, provide a head of power for the making of such laws. A separate Questions are also likely to arise as to who falls within the listed categories 13 Expert Panel on Constitutional Recognition and which groups are left outside of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the the protection of the provision. For Constitution,(January, 2012), p 152. example, ‘ethnic origin’ has been held 14 Expert Panel on Constitutional Recognition to include Jewish people15 but not of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution,(January, 2012), p 152. 15 See Miller v Wertheim [2002] FCAFC 156 10 Muslims. Uncertainty as to who is prohibition in proposed s 116A(1) and covered and on what grounds, and why only be saved if they fall within the some groups deserve constitutional exceptions in proposed s 116A(2). protection and others do not, is likely It would appear that a law for the to give rise to public controversy. ‘advancement’ of a people would not necessarily be characterised as one ‘for the purposes of overcoming Unlike the other proposed disadvantage, ameliorating the effects amendments, which affect only the of past discrimination, or protecting Commonwealth, this provision also the cultures, languages or heritage of limits the legislative and executive any group’. Indeed, it may even be powers of the States. This aspect difficult to characterise the Native Title may also prove to be controversial, Act 1993 (Cth) as falling within these especially if any States object. exclusions.

Legal issues also abound. How is One of the curiousities of proposed proposed s 116A intended to interact s 116A(2) is that it does not use the with the rest of the Constitution? It is language of ‘special measures’ from not made ‘subject to this Constitution’, the Convention on the Elimination of All so it would appear to have an overriding Forms of Racial Discrimination. There is effect over other provisions, including a risk that the more selective language all Commonwealth heads of legislative used might not cover all the types of power. laws which it would be appropriate to enact, including existing exemptions in anti-discrimination laws. What would its impact be on proposed s 51A? As s 51A confers power to make laws with respect to ‘peoples’ Conclusion identified by reference to their race, presumably all such laws would breach the general anti-discrimination The debate now needs to move beyond the broad political argument [14] and Jones v Toben [2002] FCA 1150 [69]. The of whether the Constitution should Supreme Court of the United Kingdom has reached the same conclusion: R (on the application of E) v recognise Indigenous Australians to Governing Body of JFS [2009] UKSC 15. Sikhs have whether these particular proposed also been characterised as falling under ‘ethnic origin’ for the purposes of racial discrimination amendments should be made to legislation: Mandla v Dowell Lee [1983] 2 AC 548. the Constitution. This is a much 11 more difficult debate as it involves anticipating how the provisions would be interpreted by the High Court and how they would interact with the rest of the Constitution.

The High Court, in identifying an implied freedom of political communication in the Constitution, stressed that the role of the people under ss 7 and 24 of the Constitution in electing their representatives and under s 128 of the Constitution in approving a constitutional amendment, must involve a genuine free and informed choice.16 To this end, there must be freedom of political communication to aid voters in informing themselves. It is therefore vital that the voters have sufficient information to make a fully informed choice. This means examining the detail of the provisions, including what is intended by them and whether those intentions are clearly expressed in those provision so that they will be interpreted in a consistent and predictable way. If the provisions are inadequately drafted or too vague and uncertain, then they should be changed to meet the intentions and wishes of the people before they are approved by the Parliament and sent to a referendum. It is vital, therefore, that this debate begin now.

16 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561 (the Court). 12 Any referendum for such a purpose Constitutional Change would therefore need to be held at and Australia’s First or before the next federal election. This must be conducted, at the lat- Peoples est, on or before 30 November 2013. In the current fragile political circum- stances, the chances of an earlier fed- THE HON. eral election cannot be overlooked2. In pursuit of the foregoing political MICHAEL KIRBY agreement, the federal government established an “expert panel” to con- AC CMG sult and report by the end of 2011 upon options to fulfil the given prom- ise. The panel has proposed recom-

mendations for constitutional change. A NEW OPPORTUNITY: THE 2010 PROMISE A political commitment? e W The panel criteria and pil- have a new opportunity to consider lars: The panel identified four prin- reform of the Australian Constitution ciples to guide their proposals3. to incorporate provisions respectful of They concluded that they must be: the indigenous people of our country: ∗ A contribution to a more uni- Aboriginals and Torres Strait Islanders. fied and reconciled nation; Like most things constitutional, the op- portunity derives from politics. One ∗ Of benefit to, and accord with of the conditions for the support for Greens and the Australian Labor Party, 1 September the Government of the Greens and of 2010, para.3(f) and Agreement Between the Hon. the Independents, Mr. Andrew Wilkie Julia Gillard MP and Mr. Wilkie, 2 September 2010, para.3.2(f). The Coalition Parties had also earlier MP and Rob Oakeshott MP, following promised a referendum on indigenous recognition the 2010 election, was that the - gov at the 2013 election. See P. Karvelas and L. Hall, ernment, led by Julia Gillard, would “Coalition to put Aboriginal Recognition to a Refer- endum”, The Australian, 10 August 2010, 1. work collaboratively to hold a refer- 2 Anne Twomey, “The Preamble and endum during the 43rd Parliament on Indigenous Recognition”, unpublished paper, 2011, 1. “indenous constitutional recognition”1. 3 Australia, Expert Panel, A National Conversation About Aboriginal and Torres Strait Is- lander Constitutional Recognition, Discussion Paper, 1 Agreement Between the Australian May 2011, 16.

13 the wishes of, indigenous people; ∗ The pillar of bipartisanship; ∗ Capable of securing support of an ∗ The pillar of popular owner- overwhelming majority across po- ship of the proposal; not con- litical and social spectrums; and trol by politicians or an elite; ∗ Technically and legally sound. ∗ The pillar of effec- tive popular education; ∗ The pillar of sound and sensi- The panel also listed seven possibilities ble proposals, in keeping with for constitutional recognition that it is what Mr. Peter Reith has called considering. In these remarks, I will con- “the constitutional temper of centrate on the four most likely to fulfil the Australian people”5; and the stated criteria. And in my view, one must add to the announced criteria two ∗ The adoption of modernised more. Any referendum proposal must: procedures for the conduct of the referendum, including the ∗ Keep closely in mind the history removal of expenditure restric- of, and the lessons from, past tions presently imposed on fed- referendums in Australia; and eral governmental spending de- ∗ Conform harmoniously to the ba- signed to explain the proposal6. sic language and structure of the Constitution, for it is the sixth old- est continuously operating such Additional complications: In the instrument in the entire world. particular case of a proposed referen- dum concerning Australia’s indigenous peoples, I would add to this list another Learning from the history of referen- requirement. It is suggested by histo- dums is vital. Those who fail to do so ry, including recent history. Whatever are condemned to yet another humiliat- ing defeat. Amongst the lessons of the in Australia (UNSW Press, Sydney, 2010) 244. See history are those proposed by Williams review (2011) 30 Uni of Tasmania L. Rev. 172. 5 Peter Reith, cited Williams and and Hume. After recounting the long Hume, above 4, ibid, 254. and sorry record of defeated proposals, 6 Referendum (Machinery Provisions) the authors suggest five pre-conditions Act 1984 (Cth). See Williams and Hume, above n4, 260. These follow the report of the Australian 4 for success, which they call ‘pillars’ : House of Representatives, Standing Committee on Legal and Constitutional Affairs, A Time for Change, 4 G. Williams and D Hume, People Yes/No? Enquiry into the Machinery of Referendums Power: the History of the Future of the referendum (December 2009), 60.

