SUBMISSION TO THE JOINT SELECT COMMITTEE ON CONSTITUTIONAL RECOGNITION OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES 2015.
REPORT INTO CURRENT ISSUES WITH THE CONSTITUTIONAL RECOGNITION OF ABORIGINAL AND TORRES STRAIT ISLANDERS IN AUSTRALIA AND RECOMMENDATIONS.
AMY DAVIDSON; ARABELLA SNEDDEN; CALLUM BEAU JAMES VITTALI-SMITH; DURANKA VIRAN JAYASINGHE; JAMIE BINDER; MEKALA SHANKER; MICHAEL PAUL MENDEL; PATRICK SAMUEL KEOGH; AND RYAN COWAN BONDFIELD
as concerned citizens have researched and put forth this report. Including and accounting for background, relevant case studies and panels, existing case law and current legislation, this report presents a set of viable and comprehensive recommendations to the Australian Federal Parliament for consideration in aiding this issue.
SCOPE
ENSHRINE AN INDIGENOUS VOICE TO PARLIAMENT IN THE CONSTITUTION We write in support of a constitutionally enshrined Indigenous voice to Parliament. An effective voice to parliament would provide advice and recommendations regarding policy put forward by the government focused on any policy effects on the Aboriginal and Torres Strait Islander community. This would improve input from Aboriginal and Torres Strait Islander people and make these communities more present in political discourse.
RECOGNISE ABORIGINAL AND TORRES STRAIT ISLANDERS IN THE CONSTITUTION Lack of recognition of our first peoples has been a long-standing issue in Australia. We right in support of constitutional recognition, noting the inalienable quality of recognition as provided in this context. Contained in this submission is a synthesis of current legal writing leading to the final recommended changes to the constitution.
ESTABLISH A ‘TRUTH COUNCIL’ (MAKARRATA COUNCIL) Truth councils have been effective tools for reconciliation and progression of equality in many jurisdictions. We support the establishment of a Makarrata Council, as has been put forward in the Uluru Statement. There are two key reasons for it’s inclusion: It allows for healing and justice; and it allows for understanding to the broader society on the issues faced by our first people to this day. For these reasons, we believe a ‘truth council’ will act as a support for a successful referendum campaign and allow for greater recognition of our first people beyond this.
ADDRESS RACIAL DISCRIMINATION IN THE CONSTITUTION This submission notes the historical anachronism of s25 and s51(xxvi) in the constitution. These sections both allow for direct discrimination of individuals. We thus suggest the removal of these sections and a replacement to make clear that laws that discriminate may only be used for the benefit of a community or peoples. Given the infrequent nature of referenda, and the crucial additional protection of rights for Aboriginal and Torres Strait Islander people, the submission considers this a vital part of any successful constitutional amendment for the purposes of recognising our first peoples.
PROMOTE CONSTITUTIONAL RECOGNITION AT A NATIONAL LEVEL TO ASSIST IN A REFERENDUM CAMPAIGN More directly, this submission considers specific amendments to the constitution that can be taken to a referendum as suggested by experts and panels. However, we acknowledge the difficulty and complexity of a national campaign for constitutional recognition. Further, the recent plebiscite campaign made evident the detrimental effect misinformation and discrimination can have on the group/s which a national campaign focuses on. In light of this, we elevate the importance of education and clear communication of the purpose and importance of constitutional recognition. We note further that a truth commission will help elevate the real concerns of Australia’s first peoples and thus assist an informed campaign.
CONSEQUENCES OF THE FAILURE OF REFERENDUM Referenda are rare and the majority of them fail. We accept that a referendum campaign is expensive to administer and usually requires vast resources from all campaigns. As a result, our submission attempts to draw clear conclusions under which a successful referendum may occur. We accept that in doing so some might consider this a ‘sub-par’ submission, however believe that a successful referendum which successfully recognises Australia’s first people is the building block upon which any further measures for recognition or equality may occur.
I | BACKGROUND
THE CONSTITUTION PRIOR TO 1967 The original Australian Constitution of 1901, as enacted by The Commonwealth of Australia Constitution Act (The Constitution) 1901 (Cth), actively discriminated against Aboriginal and Torres Strait Islander peoples and subjected them to concrete national second-class status. Negated to ‘flora and fauna status’ due to the concept of Terra Nullius in the past, Indigenous peoples of Australia were now Constitutionally denied their sovereignty, self-determination and political rights. The Australian Constitution (1901) only mentioned Aboriginal and Torres Strait Islanders twice with no acknowledgement of their claim to country or historical presence. The lack of representation or acknowledgement of Aboriginal and Torres Strait Islanders in the Constitution is deeply problematic and disrespectful of the traditional owners and First Peoples of Australia. The references in section 51 and 127 regarding Aboriginal and Torres Strait Islander peoples in the document actively discriminated and subjugated this population. As the original Section 127 stated; “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted”. This article further segregated Aboriginal and Torres Strait Islander peoples from the greater Australian community and denied them Commonwealth legal rights. Section 51 of the Constitution also extended this sentiment and regulated that;
“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, other than the aboriginal people in any State, for whom it is necessary to make special laws.
As a result of this section, affairs of Aboriginal and Torres Strait Islander peoples were only to be legislated by the states. The Constitutionally enacted discrimination of Aboriginal and Torres Strait Islander peoples was deeply troubling and paved the way for the 1967 Referendum.
THE CONSTITUTION AFTER 1967 The Constitution and the discrimination enshrined that affected Aboriginal and Torres Strait Islander peoples, led to a growing movement for an amendment to the Constitution. In particular, as Indigenous Australians were gaining civil and political rights across the states throughout the sixties under the Commonwealth Electoral Act 1962 (Cth), there became an increasing desire to change the Constitution to reflect and no longer discriminate against Indigenous Australians. The Constitution Alteration (Aboriginals) 1967 Act intended to address the articles of Aboriginal and Torres Strait Islanders outlined in Section 51 and Section 127.
