Indigenous recognition or is it a doomed mission?
Proposals to Constitutionally recognise Aboriginal and Torres Strait Islander peoples and their language are often divided into the symbolic as either amending the preamble or standalone provision(s) which acknowledge Indigenous identity and the more substantive such as a constitutional ban on racial discrimination or a First Nation’s voice to Parliament. While all Australian States have now adopted purely symbolic Indigenous recognition provisions, it has generally fallen out of favour at the national level. Are there any good reasons to adopt purely symbolic forms of Constitutional recognition? One should compare the experience of reforms in the Australian States.
I Necessity and broader movements
The present state of non-recognition of indigenous culture and language in the national Constitution can inflict harm and act as a form of oppression, As Taylor states, this can imprison individuals and groups in a false, distorted and reduced mode of being.1 Australian First Nation Peoples (FNP) as a minority group experience marginalisation from mainstream social, political and economic discourse.2 A preamble or standalone provision(s) recognising indigenous culture and language may assist in changing societal and legislative measures in favour of substantive equality. With the intended function of redeeming the document, unifying communities and reducing or eliminating barriers to entry in the otherwise marginalized activities. The proposal has national approval in principle by all major political parties, with intentions of furthering national reconciliation and to guard Australia’s reputation internationally through indigenous wellbeing.3 Instilling in the Constitution a restorative justice theory, whereby in the interests of equality indigenous are treated differently4 by their positive inclusion. Persuasively American courts suggest in order avoid racism, we
1 Charles Taylor, ‘The Politics of Recognition’ in Amy Gutmann Multiculturalism: Examining the Politics of Recognition (Princeton University Press, 1994) 25-73. 2 Elia Villasenor, Countering Colonialism in Border Communities: Leadership, Education and the Politics of Multicultural Recognition (ProQuest Dissertations Publishing, 2016) 9. 3 Benjamen Gussen, ‘A Comparative Analysis of Constituttional Recognition of Aboriginal Peoples’ (2017) 40(3) Melbourne University Law Review 867. 4 Regents of University of California v Bakke 438 US 265, 407 (1978) (Blackmun J). Cited in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 [202] (Gummow, Hayne, Heydon JJ)
1 must first take account of race.5 Lack of Constitutional recognition means Australia is torn between a ‘fair go’ of allowing FNP the right to engage and feature in Australia’s foundational document or allow everyone to respect their own culture.
Criticisms surrounding the positive mention of FNP and it’s direct or indirect6 issue of ‘positive discrimination’7 are ill-founded, given the exclusive entrenchment of British history and contemporary effects of colonization on indigenous culture. Positive changes throughout history may encourage some to think that indigenous Constitutional recognition is unnecessary and breeds ‘identity politics’, which itself is or can create ‘bad policy’.8 While the form of state models of recognition are contested, none of them go far enough or are likely to privilege one race ahead of another, which the federal Constitution can replicate. Constitutional recognition should instead be seen to redress past wrongs of the Constitution and permitted acts, aiming to repair cultural non-recognition and following misrecognition by reconciling the document with indigenous peoples.9 Aiming to encourage the rebuilding of relationships internally and externally.10
Buti admits this is the most dynamic and effective theory of reparation as it is capable of empowering indigenous members and perform important symbolic functions for a society stained with past injustices.11 Aristotle describes humans as ‘political animals’, who are a product of and producer of the social world.12 Whereby the current relationship between indigenous and non-indigenous Australian’s is perhaps it’s greatest social weakness, as reflected by state symbolic recognition, symbols can be an important mechanism to fix this.13 Brooks states recognition does much more in the
5 Regents of University of California v Bakke 438 US 265, 407 (1978) (Blackmun J). 6 May produce hierarchies of status see John Bowen and Will Kymlicka ‘Are Identity Politics Emancipatory or Regressive’, The Conversation (online), 19 April 2018
2 areas of reconciliation,14 redemption and moral reparations.15 Whose awareness can benefit from foundational speeches.16
While questions of degree may impact the extent of restoration, in this writer’s view, it does not question the movement’s utility, as any extent of incorporation is symbolically beneficial and can lead to substantive changes. Constitutional recognition may be considered universally beneficial, as it can sponsor a sense of individualism bounded by a common sense of national unity and patriotism.17 Perhaps demonstrated in the historically conservative state of Queensland and their Constitution, which included the support of the people of Queensland who pay tribute to indigenous values and culture, which deepen and enrich the life of our community.18 Although Windschuttle opposes the movement as fostering indigenous sovereignty, which he sees as supporting or causing FNP to not regard Australia as their true country.19 It is important to not stereotype all indigenous groups under this banner and some groups may view it as unifying and construe symbolic recognition as a meaningful compromise.20
Some question the necessity of Constitutionally entrenching recognition as claims for indigenous recognition have been notably reflected in rights to land,21 culture22 and anti-discrimination23 legislation. Which have been realized to some degree socially with welcome to country addresses, ordinary legislation24 and court decisions.25
3 However legislation can be repealed or amended and in the example of land right cases, public recognition has dwindled as more cases are resolved outside of litigation.26 The aspiration of reconciliation27 cannot solely depend on written rules but rather it’s application. The lack of Native Title claims reflect the economic,28 legal29 and psychological burdens of proving identity30 and inhibits public recognition. As reflected by courts, declarations of recognition have immense symbolic and psychological importance.31 As mentioned later, without federal Constitutional recognition and for those prohibited to Native Title Determinations, Australia may be said to fragment amongst internal division, seperatism and collectivism32 based on and even amongst racial groupings.