14 the general political dynamics, funda- ence tends to show that the simpler mental principle demands that noth- and clearer the proposal, the more ing should be done concerning consti- likely the success. As Mr. Reith put it, tutional recognition of our indigenous “a genuine problem and a reasonable people without a proper, thorough solution” makes victory more likely10. and transparent process of consulta- tion with them, in all of their varieties. There must be no more rushed political A proposal to recognise local govern- moves to meet other peoples’ agen- ment in the Constitution has now been das7. There must be no more pater- added to the questions under national nalistic impositions of solutions upon consideration. This, like the Pream- Indigenes, supposedly for their benefit ble for Indigenes, was also put before and whatever they might think8. We the people in an earlier form. It hap- are talking of serious and substantial- pened on 18 May 197411. Now, the for- ly eternal things. These are not the mer Chief Justice of New South Wales play things of politicians, temporarily (James Spigelman) has been appointed in office. Our indigenous people walk to head an expert panel dealing with to a different drum. And if that re- this further topic12. It would seem quires a longer process for accomplish- desirable that such disparate subject ment than two years, then so it must matters should be kept separate. Not be. The national humiliation of a sec- least because a further “pillar” that ond rejection would be best avoided. needs to be considered, based on the history of referendums in Australia, is There is another consideration. Whilst that, once rejected, a proposal does Australian electors have proved them- not tend to become more palatable by selves capable of differentiating be- tween different referendum proposals Parliament was not. And on 21 May 1977, when submitted at the same 9 time , experi- proposals for casual Senate vacancies and retire- ments of federal judges and voting on referendums in the Australian Capital Territory and the Northern 7 Wurridjal v The Commonwealth, Territory were carried. But proposals on elections, (2009) 237 CLR 409 at 400 [233]-[234]. local government bodies and simultaneous House 8 Ibid, at 400 [233]. of Representatives and Senate elections were not. 9 As they did on 13 April 1910 when a 10 Peter Reith, cited Williams and proposal in respect of State debts was carried; but Hume, ibid, above n4, 254. a proposal on financial and legislative powers was 11 A proposal to grant power to the not. And on 28 September 1946, when a proposal Commonwealth to borrow money to make financial on social services was carried; but proposals on or- grants to any local government body. This was car- ganised marketing and industrial employment were ried in only one State and rejected nationally. See not. And on 27 May 1967 when the proposal on Williams and Hume, above n4, 274. Aboriginals was carried; but the proposal for a sev- 12 Reported Lawyers Weekly, 1 July erance of the nexus between the Houses of Federal 2006, 6.

15 being re-presented in new terms. On tion of s25 of the Constitution. This the whole, repeatedly re-submitted is a little known provision that says: questions tend to suffer increasingly “25. For the purposes of the powerful rejection: as if the electors last section [governing the num- become irritated by the politicians’ ber of members of the House of persistence. This was the fate of the Representatives] if by the law of repeated efforts to secure federal pow- any State all persons of any race ers to regulate directly industrial rela- are disqualified from voting at tions and to avoid conciliation and -ar elections for the more numer- bitration. Such a proposal was rejected ous House of the Parliament of at referendums in 1911, 1913, 1919, the State, then in reckoning the 1926 and 1946. But then, it was re- number of people of the State markably obviated by the High Court’s or of the Commonwealth, per- majority decision in the Work Choices sons of that race resident in that Case in 2006, by using a re-conceived State, shall not be counted.” notion of the corporations 13 power .

This is clearly a racist provision. It is Keeping the criteria and pillars of ac- elliptically worded, but it carries nine- tion steadily in mind, what are the teenth century notions that Chinamen ‘ways forward’ (if I may coin a phrase) in the gold fields and Aboriginals in the to secure appropriate constitutional remote outback might, by reference to provisions with respect to the Aborigi- their race, be disqualified from voting nal and Torres Strait Islander people of in a State, and therefore in federal Com- Australia? And what should these be? monwealth, elections. The possibility that this might be so was quite con- genial to their then attitudes to racial FOUR PROPOSALS FOR CONSITU- discrimination. However, the Northern TIONAL RECOGNITION Territory Intervention laws were enact- Deletion of section: 25 One ed in a rush, just before the 2007 fed- possibility for sharing constitution- eral election, singling out Aboriginals al respect towards of Australia’s in- in that Territory for treatment different digenous peoples, would be the dele- from, and less than, that accorded to the people of every other race. The In- 13 Work Choices Case (2006) 229 CLR 1 tervention law lifted the application to at 135-155 [239]-[327]. This was over the dissents of Callinan J Ibid at 331 [793] ff and myself at 205 them of the Racial Discrimination Act [481] ff.

16 1975 (Cth). It removed the protections poses of the legislation were said of the International Convention on the to be beneficial and protective. But Elimination of All Forms of Racial Dis- there was no consultation with the crimination14. In the Wurridjal Case, Aboriginal people. And the outcomes which I suggest is not one of the finest are strongly contested to this day. hours in Australian legal history, when ‘on a demurrer’ the Aboriginal plaintiffs were denied their day in court, I said15: The lesson is that, so long as racist pro- visions exist in the Australian Constitu- “If any other Australians, select- tion, they stand at risk of being used. ed by reference to their race, This would be a powerful reason for suffered the imposition on their removing them. A referendum sim- pre-existing property interests of ply to delete s25 from the Constitu- non-consensual five year statuto- tion would, I believe, stand a strong ry leases, designed to authorise chance of qualifying on all of the cri- intensive intrusions into their lives teria and satisfying all of the pillars of and legal interests, it is difficult to past experience. However, it would believe that a challenge to such a be an empty gesture, devoid of any law would fail as legally unargu- present practical utility. Constitutional able. ... We should not slam the change in Australia is hard enough to doors of the courts in their face. secure without expending the neces- This is a case in which a transpar- sary effort for little or no practical use. ent public trial of the proceed- ings has its own justification.” A non-discrimination provision: A second proposal is for the insertion Yet the door was slammed, albeit po- in the Constitution of a modern provi- litely, observing legal forms. The pur- sion forbidding discrimination against any person (or perhaps any citizen) 14 . Wurridjal (2009) 237 CLR 309 at 394 [213]. on the grounds of their race. Histori- 15 Wurridjal (2009) 237 CLR 309 at 394- cally, such a provision would incor- 5 [214]. Although the Intervention legislation relied additionally on the Federal Parliament’s power to porate novel concepts into the Aus- make laws for a Territory (NT), the law also purport- tralian constitution, given that the ed to rely on the races power. In that decision, the adoption of the ‘races power’ was majority held that restrictions on the Federal Parlia- ment’s powers in section 51 also applied to laws en- specifically intended to permit un- acted for territories. Thereby imparting in the case equal treatment, under the Austra- any limits applicable to laws with respect to acquisi- tion of property or special race laws. lian Constitution of Chinese and other

17 non-Caucasian people, then seen as a po- tential threat to the Anglo-Celtic settlers. So Clark’s idea was dropped. Attempts to read into the language and structure of the Constitution a fundamental no- When Andrew Inglis Clark secured the tion of the equality of all peoples in the inclusion in the 1891 draft of the Con- Commonwealth has so far only mus- stitution of a clause forbidding a State tered the support of three Justices of to make or enforce any law abridging the High Court of Australia19. So have any privilege or immunity of citizens we overcome our racial demons suffi- of other States and denying persons ciently to progress from the asserted “the equal protection of the laws”16, use of the races power to do unfavour- the provision (and an expanded ver- able things on the grounds of race to our sion proposed for it) was rejected in Indigenes. So that now we are ready 1897. The rejection occurred on the suddenly to proclaim a complete rever- basis of the arguments of Isaac Isaac sal of direction, turning constitutional Isaacs, that United States models for power into a constitutional restriction such a law were “intended to protect in the name of equality? Given that the blacks. Nobody denied these rights the power of restriction was asserted to the whites”17. Isaacs warned18: in the Northern Territory Intervention “You could not make any distinc- as recently as 2007, and was continued tion between these people [Chi- despite a change of government and nese] and ordinary Europeans. is forever lauded by the News Limited You could lay down all the condi- press throughout Australia, the pros- tions you like to apply all round, pects of gathering the essential pre- but you could not impose condi- conditions to meet the stated criteria tions that would in effect, no mat- and the accepted pillars for an equal- ter how the language was guard- ity provision seems rather unlikely. ed, draw a distinction between them and ordinary citizens.” There would be a further complication. 16 See J. Williams, “Race, Citizenship and the Formation of the Australian Constitution” Any such non-discriminatory provi- (1996) 42 Australian Journal of Politics and History, sion in our Constitution would have to 10. 17 Australian Constitutional Debates, Melbourne, 1898, 669. 19 Leeth v The Commonwealth (1992) 18 Ibid. See J. Williams, “The Emer- 124 CLR 455 at 486 ff (relying on the Preamble to the gence of the Commonwealth” in H.P. Lee and G. Act) per Deane and Toohey JJ; at 501-503 per Gaud- Winterton, Australian Constitutional Landmarks ron J. Contrast per Mason CJ, Dawson and McHugh (Cambridge Uni Press, Melbourne, 2003) at 26-27. JJ at 466-471 and per Brennan J at 475-476.