The astounding 90% support of ‘yes’ to amending the Constitution by the Australian population led to the repealing of section 127. The removal of this article meant Aboriginal and Torres Strait Islanders were now counted in the census and no longer delegitimised Constitutionally. The second amendment proposed was changing section 51 to omit mention of the clause; “other than the aboriginal people in any state” within the article. Instead the article was amended to state;
“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: the people of any race for whom it is deemed necessary to make special laws”
The removal of the clauses directed at Aboriginal and Torres Strait Islander peoples grouped them in with non-Indigenous Australians legislatively and the Australian Constitution no longer explicitly discriminated against them. However, due to the amendments of the Constitution from the 1967 Referendum, there is now no specific reference to Aboriginal and Torres Strait Islander peoples in the document at all. The absence of which has led to calls for greater amendments such as Constitutional Recognition to recognise the history and culture and to enshrine the presence of Aboriginal and Torres Strait Islander peoples as the First Australians. Through amending the Constitution to recognise Aboriginal and Torres Strait Islander peoples, the document can finally adequately include the custodians of this land.
Whilst the amendments made to the Constitution in 1967 were significant in addressing concerns and rights of Aboriginal and Torres Strait Islander peoples, there are remaining problems surrounding Indigenous peoples within the current Constitution. Section 25 of the Constitution states;
“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.”
The ability for the Commonwealth to exclude certain racial groups from voting is of deep concern for Aboriginal and Torres Strait Islanders. Furthermore, Section 51 whilst amended in the 1967 Referendum, remains a point of contention for Aboriginal and Torres Strait Islanders. Similar to Section 25, the inclusion of race as a factor of governance further discriminates against certain groups. As stated, these articles do not explicitly reference Aboriginal and Torres Strait Islanders as had the original Constitution of 1901. However, the inclusion of race as a group to legislate and control, is a point of much contention in the quest for Constitutional Recognition. The inclusion of these ‘race provisions’ in the Constitution actively discriminate against Indigenous Australians and give the legal capacity to the Commonwealth to legally discriminate against racial groups shall they wish.
In recent times as Constitutional Recognition has gained momentum, there have been consistent calls to another referendum to address the concerns of Indigenous Australians and recognise them. As a result, the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) has been passed. The act intends to pay the way for Constitutional amendment to “articulate the Parliament’s recognition of Aboriginal and Torres Strait Islanders as the original inhabitants of Australia, and also their ongoing connection with their traditional land and waters, cultures, languages and heritage”. Furthermore, the implementation of government initiatives such as the Expert Panel on Constitutional Recognition of Indigenous Australians and the creation of the “Recognise Movement” have sought to further the cause and finally recognise Aboriginal and Torres Strait Islander peoples properly within the Constitution. Through enshrining an Aboriginal and Torres Strait Islander declaration and altering the Section 51 (xxvi) and Section 25 into the Constitution, recognition of Indigenous peoples and their claims to the land, their unique culture and history can be achieved.
AMENDING THE CONSTITUTION Amendments to the Constitution must follow certain procedures to democratically change the Constitution. George Williams has identified a schema of four key criteria needed for a referendum to be successful: 1. Bipartisanship 2. Popular Ownership by Voters 3. Popular Education 4. A Modern Referendum Process.
As section 128 of the Constitution ensures, a proposed amendment must be passed with an absolute majority through both houses of federal parliament. The amendment bill must then be submitted within a minimum of 2 to a maximum of 6 months to the public. Subsequently, the national vote must then equal a majority for the amendments to pass. Shall the national vote support the amendments; the Constitution is altered. Education and providing resources to the Australian people is essential and equal funding is provided by the government to both sides.
II | CURRENT PARTY OPINIONS
OFFICIAL LIBERAL PARTY STANCE In their response to the Statement from the heart, this is what was said:
‘We have listened to the arguments put forward by proponents of the Voice, and both understand and recognise the desire for Aboriginal and Torres Strait Islander Australians to have a greater say in their own affairs. We acknowledge the values and the aspirations which lie at the heart of the Uluru Statement. People who ask for a voice feel voiceless or feel like they’re not being heard. We remain committed to finding effective ways to develop stronger local voices and empowerment of local people.
Our goal should be to see more Aboriginal and Torres Strait Islander Australians serving in the House and the Senate - members of a Parliament which is elected by all Australians.
The Government has written in response to Mr Shorten’s call for a Joint Select Committee, and have asked that the committee considers the recommendations of the existing bodies of work developed by the Expert Panel (2012), the Joint Select Committee on Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Referendum Council report (2017).
The Coalition continues to aim to work in a bipartisan way to support Constitutional recognition.’
OFFICIAL LABOR PARTY STANCE ‘Well we do need to land the other constitutional change you’re referring to and that is a two century outstanding requirement that we recognise Indigenous Australians in our constitution. Our constitution, if we were writing it today, I think in its first sentence would include recognition and a reference to Indigenous Australians, Aboriginal and Torres Strait Islander people, that’s if we were writing it today. Now it was written nearly 120 years ago plus when we didn’t have that recognition for Indigenous Australians, but we do now. So I do think that what’s important to regain momentum in recognition of Indigenous Australians is that for Tony Abbott and myself to meet with a range of Aboriginal and Torres Strait Islanders leaders in this country together, a gathering if you like, there’s been great work done by Parliamentary Committees chaired by and deputy chaired by Ken Wyatt, the Liberal member from Western Australia, and Senator Nova Peris, both proud Indigenous Australians. But momentum stalled –’
PUBLIC OPINION The Report for the Expert Panel into Constitutional Recognition (2012) saw broad consensus amongst the Australian community and Aboriginal and Torres Strait Islander community in their want for constitutional recognition. They note that many individuals are not certain as to what precisely constitutional recognition means for Australia’s first people. Further, constitutional recognition has bipartisan support, as has been noted above. What is pertinent to this submission is the most objected element of the referendum, especially from the Aboriginal and Torres Strait Islander community is the delay. In this sense, bringing constitutional recognition to the fore is likely to be met with widespread support in the Australian community, and thus is likely to be successful.