The poor historical treatment of FNP has influenced the view that the Constitution is a colonizing instrument,33 which has permitted legislation that caused intrusion and dependency.34 Lino explains settler expansion has benefitted through exploitation over the most mundane powers.35 It is difficult for contemporary Aboriginals to respect and identify with a document that has historically and currently permitted racially
25 Compare with courts as not representative of Aboriginal people Shaw v Wolf (1999) 163 ALR 205, 268 (Merkel J). 26 Due to 1998 amendments to Native Title Act, assuming parties willing and able to negotiate David Ritter, Contesting Native Title: From Controversy to Consensus in the Struggle Over Indigenous Land Rights (Allen & Unwin, 2009) 151, 174. 27 Bennell v State of Western Australia; Bodney v State of Western Australia (2006) 153 FCR 120 (Wilcox J). 28 'Putting native title in context', Koori Mail 428, 22. Cited in Native Title Issues and Problems, Creativespirits (online) 1 February 2018
4 discriminatory actions.36 Especially as indigenous people were not consulted in it’s original drafting and not counted in population statistics.37 Diminishing the argument that indigenous recognition already feature in the Constitution as the preamble mentions the people of the different Australian colonies. This argument either speaks to the necessity of symbolic Constitutional recognition or can view the Constitution as incapable of remedy, as an individual said at a dialogue, symbolic recognition is like ‘putting lipstick on a pig’.38
Ancillary to indigenous conceptions are the wider public’s perception of the Constitution and politically feasibility. Australian courts and the public enjoy a strong belief in Constitutional adherence.39 As Webber explains, critics may not want the Constitution to become a set of hollow statements that are a ‘dumbed down’ caricature of the country,40 particularly difficult to reconcile in a multicultural country. However it may be argued that Constitution’s either already do or should embrace the community’s deeper normative values to be a just and effective force in facilitating peace and order.41 Especially as symbolic measures, both internationally42 and arguably at the state level, have been accepted to go beyond mere facts, venturing into the realm of shared values and aspirations. Whether symbolic trends could be transplanted into Australia’s federal Constitution is debatable, as Australia’s socio-legal culture tends to rely on established precedent rather than extra-legal policy considerations and current social values.43 Australia’s federal Constitution may not serve as ‘higher law’ in the same sense that other Constitutions do. For example it does
36 Commonwealth of Australia Constitution Act 1901 (Cth) ss 25 disqualified from voting, 51(xxvii) ‘race power’ special laws. Consider whether repaired through 1967 referendum, removing s 25. 37 Commonwealth of Australia Constitution Act 1901 (Cth) s 127. 38 Megan Davis, Shireen Morris and Maria Giannacopoulos, ‘The Uluru Statement from Heart, One Year On: Can a First Nations Voice Yet be Heard?’ ABC (online) 26 May 2018
5 not point to itself as a symbol or embodiment of political ideals and aspirations.44 However if a deeper normative value structure is accepted, legal theory might suggest it’s introduction would achieve a principled coherent chain of reasoning and understanding amongst the socio-legal community.45 Achieving social order through subjecting people to guidance of general rules by which they may orient their behaviour,46 such as indirectly reducing instances of lateral violence and discrimination between races. Fears of freezing indigenous recognition for the reasons of becoming outdated and inappropriate47 are unfounded, as it is difficult to conceive a point where this will not be a value.
