A NATIONAL CONVERSATION ABOUT ABORIGINAL and TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION Discussion Paper

A NATIONAL CONVERSATION ABOUT ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION Discussion Paper . May 2011 A NATIONAL CONVERSATION ABOUT ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION Discussion Paper . May 2011

CONTENTS

1. Introduction 5 A Constitution for the people 5 The benefits of constitutional recognition 6 Gathering momentum for change 7 2. Background to the Australian Constitution 9 How does a referendum work? 9 3. Why is recognition important? 10 Reflecting who we are as a nation 10 Eliminating racial discrimination in our Constitution 10 4. Why change the Constitution? 12 Acknowledging Aboriginal and Torres Strait Islander cultures 12 Improving health and wellbeing 12 National identity 12 5. The challenges of constitutional reform 14 Multi-party support 14 Community education on the need for change 14 Ownership by the people 15 6. Principles guiding the Panel 16 7. Some ideas for change 17 Statements of Recognition/Values 17 Idea 1 Statement of Recognition in a preamble 17 Idea 2 Statement of Recognition in the body of the Constitution 17 Idea 3 Statement of Values in a preamble 17 Idea 4 Statement of Recognition and Statement of Values in the body of the Constitution 17 Equality and non discrimination 18 Idea 5 Repeal or amendment of the ‘race power’ 18 Idea 6 Repeal of Section 25 19 Constitutional agreements 19 Idea 7 Agreement-making power 19 Questions for consideration 20 8. The Panel 21 9. hOW you can get involved 22 10. fURTher reading and relevant links 23 Books 23 Book chapters 23 Articles 23 Lectures and speeches 24 Reports 24 Other reading 11. Endnotes 26

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4 1. INTRODUCTION

Ten years ago Catherine Freeman carried This paper has been written to encourage the Aboriginal flag and the Australian flag all Australians to express their views on how together on her triumphant victory lap around to acknowledge Aboriginal and Torres Strait the Olympic Stadium. Her simple gesture Islander peoples in the Constitution. In the burnt an unforgettable image of pride and coming months the Australian people will be reconciliation into the national memory. As the consulted on a range of ideas for recognising Daily Telegraph said at the time, it ‘captured Indigenous peoples in the Constitution. People the essence of the nation’1. That year more can participate by attending one of the public than 300 000 people came together to walk meetings, by writing a letter or email, or by across the Sydney Harbour Bridge in support lodging a written submission. The Panel will of reconciliation. In 2007 then Prime Minister also conduct surveys to capture the views John Howard announced he would work to of people not directly participating in the achieve broad community support for some consultation process. Drawing on the results of form of acknowledgement of the unique place these consultations, surveys and expert advice, of Indigenous Australians in our Constitution. the Expert Panel will make recommendations In 2008 then Prime Minister Kevin Rudd made to the Prime Minister in December 2011 on the Parliament’s historic National Apology options to change the Constitution which to Australia’s Indigenous peoples, and in could be put to the Australian people at a particular to the Stolen Generations. In recent referendum. years ‘closing the gap’ has become pressing This paper aims to provide a starting point business for Australians in government, for this national conversation. It discusses the companies, schools and communities right importance of constitutional recognition of across the country. Aboriginal and Torres Strait Islander peoples, Despite progress in the understanding and provides general information on Australia’s respect between Aboriginal and Torres Strait Constitution and the process of constitutional Islander peoples and other Australians, the reform, and poses some questions designed unique contribution of Indigenous Australians to promote public discussion. All Australians to our national life is not reflected in the are invited to take part in this discussion. At nation’s founding document, the Australian the end of this paper there is information Constitution. about how you can participate in the national conversation, as well as links to further Today, a large number of Australians from information and suggested reading. all walks of life are seeking to change this situation. In December 2010 Prime Minister Julia Gillard appointed an Expert Panel on A Constitution for the people Constitutional Recognition of Indigenous The Australian Constitution is the founding Australians to lead a national conversation political and legal document of our nation. about making the recognition of Indigenous Changing it is difficult, and for good reason. Australians in the Constitution a reality. Changes can have a far-reaching impact