18 extend to the people of every race Amendment or deletion of the (indigenous and non-indigenous). A races power: A third more important non-discriminatory principle would subject for constitutional reform could itself have to be non-discriminato- be the deletion, or modification, of the ry. But then, the question would be power in s51(xxvi) of the Constitution posed, why forbid discrimination on that permits the Federal Parliament to the grounds only of race? Why not make laws with respect to the “peo- also sex or gender? Why not culture ple of any race for whom it is deemed or religion? Why not physical or men- necessary to make special laws”. tal disability? And if you want to be really modern and in tune with the Zeitgeist, why not, like the South Af- Originally, this power did not extend ricans, forbid discrimination on the to the Aboriginal people of Australia. grounds of sexual orientation? Racial That was so because their regulation prejudice is not the only demon that was to be left to State parliaments. some Australians and their politicians The aim of deleting the exclusion was have rattling around in their heads. to afford the power to the Federal Parliament to enact laws beneficial to the indigenous people of the nation. The ideas of a great new principle of However, the power to make laws that non-discrimination worked in South were beneficial has been held to in- Africa because of the overthrow of clude the making and amendment of brutal apartheid. We have had no laws that discriminate against people such catharsis in Australia. The under- on the grounds of their race. This, in currents of racial prejudice remain all part, is what was done in the North- too evident. Witness the wholly dis- ern Territory Intervention legislation. proportionate political and media re- sponses to the tiny trickle of so-called “boat people” leading to departures It is a shocking thing, in this day and age, from this nation’s obligations under to empower our national parliament the Refugees Convention and Proto- to enact laws depriving one segment col20. So the prospects for a non-dis- of our population and citizenry of basic crimination clause look bleak indeed. rights enjoyed by others, specifically by reference to their race. Particularly because there is no counter-balancing provision for non-discrimination or 20 See e.g. Michael White, “The Tampa equality. Such a notion reflects nine- Incident” (2006) 78 ALJ 101 at 249.

19 teenth century concepts of racial supe- the current interpretation as evidence riority and paternalistic interventions that, constitutionally speaking, we are for ‘the natives’. As the 2007 legisla- still basically White Australia, however tion on the Northern Territory - Inter much we boast that we have changed. vention shows, ideas of these kinds can sometimes get caught up in the heat of election campaigns, when emotive, Still, in the present fragile political cir- complex and sometimes selfish issues cumstances in Australia, and with the are thrown into the debates. A better unyielding daily propaganda of power- defined power, specifically permitting ful media interests, would repeal of the the Federal Parliament to make laws races power secure bipartisan support with respect to the advancement of the and popular endorsement? At the very health, welfare and housing of Aborigi- least, against the background of the ex- nal and Torres Strait Islander peoples, perience in the past decade, this must would make more clear what was obvi- be doubtful. The world would look ously intended in the 1967 referendum. with astonishment at a decision of the Australian electors to retain its legisla- tive power over prejudicial racial en- If anyone in 1967 had suggested that actments when elsewhere in the world such laws would be used to take away this is seen as an anathema and con- rights; to take over property; to intrude trary to universal fundamental rights. into homes and communities; to do so with federal police and soldiers; and to take control of income and dignity, PREAMBLAR RECOGNITION it would have come as a rude shock These conclusions bring me to to the electors21. The present races the idea of a new constitutional pre- power is a relic of colonial thinking. It amble. Something simpler, and no- would be better not to have it at all ble, brief and true, that (with the re- (and to rely on other powers, includ- peal of s25) might conform to the ing the external affairs power, or new requisite criteria and pass through confined powers, for assisting indige- the pillars that must be faced by con- nous people) than to have it stand with stitutional referendums in Australia. 21 Kartinyeri v The Commonwealth (1998) 195 CLR at 397 [126] referring to the views of Murphy J; and at 397 [127] referring to the views There are real questions of a technical of Brennan J; and at 398 [128[-[129] referring to the views of Gaudron J in Chu Kheng Lim v Minister for kind concerning any such Preamble. Immigration (1992) 176 CLR 1 at 56.

20 The only preamble that presently exists technical questions, must we insert is not contained in the Australian Con- any new preamble, awkwardly, at the stitution itself. It appears in the Impe- beginning of our own constitutional rial statute that formally, at the request text, leaving the “covering clauses” of the Australian electors, brought our of the Imperial preamble to record Constitution into operation. Does our the historical events as they stood in Federal Parliament have the power to 1900? And when we start inserting a amend the “covering clauses” of the simple preamble statement invoking, Imperial statute? Or is that something and respecting the indigenous people that we must seek, cap in hand, in the of this ancient land, will the majority plenitude of our independence, from of our fellow citizens be content with the Palace of Westminster22? If this such exceptionalism? Or will they de- were done, does the constitutional mand references to the other values amending provision of s128 of the Aus- evident in our history? Perhaps ‘mate- tralian Constitution apply at all? Or is ship’ would get another run. Perhaps it concerned only with amendment of the baggy green or the ANZAC spirit. the text of our part of the document? Once you start altering a constitution, Have the Australia Acts of 198623 pro- the plethora of interest groups come vided to independent Australia a late out of the woodwork demanding that Imperial legislative gift to allow us to their interests be acknowledged. And change the Imperial statute and to in- in the background, the hard-nosed sert a new preamble respecting the practical people of local government Aboriginal people? Would we do so will be pressing their claims and de- anyway, as a matter of politics, with- manding their special recognition. out a referendum? And on such a mat- ter, would an affirmative vote be re- quired in every State, and not just in a majority of States as s128 provides24? CONCLUSIONS: SECURING A NEW PEACE If there are any doubts about these These remarks show the complexity of

22 Cf. Attorney-General for Western the issues raised by the political prom- Australia v Marquet (2003) 217 CLR 545 at 571 [68]- ise to consider collaboratively “in- [69] per Gleeson CJ, Gummow, Hayne and Heydon digenous constitutional recognition”. JJ; contrast at 612-617 [202]-[215] of my reasons. 23 See Australia Acts 1986 (UK and Whilst great constitutional themes Commonwealth), s15(1). remain to be resolved, so do many ur- 24 Discussed Twomey, above n2, at 26- 27. gent tasks of day to day importance

21 to daily indigenous disadvantage: national standards. So are health levels and educational attain- ∗ The shockingly high rates of in- ments. The British with their carceration of indigenous people huge Empire had a much better in Australia’s prisons25, where record in securing graduate and Aboriginal and Torres Strait Is- post-graduate recognition and landers constitute 26% of the advancement of colonial people full-time prisoner population than we have yet attained. Ne- whilst being only 2.5% of the glect and indifference were the total population. They suffer a companions of White Australia. fourteen times higher imprison- Despite many fine efforts, and ment rate than non-indigenous high hopes, the situation remains people. They represent 2,208 one of shocking disadvantage; members of their ethnicity per 100,000 of the adult popula- ∗ The high hopes that the Mabo tion, surely one of the highest case27, following Koowarta v Bjel- such proportions in the world; ke-Petersen,28 provoked29, that land rights would alter the eco- ∗ The lack of after-care and support nomic dynamics of indigenous for indigenous prisoners produc- Australians, have only partly been es serious risks of breakdown, fulfilled. Other cases and laws return to prison and post-release have taken away what was given, suicide. This is a reason why we including by insisting on a burden should be addressing substance of proving links to the land that and not just words. Judges and is sometimes hard to discharge lawyers know this. They should in the absence of records and inform their fellow citizens26; documents30. Contrast the way, ∗ Housing levels for indigenous in a stroke, the New Zealand Par- people are seriously below the liament has changed this in that country, under a conservative 25 Indigenous prison rates were set government, by reversing the out Sydney Morning Herald, News Review, 18 June 2011, 3. necessary burden of proof. See 26 Stuart Kinnear (Burnet Institute, Melbourne, July 2011, reported in Medical Journal 27 Mabo v Queensland [No.2] (1992) of Australia): Death rates amongst newly released 175 CLR 1. prisoners in Australia are ten times higher than 28 (1982) 153 CLR 168 amongst inmates sentenced to non-custodial pun- 29 Reinforced by Wik Peoples v ishments with one-third of deaths occurring in the Queensland (1996) 187 CLR 1. first four weeks after discharge. The Australian 18 30 Yorta Yorta Aboriginal Community v July 2011, 3. Victoria (2002) 214 CLR 422.