Constitutional recognition is needed to correct Australia’s poor historical treatment and amend arguably offensive48 contemporary definitions of indigenous identity,49 needed for actions such as Native Title Determinations. Indigenous communities are often heterogenous50 and scarred from past injustices. Causing many groups to feel disconnected and isolated from land and culture, causing some to experience ‘lateral violence’ or ‘internalized colonialism’.51 Which can include a wide range of psychological and physical forms of violence.52 Using Australia’s contemporary definition, creates issues amongst individuals who have a remote indigenous descendancy causing them to not be recognised by an indigenous community, yet who self-identify as indigenous. These issues include cultural scarring affecting interpersonal relationships,53 the process being an elegant expression of cultural
44 Jack Balkin, Living Originalism (Belknap Press, 2011); Jack Balkin, ‘Nine Perspectives on Living Originalism’ (2012) 3 University of Illinois Law Review 815, 846-7 847; Jack Balkin, ‘The American Constitution as “our law”’ (2013) 25 Yale Journal of Law & the Humanities 113, 114. 45 Ronald Dworkin, Law’s Empire (Cambridge (MA), Harvard University Press, 1986) 229. 46 Lon Fuller, ‘A Reply to Professors Cohen and Dworkin’ (1965) 10 Villanova Law Review 655, 657. 47 Sir Harry Gibbs, ‘A Preamble: The Issues’ in Upholding the Constitution: Proceedings of the Samuel Griffith Society, Volume 11 (Samuel Griffith Society, 1999) 95; George Winterton, ‘A New Constitutional Preamble’ (1997) 8 Public Law Review 186, 189. 48 Shaw v Wolf (1999) 163 ALR 205, 268 (Merkel J). 49 broadly adopted tripartite test: descent, self-identification, recognition see Australian Law Reform Commission, Kinship and Identity (2003)
6 domination54 and the distinguishing between traditional owners and non-traditional owners. Lack of cultural recognition encourages the ‘I’m more Aboriginal than you’55 principle, which blocks out certain members or entire families whether or not that connection can be proved.56 Symbolic Constitutional recognition could mitigate the issues of Native Title Declarations and it’s involvement in lateral violence,57 through cultural acknowledgement and respect. Which may assist individuals to feel included in both mainstream society and/or their own groups as it can affirm the place of Aboriginals, recognize the falsity of terra nullius, address exclusionary treatment, improve self-worth, change the scope of debates and relationships internally and externally.
While criticisms might question the likelihood of this kind of change, one should look to the Canadian58 and New Zealand59 experience with both having indigenous recognition in their foundational documents. Canada has undergone a process of healing with lateral violence,60 through community based healing and cultural revitalization programs including ‘reclaiming history, cultural interventions and therapeutic healing’. 61 While these initiatives could occur outside of Constitutional recognition, Constitutional change could act as a catalyst to these initiatives through sponsoring greater public and political will. Alternatively New Zealand psychiatrics have recognized that a lack of recognition has major detrimental impacts to senses of identity, value within the community, perpetuates discrimination and prejudice. Inversely recognition would have positive effects on self-esteem and reinforce their pride in the value of their culture and history.62 Pride for culture and language could be
54 Heather McRae et al, Indigenous Legal Issues: Commentary and Materials (Thomson Reuters, 4 edn, 2009) 222, 226. 55 Australian Human Rights Commission, Native Title Report 2011, 83. 56 Maryse Aranda, Principal Legal Officer, South West Aboriginal Land and Sea Council, Correspondence to Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 12 August 2011. 57 For example, see State Government of Victoria, Department of Planning and Community Development, Indigenous Regional Forums 2010, 9; Victoria Government, The Report of the Right People for Country Project Committee (2011), 6. 58 Canada Constitution s 35 59 Treaty of Waitangi 60 Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission (2009), 147-197. 61 Linda Archibald, Final Report of the Aboriginal Healing Foundation, Volume III: Promising Healing Practices in Aboriginal Communities, Aboriginal Healing Foundation (2006). 62 'Call for Indigenous inclusion', Australian Associated Press, 12/10/2010. Cited in Constitutional Recognition of Aboriginal People, Creativespirits (online), 18 December 2017
7 said to have occurred at a state level, for example since Western Australia’s (WA) indigenous recognition amendment to the Preamble. These changes may be considered to have materially encouraged the work of sites like NoongarPedia.63 Which revitalizes language through greater public consultation. Which is deemed essential to encourage a connection to culture, as the language has experienced issues of English incorporation conversationally. Federal Constitutional recognition can sponsor a flow- on interest nationally, either symbolically or through institutions to revitalise more indigenous languages.64
Aside from language improvements, one may qualify the direct ‘cause and effect’ relationship between the Constitution and the alleged social, political and economic improvements. To change the Constitution on paper, may not change society.65 Consider New Zealand, who despite strong indigenous recognition, Maori people are far more likely than non-Maori women to be on a benefit and have children while on benefit.66 Additionally it may be difficult to directly prove in a simple correlation between after recognition and economic outcomes, given the multitude of external factors that may follow recognition. For example metrics such as improved relations internally and externally may not flow directly from the Constitution, but rather a product of other social factors at the time. However these economic metrics may be inappropriate to analyse the utility of the proposal. Assessing economic contributions by indigenous peoples before and after recognition may not be reflective of holistic notions of wellbeing.67 Additionally other common metrics such as respect for law, health, social security, protection and criminal justice may excessively reflect Eurocentric values, which naively imply universality68 of values.
8 II Comparative Constitutional law and internal struggles
Comparing Constitutions and potential transferability and their benefits are arguably easier in drafting of Constitutions.69 The re-draft of Australia’s preamble or symbolic provisions are unlikely to involve stringent interpretation,70 which should assist in an amendment’s reception. While the relevance of Constitutional law of other countries may be the last frontier of comparison, given a close nexus to national sovereignty. The concept of national sovereignty itself is undergoing transformation.71 More than ever before, there is a growing acceptance of foreign influence in Constitutional justice, particularly with regard to human rights.72 Rather the reception of foreign Constitutional law is not or should not be a matter of nationality but of usefulness and need. Australia’s lack of federal incorporation is not ignorantly stalled because the initiative did not grow in Australia’s back garden,73 on the contrary, State constitutions have openly referred to comparative principles as a basis for recognition’s legitimacy. Reluctance is better explained through Australia’s lack of federal Constitutional change.