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because the Constitution underpins our peoples. Moreover, important questions about federal laws and institutions. the way our Constitution treats Aboriginal and Torres Strait Islander peoples remain The power to amend our nation’s founding unresolved. Many Australians will not be aware document lies with us, the people. Many that the possibility of racial discrimination Australians feel the need to address the gaps (against people of any race) is still possible in our Constitution, to bring it up to date to under our Constitution. For over 40 years reflect the reality of Australia in the 21st since the 1967 referendum addressing these century and to create a shared vision of the remaining issues has been a priority for kind of nation we aspire to become. Aboriginal and Torres Strait Islander peoples The values and attitudes of the times meant and all Australians who object to any form that Aboriginal and Torres Strait Islander of racial discrimination. There have been a peoples were not given an opportunity to number of parliamentary committee reports participate in drafting the Constitution in into possible solutions. Many Aboriginal the 1890s, nor were they able to vote for political statements, such as the 1988 Barunga it. Indeed, the only mention of Aboriginal Statement3 and the 1998 Kalkaringi Statement4 and Torres Strait Islander peoples in the reflect the importance many Indigenous Constitution was of exclusion. Ever since people place on achieving constitutional Federation, there have been calls for recognition of their continuing culture. constitutional amendment to secure better treatment of Aboriginal and Torres Strait The benefits of constitutional Islander peoples and stronger protection of recognition their unique cultures, languages and spiritual connection to the land. The origins of the Australian nation in British colonial heritage and the legacy of the now- In 1967 this movement for change culminated discredited legal doctrine of terra nullius in the most decisive referendum in Australian have been at the centre of much that has history. In that year, over 90 per cent of made Australia the nation we are today. In voters approved changes to the Australian recent years many Australians have come to Constitution. From then on, Aboriginal and understand the damage, injustice and suffering Torres Strait Islander peoples were included caused to Aboriginal and Torres Strait Islander in the counting of the Census, and the peoples which, often inadequately, we have Commonwealth had the power to make laws sought to rectify. for ‘the people of any race for whom it is deemed necessary to make special laws’. This Australians have come from more than 230 power included making laws with respect to countries to build a thriving, optimistic, Aboriginal and Torres Strait Islander peoples multicultural democracy. Our nation occupies from different parts of Australia who were land that Aboriginal and Torres Strait Islander previously subject to the differing laws of each peoples have lived on, cared for and cherished State or Territory. for at least 40 000 years and perhaps much longer. Indigenous Australians are today the While the 1967 Referendum removed custodians of the oldest continuous cultures in some constitutional discrimination against human history. Aboriginal and Torres Strait Islander peoples, it did not afford them the dignity of recognition All of us who live in Australia share pride in the Constitution as the nation’s Indigenous in that unique cultural heritage. However,

6 Aboriginal and Torres Strait Islander peoples and Torres Strait Islander peoples in our have no reassurance that their unique culture Constitution is a chance to walk together, in and heritage will continue to be valued by the spirit of respect, friendship and hope, the nation. Constitutional recognition would towards a truly reconciled nation. be a significant step towards providing such reassurance. Gathering momentum Despite the hopes and goodwill expressed at for change the time of the 1967 Referendum, Aboriginal The current multi-party in-principle support and Torres Strait Islander Australians as a for Indigenous constitutional recognition group do not share equally in the nation’s has created an unprecedented opportunity. wealth and opportunities. In terms of Since 1999 there has been support by both life expectancy, health, education and the Australian Government and Opposition employment, many Aboriginal and Torres Strait for constitutional recognition of Aboriginal Islander Australians are acutely disadvantaged. and Torres Strait Islander Australians. Today Successive Commonwealth, State and Territory all major parties, together with the Greens Governments have given priority to closing the and the Independent Members of Parliament, gaps between Indigenous and non-Indigenous support Indigenous constitutional recognition. Australians in the areas of health, education, Now is the right time to take the next step and employment and economic development. to recognise in the Australian constitution the However, many Aboriginal and Torres Strait first peoples of our nation; now is the right time Islander peoples have felt invisible in the life to take that next step to build trust and respect, and we certainly believe that constitutional of the nation. recognition is an important step to building trust There have been many sunsets since Gough and respect, it’s an important step to building Whitlam trickled a handful of red soil into the and acknowledging that the first peoples of our hand of the old man…Have we seen consistent nation have a unique and special place in our progress since that symbolic moment? Have we nation.6 continued to advance? Have we ‘gone forward Prime Minister, Julia Gillard together as mates?’ as the old man wished at the time. Or do we still have to learn to follow The Prime Minister’s view is shared across his road; to learn to stand up for rights; learn to the political spectrum. In 2007 the then struggle for the achievement of real recognition; Prime Minister John Howard announced an learn to go forward and to do it together. Do we election policy to work towards recognition of still have to learn the meaning of mateship? Are Aboriginal and Torres Strait Islander peoples we still chained to the past?5 as first peoples in the preamble of the Patrick Dodson Constitution. By affirming the importance of Australia’s My goal is to see a new Statement of Aboriginal and Torres Strait Islander cultures to Reconciliation incorporated into the preamble our nation through constitutional recognition, of the Australian Constitution ...I would seek Australians could help sustain and value to enlist wide community support for a ‘Yes’ Indigenous cultures into the future. Positive vote. I would hope and aim to secure the sort recognition would also have a tangible effect of overwhelming vote achieved 40 years ago at the 1967 Referendum. If approached in the on the lives of Aboriginal and Torres Strait right spirit, I believe this is both realistic and Islander communities and individuals, as achievable. well as contribute to the national pride of all John Howard Australians. Formally recognising Aboriginal