III | COMMUNITY CONSULTATION
We would like to note the success of community consultation under the model established by the referendum council which lead to the Uluru Statement from the Heart. Furthermore, we suggest any further consultation should be based on this model as it allowed for direct and broad consultation with all relevant communities.
IV | RELEVANT COURT DECISIONS AND CASE LAW
ESTABLISHING NATIVE TITLE RIGHTS AND INTERESTS In Mabo v Queensland [No 2] (‘Mabo [No 2]’), the High Court found that preexisting rights and interests in land held by Aboriginal and Torres Strait Islander peoples—native title— survived the assertion of sovereignty by the Crown. Overturning the traditional orthodoxy of ‘terra nullius’. Brennan J set out the conditions for the continuation of native title after the assertion of sovereignty, stating that native title will survive or continue after sovereignty where: · 1. a clan or group has continued to acknowledge and observe traditional laws and customs whereby their traditional connection with the land has been substantially maintained; and 2. it has not been extinguished by the valid exercise of sovereign power.
STATUTE Furthermore, the Native Title Act 1993 (Cth) was enacted to entrench case law with statute. The requirements in identifying native title were set in s225 A determination of native title is a determination whether or not native title exists in relation to a particular area of land or waters and, if it does exist, a determination of a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and b) the nature and extent of the native title rights and interests in relation to the determination area; and c) the nature and extent of any other interests in relation to the determination area; and d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and e) to the extent that the land or waters in the determination area are not covered by a non- exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Section 223 of the Native Title Act provides a definition of native title, based on Brennan J’s judgment in Mabo [No 2]. Section 223(1) provides that (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and c) the rights and interests are recognized by the common law of Australia.
ESTABLISHING TRADITIONAL LAWS The case of Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [37] distinguishes the difference between the subject of recognition: the set of indigenous relations ordered by traditional laws and customs and native title: the positive enforcement of rights within the Australian Legal system. Furthermore, the Yorta Yorta case constructed the true definition of traditional laws: 1. it refers to the means of transmission of a law or custom: a ‘traditional’ law or custom is one which has been passed from generation to generation of a society 2. it refers to the age of the laws and customs: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown 3. the ‘normative system’—that is, the traditional laws and customs—under which rights and interests are possessed must have had a continuous existence and vitality since sovereignty
CONTENT OF NATIVE TITLE RIGHTS AND INTERESTS In Western Australia v Ward [2002] HCA 28 (‘Ward’), the High Court noted that s 223(1)(a) requires both: · the identification of laws and customs said to be traditional; and · the identification of rights and interests possessed under those laws and customs. The content of native title rights and interests is defined by traditional laws and customs. That is, native title rights and interests are those that find their origin in traditional (pre-sovereign) law and custom. This is because What survived [the Crown’s acquisition of sovereignty] were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned. This means that native title rights and interests will not correspond with the Anglo-Australian property of rights. It also means that the content of native title, its nature and incidents, will vary from one case to another.
ESTABLISHING CONNECTION WITH THE LAND OR WATERS In Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (‘Alyawarr’) [2005] FCAFC 135 a connection with the land or waters to satisfy s 223(1)(a) must have the land or waters as pivotal to their customs. To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land. The connection, or relationship, between people and country includes the obligation to care for country and the right to speak for country.
ESTABLISHING LAWS AND CUSTOMS per section 223(1)(a) laws and customs must be possessed under a set of rules with normative content, for without that quality there may be observable patterns of behavior but no laws or customs. In Harrington-Smith v Western Australia [2003] FCA 893, Lindgren J elaborated on what is required for rules to have normative content: What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself incriticism (including self-criticism), demands for conformity, and in acknowledgments that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and ‘wrong’.
V | CASE STUDIES
CANADA
The constitutionally sui generis character of recognition of the aboriginal peoples of Canada is shaped by several modes of constitutional recognition in Canada. The inception of these efforts was the Nanfan Treaty of 1701, signed at Albany (Gussen 2017). This set off 300 years of efforts towards and achieving constitutional recognition for aboriginal peoples in Canada (ibid.). The first effective effort for this was under the Constitution Act 1867 (Imp), Section 91(24) of the Act, which granted the Canadian Parliament exclusive law-making powers for “Indigenous Canadians” – which itself, recognises the existence of the group (ibid.). Furthermore, the use of the power yielded the Indian Act, which extended governing principles to people of Canada’s First Nations (ibid.). By comparison, Australia has been described as “left behind on the recognition of its Indigenous peoples in law” (Expert Panel on Constitutional Recognition of Indigenous Australians 2012).