Such fears include a judicial trend for courts to make increasingly substantive use of preambles.74 There are concerns that an amended preamble or other symbolic provisions might be used for outcomes that otherwise would have never been agreed to, such as a substitute for a bill of rights.75 However this could be mitigated by parliamentary debates or a non-justiciable clause, which may backfire and negatively impact the perceived benefits and approval from the indigenous community. The proposal’s reception largely depends on the consultation and approval from the
69 John Burgess, Political Science and Comparative Constitutional Law (Bostin, USA: Ginn & Co, 1893) 90. Cited in A.E. Dick Howard, ‘A Traveler from an Antique Land: The Modern Renaissance of Comparative Constitutionalism ‘(2009) 50 Virginia Journal of International Law 3; Printz v United States 521 US 898, 921 (1997); Stanford v Kentucky 492 US 361, 369 (1989). 70 Past cases demonstrate no significant legal consequence Mark McKenna, Amelia Simpson and George Williams ‘First Words: The Preamble to the Australian Constitution’ (2001) 24(2) University of New South Wales Law Journal 382 [19]. 71 David Held et al, Global Transformations: Politics, Economics and Culture (Stanford University Press, 1999). 72 Ruti Teitel et al, ‘Comparative Constitutional Law in a Global Age’ (2004) 117(8) Harvard Law Review 2570. 73 Konrad Zweigert and Hein Kotz, Introduction to Comparative Law (Tony Weir translation, Oxford University Press, 3 edn 1998), 17; see also Konrad Zweigert and Kurt Siehr, ‘Jhering's Influence on the Development of Comparative Legal’ (1971) 19(2) The American Journal of Comparative Law 215. 74 Liav Orgad, ‘The Preamble in Constitutional Interpretation’ (2010) 8 International Journal of Constitutional Law 714, 715. 75 Webber above n 40, 270.
9 indigenous population.76 Which conforms to international commitments,77 improves the shortcomings of the identical 1999 referendum as well as improve the function of creating a consultative Constitution. As understood by the Expert panel and Davies, without indigenous support there is ‘no practical purpose’ in suggesting it,78 it is not ‘recognition’, if the to-be-recognised rejects it.79 Inherently divided as the Uluru statement suggests indigenous groups prefer substantive rather than symbolic reform. 80 Echoing a 2015 online survey conducted by IndigenousX, finding 58% of indigenous respondents did not support recognition and 62% did not believe indigenous Australia would be better off. The results may be limited by the fact that the study only featured around 820 indigenous participants, who mainly represented the state of New South Wales (NSW).81 Vehement indigenous opposition undermines non-indigenous approval and it’s perceived benefits. Indigenous groups reject symbolic gestures as being construed as tokenistic82 and a potential abuse of process, causing a distraction from the indigenous community’s real substantive problems. Hutchins found Victorian communities consistently express opposition to Constitutional recognition.83 Studies over the years asking the necessity of Constitutional recognition and its benefits have received relatively sparse responses that may not adequately represent all indigenous Australians.84 The results of the First Nation Regional Dialogues could be said to not adequately represent all indigenous Australians as at most 100 indigenous participants participated in 13 different cities and towns.85 Meaning at best, 1300 indigenous
76 United Nations Declaration on the Rights of Indigenous Peoples Article 19. 77 United Nations Declaration on the Rights of Indigenous Peoples Article 36. 78 Report of the Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander peoples in the Constitution, 16 January 2012, 5. 79 Davies et al above 38. 80 Daniel McKay, ‘Uluru Statement: a Quick Guide’ Parliament of Australia 19 June 2017. 81 Celeste Liddle, ‘Constitutional Recognition Survey’
10 participants informed the results. A more representative sample might reveal a positive attitude towards Constitutional recognition. While there are doubts to the extent of consultation, Morris admits the dialogues represent the best chance the country has ever had and ever will have to meaningfully recognize Indigenous peoples in the Constitution,86 through substantive measures.
Other doubts to symbolic recognition may surround the poor reception of the 1999 referendum. Currently there is significant institutional difficulty for Constitutional amendment, requiring a majority approval in a referendum by voters nationwide and in at least four of six States.87 Statistically ‘attempts to amend the Constitution have seldom succeeded [8 from 44] and all attempts to entrench rights or liberties have failed miserably’.88 Comparatively state Constitutions enjoy the ease of changing through ordinary legislative fashion and affect a smaller proportion of the population. Meaning the federal Constitution requires greater consultation as it requires greater public approval. In 1999 the result received a national vote of 39% in favour and failing in every state and territory,89 which might suggest a considerably changed political environment is needed for success.90 Having already turned a negative vote, some members may agonize over the substantial use public money towards research,91 the campaign92 and the referendum itself.93 Which despites the merits of the proposal, these groups may simply turn back a ‘no’ for reasons of substantial use of public money.
