Constitutional recognition of Indigenous Australians

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CONSTITUTIONAL RECOGNITION OF INDIGENOUS AUSTRALIANS
Draft Position Paper
22 October 2010
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INTRODUCTION AND OVERVIEW
1. On the eve of the 2010 Federal election, all major political parties committed to holding a referendum in the present term of Federal Parliament, to recognise the First Australians in the Constitution. The Law Council of Australia welcomes this bipartisan political commitment to Constitutional reform and presents the following Position Paper, identifying proposals for amending the Constitution, to give practical and substantive effect to that commitment.
2. In particular, the Law Council welcomes the opportunity presented by recent political developments to renew relations between Australia’s Indigenous and non-Indigenous peoples, and to create a basis for future relationships founded upon principles of equality and consent.
3. In many countries, Indigenous peoples have (re)established new Constitutional relationships within the limits of existing nation-States. These developments suggest that there are many ways to recognise distinct Indigenous identities in Constitutional documents, and to renew relationships between Indigenous and non-Indigenous peoples on a basis of equality and consent.
4. In 1988, the Constitutional Commission recommended substantive Constitutional reform to the race power in section 51(xxvi) of the Constitution to retain the spirit, and make explicit the meaning, of the alteration made by the 1967 referendum which Justice Brennan has described as “an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial”. The proposal to replace section 51(xxvi) with a provision empowering the Commonwealth Parliament to make laws with respect to Aborigines and Torres Strait Islanders has been supported by the Hon Robert French who, writing extracurially, has commented that: “Such laws are based not on race but on the special place of those peoples in the history of the nation”.1
5. In March 1995, following the 1992 decision of the High Court in Mabo v The Commonwealth (No 2),2 comprehensive “social justice package” reports were provided to the Prime Minister by, amongst others, the Aboriginal and Torres Strait Islander Commission (ATSIC), the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner. Each of these reports raised the need for substantive Constitutional reform.
6. In an address to a conference on The Position of Indigenous Peoples in National Constitutions in Canberra on 4 June 1993, Professor Erica-Irene Daes, Chairperson of the UN Working Group on Indigenous Populations, noted that with few exceptions Indigenous peoples were never a part of State-building. With reference to Australia, Professor Daes suggested that the best way to mark the 100th anniversary of the Australian Constitution might be “to build a new modern Constitution, in which the original people of this land can play a distinct, creative role.” The opportunity for Constitutional renewal on the occasion of the Centenary of Federation was not realised.
7. The adoption by the United Nations General Assembly in December 2007 of the Declaration on the Rights of Indigenous peoples, and Australia’s expression of formal support for the Declaration on 3 April 2009, represented further important steps
1 The Hon Justice Robert French, “The Race Power: A Constitutional Chimera”, chapter 8 in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (2003, Cambridge University Press) 180 at 208.
2 (1992) 175 CLR 1.
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forward for the recognition, promotion and protection of the rights and freedoms of Indigenous peoples.
8. The Law Council considers that the Australian Constitution should formally recognise the distinct identities of Australia’s Indigenous peoples, and secure to them equality before the law. In particular, the Law Council considers that a logical corollary of recognition of Indigenous Australians is conferral of substantive equality and removal of discrimination, otherwise the preamble is meaningless. It is considered that a referendum confined to preambular recognition without appropriate amendments to the body of the Constitution to give effect to the preamble would serve to delay real action to provide proper Constitutional recognition of the rights of Indigenous Australians. The Law Council supports an approach to Constitutional recognition which gives practical effect to preambular reform.
9. Further, the Law Council considers that debate in Australia leading to a referendum on recognition of Indigenous Australians in the Constitution must be based on a recognition of the distinct rights of Australia’s Indigenous peoples, and proceed on a basis of consultation with Australia’s Indigenous peoples through their own representative institutions in order to obtain their free, prior and informed consent to any proposal for Constitutional reform.3
RECENT POLITICAL DEVELOPMENTS
10. The Australian Labor Party’s 2010 Election Policy, Closing the Gap, provides as follows in relation to Constitutional recognition of Indigenous Australians:
“Indigenous constitutional recognition
We will pursue bipartisan support for taking the steps needed to progress the recognition of Indigenous Australians in the Constitution.
Indigenous people generously share their culture and traditions with those who have come here after them.