The latest 1982 constitution of Canada included a Charter of Rights crystallised and added legal recognition onto the pre-existing formal education (ibid.). This is evident in three provisions of the constitution; section 15, section 25 and section 35, which provide for protections against racial discrimination, pre-existing aboriginal rights so that individual rights in the constitution do not abrogate or invalidate aboriginal rights, and definitions of relevant terms respectively (ibid.). To clarify, there was no creation of aboriginal rights in the Constitution Act 1982 – it merely recognised them (Gussen 2017). Furthermore, this was done without adequate definitions of what these rights entailed (ibid.). However, recognitions under section 25 are what conferred the constitutionally sui generis character on Indigenous Canadians under Canadian law (ibid.). The definitions under section 35 are purported to confer a “dynamic nature” on constitutional recognition in Canada, as they are left open to interpretation by the courts. This means that when cases are brought to court, courts will decide what rights are just and fair to be recognised. In sum, through provisions of the Charter of Rights in the 1982 constitution of Canada, modern aboriginals in the country are able to make a case for their rights and these are, to some extent, recognised constitutionally.
Compared with this, the United States has fewer measures of constitutional recognition for Native Americans. The United States Constitution refers to Native American tribes explicitly in two instances; Indians not taxed were not included in the population and congress was bestowed with the power to regulate commerce with the different Indian tribes (Banach 2002). The former was for tax and representation reasons whereas the latter remained unclear in terms of the specificity of the powers of congress (ibid.). The more impactful of the two was the congressional power, specified under article 1, section 8, clause 3 of United States Constitution (Maddison 2016). Broadly construed, it recognises a type of enduring sovereignty as apart from “Indian Tribes”, the only other entities specified are “States” of the United States and “foreign Nations” (ibid.).
NEW ZEALAND
New Zealand differs from Australia in the sense that it has a treaty off which to base constitutional recognition, the Treaty of Waitangi of 1840. This treaty recognizes the British monarch as the New Zealand sovereign and affords them ‘the unqualified exercise of their chieftainship over their lands, villages and all their treasures’ (Gussen, 2017). Additionally, it also stated that both indigenous and non-indigenous New Zealanders would be considered part of the same race in an effort to connote racial equality. The key consideration here is that the recognition of the treaty as binding on the Crown has shifted it away from simply existing as a treaty to it being a constitutional document (Ibid).
There have been multiple acts passed in New Zealand aimed at bettering the experience of their indigenous people. The two most compelling of these are the Maori Welfare Act of 1962 and the Treaty of Waitangi Act of 1975. The 1962 act presents a positive example in that it precipitated the creation of a national Maori council to advise the government on issues related to and affecting Maori citizens (Ibid). The 1975 Act similarly led to the creation of a Waitangi Tribunal to report breaches of the 1840 treaty. These are interesting acts as they show the potential value of isolated bodies organised by the indigenous community collaborating with elected government.
In theory, it is easier to change the constitution to better recognise indigenous peoples in New Zealand. This is because New Zealand, unlike Australia, does not have a written constitution or two houses of government. Additionally, it also only has one treaty to accommodate unlike Canada. However, none of the multiple acts of recognition have led to a wide constitutional recognition in New Zealand. Indigenous rights are recognised only through a piecemeal legislative approach as a component of the Westminster system. Additionally, the system of jurisprudence adopted in New Zealand courts while admirable, will not influence rights recognised by the Crown until it is incorporated into municipal law (Ibid).
VI | RECOMMENDATIONS: This group, based on its comprehensive research, is pleased to present 9 recommendations to address the need for Constitutional Reform regarding Aboriginal and Torres Strait Islander.
1. TRUTH COMMISSION A referendum on the constitutional recognition of Aboriginal and torres Strait Islander Australians should consider the inclusion of indigenous concepts of justice and resolution. A Makarrata, a complex Yolngu word describing a process of conflict resolution, peacemaking and justice, carries a cultural significance and in the spirit of this, it is proposed a truth commission be set up alongside the referendum.
We submit that a referendum for constitutional recognition of Australia’s first nation peoples is conducted pursuit of healing the fractured relationship they experience with the government and other Australian communities. In order for the wider public to understand the difficult past, and why this justifies holding a referendum, a truth commission be set up. The function of the truth commission would be twofold – to give a space for first nation Australians to tell their stories; to shine light on the injustices they have experienced and to formally acknowledge the suffering of their communities, past and present. This includes past injustices such as the stolen generation, but would also include more recent experiences of trauma such as police brutality and deaths in custody. This allows for Aboriginal and Torres Strait Islanders to have personal experiences publically heard facilitating healing and recognition for speakers and community.
The second function would be to provide visibility on these injustices to the wider community, how they continue to shape the lives of first nation Australians and convey to them the justification for constitutional recognition. The social contract between the state and first nation Australians has been severely damaged by past injustices and atrocities. A truth commission is part of the process of repairing this relationship, but it also gives the broader community an understanding of how this came to be, and why it requires redress. It would and help people understand the impact of the referendum would be more than symbolic.
A truth commission focuses on the experience of survivors, rather than the funded advocacy of organisations on either side of the debate. Providing information, rather than arguments give more space for voters to make up their minds based on facts and lived experiences, rather than lobbying and marketing.
Truth commissions have been shown to give meaning to suffering and forms a contract between perpetrator and victim to mutually pursue the aim of preventing atrocities and injustices from occurring in the future. This builds trust between the two, and this trust gives victims the capacity to move forward and work more closely with the government to advocate their own interests and that of their communities. The process of truth telling forms the basis of a mode of justice that is more reconciliatory than punitive (Posel, 2008: 126). A foundation of a wide scope and the pursuit of a historical narrative, much like the Memoria de Silencio (the Guatemalan truth commission) is a methodology to strongly consider in light of its utility in collective healing (Grandin, 2005: 66). This is not to suggest other forms of justice (including punitive justice) are to be closed to first nation Australians. It is simply that they would fall outside the scope of this project.