86 Morris et al above n 38. 87 Commonwealth of Australia Constitution Act 1901 (Cth) s 128. See generally George Williams and David Hume, People Power: The History and Future of the Referendum in Australia (University of New South Wales Press, 2010) 88 Brian Galligan, ‘Australia’s Rejection of a Bill of Rights’ (1990) 28 Journal of Commonwealth & Comparative Politics 344; Paul Kildea, ‘The Bill of Rights Debate in Australian Political Culture’ (2003) 9(1) Australian Journal of Human Rights 7. Cited in Michael Taggart, ‘Australian Exceptionalism in Judicial Review’ (2008) 36(1) Federal Law Review 4. 89 Australian Electoral Commission, ‘1999 Referendum Report and Statistics’ (1999),
11 However this may unnecessarily predict the contemporary outcome and perceived benefits of the proposal as the public may be more understanding of the necessity for consultation and not be persuaded by previous failings. While the national interest arguably peaked in the 1990’s,94 external factors such as the lack of consultation95 and the language of the text might explain the former referendum’s failure.96 To enable a positive reception, the contemporary proposal’s language should avoid use of Aboriginal and/or Indigenous as some are offended,97 instead referring to groups as FNP, which appreciates the differences amongst groups. Alternatively the proposal should avoid referring to land as a past occupation (inferring traditional law has extinguished) and as picked up by state constitutions, use the word or concept of custodianship.98 Additionally it should be the sole referendum, the former referendum may have failed due to the public being overwhelmed by the republic vote being in the same year, contributing to an adverse outcome due to voter fatigue.99
Kevin Rudd’s apology and changes to state Constitutions100 may represent the symbolic benefits of the proposal and demonstrate a change in the national political landscape. Despite FNP comprising around 3% of the overall population, the apology and state Constitutional amendments, have been driven by non-indigenous political actors with the input and support of indigenous stakeholders.101 The diversity of support might suggest that unless the proposal occurs, it is impossible to maintain the thesis that that all law is invariably connected to the Constitution of a society and to a society’s
94 Megan Davis and Dylan Lino, ‘Constitutional Reform and Indigenous Peoples’ (2010) 7(19) Indigenous Law bulletin 3, 5. 95 Greta Bird and Loretta Kelly, ‘Women Speak Out: Critical Perspectives on the Preamble to the Constitution’ (2000) 6(1) Australian Journal of Human Rights 265. 96 drafted by Prime Minister John Howard with poet Les Murray and Aden Ridgeway see Mark McKenna, Amelia Simpson and George Williams, ‘With Hope in God, The Prime Minister and the Poet: Lessons from the 1999 Referendum on the Preamble’ (2001) 24(2) University of NSW Law Journal 22, 25-26. 97 'Concern at the use of 'indigenous'', reader's letters, Koori Mail 483 p.24. Cited in How to Name Aboriginal People? Creativespirits (online), 18 December 2017
12 needs.102 However as discussed in state transferability the momentum at the state level recognition might be an inappropriate measure of success for the national question.
As like the controversial reception of the apology,103 the undermining of benefits might surround how state amendments achieved very little. Suggesting a reluctance for federal Constitutional measures as this may not be enough, nor is any measure ever enough due to the inevitability of dissenting voices.104 Suggesting an indeterminacy of issues that flow on, such as rights and an indeterminate number of groups that may jump on the bandwagon.105 Feasibility may be limited as Australia’s history of the Constitution is one of trust, not distrust of Government as referenced by key aspects of content being left to the parliament.106 Instead it might be suggested that the Constitution on it’s own has nothing to do with these matters. In line with parliamentary sovereignty should be left to the Government of the day, through statute(s) or celebratory events. Along side the public who may sufficiently celebrate inclusivity through anniversary events,107 education campaigns108 and curriculum.109 However a successful recognition referendum with the national and international attention it carries, as Lino notes may cumulatively be seen to promote and commemorate indigenous culture and language in a meaningful an ongoing way.110 Constitutional entrenchment will assist these non-constitutional facilities, which may be necessary considering the totality of indigenous destruction of culture. Additionally
102 Bernard Grosfeld Comparative Legal Studies: Traditions and Transitions (Cambridge University Press, 2003), 118. 103 Robert Manne, ‘The Sorry History of Australia’s Apology’, The Guardian, 27 May 2013
13 it may symbolically deter actions that cause detriment to FNP, entrenching an appreciation and version of history that has repeatedly proven vulnerable to hostile political or public action.111
III State Constitutions and national transferability
The state Constitutions are a valuable resource for the federal constitution, whereby national symbolic benefits could be undermined if insufficiently addressed and adopted. To neglect state considerations could create an impression of being disingenuous and having the potential to further polarise indigenous people from the legal and political mainstream.112. The Victorian and NSW provisions are substantive provisions, recognizing the status of the aboriginal people of the state, their relationship with their traditional lands and their contribution to the state.113 Victoria has purportedly entrenched this concept, requiring an amendment or repealed by a special three-fifths majority of both Houses of Parliament.114 Implying a desire from Victoria that recognition should be on an entrenched basis, which the federal Constitution inherently offers due to it’s difficulty in changing.