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In cities and regions across the country, a such a step could have for us all. In April 2008, large majority of Australians support moves for instance, Aboriginal leaders in Eastern to acknowledge Aboriginal and Torres Arnhem Land presented to the Australian Strait Islander peoples in our Constitution. Government the Yolngu and Bininj Leaders A Newspoll conducted in February 2011 Statement of Intent.9 This communiqué, found that 75 per cent of Australians already which represented the hopes of some 8000 support some kind of constitutional reform to Aboriginal people, expressed the desire recognise Aboriginal and Torres Strait Islander for constitutional protection for traditional Australians.8 land and cultural rights, and emphasised the importance of constitutional recognition of Significantly, Aboriginal and Torres Strait the clans’ basic desire to live on their land and Islander peoples from all over Australia practise their culture. have continued to stress the importance of constitutional recognition and the benefits

8 2. BACKGROUND TO THE AUSTRALIAN CONSTITUTION

The Constitution is the legal and political How does a referendum work? foundation stone of our nation. This is the A referendum is an opportunity for the people document which establishes Australia as a to vote on proposals to change the Australian federation and defines the Commonwealth’s Constitution. Referenda questions are usually national law-making powers. For put as yes/no proposals. All Australians Commonwealth laws to be valid, they have registered on the electoral roll cast their vote to be based on what is called a ‘head of by writing either ‘yes’ or ‘no’ in the space power,’ set down in the Constitution. It also provided on their ballot paper. As in the case establishes the High Court of Australia as the of national elections, voting in referenda is court with the ultimate authority to determine compulsory. questions of interpretation of the Constitution. As discussed below (in Section 7. Some ideas The Constitution cannot be amended without for change), there are a number of different the express consent of the Australian people. and specific ways in which Aboriginal and Section 128, which sets out the precise Torres Strait Islander Australians could be manner and form in which the Constitution recognised in the Constitution. The precise can be changed, requires that any proposed wording of the question asked in any proposed amendment must be approved by what is referendum on Indigenous recognition would sometimes described as a ‘double majority’: be decided by the Australian Parliament. In • a national majority of voters; and framing its proposals, the Parliament will have • a majority of voters in a majority of States before it the results of the Panel’s community (that is, approval by voters in four out of consultations and its advice on those options six States). that may have the broad, popular support needed to be successful. In 1977 Section 128 was amended to allow the votes of residents of the Territories to be included in the national count.

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3. WHY IS RECOGNITION IMPORTANT?

The Panel is seeking views from the Australian The Panel is not tasked with re-writing the community about what ‘recognition’ should whole Constitution for an ever-changing world. mean and what form recognition of Aboriginal Instead, we have been asked to respond to and Torres Strait Islander peoples in the the desire of many Australians to see the Constitution should take. Constitution changed to recognise Aboriginal and Torres Strait Islander peoples so that it Constitutional recognition could mean more truly reflects the lives and values of different things to different people. For Australians today. example, it could mean recognising the distinct and unique cultures of Aboriginal The changes could take the form of a and Torres Strait Islander peoples and their preamble to the Constitution, or a prior ownership of the land. It could mean statement of recognition within the body substantive action to protect Indigenous of the Constitution. Several Australian culture and heritage. It could mean the repeal States have already made changes of this of discriminatory provisions that have the kind to their own constitutions. Since 2004 potential to adversely affect Aboriginal and Queensland, New South Wales and Victoria Torres Strait Islander peoples and other groups have amended their constitutions to recognise of Australians. Indigenous Australians.

Reflecting who we Eliminating racial are as a nation discrimination in our

The Constitution is Australia’s founding Constitution document. For over 100 years it has provided The original Constitution of 1901 established a durable framework for government for our a negative citizenship of the country’s original peoples. The reforms undertaken in 1967, free and democratic nation. The Australian which resulted in the counting of Indigenous Parliament must work within its provisions Australians in the national census and the when making any laws. States, Territories, extension of the races power to Indigenous corporations, organisations or individuals can Australians, can be viewed as providing a neutral contest in court the constitutional validity of citizenship for the original Australians. What federal laws and regulations. is still needed is a positive recognition of our status as the country’s Indigenous peoples, and However, the Constitution is also a product yet sharing a common citizenship with all other of its time. It was drafted and adopted over Australians.10 a century ago by a narrow cross-section Noel Pearson of Australian society, whose thinking Most of us take for granted that, in Australia, understandably reflected the dominant we can live our lives without fear of official historical, economic, social and political discrimination. However, there is nothing aspirations of the day.