22 Marine and Coastal Area (Takutai Moana) Act 2011 (NZ), s106(3). A At the beginning of the AIDS epidemic, similar proposal was lately made a remarkable international civil servant, in Australia by former Prime Min- Jonathan Mann, taught the world and ister Keating31. It is well past time me a vital lesson. It was that necessary for such a law. Without economic actions of high moment and moral pur- change and responsibility, social pose will only succeed if we engage, con- progress will remain pitifully slow. sult and respect those in the front line. ∗ Even in a simple matter like the The countries that followed Mann’s ad- preservation of a unique artistic vice in this respect, including, with bi- collection of a fine Aboriginal art- partisan support, Australia, made prog- ist, Gordon Syron, disrespect is all ress in tackling the challenge of HIV. too evident. Where is the indige- Those that did not have suffered grim nous museum at Circular Quay or consequences which are continuing. Federation Square in Melbourne? A nation that truly respected its in- digenous people would not leave We can derive a lesson in the present the preservation and advance- context from this experience. The be- ment of their culture solely to the ginning of wisdom in a constitutional vicissitudes of the private sector. recognition of Australia’s indigenous peoples must be to ask them what they want. What is important to them? So can we find a formula of words for What will help them to heal the wrongs a constitutional preamble? And would of the past with which we began the it be accompanied as late time with a modern story of Australia? What will swift re-assurance, to gain the votes herald a new beginning? Whilst the of the sceptical, that it would have constitutional text belongs to all Austra- no legal effect anyway? If so, what lians, the beginning of the journey that is the point? These are the complex we must make belongs with the indige- questions that the Australian peo- nous people, who were in this land first. ple must consider. They do not be- come less complex by glossing over the difficulties or by ignoring the his- If our constitutional alteration is in- tory precedes the current debates. formed by this approach, we may make progress. Otherwise, we are in danger 31 P.J. Keating, Lowitja O’Donoghue Lecture 2011, reported The Australian, 1 June 2011, of yet another failure, compounding 3; Sydney Morning Herald, 1 June 2011, 15.

23 the wrongs of the past with new wrongs inflicted in the present. In the end, con- stitutional words are important; but they are not enough. A new attitude of mind and heart is necessary. In the log- jam of Australian politics, and its often ‘toxic’ media, change will be difficult to attain. Perhaps any constitutional changes should be postponed to a later time as a number of indigenous leaders have recommended. But this difficulty is our challenge. The spirit of our coun- try will not be at peace until this chal- lenge is met and properly answered.

24 25 With limited exceptions, the Australian Implying Human Constitution is not a rights-based doc- Rights in s 51A: ument (unlike other jurisdictions such as America); it is procedural in nature Going Beyond and establishes the manner in which Indigenous Australia is to be governed. On its face, the recommendations submitted in Recognition in the the Expert Panel’s Report1 do little to Constitution? provide Aboriginal and Torres Strait Islander peoples with express rights (with the exception of s 116A, prohibit- ELLEN JOY ing racial discrimination) and give the impression of adhering to the proce- Intern dural nature of the Constitution. The Constitutional recommendations appear to embrace the task of creating a positive presence Reform Unit of Indigenous Australians in the Consti- tution, through the recognition of cul- tures, languages and relationship with The notion of altering the Constitu- the land and sea, without necessarily tion to recognise Aboriginal and Torres proscribing any rights to ownership or Strait Islanders has achieved the im- any other kind of entitlements. How- portant milestone of gaining bipartisan ever, it must be questioned whether support from the major Australian po- the recommended provisions - par- litical parties. However, the discussion ticularly s51A – would be capable of must now move to consider the practi- implying rights to Aboriginal and Tor- cal implications of the Expert Panel’s re- res Strait Islander peoples and subse- port on the Constitutional Recognition quently curtailing the legislative power. of Aboriginal and Torres Strait Islander Peoples: what is meant by ‘recognition’, and what rights (if any) are to be estab- Section 51A is a replacement pro- lished in the Constitution? The issue of vision for s 51(xxvi), also known as Indigenous rights - established or im- the ‘race power’ which enables the plied - through recognition is likely to be one of the most contentious issues and 1 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal may pose a threat to bipartisan support. and Torres Strait Islander Peoples in the Constitu- tion (January, 2012), pp 150-1. 26 Parliament to legislate ‘special laws’ for enabling Parliament to enact legisla- the people of any race as deemed nec- tion ‘with respect to Aboriginal and essary. Although Aboriginal and Torres Torres Strait Islander peoples.’ At first Strait Islander peoples were originally appearance, this power does not es- expressly excluded from this provision tablish any rights for Indigenous Aus- (a distinct indication that the framers tralians beyond the right to have laws of the Constitution did not consider made with respect to them. However, native Australians to be part of the na- both the structure of the preamble tion and a ‘problem’ for the States), the and the phrasing of the power in s51A 1967 referendum removed this exclu- may in fact guide the Court’s inter- sion to enable the Federal Government pretation and imply rights into s 51A. to legislate to overcome Indigenous disadvantage.2 However, there is no restrictive element to s51 (xxvi) to pre- Firstly, the power is one with respect vent discriminatory legislation being to ‘peoples’ rather than ‘people’ as enacted. It is therefore recommended appears in s 51 (xxvi). Whilst this may by the Expert Panel that s 51(xxvi) be be interpreted literally to mean that repealed, and the combined insertion Parliament may only legislate with re- of s 51A and s 116A (to prevent dis- spect to Aboriginal and Torres Strait Is- criminatory laws) will enable Parlia- lander groups (such as the Wik or Gadi- ment to only enact advantageous laws gal peoples), there is also a possibility with respect to Aboriginal and Torres that ‘peoples’ could be interpreted in Strait Islanders3 (although the prac- its international sense. Under interna- tical impact of this is questionable). tional law, ‘peoples’ have a right to self- determination,4 which could be imput- ed into the power of s 51A. Secondly, Section 51A contains a preamble rec- the structure of the preamble contains ognising connection to land, culture striking similarities to the preambles and the need for the advancement of International Declarations and Con- of Aboriginal and Torres Strait Island- ventions (all signed and ratified by ers. It also contains a head of power, Australia) such as the United Nations Charter of Human Rights, Declaration 2 Robert French, ‘The Race Power: A Consti- tutional Chimera’ in H.P. Lee and George Winterton on the Rights of Indigenous Peoples (eds), Australian Constitutional Landmarks (2003) (DRIP), International Convention on 180- 212. Civil and Political Rights (ICCPR) and the 3 See Expert Panel on Constitutional Recogni- tion of Indigenous Australians, Recognising Aborigi- nal and Torres Strait Islander Peoples in the Consti- 4 Jane Stratton, ‘International Law’ (2009). tution (January, 2012), pp 150-1. Hot Topics; Legal Issues in Plain Language, pp 10.