Unlike the Victorian provision, the WA preamble states ‘the parliament recognises’, whereas the NSW provision undertakes parliamentary recognition ‘on behalf of the people of NSW’.115 As it stands the WA preamble is comparatively descriptive and might appear more symbolic116 than other states. Descriptions of seeking to effect
111 The recent 2007 ‘Northern Territory Intervention’, which continues in modified form today see Jon Altman and Melinda Hinkson (eds), Coercive Reconciliation: Stabilise, Normalise, Exit Aboriginal Australia (Arena, 2007); Joint Committee on Human Rights, Parliament of Australia, Stronger Futures in the Northern Territory Act 2012 and Related Legislation (2013) 50. See generally Williams and Hume above n 87. 112 Megan Davis and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or Entrenching Marginalisation?’ (2010) 33 University of New South Wales Law Journal 239, 261 113 See Constitution Act 1975 (VIC) s 1A; Constitution Act 1902 (NSW) s 2. 114 Entrenchment doubtful, unlikely to be regarded as a law respecting the constitution, powers or procedure of the Parliament, entrenchment not supported by Australia Act 1986 (Cth) s 6. Cited in Anne Twomey, ‘The Preamble and Indigenous Recognition’ (2011) 15(2) Australian Indigenous Law Review 2, 11; It is doubtful whether the states have any other capacity to entrench laws see Anne Twomey, The Constitution of New South Wales (Federation Press, 2004) 268–322 115 Constitution Act 1902 (NSW) s 2. 116 Ben Wyatt in Gareth Parker ‘WA Bill Recognises Aboriginals as Custodians of the Land’, The West (online), 20 August 2015
14 reconciliation might be criticized if the overall text makes no mention as to what they seek to reconcile, unless one has a minimal definition of restorative justice.
However these differences in approaches may reflect the values of the state and Parliament. Where Victoria and NSW may appear to be more progressive in its values, as reflected in Native Title Acts117 and broadly.118 However in all Constitutions the parliaments reserved that the section does not create any legal rights or causes of action or affect it’s interpretation.119 Unlike the federal Constitution, state Constitutions are typically not entrenched, which reduce the risk of judges being able to draw Constitutional implications. The parliament could override a court interpretation that went beyond the intention of state parliament. Given the federal Constitution’s entrenchment, there are greater fears (real or perceived)120 that judges may draw Constitutional implications. To which the federal parliament are unable to override the High Court’s interpretation.121 However federal parliamentary debates may assist in the intention of the preamble or provision and/or a non-justiciability clause could be included.122 Which may only enhance the criticisms of tokenism and symbolism and reduce indigenous and non-indigenous propensity of acceptance.
117 NSW empathetic and reformist state Labor Government see Aboriginal Land Rights Act 1983 (NSW) and Heidi Norman, What Do We Want?: A Political History of Aboriginal Land Rights in New South Wales (Aboriginal Studies Press, 2015) 203; Traditional Owner Settlement Act 2010 (VIC) s 1 purpose to recognize through out of court settlements. 118 Progressive values with Euthanasia Act see Noel Towell, ‘Euthanasia to be legal in Victoria from 2019’, The Age (online), 29 November 2017
15 If this question is put nationally, conservative states123 might be unlikely to adopt ‘with’ or ‘on behalf of the Australian public’ as it might be said that the Government is inappropriately speaking for certain groups. Unless the Government is confident the vote will pass in the other states or if there is a changed political landscape in these states such as the Queensland example mentioned above. Evidence of the political landscape’s desire for inclusivity and it’s genuine intention could be reflected in the Queensland Constitution including the text ‘we all now share’.
However the utility of comparing state Constitutions to the federal Constitution may be undermined by the fact that changes have occurred without asking the people to vote on it, particularly an issue of who is being said to recognize indigenous Australians, either the parliament, the parliament on behalf of the people or the people themselves. As seen in various inquiries into the subject,124 there was little public support for the Queensland preamble, which might be reflected in national consultations with non- indigenous Australian’s. Unlike the national question, the states have rarely been really spoken about due to the amendments being rather sudden and have had relatively little regard to consultation. Federal referendums are more momentous as demonstrated by their infrequency and their necessary investment prior to the proposals. This can be said to either undermine the utility of the state comparison or simply be explained by the ease of change and number of people affected by the change. Despite indigenous communities suggesting opposition, the fact that indigenous parliamentarians from across the states have indicated support for the state proposals may rally state support and/or assist in the federal question across communities. As reflected in state’s whose limited terms of reference looked to how recognition ought to be achieved, not whether it should.125
As to the question of what is being recognized and potential for the undermining of benefits, adaptation nationally might look towards the Victorian model of inclusion of
123 Western Australia (34.73%) and Queensland (32.81%) lowest results of the states see Australian Electoral Commission, 1999 Referendum Reports and Statistics
16 custodians of the land, their unique position, relationship with land and waters and contribution amongst other groups to the great nation of Australia. Perceived notions of privileging the status and contribution to solely indigenous peoples should be neglected to win conservative votes, who are afraid of ‘racialising’ the Constitution.126 However without these notions commentators suggest that this does not go far enough for indigenous Australian’s and may in fact be a deception to assimilate indigenous peoples by having their consent to be governed, acquiescing against the sovereignty movement.127 With this said, this is currently the most feasible,128 which could lead to knock on benefits in the future.
