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Report Into Current Issues with the Constitutional Recognition of Aboriginal and Torres Strait Islanders in Australia and Recommendations

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Report Into Current Issues with the Constitutional Recognition of Aboriginal and Torres Strait Islanders in Australia and Recommendations 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
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