27 International Convention on Economic form self-determination is to take.8 and Social and Cultural Rights (ICESCR). Despite this, there is some consensus If the Court looks to the preamble for that indigenous peoples can constitute guidance in interpreting the power in a ‘peoples’9 in the international sense s51A- a premise the Expert Panel re- and have the subsequent right to ‘inter- lies upon to curtail of legislative power nal’ forms of self-determination.10 This to restrict to laws of ‘advancement’5– means the right to freely determine what is the impact of this similarity, political status and pursue econom- if any? Could it be used as further ic, social and political development,11 evidence that ‘peoples’ is to be in- which may be evidenced by Indigenous terpreted in the International Sense? territories, recognition of language, or the creation of Indigenous govern- ing bodies. It is conceivable that Ab- The Conventions and Declarations original and Torres Strait Islander peo- mentioned above all affirm the right of ples may be deemed a ‘peoples’ in a peoples to self-determination.6 Addi- the international sense and have the tionally, the right is also considered jus aforementioned rights implied into cogens, meaning that it is a principle of s 51A. However, there are a number international law that is to be obeyed of considerations to be taken into ac- at all times.7 However, the meanings of count before reaching this conclusion. both ‘peoples’ and ‘self-determination’ are (deliberately) vague under interna- tional law and there is some debate as At the outset, the Court may choose to who constitutes a people and the to take a textual approach to interpret- ing s 51A. The Court may simply look 5 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal to the power in the provision and con- and Torres Strait Islander Peoples in the Constitu- clude that ‘peoples’ is a reference to tion (January, 2012), pp 150-1. 6 See United Nations Charter, Article 1(2), Article 55; International Covenant on Civil and 8 Stratton, as above n 4. Political Rights, Article 1(1) and 1(3); International 9 Aleksander Pavkovic and Peter Radan, ‘In Covenant on Economic, Social and Cultural Rights, Pursuit of Sovereignty and Self-Determination: Article 1(1) and 1(3); Declaration on the Rights of Peoples, States and Secession in the International Indigenous Peoples, Articles 3, 4 & 5. Order’ (2003) Macquarie Law Journal 1 at 6 July 2012. for The International Kashmir Peace Conference: 10 Joshua Castellino, and Jeremie Gilbert, Beyond the Blame Game, Association of Humani- ‘Self-Determination, Indigenous Peoples and tarian Lawyers, presented 24 July 2003, United Minorities’(2003) Macquarie Law Journal 8 ‘ at 6 July 2012. org/kashmirself.html > at 6 July 2012. 11 Stratton, as above n 4.

28 the multiplicity of indigenous identities Indian peoples and does not incorpo- and clans in Australia and is therefore rate the international definition.16 Con- to be applied to peoples such as the versely, Russia’s Constitution expressly Wik or Eora peoples. Although quash- provides that its indigenous peoples ing the issue of implied rights from in- shall have the same rights as provid- ternational law, interpreting ‘peoples’ ed under international law,17 although in this manner may create subsequent subsequent cases have restricted rights issues in defining membership to a to self-determination.18 International particular group, and may also cre- comparisons appear to suggest that ate issues for legislation that targets there is a tendency to view ‘peoples’ as members within a group (for example, recognition of diversity within a territo- women) rather than an entire people. ry, rather than imputing the internation- al definition, which may subsequently enable rights to self-determination. However, the Court may find am- The Court may also look to the Con- biguity in the power and therefore vention Debates to ascertain the in- look to other sources to determine tended purpose of a constitutional meaning. The Court is then able to provision. The High Court held in Karti- consider not only the preamble in s nyeri19 that the people’s vote in a ref- 51A, but also parliamentary debates, erendum did not necessarily change comparative international jurispru- the purpose of an amended provision dence and international instruments in the Constitution. However, it must such as treaties and conventions. be noted that s 51A is not an amended Indigenous ‘peoples’ are recognised provision, but an entirely new one. In in the Constitutions of a number of interpreting the meaning of a provi- other jurisdictions, such as Canada,12 sion, the Court may look to the Con- 20 Columbia,13 Ecuador,14 and Russia.15 vention Debates, where the modern However, in many instances, ‘peoples’ is defined within the Constitution to re- 16 See Canadian Constitution Article 35(2) and subsequent definitions in R. v. Powley, [2003] 2 flect the diversity of indigenous back- S.C.R. 207, [2003 SCC 43]. grounds. For example, Canada defines 17 Constitution of the Russian Federation, ‘peoples’ to mean the Inuit, Metis and Article 69. 18 Ger P van den Berg, ‘Constitution of the Russian Federation Annotated 1990-2001’(2003) 12 Articles 35(1) and (2). Review of Central and East European Law (2003) 13 Article 246. (3/4) 273-653, 277. 14 Articles 2, 10, 11(7), 38, 56, 57, 60, 71 and 19 Kartinyeri v The Commonwealth (Hind- 74. marsh Island Bridge Case) [1998] HCA 22. 15 Article 69. 20 Cole v Whitfield (1988) 165 CLR 360.

29 equivalent would be understood as tive principle’ of interpreting ambigu- Parliamentary Second Reading Speech- ous provisions in the Constitution in es. Although there are currently no rel- the light of universal rights principles.22 evant speeches to examine, the focus Therefore, ordinarily, international in- of the Expert Panel’s report and poor digenous rights would not automati- community attitudes towards Indige- cally curtail the issue of Indigenous nous self-determination and sovereign- recognition. However, the similarity of ty suggest it is highly unlikely the Par- the s 51A preamble to the preambles liament will illustrate such a purpose of the international instruments may in a second reading speech. However, be regarded as an indicator that the note ought to be taken of the poten- High Court is to consider international tial importance of the Second Read- documents (and subsequent rights). ing Speech to ensure it is drafted with This view would be further supported specificity to reflect the actual inten- by the Court’s jurisprudence regarding tion of the Nation in recognising Indig- implying rights into the Constitution, enous Australians in the Constitution. namely that any implication must be Although the jurisprudence previously based upon the terms and structure of 23 mentioned may suggest that implied the Constitution itself. Thus the term rights from s 51A are unlikely to be an ‘peoples’ and the similarity of structure issue, the structure of the preamble of the preamble may be seen as a refer- may hold more legal sway than first ap- ence implying the definition and rights pears. The preamble mirrors the struc- of a ‘peoples’ under international law. ture and phrasing of the preambles of the ICCPR, ICESCR, and DRIP; docu- ments that all affirm the right to self- If these rights were imputed, it would determination.21 Although the wording not only curtail legislative power, but itself is not the same, each element of may also create a platform for advocacy the s 51A preamble (such as recogni- for Aboriginal and Torres Strait Islander tion of occupation of land, culture, lan- peoples to pressure Parliament into guage and continuing relationship) be- creating legislation (for example cre- gins in the same format of ‘recognising’, ating an Indigenous governing body). ‘acknowledging’, or ‘respecting’ as is Whilst these outcomes are not neces- found in the international instruments. sarily negative, it is certainly prefer- The relevance of this similarity could be able for Parliament and the Australian significant. Historically, the High Court 22 Newcrest Mining (WA) Ltd v Common- has rebuffed Justice Kirby’s ‘interpreta- wealth (1997) 190 CLR 513. 23 McGinty v Western Australia (1996) 186 21 Ibid 6. CLR 140, McHugh at 295. 30 community to reach some kind of un- derstanding as to the rights intended to be conferred through the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. Further, considered argument will also assist in creating a more informed and balanced Second Reading Speech, which may in- form the Court of the intended purpose of s 51A. Whilst there is agreement that there ought to be recognition of Aboriginal and Torres Strait Islander peoples in the Constitution, greater dis- cussion is required surrounding what is meant by recognition. This will ensure that the rights entrenched are not only those intended, but will also create firmer pathways to greater acceptance and valuing of Australia’s first peoples.

31 hastily implemented intervention. Why We Need Now, we champion responsibility and Constitutional engagement in the real economy. Talk of ‘rights’ has these days Reform: Recognition become somewhat unfashionable. and Equality Significantly, we heard the National Apology in 2007. The apology was an important step in the process of reconciliation. SHIREEN MORRIS But what was the next step? Usually, when you apologise to Cape York Institute someone for a wrong you have done him or her, the next step in the process of reconciliation is to acknowledge a change of attitude and behaviour – and to make a steadfast guarantee that Indigenous Australians have been the wrong will not be repeated. After subject to extreme changes in an apology, if that apology is to have the settlers’ attitudes towards any real meaning, there should come a them since the first ships arrived. reciprocal promise. The next step after We have gone through the period of our National Apology was for Australia colonisation and deep discrimination; to make the promise that the wrongs of massacres, and missions, of so- of the past, the racial discrimination called ‘protection’, of ‘civilisation’ and and the related denial of personhood Stolen Generations. We then took the and peoplehood that Indigenous rights and self-government approach. Australians suffered, will never We had Mabo, we recognised land happen again – to any human being. rights. There were pushes for cultural As a sovereign state, we are autonomy and self-determination. We yet to make that guarantee. then realised that we had inadvertently formed ‘outback ghettos’ which were Today, Indigenous affairs in Australia drowning in booze and violence. Our remain fraught. Each of the political reaction then was a swift swing back trends Australia has gone through towards ‘practical reconciliation’ and has proven to be successful in some