IV Conclusion
Symbolic Constitutional recognition of Australia’s FNP have immense benefits, however depending on it’s form it could be undermined by largely political reasons. Comparisons internationally and domestically demonstrate the perceived benefits towards indigenous Australian’s internally and externally. The Australian states Constitutional integration demonstrate the movements momentum and are indicative of it’s perceived benefits and appropriate form. Consequentially benefitting the nation with a reconciled and unified approach to symbolic recognition nationally. The correct form could suggest a digestible mechanism that leads to substantive outcomes than more substantive constitutional changes, both in likelihood of adoption and the function it seeks to fulfill.
BIBLIOGRAPHY
A Articles/Books/Reports
126 As experienced in state opposition in Queensland see Jessica Marszalek and David Barbeler, ‘Recognising Indigenous People in Qld preamble divisive’, Brisbane Times (online), 25 February 2010
17 Australian Electoral Commission, 1999 Referendum Reports and Statistics
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20 Law, Justice and Safety Committee, Parliament of Queensland, A Preamble for the Constitution of Queensland 2001, (Report No 70, September 2009) 15.
Legal, Constitutional and Administrative Review Committee, Parliament of Queensland, A Preamble for the Queensland Constitution? (Report No 46, November 2004).
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Lino, Dylan, Written Constitutions and the Politics of Recognition: Symbolism and Substance (22 July 2014) Social Science Research Network
McKenna, Mark, Simpson, Amelia and Williams, George, ‘First Words: The Preamble to the Australian Constitution’ (2001) 24(2) University of New South Wales Law Journal 382.
McKenna, Mark Amelia Simpson and Williams, George, ‘With Hope in God, The Prime Minister and the Poet: Lessons from the 1999 Referendum on the Preamble’ (2001) 24(2) University of NSW Law Journal 22.
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21 Orgad, Liav, ‘The Preamble in Constitutional Interpretation’ (2010) 8 International Journal of Constitutional Law 714.
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22 Victoria Government, The Report of the Right People for Country Project Committee (2011).
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Zweigert, Konrad and Siehr, Kurt, ‘Jhering's Influence on the Development of Comparative Legal’ (1971) 19(2) The American Journal of Comparative Law 215.
B Cases
23 Bennell v State of Western Australia; Bodney v State of Western Australia (2006) 153 FCR 120. Ex Parte Boilermakers Society of Australia (1956) 94 CLR 254. Huddart, Parker & Co Ltd v Moorehead (1909) 8 CLR 330. Kable v Director of Public Prosecutions (1996) 189 CLR 51. Kartinyeri v Commonwealth (1998) 195 CLR 337. Noongar (Koorah, Nitja, Boordahwan)(Past, Present, Future) Recognition Act 2016 (WA). Mabo v Queensland (No 2) (1992) 175 CLR 1. Polyukovich v Commonwealth (1991) 172 CLR 501. Printz v United States 521 US 898, 921 (1997). Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92. Reference Re Secession of Quebec [1998] 2 SCR 217. Regents of University of California v Bakke 438 US 265, 407 (1978). Shaw v Wolf (1999) 163 ALR 205. Stanford v Kentucky 492 US 361, 369 (1989). Thomas v Mowbray (2007) 233 CLR 307.
C Legislation Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Aboriginal Land Rights Act 1983 (NSW). Aboriginies Act 1905 (WA). Australia Act 1986 (Cth). Canada Constitution. Constitution of Queensland 2001. Constitution Act 1889 (WA). Constitution Act 1902 (NSW). Constitution Act 1934 (SA). Constitution Act 1975 (Vic). Commonwealth of Australia Constitution Act 1901 (Cth). Charter of human rights and responsibilities 2006 (VIC). Judiciary Act 1903 (Cth). Native Title Act 1993 (Cth). South African Constitution.
24 Traditional Owner Settlement Act 2010 (VIC).
D Treaties Treaty of Waitangi. United Nations Declaration on the Rights of Indigenous Peoples.
E Other Aranda, Maryse Principal Legal Officer, South West Aboriginal Land and Sea Council, Correspondence to Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 12 August 2011.