It is understood that a truth commission would likely not conclude before the referendum was held. For the reasons outlined above, we believe that this does not diminish it’s function in this matter. The process of healing can come from multiple sources; independent but mutually beneficial. It is inconceivable that a referendum on this matter be conducted without serious consideration on how voters will be meaningfully informed about what it is they are voting on and why.
2. AMEND THE RACIAL DISCRIMINATION ACT There have been convincing calls to amend the Racial Discrimination Act 1975 in order to provide positive protection and reinforcement of Aboriginal and Torres Strait Islanders as an extension of greater legal, political and indeed, constitutional recognition.
It is noted that achieving some form of recognition or substantive equality for Aboriginal and Torres Strait Islanders within an amendment of the Racial Discrimination Act 1975 will be considerably more efficient from a procedural perspective, as the usual parliamentary process shall suffice rather than a lengthy, costly and perhaps most importantly, potentially highly divisive and damaging identity-based referendum.
However, it should also be noted that constitutional recognition has substantial value in that recognition granted and rights protected shall be entrenched into Australian law, unable to be amended or repealed at the whim of transient political climates.
Indeed, the potential harm suffered by negative, racially-motivated media and political attention during a referendum debate is likely to be replicated by any parliamentary debates surrounding future amendments to the Racial Discrimination Act. For example, there was substantial and highly divisive media coverage and commentary on proposed changes to Section 18C in 2016 and 2017.
More is clearly required. We recognise the short-term efficiency of attempting to recognise Aboriginal and Torres Strait Islanders through an act of parliament rather than through a constitutional amendment, however we ultimately submit that such a method would provide only transient recognition, capable of being repealed at the whim of the government of the day, and leaving open the opportunity for considerably harmful debate. What is needed is constitutional recognition, and nothing less.
3. CONSTITUTIONAL AMENDMENTS - REMOVAL OF S25 AND S51(XXVI) Whilst noting that it is not a priority of present Aboriginal and Torres Strait Islander submissions, there has long been judicial recognition that sections 25 and 51(xxvi) of the Constitution are undesirable remnants of highly racialised and anachronistic powers.
Section 25 is entitled ‘Provision as to races disqualified from voting’, and provides that ‘...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’.
The provision impugns states which exclude all persons of a particular race from voting at the state level, as that state will then receive less funding due to the resultant lower population count. However, as Arcioni (REF) argues, the symbolic potentiality of a state excluding a group from voting on the grounds of race or ethnicity, is antithetical to contemporary Australian standards of equality and non-discrimination. The ability for a state to lawfully exclude Aboriginal and Torres Strait Islanders (or any other racial or ethnic minority) from being included in the ‘number of people’ is inherently dehumanising.
Removing Section 25 has been described as the “least controversial proposal” (Arcioni 2012) presented by the 2012 Expert Panel on Constitutional Recognition of Indigenous Australians. Indeed, recommendations for it to be repealed have been made consistently since as early as 1959, with the Report from the Joint Committee on Constitutional Review noting that whilst the “matter is not of any great importance”, the appropriate action would be to repeal the section.
Section 51(xxvi) falls under the constitutional powers of the Parliament, which states that ‘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… (inter alia) the people of any race, for whom it is deemed necessary to make laws’.
Prior to the 1967 referendum, this section did not apply to ‘the aboriginal race’. Although the judicial argument has been put forward that the operation of this section should only apply to legislating for the benefit of Indigenous Australians (or other racial groups), this was rejected by the High Court in Kartinyeri v Commonwealth (1998), with a stricter constitutional interpretation preferred.
Whilst these sections remain in the Constitution, they are highly unlikely to be relied upon due to politico-legal considerations, and as such are generally accepted to be dead letter laws, the push to amend or repeal them no longer forms the central Aboriginal and Torres Strait Islander recognition agenda and should not be prioritised ahead of positive constitutional recognition. Any removal will constitute a largely symbolic rather than practical change.
However, it must be recalled that referenda are a rare occurrence in Australian political procedure: since 1901 there have been only 44 referenda put to the people (of which only eight have succeeded). If repeal of these sections is not put forward as part of the constitutional recognition referendum, then it will likely be many years until another opportunity arises in which to address them. The most recent referendum was almost two decades ago: such symbolically dehumanising provisions should not remain in the Constitution for a comparable period of time.
Therefore, whilst repealing these dead letter sections should not be prioritised ahead of positive recognition inclusions, we recommend that such repeal forms an integral part of an effective constitutional recognition process.
4. INSERT PREAMBLE One potential method of inserting a positive recognition of Aboriginal and Torres Strait Islanders into the Constitution is by way of a preamble which would, inter alia, recognise the first Australians and their connection with the land.
It is noted that a proposed preamble was put forward as part of the 1999 referendum, to substantial popular rejection. Indeed, 60.66% of electors voted against the proposed preamble, and a majority voted against the proposal not only at the Commonwealth level, but also in every state and territory. The proposed preamble was as follows:
With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of government to serve the common good. We the Australian people commit ourselves to this Constitution: proud that our national unity has been forged by Australians from many ancestries; never forgetting the sacrifices of all who defended our country and our liberty in time of war; upholding freedom, tolerance, individual dignity and the rule of law; honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country; recognising the nation-building contribution of generations of immigrants; mindful of our responsibility to protect our unique natural environment; supportive of achievement as well as equality of opportunity for all; and valuing independence as dearly as the national spirit which bind us together in both adversity and success.
As is evident from the wording of this proposed preamble, a key difficulty with the preamble as a method of recognition is that it is is unlikely to focus exclusively on Aboriginal and Torres Strait Islander recognition, and there are political difficulties in establishing the remaining contents. For example, the extent to which migration, the environment, and past wartime sacrifices should be contained within a preamble to the national constitution may all be questioned.