32 ways, but quite unsuccessful in others. mercy of political fluctuations.1 Initial discriminatory practices which We have yet to agree upon the denied equal pay, denied the vote and correct principles that should guide denied Indigenous existence, excluded our endeavours in Indigenous affairs. Indigenous people from the nation and from the real economy. These past Constitutional reform – an opportunity approaches arguably began the poverty, to agree on the right principles dependency and exclusion amongst Last year the government put together Indigenous Australians that, despite an Expert Panel to address the complex our best intentions, persist today. question of how to recognise Indigenous But more recent ‘special treatment’ Australians in the Constitution. This approaches, informed by politically question has provided us with an correct ideas of cultural relativism, have opportunity to look at our failures often inadvertently further entrenched and successes, and to decide on the exclusion and poverty, and in some cases correct basis for the relationship exacerbated dysfunction. The political between Indigenous Australians and push for Indigenous self-determination other Australian citizens going into the resulted in a misguided cultural future. It is our opportunity to agree sensitivity which has led to a lack of law on the right approach. At Cape York and order in Indigenous communities, Institute our thinking on this issue is and in some cases, a discriminatory evolving, but we have approached disregard for the Indigenous victims the problem in the following way. of crime and violence. Under this Of the many problems Australia still approach, Indigenous Australians were faces with regards to Indigenous affairs, also denied the equal protection and two problems are of utmost importance. benefit of the law. Whether adverse discrimination or well intentioned One, Indigenous Australians still positive discrimination, neither suffer disproportionate levels of approach was on the basis of equality. disadvantage in Australia. They do not share in Australia’s wealth, and suffer Today, policies to address Indigenous disproportionately poor health and disadvantage are still implemented wellbeing outcomes. Despite our best in haste as responses to various states of emergency. Knee-jerk reactions abound, and the wellbeing 1 Marcia Langton, ‘The Australian federalism and race: the special cases of Queensland and the of Indigenous Australians remains, Northern Territory’; Patrick Dodson, ‘Laws detri- as it has since colonisation, at the mental to Aborigines will diminish the nation’, The Australian, 7 April 1998.

33 targeted efforts, Indigenous Australians It was drafted, as Dodson has argued, still do not enjoy substantive equality “in the spirit of terra nullius.”2 in Australia. The gap is far from closed. Australia must now attend to The second problem is just as pressing. these constitutional deficiencies. Indigenous Australian cultures and Why we need reform languages continue to disappear. They are not shared with or enjoyed There are two reasons why we by other people in the world. need constitutional reform in Indigenous Australian first nations’ Australia: recognition and equality. peoplehood is threatened. Australia’s 1. Recognition Indigenous culture is a supressed part of our Australian identity. The Expert Panel’s terms of reference refer to Indigenous constitutional The question of constitutional ‘recognition’. But what does recognition reform to recognise Indigenous of Indigenous people actually mean? Australians provides us with an opportunity to address these Arguably recognition means problems – or at least to agree on acknowledgement of distinct identity the right principles for tackling them. and peoplehood. Historically, Indigenous people have been In considering the issue we must ask: systematically excluded or ignored has the Australian Constitution created in Australia’s Constitution. The 1967 a structure which enables Indigenous referendum removed the explicit Australians to achieve socio-economic exclusion of Indigenous people from parity in this country? And has it the Constitution. It amended the allowed for Indigenous Australian exclusionary wording of the s51 cultures and languages to prosper, and (xxvi) ‘Race Power’, thereby including to be enjoyed by all Australians? The Indigenous people within its scope. It answer to both these questions is no. also removed s127 of the Constitution Why hasn’t the Constitution enabled which was a provision disqualifying Indigenous socio-economic and Indigenous people from being counted cultural prosperity and equality within in the official Census. But the 1967 Australia? The answer is, because it was not intended to. The Constitution 2 Patrick Dodson, Welcoming speech (Speech delivered at the Position of Indigenous People in was drafted deliberately excluding National Constitutions Conference, Canberra, 4 and ignoring Indigenous Australians. June 1993) quoted in B Attwood and A Markus, The 1967 Referendum: Race, Power and the Australian Constitution (2nd ed, 2007), pp 146-147.

34 reforms did not include any positive This historical truth needs to be stated. mention of the Indigenous history But there are also practical reasons why preceding colonisation and federation.3 Indigenous constitutional recognition Ironically, 1967 turned explicit is necessary. Constitutional recognition exclusion of Indigenous people will help to change the country’s attitude into a constitutional silence, towards our Indigenous heritage. perpetuating a myth of Indigenous Indigenous languages and cultures are non-existence.4 This non-mention of fast disappearing. Before colonisation the prior and continuing existence of there were 250 distinct Indigenous Indigenous people can been seen as Australian languages, and 600 an enduring assertion of terra nullius.5 dialects.7 Most of these are no longer spoken.8 While approximately 100 Terra nullius was wrong because it denied Indigenous languages still exist in that Indigenous people existed, or some form,9 90% are near extinction.10 asserted that Indigenous people lacked The 2009 Social Justice Report the social and political organisation to predicts that “without intervention warrant equal treatment or recognition. the language knowledge will cease The Mabo decision overturned the to exist in the next 10 to 30 years.”11 presumption of terra nullius as a fallacy in Australia.6 It is therefore Our national attitude needs to change important that Australia’s Constitution from one of shame, to one of pride is modernised to align with our social, and celebration, if we are to save our political and legal values. We need to Indigenous cultures and languages recognise the fact that Australia was from extinction. This would be a loss for not terra nullis when the British arrived. all people. Our Indigenous cultures and languages are the heritage of Australia, 3 Shireen Morris, ‘Indigenous constitutional recognition, non-discrimination and equality before the law: why reform is necessary’ (2011) 7(26) 7 Australian Human Rights and Equal Op- Indigenous Law Bulletin 7, 7. portunities Commission, Social Justice Report 2009 4 ‘Terra Nullius’ means land inhabited by no ‘Chapter 3: The perilous state of Indigenous lan- one, or inhabited by people without political or guages in Australia’, 57. social organisation. See ‘Terra Nullius’, Encyclopae- 8 Ibid. dic Australian Legal Dictionary (Lexisnexis Australia, 9 Australian Human Rights and Equal Op- 2004). portunities Commission, Social Justice Report 2009 5 Shireen Morris, ‘Indigenous constitutional ‘Chapter 3: The perilous state of Indigenous lan- recognition, non-discrimination and equality before guages in Australia’, 58. the law: why reform is necessary’ (2011) 7(26) 10 Suzanne Romaine, ‘Preserving endangered Indigenous Law Bulletin 7, 7. languages’ 1 (1-2) (2007) Language and Linguistics 6 Mabo v Queensland (No 2) (1992) 175 CLR Compass 115, 121. 1. 11 Ibid.

35 and should be recognised as such. Constitution, it did not get rid of the problematic concept of ‘race’. 2. Equality ‘Race’ is still the basis from which Recognising Indigenous people we approach Indigenous affairs. means recognising them as equal. Our Constitution still contains Reconciliation must proceed from section 51(xxvi), the ‘Race Power’, the understanding that Indigenous which gives Parliament the power people, and all Australians, are to pass special laws for particular equal – and importantly – that our races. It also still contains section discriminatory treatment of the past 25, a provision which contemplates was wrong and will not happen again. barring races from voting.13 Why does this require constitutional It is time these references to ‘race’ reform? were removed from the Australian The notion of ‘race’ has been entrenched Constitution. It is time we guaranteed in our Constitution since 1901, and has that every Australian is treated equally infected our legal thinking since then. before the law, without distinction, The ‘race’ approach was, and remains, preference or discrimination on the the wrong approach. It has not worked basis of ethnicity, colour or origin. until now to improve the situation of Indigenous people in Australia, and it will not work in the future. The need for a shift of focus in Indigenous affairs The notion of ‘race’ is a colonial construction, based on out-dated The incorrect focus on ‘race’ understandings of black people as has come to mean that policy in inherently inferior, and white people Indigenous affairs in this country is as superior. ‘Race’ as a concept constantly troubled by the insidious has now been discredited. Indeed, ‘soft bigotry of low expectations’ it is now widely understood that – an approach which has come to as a matter of science, there is expect and thus perpetuate welfare only one race – the human race.12 dependency, failure and victimhood amongst Indigenous Australians. While the 1967 reforms reversed Indigenous exclusion from the If we are ever to achieve substantive equality in Australia, Indigenous people 12 Shireen Morris, ‘Indigenous constitutional recognition, non-discrimination and equality before need to realise their own personal the law: why reform is necessary’ (2011) 7(26) Indigenous Law Bulletin 7, 9. 13 Ibid.

