Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples Final Report June 2015 Commonwealth of Australia 2015 ISBN 978-1-76010-194-7 This work is licensed under the Creative Commons Attribution-Non-commercial- NoDerivs 3.0 Australia License. The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/ Printed by the Senate Printing Unit, Parliament House, Canberra. Committee membership Committee members Mr Ken Wyatt AM MP, Chair Western Australia, LP Senator Nova Peris OAM, Deputy Chair Northern Territory, ALP The Hon Shayne Neumann MP Queensland, ALP The Hon Christian Porter MP (until 11 February 2015) Western Australia, LP Ms Sarah Henderson MP (from 11 February 2015) Victoria, LP Mr Stephen Jones MP New South Wales, ALP Senator Bridget McKenzie Victoria, NATS Senator James McGrath (from 1 July 2014 – 23 June 2015) Queensland, LNP Senator Anne Ruston (until 1 July 2014, from 23 June 2015) South Australia, LP Senator Rachel Siewert Western Australia, AG Committee secretariat Ms Toni Matulick, Secretary Dr Jon Bell, Principal Research Officer Ms Aleshia Westgate, Senior Research Officer Ms Erin Pynor, Senior Research Officer Ms Kimberley Balaga, Administrative Officer Mr Cale Woods, Administrative Officer Mr Michael Perks, Administrative Officer Committee address PO Box 6100 Parliament House Canberra ACT 2600 Phone: 02 6277 3544 Fax: 02 6277 5719 Email: [email protected] Internet: http://www.aph.gov.au/jscatsi iii Chair's foreword For the last 114 years, Australia's founding document, the Constitution, has been silent on Aboriginal and Torres Strait Islander peoples. Excluded from voting, and from participating in the convention debates which led to the drafting of the Constitution, the voices of Aboriginal and Torres Strait Islander peoples were silenced by the framers of the Constitution. While there is no constitutional recognition for Aboriginal and Torres Strait Islander peoples, that silence will continue. The absence of Aboriginal and Torres Strait Islander peoples from the Constitution makes silent and renders invisible the world's oldest continuing culture. European contact began in the 1600s when ships from Europe first explored the coastlines of the lands and waters that would become known as Australia. In 1770, Captain James Cook made landfall at Botany Bay. On 26 January 1788, Captain Arthur Phillip established a settlement at Sydney Cove made up of those who travelled as part of the First Fleet. Over the next century, new colonies were founded and borders were drawn up across a continent that had been home to hundreds of Aboriginal nations for tens of thousands of years. When the Constitution was drafted, the exclusion of Aboriginal and Torres Strait Islander peoples was unremarkable for the time, as Aboriginal and Torres Strait Islander peoples were not considered citizens and had minimal rights and protections. However, the continued constitutional silence maintained by this exclusion is remarkable. That our Constitution allows a state to ban a race from voting is remarkable. That in our Constitution there are more references to lighthouses than to the first peoples of this nation is remarkable. That constitutional recognition has not occurred already is remarkable. The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples has engaged the Australian community on constitutional recognition by conducting fifteen public hearings, speaking with constitutional law experts and holding community forums. At all times, the committee has sought to hear the aspirations of Aboriginal and Torres Strait Islander peoples. The committee strongly believes that in order to achieve constitutional recognition, the support of Aboriginal and Torres Strait Islander peoples is of critical importance. Without this support, the imposed silence of the past will continue into the future. The committee has heard that it is time to remedy the injustice of exclusion and recognise in our founding document the significant contribution of Aboriginal and Torres Strait Islander peoples to a modern Australia. v The committee heard that in order to achieve this, the mere removal of racist sections of the Constitution would not be enough and that much more is needed. The committee heard that Aboriginal and Torres Strait Islander peoples will accept nothing less than a protection from racial discrimination in the Constitution. Since the time of Captain Cook's first landfall, Aboriginal and Torres Strait Islander peoples have suffered from continuous dislocation, discrimination and disadvantage. The committee heard of the serious and pressing issues faced by Aboriginal and Torres Strait Islander peoples in everyday life and heard of the endemic racial discrimination faced by Aboriginal and Torres Strait Islander peoples. The committee acknowledges that recognition in the Constitution will not end racism in Australia, nor will it be a solution to the serious problems faced by Aboriginal and Torres Strait Islander peoples. However, constitutional recognition will be a vital step towards reconciliation and give a voice to Aboriginal and Torres Strait Islander peoples in a Constitution better aligned with a modern Australia. By protecting Aboriginal and Torres Strait Islander peoples from discrimination on the basis of race, Australia will be better placed to offer its first peoples a future in which their historical mistreatment is not repeated. This final report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples recommends that a referendum be held on the matter of recognising Aboriginal and Torres Strait Islander peoples in the Constitution. I commend this report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples to the Prime Minister and the Australian Parliament. vi Table of contents Chair's foreword ................................................................................................. v Executive summary ............................................................................................ xi Recommendations ........................................................................................... xiii Chapter 1.............................................................................................................. 1 Introduction .............................................................................................................. 1 Principles of the Expert Panel ................................................................................ 2 Progress Report ...................................................................................................... 3 Structure of the report ............................................................................................. 5 Chapter 2.............................................................................................................. 7 Progressing toward a successful referendum ........................................................ 7 Guide to this chapter ............................................................................................... 7 Role of the committee ............................................................................................ 8 Completing the Constitution................................................................................... 8 Timing .................................................................................................................. 13 Comparative jurisdictions ..................................................................................... 14 Chapter 3............................................................................................................ 19 The removal of Race from the Constitution and the retention of the 1967 referendum result ................................................................................................... 19 Sections 25 and 51(xxvi) of the Constitution ....................................................... 19 Chapter 4............................................................................................................ 23 Proposals for constitutional change ...................................................................... 23 Proposals which support the recommendations of the Expert Panel ................... 23 Proposals which go beyond the recommendations of the Expert Panel ............... 23 Alternative models ................................................................................................ 31 Chapter 5............................................................................................................ 47 A proposed prohibition of discrimination ............................................................ 47 Support for a prohibition of racial discrimination ................................................ 50 Concerns raised over the inclusion of an anti-discrimination provision .............. 60 Chapter 6............................................................................................................ 65 Parliamentary Scrutiny .......................................................................................... 65 Parliamentary Joint Committee on Human Rights ............................................... 65 Chapter 7...........................................................................................................