10 in the present Constitution which ensures However, the possibility of racial that protection. Arguably, Aboriginal and discrimination in Australian laws still exists Torres Strait Islander Australians have been under the Constitution. Many constitutional most exposed to discriminatory treatment law experts believe that two sections of our by parliaments and governments—State and existing Constitution—Section 51(xxvi) and Commonwealth—throughout the past Section 25—would need to be amended to 200 years. eliminate the possibility of discrimination on the basis of race (not only in relation to Before 1967 Aboriginal and Torres Strait Aboriginal and Torres Strait Islander peoples, Islander peoples were not counted in the but for any cultural group of Australians). national census. The historic referendum of These sections are discussed in detail below 1967 changed that situation. It also amended (in Section 7. Some ideas for change). Section 51(xxvi) (known as the ‘race power’) so that the Commonwealth Parliament could Section 51(xxvi) and Section 25 of the make laws specifically in respect to Aboriginal Australian Constitution are reproduced below: and Torres Strait Islander peoples.

Part III—The House of Representatives Section 25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

Part V—Powers of the Parliament Section 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxvi. ) The people of any race for whom it is deemed necessary to make special laws:

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4. WHY CHANGE THE CONSTITUTION?

Although there are a number of potential The Royal Australian and New Zealand College benefits to the nation flowing from of Psychiatrists considers that constitutional constitutional recognition of Aboriginal and change would improve Indigenous mental Torres Strait Islander peoples, the specific health because symbols can inspire action and benefits will depend ultimately on what lead to practical, beneficial effects. According options are put to the Australian people. to the College President, Dr Maria Tomasic:

The lack of acknowledgement of a people’s Acknowledging Aboriginal and existence in a country’s constitution has a major Torres Strait Islander cultures impact on their sense of identity, value within the community and perpetuates discrimination The Reconciliation Barometer 2010, conducted and prejudice which further erodes the hope of for Reconciliation Australia by Auspoll, Indigenous people. There is an association with found that more than two-thirds of the non- socioeconomic disadvantage and subsequent higher rates of mental illness, physical illness, Indigenous Australian community believe that and incarceration. Indigenous culture is important to Australia’s Recognition in the Constitution would have a identity as a nation . However, many Aboriginal positive effect on the self esteem of Indigenous and Torres Strait Islander communities are Australians and reinforce their pride in the concerned that their unique identities and value of their culture and history. It would make cultures are under threat. Affirming the a real difference to the lives of Indigenous importance of Australia’s Aboriginal and Torres Australians.12 Strait Islander cultures in our Constitution is a way for all of us to express the importance of National identity protecting our nation’s extraordinary cultural Australians have forged an identity based on heritage for the benefit of all Australians. fairness. This has shaped how we prefer to It would also let the rest of the world know relate to each other, how we view the world that we take pride in the unique cultures of and how we would like to move forward Aboriginal and Torres Strait Islander peoples. together.

In 2008 the National Apology to Australia’s Improving health Indigenous Peoples13 demonstrated the and well being practical power of symbolic actions to Recognition can have a practical and beneficial improve the bonds between Australians and impact on the way people see themselves. For to progress reconciliation. Many Aboriginal all of us, the way we are treated and perceived and Torres Strait Islander peoples declared by our communities has a real impact on on the day that, for the first time in their lives, how we feel about ourselves, our sense of they felt truly Australian. Australians from belonging, our behaviour and our self-respect. all cultural backgrounds found themselves

12 deeply affected by the Apology. Many Importantly, changing the Constitution to expressed their pride in the Parliament’s make it more inclusive would be a clear and formal acknowledgement and recognition of enduring declaration that Australians will not an important truth in Australian history. accept racial discrimination in our Constitution any more than we do in our communities, A constitutional amendment supported by an workplaces and daily lives. Revising the overwhelming majority of Australians would, Constitution could also benefit all Australians similarly, be a lasting symbol of Australians’ by strengthening the sense of belonging by respect for the unique cultures of the nation’s people from diverse backgrounds living in Aboriginal and Torres Strait Islander peoples, Australia today, and affirming the values of improve the relationships between Indigenous equality, democracy and fairness that unite and non-Indigenous Australians, and help us all. build a more united and reconciled Australia. It would also be a way of reconciling with our past and collectively moving on.

