INSIGHT

First steps in Constitutional recognition of Aboriginal and Torres Strait Islander peoples

By Malcolm Stephens
Government Human rights obligations

In brief

The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples has released its interim report. The report indicates that there is likely to be bipartisan support for constitutional amendments giving specific recognition to Aboriginal and Torres Strait Islander peoples. It appears unlikely, however, that there will be bipartisan support for a constitutionally entrenched anti-discrimination provision. Partners Malcolm Stephens and Ian McGill report.

How does it affect you?

  • The amendments that are likely to be favoured by the Joint Select Committee (the Committee) will, if passed in a referendum, lead to constitutional recognition of Aboriginal and Torres Strait Islander peoples. This will be an important, symbolic achievement for all Australians.
  • The 'Race Power' has been a source of important Commonwealth legislation, including the Native Title Act 1993. Any replacement power will need to be carefully drafted to ensure that there is certainty as to the continuing validity of this legislation.
  • A constitutional anti-discrimination provision may have led to a period of uncertainty while the scope of the provision was determined by the High Court. The risk of such an amendment, with the consequent uncertainty, is now receding.

Background: recommendations of Expert Panel

In January 2012, an Expert Panel, co-chaired by Patrick Dodson and Mark Leibler, delivered its report on recognising Aboriginal and Torres Strait Islander peoples in the Constitution.1 The recommendations of the Expert Panel, considered by the Joint Select Committee, were that:

  • section 25 of the Constitution be repealed;
  • s51(xxvi) of the Constitution (the 'Race Power') be repealed;
  • a new s51A be introduced giving the Federal Parliament the power to make laws with respect to Aboriginal and Torres Strait Islander peoples;
  • that language of recognition be included in this new s51A;
  • a new s116A be introduced to prohibit discrimination by the Federal, state or territory governments; and
  • a new s127A be introduced to recognise the importance of Aboriginal and Torres Strait Islander languages.

Each of these recommendations was considered by the Committee in its Interim Report.

Repeal of s25

Section 25 of the Constitution provides that, if a state law prevents people of a certain race from voting at elections, then people of that race in that state shall not be counted in determining the population of the state or the Commonwealth.

The Interim Report supports the recommendation of the Expert Panel that this section be repealed. In particular, the Interim Report referred to the symbolic value of removing references to 'race' from the Constitution. In making this recommendation, the Committee acknowledges that s25 has its origin in the Fourteenth Amendment to the United States Constitution, which was intended to penalise states that denied voting rights to slaves. However, it observes that the section has no ongoing utility and could be removed without any consequential effects to the Constitution.

The Race Power

The Interim Report refers to widespread support for the removal of the Race Power, being the power of the Federal Parliament to make laws with respect to the people of any race. The report again notes the symbolic value in removing references to 'race' from the Constitution.

One concern with removing the Race Power is the possible effect on legislation that has been passed in reliance (or partial reliance) on that power. Such legislation includes the Native Title Act and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The Interim Report articulates the Committee's agreement with the Expert Panel that the removal of the race power should be accompanied by a new power (s51A) specifically relating to Aboriginal and Torres Strait Islander peoples.

The Interim Report supports the inclusion of 'language of recognition' in this new power. It does not support including such language in a general preamble to the Constitution, given that the Constitution is an act of the British parliament and there would be practical difficulties in having such language inserted.

The Interim Report considers various means for giving the Federal Parliament the power to make laws with respect to Aboriginal and Torres Strait Islander peoples, without permitting it to pass laws that discriminate against them. The Committee's preference appears to be to include any such limitation within the proposed s51A, rather than in a wider anti-discrimination provision of general application (as proposed by the Expert Panel).

A further issue raised by the Interim Report is whether such a power should be:

  • a 'peoples power', giving the Federal Parliament the power to make laws with respect to Aboriginal and Torres Strait Islander peoples; or
  • a 'subject matter power' giving power to make laws with respect to (for example) the culture, language and heritage of Aboriginal and Torres Strait Islander peoples and their relationship with their traditional land and waters.

Although the Interim Report expresses the Committee's reservations about the difficulties in drafting such a subject matter power, we believe it is worth further consideration. A subject matter power would, for example, avoid the need to classify people by race in order to determine the validity of particular legislation. A subject matter power also avoids a potential problem with a 'peoples power', which is a wide power that has the potential to be used in a detrimental or oppressive manner.2 As mentioned above, the Interim Report indicated that, at this early stage of its inquiry, it was in favour of dealing with this concern by incorporating a prohibition of racial discrimination into the legislative power.3

Section 116A: General anti-discrimination provision

The Expert Panel proposed the introduction of a new s116A prohibiting discrimination by the Federal, state or territory governments. The main purpose of this recommendation was to prevent the Federal Parliament from using its power to make laws with respect to Aboriginal and Torres Strait Islander Peoples to discriminate against them.

As explained above, the Committee prefers to achieve this goal by expressly limiting the scope of the power, rather than by introducing a new, general, anti-discrimination prohibition. The Committee was concerned that such a provision would not gain widespread support in the community and would therefore put at risk the objective of Constitutional recognition. It is therefore unlikely that such an amendment will be put to the Australian people.

Section 127A: Recognition of Aboriginal and Torres Strait Islander languages

The Expert Panel proposed a declaratory provision recognising the importance of Aboriginal and Torres Strait Islander languages. The Interim Report does not support this proposal. It expresses concern about its declaratory nature, the uncertainty it might create, and the desire not to risk the primary goal of Constitutional recognition.

Next steps

The Committee has stated it welcomes continued engagement in progress towards a successful referendum on the Constitutional recognition of Aboriginal and Torres Strait Islander peoples. It intends to publish a further interim report in 2014 before tabling a final report on or before 30 June 2015.

There is universal recognition of the fact that a referendum should not proceed until it is likely to be supported by all major political parties, a majority (but preferably all) of the state and territory governments, the wider Australian public and last, but not least, the Aboriginal and Torres Strait Islander peoples themselves.

To that end, a review panel appointed under the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 4 will report by 28 September 2014 on the levels of support for amending the Constitution to recognise Aboriginal and Torres Strait Islander peoples.

Conclusion

The Interim Report does not make any firm recommendations. It appears likely, however, that there will be bipartisan support at a federal level for Constitutional amendments which:

  • remove s25;
  • remove the Race Power; and
  • introduce a new power to make laws with respect to Aboriginal and Torres Strait Islander peoples which will:
    • include an express limitation preventing the power from being used to discriminate against Aboriginal and Torres Strait Islander peoples; and
    • include language of recognition in a preamble to that power.

In order to garner support at all levels of government and among the wider Australian public and Aboriginal and Torres Strait Islander peoples, a sound and sensible draft amendment is required for public consultation, along with a comprehensive public education campaign.5

We believe the Interim Report is a very measured and practical further step on the journey of Constitutional recognition.

 

Footnotes

  1. See the Report of the Expert Panel Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, January 2012.
  2. See Interim Report, paragraph 2.38 citing evidence given by Professor Anne Twomey.
  3. See Interim Report, paragraph 2.64.
  4. The review panel includes the Hon. John Anderson AO (Chair), Tanya Horsch, Deputy Campaign Director of Recognise and Richard Eccles, Deputy Secretary of the Department of Prime Minister and Cabinet.
  5. See Interim Report, paragraph 2.12, where the Committee cited the 'five pillars to a successful referendum' namely bipartisanship, popular ownership, a sound and sensible proposal, comprehensive public education and the distribution of information using a range of media articulated by George Williams and David Hume, People Power: The History and Future of the Referendum in Australia, UNSW Press, 2010.