36 responsibility. Governments cannot thing as ‘race’. We understand deliver social uplift to a passive collective. the way Indigenous Australians Individuals need to take responsibility were treated in the past, on to avail themselves of the opportunities the assumption that they were Australia has to offer. The government ‘racially’ inferior, was wrong. We cannot do the work for you.14 now promise that this will not happen again, to any Australian. Personal responsibility will never be You can expect more of us and of realised if we keep treating Indigenous the Government. And the corollary Australians like a differentiated is, we can expect more of you. This collective, instead of as individuals. means taking responsibility. This Indigenous Australians must be means no more low expectations. held to the same expectations Indigenous people are equal, and responsibilities as everybody and we will treat you equally. else. They must be treated equally. But our expectations of you will This means that as a matter of also be equal. Equal rights will public policy and law, we need mean equal responsibilities.’ to shift the focus away from Conclusion targeting ‘race’, to targeting need. Constitutional reform should be Every individual should be judged on pursued, and it should implement his merits and assisted in his needs. the principles of recognition and A person’s ‘race’ should not entitle equality. Recognising Indigenous him to preferential treatment before people means recognising them, the law, nor should it subject him to and all Australians, as equal. adverse treatment. Special measures for groups of people should also We have spent too long oscillating be based on need, not ethnicity. from one knee-jerk reaction to the other, trying misguidedly to choose Through constitutional reform, and which approach is best – rights or through a successful referendum, responsibilities, cultural difference or the Australian people need to finally inclusion. We need to realise principles say in a unified, resounding voice: such as these are not contradictions, but ‘We understand that we are all complementary principles necessary equal, and that there is no such for the realisation of Indigenous and national wellbeing within a fair post- 14 See Noel Pearson, Up from the Mission – Selected Writings (Black Inc, 2009) (‘Our right to colonial democracy. Constitutional take responsibility’), 143-171.

37 recognition therefore needs to mean recognition of cultural heritage and inclusion on the basis of equality. Equal treatment before the law needs to mean equality in rights and equality in expectations and responsibilities. Noel Pearson has long advocated the quest for what he calls the ‘radical centre’: the ‘dialectical synthesis’ that is the correct policy position in between competing philosophical ideals, or for example, between the political left and the political right.15 Recognition and equality represent the ‘radical centre’ in terms of constitutional reform. These are the correct principles that will enable us to become what we have for so long been trying to be: a reconciled indivisible democratic sovereign state, shared by the Non- Indigenous Australian and Indigenous Australian peoples of this land.

Shireen Morris is the Constitutional Reform Research Fellow at Cape York Institite for Policy and Leadership. The views expressed in this article are the author’s and do not necessarily represent the views of the Institute.

15 Noel Pearson, ‘White guilt, victimhood and the quest for the radical centre’, Up from the mis- sion – selected writings, 219-262.

38 2. at a referendum, passed by a Winning the majority of the people as a whole, Referendum to and by a majority of the people in Recognise Aboriginal a majority of the states. Peoples in the Since Federation in 1901, 44 Constitution referendum proposals have been put to the Australian people with only eight of those succeeding. Significantly, PROFESSOR no referendum has been passed by the people since 1977 when Australia GEORGE WILLIAMS voted, among other things, to set a retirement age of 70 years for High Faculty of Law Court judges. As at 2011, 34 years have passed since Australia changed University of New its Constitution. At around one-third of South Wales the life of the nation, this is by far the longest period that Australia has gone without amending its Constitution.

There is a major hurdle standing in the way of the attempt to change the In our book People Power: The History Australian Constitution to recognise and Future of the Referendum in Aboriginal peoples: the change can Australia, David Hume and I examine only be made by way of a referendum. Australia’s record of failed and successful The process as set out in s 128 of referendums in detail, and ask how this the Constitution requires that the experience might be applied to hold amendment be: referendums with greater prospects of success. We conclude that Australia must avoid repeating, yet again, the 1. passed by an absolute majority same past mistakes, and that there are of both Houses of the Federal realistic prospects that the Australian Parliament, or by one House people will vote Yes if a referendum twice; and is approached in the right way. To win the coming referendum on Indigenous

39 recognition, the process should be dissatisfaction in a way that does not based upon the following pillars. threaten the government’s hold on power. State-level parties can also find it easy to oppose a proposal. They 1 Bipartisanship can have strong political incentives to champion local State interests over Bipartisan support has proven to the national interest, without any be essential to referendum success. imperative to secure support from the Referendums need support from the residents of other States. major parties at the Commonwealth level. They also need broad support When it comes to Indigenous from the major parties at the state level. recognition, the need for bipartisanship The history of referendums in Australia is no less apparent. It is highly unlikely provides many examples of proposals that any referendum on the topic could defeated by committed opposition succeed without the support of each of from a major party at either level. This the major parties. An advantage in this has been a particular feature of failed respect is that the reform has not only referendums put by the Australian had the support for some time of the Labor Party. Its proposals have tended Australian Labor Party, but also of the to be opposed by either or often both Coalition. In fact, the Coalition has done of the Opposition and the States. more than any other party over recent years to address this issue, including The proponents of constitutional through Prime Minister John Howard’s reform have long known of the need championing of a new preamble at the for bipartisan support. The challenge 1999 referendum and his advocacy for has always been how to achieve it. It constitutional change to bring about is very easy for a federal Opposition Indigenous recognition in the lead up to campaign against a referendum. to the 2007 election. Defeating the government at such a poll not only stymies the government’s 2 Popular ownership agenda, but can inflict lasting electoral damage. In this way, referendums can Just as deadly as partisan opposition operate like by-elections. They can be is to constitutional reform is the a useful means for an Opposition to perception that a reform idea is a generate a negative public reaction ‘politicians’ proposal’. From the 1967 to the government. Equally, they nexus proposal, which was felled by can enable voters to indicate their the cry of ‘no more politicians’, to

40 the Republic referendum, which was popular case. This will need to be killed off by the claim that it was the remedied if the referendum is to have ‘politicians’ republic’, Australians have the best chance of success. By polling consistently voted No when they believe day, the referendum proposal needs a proposal is motivated by politicians’ to have a strong connection to both self-interest. This reflects a well-known the Indigenous and broader Australian undercurrent of distrust of politicians community. by Australians. The constitutional design of Australia’s reform process 3 Popular education exacerbates this problem. Politicians, and only politicians, can initiate Surveys of the Australian public constitutional reform through the show a disturbing lack of knowledge Federal Parliament. This renders every about the Constitution and Australian referendum proposal at risk of being government. Rather than being engaged perceived as self-serving, especially and active citizens, many Australians of those interests aligned with the know little of even the most basic Commonwealth. aspects of government. This is often a reflection of the fact that disengaged A problem with the coming referendum citizens tend to have less knowledge on Indigenous recognition is that it is about their system of government not born out of a peoples’ movement and any reform being proposed. The like that which led to the very successful problem has been demonstrated over referendum in 1967 on eliminating many years. For example: discrimination towards Aboriginal people from the Constitution. The • A 1987 survey for the current referendum has instead arrived Constitutional Commission found on the national agenda after a high level that almost half the population political deal between the governing did not realise Australia had a Australian Labor Party and Greens and written Constitution, with the Independent members, whose support figure being nearly 70 per cent of in a hung Parliament enabled the Australians aged between 18 and Gillard government to retain power. As 24. a result, this referendum as yet lacks a • The 1994 report on citizenship strong community base. There is also no by the Civics Expert Group found dedicated campaign organisation, like that only one in five people had the Australia Republican Movement some understanding of what the on the republic issue, to argue the Constitution contained, while