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5. THE CHALLENGES OF CONSTITUTIONAL REFORM

Australia’s Constitution is one of the most Community education difficult to change in the world. Its drafters on the need for change did not intend our Constitution to be easily Experience shows that broad community amended. Australian voters have approved support is critical to the success of a only eight of the 44 referenda put to them referendum proposition. The Constitution is since Federation, most recently in 1977. a technical legal document, and discussions Most historians and constitutional scholars about amending it will sometimes involve believe that each of the eight adopted complex details. For that reason, the Panel referenda had three essential features in aims to provide comprehensive and easy- common—bipartisan or multi-party political to-understand information about proposed support, community education on the need for changes and how they might affect the legal change, and ‘ownership’ by the people. and political systems. This information will be available on the Panel’s website Multi-party support at www.youmeunity.org.au. Information about any referendum proposal must also No referendum in Australia’s history has be accessible to all groups in the community succeeded without the support of the nation’s including cultural groups, young and elderly main political parties. Bipartisan agreement people, as well as people unable to readily was crucial to the success of the 1967 access information from the internet and Referendum. In contrast, the lack of bipartisan social media. consensus contributed to the rejection of the 1999 Referendum on the republic. The task of the Panel is to consult widely with the Australian people and advise the As noted, the current Australian Government Government, based on that feedback and and Opposition, as well as the Australian expert advice, on what form any constitutional Greens and Independent Members of recognition of Aboriginal and Torres Strait Parliament, have declared their support Islander peoples might take. To make in principle for constitutional recognition. its consultations as inclusive, open and Given the double majority required to amend meaningful as possible, the Panel will work the Constitution, referendum proposals for throughout 2011 to raise awareness about constitutional amendment need the support the benefits and challenges of constitutional of not just the majority of Australians, but recognition of Aboriginal and Torres Strait of parties and groups across the political Islander peoples. The Panel’s discussions with spectrum and in a majority of States. the community will provide opportunities for all Australians to familiarise themselves with the Australian Constitution, to understand the

14 arguments for and against particular ideas Since one of the central aims of constitutional for change, and to express their views on the recognition of Aboriginal and Torres Strait merits of change. Islander peoples is to make Australia a more unified and reconciled nation, it is essential Ownership by the people that any proposed amendment reflects the hopes and views of an overwhelming majority As the Australian people have ultimate of Australians. control over the process, constitutional reform depends on them having confidence that any Specifically, the members of the Panel proposed change is of real benefit to Australia. consider that any amendment concerning Broad and active community participation is the recognition of Aboriginal and Torres vital to popular ownership. In this case, the Strait Islander peoples must also have their Australian people must feel they have been widespread support before being put to a adequately consulted, and that their opinions referendum. The members of the Panel will and ideas have been understood and are ensure a diversity of views among Aboriginal reflected in the proposals put forward to and Torres Strait Islander peoples are heard the Australian Government. A genuine sense and considered in developing the Panel’s of ownership of any proposed change can recommendations to government. be nurtured by an appropriate consultation period that gives the entire community time to inform itself about the issues.

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6. PRINCIPLES GUIDING THE PANEL

Recognising that changing the Constitution is • It must contribute to a more unified and a complicated procedure, and that different reconciled nation. sections of the Australian community will • It must be of benefit to and accord with have different priorities in achieving change, the wishes of Aboriginal and Torres Strait the Panel has set down four principles that Islander peoples. will guide its assessment of any proposal for constitutional recognition of Aboriginal and • It must be capable of being supported by Torres Strait Islander peoples: an overwhelming majority of Australians from across the political and social spectrums.

• It must be technically and legally sound.

16 7. SOME IDEAS FOR CHANGE

The options for amending the Constitution will Idea 2. Statement of Recognition in the draw on the outcome of the consultations that body of the Constitution are held with the Australian community in the Rather than place a Statement of Recognition coming months, and also on expert advice. acknowledging Australia’s Aboriginal and Over the past 30 years, many different groups Torres Strait Islander peoples’ distinct cultural and institutions have already debated specific identities, prior ownership and custodianship possibilities for recognition of Aboriginal of their lands and waters in a preamble, it and Torres Strait Islander Australians in the could be inserted as a section in the body of Constitution. Several Indigenous political the Constitution. statements, such as the Barunga and Kalkaringi Idea 3. Statement of Values in a preamble statements, and a number of parliamentary This idea would include a Statement of committees and reports have canvassed Values in a preamble to the Constitution various possibilities for amendment.14 The which incorporates recognition of Aboriginal work done over the past 30 years will also and Torres Strait Islander peoples alongside inform the Panel’s recommendations. a description of the Australian people’s The following ideas for the constitutional fundamental values, such as a commitment recognition of Aboriginal and Torres Strait to democratic beliefs, the rule of law, gender Islander peoples have already been raised by equality, and acknowledgement of freedoms, a number of constitutional experts. Without rights and responsibilities. The content could limiting what other suggestions may come be similar to the pledge that new citizens forward, opinions on the ideas outlined below, are required to make when they become are invited. naturalised Australians.