Emphases on tolerance and independence may be construed in politicised ways. References to the “national spirit” may appear facile, arguably jingoistic, and ultimately inappropriate for a constitutional document. Additionally, the recognition of Aboriginal and Torres Strait Islanders may not be comprehensive. For example, in the 1999 proposal, there is no reference to language, which forms a crucial component of substantive constitutional recognition.
All these concerns draw attention away from the positive recognition of Aboriginal and Torres Strait Islanders that a preamble may potentially, and ultimately only symbolically, provide. Considering the substantial failure of the proposed preamble at the 1999 referendum, and procedural and political concerns surrounding the inclusions, we recognise the potential benefits of recognition by way of preamble, but do not consider it the most effective means of recognition.
5. INSERT RECOGNITION AND NON-DISCRIMINATION PROVISION The preferred method of inserting Aboriginal and Torres Strait Islander recognition into the Constitution is by way of a substantive provision. This provision will offer a positive recognition of the history, role and identity of Aboriginal and Torres Strait Islanders as the original and traditional custodians of modern Australian lands. The provision will establish the Makaratta Council as outlined above, however leaving the procedural and administrative details to be expressed in later legislation, thus facilitating popular and political input. The provision will establish the Indigenous Voice to Parliament, as explained in the following sections.
It is recommended that any and all constitutional amendments relating to Aboriginal and Torres Strait Islander peoples be supported by the community, ensured through thorough consultation lead by the community. It is proposed that the following be considered as a draft insertion for recognition, developed by Constitutional law expert Anne Twomey (Stubbs 2012). 51A. Recognition of Aboriginal and Torres Strait Islander Peoples 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 Aboriginal and Torres Strait Islander peoples (Stubbs 2012 p. 11).
The proposed removal of section s51(xxvi) of the Constitution will require the insertion of a parliamentary power to make non-discriminatory laws in respect to Aboriginal and Torres Strait Islander peoples (Stubbs 2012). For example the NSW Aboriginal Languages Act 2018 positively discriminates by providing protection and revitalisation of Aboriginal languages. It is recommended that the power to make laws with a non-discriminatory provision applies to laws passed by both the Commonwealth and a State or Territory to ensure an adverse discriminatory law against Aboriginal and Torres Strait Islanders cannot be passed by any Australian parliament. It is proposed that the following two options are considered as drafts, there are limitations to both options discussed below.
Option 1 116A. Prohibition of racial discrimination (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. (2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group (Stubbs 2012 p.11).
Option 2 60A. Recognition of Aboriginal and Torres Strait Islander Peoples (1) 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 Aboriginal and Torres Strait Islander peoples. (2) A law of the Commonwealth, a State or a Territory must not discriminate adversely against Aboriginal and Torres Strait Islander peoples (Stubbs 2012 p.11).
Option 1 might be regarded as optimistic, however protection from discrimination is a negative right from a international human rights perspective. In essence, to be free from discrimination is a basic human right and doesn’t afford anything beyond safety and dignity. Therefore Option 1 should be considered to ensure all Australians are protected from racial discrimination and by default limits the use of the Racial Discrimination Act 1975 from being used in a discriminatory manner, discussed in more detail below (Stubbs 2012; Twomey 2015). However it can be argued that Option 1 does not address the unique historical, cultural position and experience of Indigenous Australians as the nations first peoples. Option 2 addresses this directly and is argued to be more salient as a referendum question (Stubbs 2012). Therefore option 2 is also worthy of serious consideration. It is not clear which option is optimal without further community consultation. A non-discrimination clause is crucial and Indigenous community support for Constitutional recognition is unlikely without one. However, all non-discrimination clauses are vulnerable to Parliamentary rejection and therefore justiciability, shifting the power to the High Courts. This is the limitation of both options which is yet to be negated by a Constitutional Law experts and is a recommended area of further research (Stubbs 2012).
In summary, it is therefore recommended that a non-discrimination clause be developed in a collaborative manner by Constitutional Law Experts, human rights law experts and the broader Indigenous community. However Constitutional recognition and protection from adverse discrimination does not ensure any political representation or advocacy. Public misconceptions must to be addressed to ensure votes are based on the real implications for the above Constitutional amendment. Indigenous political representation and consultation issues evident in the consistently ineffective Indigenous public policy is a separate, yet crucial issue that may also be addressed with further Constitutional amendment.
6. ABORIGINAL AND TORRES STRAIT ISLANDER ADVISORY BODY ENSHRINED IN THE CONSTITUTION The purpose of the advisory body is to provide advice and consultation on Indigenous affairs and to assist Parliament in creating more effective legislation. The body allows Indigenous peoples a formal political representation which can accurately reflect the communities needs and perspectives. Indigenous Australians require targeted policy to address the unique history of dispossession and current forms of disadvantage encountered by Indigenous individuals and communities (Twomey 2015; Stubbs 2012). A Constitutionally enshrined Indigenous body ensures genuine political participation. Indigenous communities are currently subject policy making based on party politics and changing perceptions of community. Consultation varies and government funded Indigenous consultative bodies have historically been vulnerable to changes in government and the political agenda. The role of the body is to simply give advice and offer consultation. The proposed draft model will not affect parliamentary process, sovereignty or be subject to judicial review. The following model has also been developed by Anne Twomey (2015).
60A(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the [insert appropriate name], which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.
(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].
(3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of the [body’s] advice to be tabled in each House of Parliament as soon as practicable after receiving it.
(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples (Twomey 2015, p. 7).