Advisory Panel on the Recognition of Aboriginal Peoples in the South Australian Constitution, Time for Respect, 30 October 2012.
Australian Electoral Commission, ‘1999 Referendum Report and Statistics’ (1999),
Australian Electoral Commission, Costs of Elections and Referendums
Australian Institute of Aboriginal and Torres Strait Islander Studies, Celebrating the 25th Anniversary of the Mabo Decision
Anderson, Michael, Sovereign Union, 23 May 2014
Balkassm, Hassan, Legal and constitutional status of Amazigh language in Morocco & North Africa. Presentation to International Expert Group Meeting on indigenous languages, 8 – 10 January 2008, United Nations, New York.
25 Borrows, John, ‘Revitalising Indigenous Language and the Law’, public lecture 19 April 2018.
Bowen, John and Kymlicka, Will, ‘Are Identity Politics Emancipatory or Regressive’, The Conversation (online), 19 April 2018
CEO of St Vincent de Paul Society National Council, The Record (2009).
Constitutional Recognition of Aboriginal People, Creativespirits (online), 18 December 2017
D’Abrera, Bella, ‘The Rise of Identity Politics: History in Australian Universities’, Institute of Public Affairs, 17 October 2017
Davis, Megan, Morris, Shireen and Giannacopoulos, Maria, ‘The Uluru Statement from Heart, One Year On: Can a First Nations Voice Yet be Heard?’ ABC (online) 26 May 2018
Frankland, Richard and Lewis, Peter, Presentation to Social Justice Unit staff, Australian Human Rights Commission, 14 March 2011.
Gibbs, Harry ‘A Preamble: The Issues’ in Upholding the Constitution: Proceedings of the Samuel Griffith Society, Volume 11 (Samuel Griffith Society, 1999).
Graham, Chris 'Recognise Rejected: Historic Meeting Of 500 Black Leaders Unanimously Opposes Constitutional Recognition', New Matilda (online), 8 February 2016
26
Gardiner, Greg ‘Constitution (Recognition of Aboriginal People) Bill 2004’ (2004) 6 De- Brief (Victorian Parliament).
Harris, William ‘Half-Castes and the Franchise’ The West Australian (Perth) 25 September 1925.
How to Name Aboriginal People? Creativespirits (online), 18 December 2017
Joint Committee on Human Rights, Parliament of Australia, Stronger Futures in the Northern Territory Act 2012 and Related Legislation (2013).
Karvelas, Patricia, ‘Recognition for Indigenous Australians in Constitution Remains Elusive’, The Australian (online), 18 April 2015
Liddle, Celeste ‘Constitutional Recognition Survey’
Manne, Robert ‘The Sorry History of Australia’s Apology’, The Guardian, 27 May 2013
Marszalek, Jessica and Barbeler, David ‘Recognising Indigenous People in Qld preamble divisive’, Brisbane Times (online), 25 February 2010
27 McKay, Daniel, ‘Uluru Statement: a Quick Guide’ Parliament of Australia 19 June 2017.
Meghan Woods, ‘NoongarPedia created as first Wikipedia Site in Aboriginal Language’, ABC (online), 11 November 2016
Native Title Issues and Problems, Creativespirits (online) 1 February 2018
Newspoll, Recognition of Aboriginal and Torres Strait Islander Peoples in the Australian Constitution – Qualitative Research
Oosthuizen, Marius ‘Why South Africa Can’t Deliver on the Social Sontract Set Out in its Constitution’, The Conversation (online), 22 November 2016
Parker, Gareth ‘WA Bill Recognises Aboriginals as Custodians of the Land’, The West (online), 20 August 2015
Reconciliation Australia, Government Maintains Commitment to Reconciliation and Aboriginal and Torres Strait Islander Affairs, 14 May 2013.
Reconciliation Australia, National Reconciliation Week
Referendum Council, Dialogues
28 Results: Same-sex Marriage Postal Survey, ABC (online), 15 November 2017
Ritchie, Kerrie ‘Bolt Breach Discrimination Act, Judge Rules’ 29 September 2011, ABC (online)
Robinson, Natasha ‘Confusion Surrounds Push to Recognise Aboriginal People in Constitution, First Peoples Congress Warns’, ABC (online), 27 April 2016
State Government of Victoria, Department of Planning and Community Development, Indigenous Regional Forums 2010.
Strengthening our Relationships Over Lands, Territories and Resources: The United Nations Declaration on the Rights of Indigenous Peoples, Eddie Koiki Mabo Lecture 2011.
Smith, Dean Finance and Public Administration Legislation Committee, Senate, 3 March 2017.
Towell, Noel ‘Euthanasia to be legal in Victoria from 2019’, The Age (online), 29 November 2017
Wolahan, Keith ‘A colour-blind Constitution’ Samuel Griffith Conference 26th August 2017.
Wyatt, Ben, ‘The Constitution Amendment (Recognition of Aboriginal People Bill) 2015 (WA) its Passage, its Significance and its Implications’ online, 6 September 2016
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