41 more than a quarter named was a popular myth that an apology the Supreme Court, not the to the Stolen Generations would give High Court, as the ‘top’ court in rise to a large volume of legal cases for Australia. compensation. This is included myths such as that an apology to the Stolen These problems can be telling during Generations would necessarily give a referendum campaign. A lack of rise to a legal case for compensation by knowledge, or false knowledge, on them. The community needs sufficient the part of the voter, can translate information about Indigenous into a misunderstanding of a proposal, recognition so that scare campaigns a potential to be manipulated by can be headed off, and so that voters the ‘Yes’ or ‘No’ cases and even an can feel confident in embracing the unwillingness to consider change on change. the basis that ‘don’t know, vote ‘No’ is the best policy. 4 Sound and sensible proposal

Overall, the record shows that when As important as it is to get the process voters do not understand or have no of generating proposals right, it is opinion on a proposal, they tend to vote equally important to get the proposals ‘No’. Polls from the 1999 referendum themselves right. A major weakness in showed that many people had not Australia’s referendum record to date read the official pamphlet distributed is that attempts at reform have been by the Commonwealth to explain the dominated by what have been (often proposals, and that people who had not rightly) perceived by the population to read the pamphlet were far more likely be grabs for extra federal power. to vote ‘No’. Polling in the lead-up to the 1967, 1977 and 1988 referendums Constitutional change is easiest when also suggested that those who did it codifies a principle that has already not know which way they would vote been tried and tested. This has long been shortly before the referendum swung acknowledged in the United States, heavily into the ‘No’ column on the day where national constitutional reforms of the vote. have often followed constitutional or legislative change in a majority of the Misinformation and misunderstanding States, thereby giving people the time has often beset a range of important to assess new ideas on a smaller scale. initiatives designed to benefit Indigenous peoples. For example, there The Australian States can play a

42 particular role here. Successful State occupants of the land in New reform, such as the recent recognition South Wales: of Indigenous peoples in several State (a) have a spiritual, social, constitutions, makes the effects of cultural and economic national constitutional change much relationship with their less of an unknown. It makes change traditional lands and incremental, rather than abrupt. It waters, and can also turn those States that have adopted the reform (and people in (b) have made and continue those States) into advocates of the to make a unique and lasting reform. The States are a logical place contribution to the identity to ‘test’ potential nationwide reforms. of the State. (3) Nothing in this section creates This coming referendum has the any legal right or liability, or gives advantage of symbolic recognition of rise to or affects any civil cause Indigenous peoples already having of action or right to review an been achieved in some of the Australian administrative action, or affects States. Victoria and then Queensland the interpretation of any Act or brought about this reform to their law in force in New South Wales. Constitutions by way of a simple act of Parliament. New South Wales is the most recent State to do so. The change The sole addition of a new preamble made in 2010 to the New South Wales to the Australian Constitution will not Constitution takes the form of a new likely be sufficient to amount to a sound section 2. It states: and sensible proposal. Australians will be reluctant to vote for symbolism alone, and are more likely to support Recognition of Aboriginal people something practical and substantive. (1) Parliament, on behalf of the Only adding a new preamble would people of New South Wales, also suffer from the problem that it acknowledges and honours the would likely contain positive words Aboriginal people as the State’s that run counter to the actual text of first people and nations. the Constitution. It will be legally and (2) Parliament, on behalf of the symbolically incoherent to recognise people of New South Wales, Aboriginal Australians while at the recognises that Aboriginal people, same time maintaining provisions in as the traditional custodians and the Constitution in ss 25 and 51(26)

43 that allow them to be discriminated against on account of their race. This has been developed from ‘How to Win the Referendum to Recognise Indigenous Peoples in the Australian Conclusion Constitution’ Indigenous Law Bulletin, Vol 7 Issue 25, July / August 2011, 18.

Australia’s long record of past failed attempts at constitutional reform do not mean that winning a referendum today is ‘mission impossible’. Instead, it shows that we should expect a referendum to fail whenever our major political parties disagree, or when poor management means that the Australian people feel left out or confused about what is being changed. People will also vote ‘No’ to a proposal that is dangerous or has been poorly thought out.

These points suggest a path to winning the referendum. Reform of Australia’s Constitution to recognise Indigenous peoples is achievable. Despite the pessimism that often pervades the idea of holding a referendum in modern Australia, the vote can be won. If nothing else, we should not forget the achievement of the 1967 referendum which deleted some discriminatory references to Aboriginal people from the Constitution. Not only was that referendum passed, the ‘Yes’ vote reached a record high in securing over 90 per cent support from the Australian people.

44 and its islands now known as Appendix: Australia were first occupied by Recommendations for Aboriginal and Torres Strait Is- Changes to the lander peoples; Acknowledging the continuing Constitution and on relationship of Aboriginal and the Process of Torres Strait Islander peoples with their traditional lands and Referendum waters; Respecting the continuing cul- Expert Panel on tures, languages and heritage of Aboriginal and Torres Strait Is- Constitutional lander peoples; Recognition of Acknowledging the need to Aboriginal and secure the advancement of Ab- original and Torres Strait Islander Torres Strait peoples; Islander Peoples the Parliament shall, subject to this Constitution, have power to make laws for the peace, order Recommendations for and good government of the Changes to the Constitution Commonwealth with respect to Aboriginal and Torres Strait Is- The Panel recommends: lander peoples. 1 That section 25 be repealed. The Panel further recommends that the repeal of section 51(xxvi) 2 That section 51(xxvi) be repealed. and the insertion of the new ‘sec- 3 That a new ‘section 51A’ be inserted, tion 51A’ be proposed together. along the following lines: 4 That a new ‘section 116A’ be insert- Section 51A Recognition of ed, along the following lines: Aboriginal and Torres Strait Section 116A Prohibition of Islander peoples racial discrimination Recognising that the continent (1) The Commonwealth, a State 45 or a Territory shall not discrimi- 11). nate on the grounds of race, co- b. Before making a decision to lour or ethnic or national origin. proceed to a referendum, the (2) Subsection (1) does not pre- Government should consult with clude the making of laws or the Opposition, the Greens and measures for the purpose of the independent members of overcoming disadvantage, ame- Parliament, and with State and liorating the effects of past dis- Territory governments and oppo- crimination, or protecting the sitions, in relation to the timing cultures, languages or heritage of of the referendum and the con- any group. tent of the proposals. 5 That a new ‘section 127A’ be c. The referendum should only inserted, along the following lines: proceed when it is likely to be supported by all major political Section 127A Recognition of parties, and a majority of State languages governments. (1) The national language of the d. The referendum should not be Commonwealth of Australia is held at the same time as a refer- English. endum on constitutional recogni- (2) The Aboriginal and Torres tion of local government. Strait Islander languages are the e. Before the referendum is held, original Australian languages, a there should be a properly re- part of our national heritage. sourced public education and awareness program. If necessary, legislative change should occur to allow adequate funding of such a Recommendations on the program. Process for the Referendum f. The Government should take a. In the interests of simplicity, steps, including through commit- there should be a single referen- ment of adequate financial re- dum question in relation to the sources, to maintain the momen- package of proposals on consti- tum for recognition, including the tutional recognition of Aboriginal widespread public support estab- and Torres Strait Islander peoples lished through the YouMeUnity set out in the draft Bill (Chapter website, and to educate Austra- 46 lians about the Constitution and the importance of constitutional recognition of Aboriginal and Torres Strait Islander peoples. Reconciliation Australia could be involved in this process. g. If the Government decides to put to referendum a proposal for constitutional recognition of Ab- original and Torres Strait Islander peoples other than the proposals recommended by the Panel, it should consult further with Ab- original and Torres Strait Islander peoples and their representative organisations to ascertain their views in relation to any such al- ternative proposal. h. Immediately after the Panel’s report is presented to the Prime Minister, copies should be made available to the leader of the Opposition, the leader of the Greens, and the independent members of Parliament. The re- port should be released publicly as soon as practicable after it is presented to the Prime Minister.

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