The above draft amendment applies to internal parliamentary proceedings to ‘proposed laws’ to ensure it is ‘non justiciable.’ . The amendment serves as an invitation for the proposed Indigenous body to table advice before the Parliament next sits. There is no obligation to table advice and if it isn’t given in time it isn’t heard (Twomey 2015). Parliament is required to give the proposed legislation to the body that allows a reasonable time frame to respond. Advice may also be given on an Indigenous issue that has not been raised by Parliament. There are existing legislative examples of similar parliament obligations and ‘administrative mechanisms’ already exist on hearing tabled advice (Twomey 2015, p. 8). The draft model ensures there is no limitation on or court interference with the Parliaments ability to make and pass laws with regard to Indigenous peoples. The finer details of the Indigenous body such as the way people are elected to represent communities needs to be lead by the Indigenous community. Ownership and support of the body is required by community to ensure success and genuine representation. Put simply it would be the government's role to financially fund the body and hear its advice. There is no obligation to implement the advice (Twomey 2015).
7. ABOLISH INSTITUTIONAL RACISM Aboriginal and Torres strait islander peoples still experience Institutional Racism - the systemic patterns of inequality i.e the distribution of social resources, the workings of government departments and agencies, and the disproportionate number of indigenous people incarcerated. To combat institutional racism there must be an initial identification of it. Pettman (1992), contends that the eradication of institutional racism starts with awareness, workshops, educational seminars and indigenous speakers will elucidate institutional racism. From there, policy changes will take place on an informed basis.
To contextualize institutional racism: The Royal Commission in Aboriginal Deaths in Custody highlighted the gross over misrepresentation of Indigenous peoples in custody. 25 years since the Royal Commission into Aboriginal Deaths in Custody the social report of 2015 released by the Australian Human Rights Commission still highlights that the government has not yet enacted the 339 recommendations originating from the commission. at 30 June 2014, around 85 percent of prisoners in custody in adult correctional centers in the Norther Territory were indigenous. Instead of enacting any sort of committee in rectifying change and reflection into the high instances of indigenous incarceration the NT released the paperless arrest powers. Amendments to the Police Administration Act (NT) notably s 133AB allowed police, without a warrant, to detain a person in custody for up to four hours. These powers allowed for police officers to arrest a person merely on suspicion, regardless of whether the suspicious act amounted to any term of imprisonment. The High court itself has upheld the validity of such legislation, giving the act judicial credibility.
In essence we can make three recommendations to counter institutional racism. • Firstly, the Racial Discrimination Act 1975 (Cth) Section 9(1A) does not provide a broad enough protection, it attacks the causes of racism as opposed to countering systemic racism as a whole. A remedial strategy, if this section is to remain intact, is to employ educational programs and spread the awareness of systemic racism. These programs would have been useful in the NT when such paperless arrest warrants were initially employed. • Secondly, a more substantive approach is a complete redraft of the RDA. This has been proposed by Tahmindjis (1995). His theory predicated the inability of the RDA to combat systemic racism through official channels. There must be an integration of Critical Race Theory into the legislature. This has further been supported by the Royal Commission into Aboriginal Deaths in Incarceration. A wider and broader understanding of racism and its underlying factors is needed in Australian legislature. • Lastly, inspiration to counter systemic racism can be elucidated through the Disability Discrimination Act 1992 (Cth) wherein a minister can set a standardized approach or level. This differs greatly from the RDA in which, the standards are varying in objective seriousness due to its complaint-based approach. A standardised approach would mean: positive compliance, indication of effective policies and practices in combating racism, and creating an objective standard which is clear to society. Ultimately, this would improve the efficacy of the RDA in countering systemic racism.
8. IMPLEMENT THE RECONCILIATION BILL This Reconciliation Bill recognises the status of Aboriginal and Torres Strait Islander peoples and incorporates the Australian Declaration Towards Reconciliation into the Act via Schedule 1. A Schedule to an Act forms part of the Act and as such, carries greater interpretive weight than it otherwise would as an external document or even as part of the preamble. The Declaration provides a starting point for the recognition of the place of Aboriginal and Torres Strait Islander peoples in Australian society.
The legislation establishes a process that allows Aboriginal and Torres Strait Islander peoples and government to reach agreement on a framework for negotiation of unresolved issues for reconciliation as these issues relate to outcomes at a national level. The Council acknowledges that these processes at a national level are in their initial stages. It is also acknowledged that many of the ideas surrounding the negotiations at this national level are complex and may require further development and analysis before outcomes can be identified. However, it is timely to capture the sense of urgency and goodwill engendered by the reconciliation process to begin the process of negotiation.
9. INDIGENOUS LIFE EXPECTANCY The Close the Gap Statement of Intent embodied a ‘re-setting’ of the relationship between Australian governments and Aboriginal and Torres Strait Islander peoples to one based on partnership. It was somewhat Ironic then that the National Indigenous Reform Agreement (NIRA) and the Closing the Gap Strategy was agreed by Australian governments without any significant Aboriginal and Torres Strait Islander engagement. Partners could have included the Indigenous health planning forums at the state and territory level that had been operational since the late 1990s. It soon became clear that a comprehensive national plan to achieve health equality by 2030 was not a Council of Australian Governments (COAG) priority. National Partnership Agreement on Closing the Gap in Indigenous Health Outcomes (NPACTGIHO) were pre-determined and not open to change. Ultimately there was no systematic plan to progressively realize the capacity of the Aboriginal Controlled Community Health Services (ACCHS) according to need, let alone in relation to housing, health infrastructure and social determinants.
Furthermore, in December 2013, COAG formally decided not to renew the NPACTGIHO. A key principle in any long-term change is consistency. Although the federal government intended bilateral Federal-jurisdictional agreements to replace the programs, the expertise and knowledge garnered by such programs cease to exist in its entirety. This impedes long- term goals and hinders the 2030 equality of health-care envisioned by the government.