This approach has been adopted by Statements of Queensland (2010) in its State Constitution. Recognition/Values Idea 4. Statement of Recognition and Idea 1. Statement of Recognition Statement of Values in the body of in a preamble the Constitution This idea would require adding a preamble to A Statement of Recognition and a Statement the Constitution that recognises Aboriginal and of Values could be placed in the body of the Torres Strait Islander peoples’ distinct cultural Constitution as a specific section rather than identities, prior ownership and custodianship as a preamble to the Constitution. of their lands and waters. At present, there is These four ideas are quite similar. All involve no preamble to the Australian Constitution adding a Statement of Recognition or Values itself. Contrary to popular belief, the Australian to the existing text of the Constitution. This Constitution does not have a preamble into will have symbolic value. A statement may also which a Statement of Recognition could simply have legal consequences, depending in part be inserted. on form and content. This is a complex area on

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which the Panel will be seeking legal advice. At Indigenous interests and to provide for this stage the Panel is most interested in views Indigenous people’s welfare. on the content and form of any Statement. However, judicial interpretation indicates that the ‘race power’ (Section 51(xxvi)) does Equality and not empower the Commonwealth to make non-discrimination laws only for the benefit of Aboriginal and Ideas 5, 6 and 7 (below) contemplate Torres Strait Islander peoples (or other racial different kinds of recognition. Many people, groups). The laws can also be detrimental to including Aboriginal and Torres Strait Islander or discriminate against Aboriginal and Torres representatives, believe that the amendment Strait Islander Australians, (or indeed any 15 to the Constitution could and should go other group of people), based on race . The beyond a Statement of Recognition or Commonwealth has passed a law—the Racial Statement of Values and seek to address the Discrimination Act 1975—which prohibits potential for racial discrimination and lack of racial discrimination, but this does not have equality that they believe still exists in the the strength of a constitutional amendment as Constitution. A final idea (Idea 7) contemplates Parliament can repeal or amend it at any time. inserting agreement-making powers between Recognised approaches for addressing the the Commonwealth and Aboriginal or Torres problem of the ‘race power’ are: Strait Islander Australian communities in the • repeal the ‘race power’ as a Commonwealth Constitution. head of power; or Any of ideas 5, 6 and 7 could be pursued in • amend the ‘race power’ so that it can only addition to recognition in a preamble or the be used to make laws for the benefit or body of the Constitution (with or without a advancement of Aboriginal and Torres Statement of Values). Strait Islander peoples and other racial Idea 5. Repeal or amend the ‘race power’ groups; or One of the unforeseen consequences of the • insert a new guarantee of non- 1967 amendment to Section 51(xxvi) of the discrimination and racial equality for all Constitution is that it created an ambiguity Australians in the Constitution; and in the so-called ‘race power’. Originally, the • create a new head of power authorising ‘race power’ permitted the Commonwealth laws with respect to the culture, historical Parliament to make laws with respect to ‘[t]he disadvantage and unique place of people of any race, other than the aboriginal Aboriginal and Torres Strait Islander race in any State, for whom it is deemed peoples. necessary to make special laws’. The 1967 Referendum amended this section so that One of the most common suggestions for the words ‘other than the aboriginal race reform of the ‘race power’ is to amend it so in any State’ were deleted. This meant that that it can only be used for the benefit of the Commonwealth Parliament was given a Aboriginal and Torres Strait Islander peoples, new head of power (Section 51(xxvi)) and although the word ‘benefit’ would be subject under that power was able to make laws of to judicial interpretation. Repealing the ‘race national application with respect to Aboriginal power’—that is, simply removing it altogether and Torres Strait Islander peoples. This from the Constitution is another idea. This included scope to pass legislation protecting would remove the power of the Parliament to