In summary, the Closing the Gap Strategy had significant merits attempting to address chronic disease, child and maternal health and other areas, and were recognized in the evaluations. These must continue to be supported in a refreshed Strategy. Alongside the lack of continuity, the main criticism is that the Strategy did not include a complementary set of programs to systematically address (i.e. by progressive realization) the underlying causes of Aboriginal and Torres Strait Islander health inequality (primary health care and so on). Addressing the underlying causes (the social determinants) requires a high degree of cross portfolio purpose and collaboration, as these factors are both mutually supporting and interdependent. The lack of progress against targets raises questions about whether there has been sufficient cross-portfolio commitment to Closing the Gap. The imperative of portfolio-based ministerial responsibility, accountability and budget rules may present not only a complex coordination task but serves to work against agendas that require cross- cutting, whole-of government approaches and commitment.
In summary, the federal government is not on track to achieve equality in indigenous health care in 2030 according to the AHRC (2017). Therefore, we purport the following recommendations: • Re-implement the Closing the Gap Strategy with Aboriginal and Torres Strait Islander health leaders and include community consultations. • Ensure there is continuity in existing programs, expertise gained over long periods of time must continue to function if there is to be any substantive change. • The central government must play a more active role in ensuring the success of indigenous health equality. The lack of progress against targets can be attributed to the laissez-faire attitude the federal government has adopted by placing the onus of such change on individual states, especially when some states have begun health care cuts. 4. Specify a plan wherein underlying causes attributing to Aboriginal and Torres Strait Islander health inequality would be addressed.
VII | FINAL RECOMMENDATIONS
This group, based on its comprehensive research, is pleased to present 2 viable recommendations to address the need for Constitutional Reform regarding Aboriginal and Torres Strait Islanders.
Recognising Aboriginal and Torres Strait Islanders within Australia’s legal framework is essential. We submit that the only effective way to achieve this is through positive, substantive constitutional recognition. We do not support statutory recognition or merely symbolic recognition. Neither is sufficient to achieve genuine politico-legal change and will merely act to temporarily subdue calls for such genuine change. As a result, we recommend that:
1. A truth commission be established following the Makaratta model; a. The commission should be established by parliament in partnership with Indigenous communities. The objective of the commission as it relates to the referendum would be to hear and communicate public submissions about the traumatic experiences of first nation Australians including survivors of the Stolen Generation. The referendum is the right time to place Indigenous concerns on the political agenda. A truth commission would provide information to the wider community about why a referendum is necessary, It addresses inequality, rather than produces it. b. Those of us with the responsibility to vote in the referendum would be able to do so armed with information highly relevant to their decision. 2. A referendum be put to the Australian people, instructed to vote on the following proposals: 1. To insert a new provision recognising Aboriginal and Torres Strait Islanders in the words above; 2. To insert a new provision providing for the Voice to Parliament in the words above; 3. To insert a new provision prohibiting racial discrimination in the words above; 4. To repeal Sections 25 and 51(xxvi) of the Constitution.
BIBLIOGRAPHY
Arcioni, E 2012, ‘Excluding indigenous Australians from 'the people': A reconsideration of sections 25 and 127 of the 'constitution' Federal Law Review, Vol. 40, No. 3, pp. 287-315.
Banach, E 2002, ‘The Roma and the Native Americans: Encapsulated Communities within Larger Constitutional Regimes’, Fla. J. Int’l L, vol. 14, pp 353-395.
Brennan, F 2015, No Small Change: The Road to Recognition for Indigenous Australia, University of Queensland Press, St Lucia.
Corntassel, J. and Holder, C., 2008. Who’s sorry now? Government apologies, truth commissions, and Indigenous self-determination in Australia, Canada, Guatemala, and Peru. Human rights review, 9(4), pp.465-489.
Dziedzic, A and McMillan, M 2016, ‘Australian Indigenous constitutions: recognition and renewal’, Federal Law Review, Vol. 44, No. 3, pp. 337-361.
Expert Panel on Constitutional Recognition of Indigenous Australians 2012, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel, viewed 5 September 2018, https://www.pmc.gov.au/resource-centre/indigenous- affairs/final-report-expert-panel-recognising-aboriginal-and-torres-strait-islander-peoples- constitution
Gussen, B F 2017, ‘A Comparative Analysis of Constitutional Recognition of Aboriginal Peoples’, Melbourne University Law Review, vol. 40, no. 3, pp. 1-38.
Maddison, S 2016, ‘Indigenous reconciliation in the US shows how sovereignty and constitutional recognition work together’, The Conversation, 17 May 2016, https://theconversation.com/indigenous-reconciliation-in-the-us-shows-how-sovereignty- and-constitutional-recognition-work-together-54554
Referendum Council, 2016. Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. https://www.pmc.gov.au/sites/default/files/publications/Referendum-Council-Discussion- Paper-Oct2016.pdf
Twomey, A., 2011. Constitutional recognition of indigenous Australians in a preamble.
Twomey, A. 2015. An Indigenous Advisory Body: Addressing the Concerns about Justiciability and Parliamentary Sovereignty, 8 Indigenous L. Bull. 6.
Stubbs, M., 2012. Substantive recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. Indigenous L. Bull., 8.
Deborah Posel, ‘History as Confession: The Case of the South African Truth and Reconciliation Commission’, Public Culture 20, no. 1 (2008): 119–141.
Greg Grandin, ‘The Instruction of Great Catastrophe: Truth Commissions, National History, and State Formation in Argentina, Chile and Guatemala’, The American Historical Review 110, no. 1 (2005): 46–67.