18 make racially discriminatory laws. This could, of Representatives. While the operation of however, be seen as detrimental to Aboriginal Section 25 would disadvantage a State that and Torres Strait Islander peoples if the enacts racially discriminatory voting laws—by Commonwealth lost its ability to make laws reducing the State’s entitlement to seats in for the benefit of Aboriginal and Torres Strait the House of Representatives—many people Islander peoples under other constitutional regard Section 25 as an outdated provision heads of power. that sits uncomfortably with Australian values of non-discrimination and equality. Another frequent suggestion has been to Section 25 was, in fact, described by the 1988 insert a new non-discrimination or racial Constitutional Convention as ‘odious’ and equality clause in the Constitution which having no place in a modern democracy.16 would eliminate the potential for racially discriminatory laws. This idea would It should be noted that the potential for strengthen protection against discrimination people to be disqualified from voting extends for Australians of all cultures and backgrounds. to all racial groups, and not only Aboriginal and Torres Strait Islander Australians. It Finally, some experts have suggested that has been suggested that removing this another way to deal with the discriminatory undemocratic section would thus benefit all potential of the ‘race power’ would be to Australians, now and in the future. repeal it and create a new head of power, allowing Commonwealth laws to be based on culture, historical disadvantage and/or the Constitutional agreements unique place of Aboriginal and Torres Strait Idea 7. Agreement-making power Islander peoples as the descendants of the original owners and occupiers of Australia, The Constitution could also be amended to rather than one based on race. This would enable the Australian Government to enter be a narrower power than the first two ideas into specific agreements with Aboriginal in relation to the ‘race power’, focussing on and Torres Strait Islander communities matters of importance to Aboriginal and Torres which would have the force and effect of Strait Islander peoples, rather than a general Commonwealth law. As long ago as 1983, the power to make laws beneficial to them. Senate Standing Committee on Constitutional and Legal Affairs recommended that a Idea 6. Repeal of Section 25 provision be inserted into the Constitution Section 25 is a provision that contemplates enabling the making of such agreements the possibility that State Governments might between the Commonwealth and Indigenous exclude some Australians from voting in bodies or groups. Agreements could apply to a State elections on the basis of their race. range of issues, such as education agreements, This section reflects the legal and political agreements for the protection of cultural situation at the time of Federation, when some heritage, and agreements on rights to land. States, did in fact, enact discriminatory laws The Senate Committee suggested that a new preventing some groups of people from voting provision along these lines could be similar in elections. Under Section 25, if a racial group in form to Section 105A of the Constitution is denied the right to vote in State elections, which currently provides constitutional the people of that race are not counted in backing for financial agreements reached determining the number of seats that State between the Commonwealth and the States, is entitled to in the Commonwealth House and guarantees that the agreements can only

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be modified by further agreement between • Should recognition of Aboriginal and Torres the parties involved, not by legislation. Strait Islander peoples be accompanied by a Statement of Values? If so, which values Many Aboriginal and Torres Strait Islander underlying our society and democracy people believe that they have never had would be important to include in a an equal relationship with governments or Statement of Values? parliaments when decisions about them, their culture, land or rights have been determined. • Should Section 51(xxvi) (the ‘race They consider it is now time for a new way power’) of the Constitution be repealed forward through agreements being entered or amended to ensure that laws cannot into on a range of matters, including land, discriminate against Aboriginal and Torres culture, languages and communal strengths. Strait Islander Australians?

• Should the Constitution be amended to Questions for ensure that no laws can be made which you to think about: discriminate against any Australian on the • Would recognition of Aboriginal and basis of race? Torres Strait Islander peoples in Australia’s • If a new head of power is created to Constitution more accurately reflect our replace the ‘race power’, should this be national identity? based on culture, historical disadvantage, • Does the Constitution adequately reflect the unique place of Aboriginal and Torres who we are as a nation today? Strait Islander peoples as the descendants of the original owners and occupiers of • How should Aboriginal and Torres Strait Australia, or some other category? Islander peoples be recognised in the Australian Constitution? • Should Section 25 be deleted from the Australian Constitution to remove the • How important are each of these forms of suggestion that an Australian voter could recognition? be excluded from voting on the basis of • Should recognition be included in a race? preamble to the Constitution or should it • Should an agreement-making power be be in the body of the Constitution? created in the Constitution?

• What should be included in a statement • Are there other ideas for constitutional recognising Aboriginal and Torres Strait recognition of Indigenous Australians not Islander peoples’ place in our nation? contained in this paper that the Panel should consider?

20 8. THE PANEL

The Expert Panel on Constitutional Recognition spectrum—from all States, and representing of Indigenous Australians is leading the city and country areas. The Panel Co-Chairs national conversation about changing the are Professor Patrick Dodson and Mr Mark Constitution to recognise Aboriginal and Torres Leibler AC. A list of the Expert Panel members Strait Islander Australians. and their biographical details can be found at www.youmeunity.org.au The Panel is made up of Australians from Indigenous and non-Indigenous communities, The Expert Panel will gather input from around people from small and large business, the nation and report to the Government in community leaders, academics and members December 2011. In 2012, the Government will of Parliament from across the political consider the Panel’s recommendations.

21 A NATIONAL CONVERSATION ABOUT ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION

9. HOW YOU CAN GET INVOLVED

Further information on Constitutional If you are not able to come to one of the Recognition of Indigenous Australians is scheduled consultations in person, you may available at www.youmeunity.org.au. From wish to have your say by lodging a formal the website you can download a copy of submission. The submission template and this discussion paper which is the starting other information is also on the website. point for a national conversation on the most Formal submissions close at 5.00pm on appropriate ways to recognise Aboriginal 30 September 2011. and Torres Strait Islander Australians in our Also, you or your organisation may choose to Constitution. run your own information sessions with your Have your say by attending one of the community or interest groups using the DIY consultations that the Panel will be holding material that will be made available on the around Australia. Details of the locations and website. dates of these consultations are available on Finally, you may also be interested in following the website. the progress of the Panel on Facebook, YouTube and Twitter.

22 10. FURTHER READING AND RELEVANT LINKS

Books

Bain Attwood & Andrew Markus 2007, The 1967 Referendum: Race, Power and the Australian Constitution, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra.

Larissa Behrendt 2003, Achieving Social Justice, The Federation Press, Sydney.

Sean Brennan, Larissa Behrendt, Lisa Strelein & George Williams 2005, Treaty, The Federation Press, Sydney.

John Chesterman & Brian Galligan 1997, Citizens Without Rights: Aborigines and Australian Citizenship, Cambridge University Press, Cambridge.

Bede Harris 2002, A New Constitution for Australia, Cavendish, London.

George Williams & David Hume 2010, People Power: The History and Future of the Referendum in Australia, UNSW Press, Sydney.

Book chapters

The Hon. Justice Robert French 2003, ‘The ‘race power’: A Constitutional Chimera’, in Hoong Phun Lee and George Winterton (eds), Australian Constitutional Landmarks Cambridge University Press, pp. 180–208.

Articles

Megan Davis & Zrinka Lemezina 2010, ‘Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or Entrenching Marginalisation’, University of New South Wales Law Journal, no. 33 , vol. 2, pp. 239–66.

Megan Davis & Dylan Lino 2010, ‘Constitutional Reform and Indigenous Peoples’ Indigenous Law Bulletin, vol. 7, no.19, pp. 3–4.

Michael Dodson & Lisa Strelein 2001, ‘Australia’s Nation-Building: Renegotiating the Relationship Between Indigenous Peoples and the State’, University of New South Wales Law Journal, 24, pp. 826–39.

John Howard 2007, ‘A New Reconciliation’, The Sydney Papers, vol.19, no. 4, pp. 104–10.

Marcia Langton 2001, ‘Dominion and Dishonour: A Treaty Between Our Nations?’ Postcolonial Studies, vol. 4, no. 1, pp. 13–26.

23 A NATIONAL CONVERSATION ABOUT ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION

Sarah Pritchard 1998, ‘Recent Constitutional Developments in the Northern Territory: The Kalkaringi Convention’, Indigenous Law Bulletin, vol. 4, no. 15, p. 12.

Geoffrey Sawer 1996–67, ‘The Australian Constitution and the Australian Aborigine’, Federal Law Review, vol. 2, p. 17.

George Williams 2000, ‘Race and the Australian Constitution: From Federation to Reconciliation’, Osgoode Hall Law Journal, vol. 38, pp. 643–65.

Lectures and speeches

The Hon Sir Gerard Brennan AC KBE 2011, ‘Pathway to a Republic’, George Winterton Memorial Lecture, Banco Court, Supreme Court of NSW, Sydney, 17 February.

Greg Craven 2007, ‘Living Dangerously with the Constitution’, speech delivered at the National Press Club, Canberra, 20 June.

Marcia Langton 2001, ‘The Nations of Australia’, Alfred Deakin Lectures, Capitol Theatre, Melbourne, 20 May.

Noel Pearson 2010, ‘Hope 2010: Crisis, Catharsis, Renewal’, speech delivered at the Sydney Festival, 13 January.

Reports

Aboriginal and Torres Strait Islander Commission 1995, Recognition, Rights and Reform: Report to Government on Native Title Social Justice Measures, Commonwealth of Australia.

Aboriginal and Torres Strait Islander Social Justice Commissioner 2008, Social Justice Report 2008, ‘Chapter 2: An Aboriginal and Torres Strait Islander human rights protection framework for the 21st century’, pp. 15–94, Commonwealth of Australia. Available at:

Aboriginal and Torres Strait Islander Social Justice Commissioner 2010, Social Justice Report 2010, ‘Chapter 2: Constitutional Reform: Creating a Nation for All of Us’, Commonwealth of Australia. Available at:

Commonwealth of Australia 2008, Australia 2020 Summit: Final Report, Canberra.

Council for Aboriginal Reconciliation 1995, Going Forward: Social Justice for the First Australian, A Submission to the Commonwealth Government.

Commonwealth of Australia 1998, Final Report of the Constitutional Convention, Canberra.