Constitutional recognition of Aboriginal and Torres Strait Islander peoples would be an important step in strengthening the relationship between Indigenous and non-Indigenous Australians, and building trust.
A Gillard Labor Government will establish an Expert Panel on Indigenous Constitutional Recognition comprising Indigenous leaders, representatives from across the Federal Parliament, constitutional law experts and members of the broader Australian community.
The expert panel would be charged with broad consultation on recognition of Indigenous people in the constitution, providing options on the form of the amendment and guidance on the information needed for public discussion.”
3 In this regard, articles 18 and 19 of the UN Declaration on the Rights of Indigenous Peoples provide that:
“18. Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decisionmaking institutions.”
“19. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
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11. Launched as part of the Coalition’s 2010 Election Policy, The Coalition’s Plan for Real Action for Indigenous Australians provides as follows in relation to Constitutional recognition of Indigenous Australians:
“3. Support a referendum to recognise Indigenous Australians in the Constitution
Before the last election, the Coalition made a commitment to hold a referendum to recognise Indigenous Australians in the preamble of the Constitution. Labor refused to match this commitment until recently.
The recognition of Indigenous Australians in the Constitution makes sense, and is overdue. The Coalition will encourage public discussion and debate about the proposed change and seek bipartisan support for a referendum to be put to the Australian people at the 2013 election.”
12. The agreement between the Australian Greens and the Australian Labor Party, signed 1 September 2010, provides as follows in relation to Constitutional recognition of Indigenous Australians (at paragraph 3(f)):
“Hold referenda during the 43rd Parliament or at the next election on Indigenous constitutional recognition and recognition of local government in the Constitution.”
13. In her letter of 7 September 2010 to the Hon Rob Oakeshott, Member for Lyne, Prime Minister Julia Gillard confirmed that in addition to the Australian Labor Party’s 2010 election commitments and the matters outlined in agreements with the Australian Greens and other independent MPs, a new Government would pursue inter alia the following policy programs during the term of the 43rd Parliament:
“A referendum during the 43rd Parliament or at the next election on recognition of Indigenous Australians in the Constitution.”
14. As reported in The Australian on 24 September 2010, the Minister for Indigenous Affairs, the Hon Jenny Macklin MP, has called for those from "across the political divide" to unite and form a consensus position on constitutional recognition for Indigenous people as Labor works towards a referendum on the issue.
PROCESSES
15. How given the Federal Government’s apparent commitment to hold a referendum during the 43rd Parliament or at the next election on Indigenous constitutional recognition should the process of consultation with Indigenous peoples and the broader Australian community be approached?
16. The March 1995 “social justice package” reports of ATSIC and the Aboriginal and Torres Strait Islander Social Justice Commissioner emphasise the critical importance of adequately resourced processes of consultation with Aboriginal and Torres Strait Islander communities and organisations in relation to options for Constitutional reform, the preparation of appropriate information and consultation materials, and a major public awareness program to create an environment for change and understanding of Indigenous Constitutional perspectives.
17. The Law Council considers that in the endeavour of forging new relationships, and consistent with international standards, processes in Australia leading to a referendum on recognition of Indigenous Australians in the Constitution must proceed on a basis of consultation with Australia’s Indigenous peoples through their own representative
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institutions in order to obtain their free, prior and informed consent to any proposal for Constitutional reform.
4
18. In light of the timeframe, it will be necessary to be realistic about the feasibility of preparing for and having passed at referendum a complex series of amendments to the Constitution. Accordingly, it will be important to work to keep processes for the renewal of relations between Indigenous and non-Indigenous Australians and of Constitutional reform alive beyond the life of the 43rd Parliament.
19. In Canada, mechanisms were adopted to ensure that processes of discussion and settlement were ongoing. In section 37, the Canadian Constitution Act 1982 contained a commitment to constitutional processes with indigenous processes.
20. The Kalkaringi Statement, adopted on 20 August 1998 by the Combined Aboriginal Nations of Central Australia, provided: “I9b) That a Northern Territory Constitution must contain a commitment to negotiate with Aboriginal peoples a framework agreement, setting out processes for the mutual recognition of our governance structures, the sharing of power and the development of fiscal autonomies.”5
21. Having regard to the time-frame proposed by the Government, and experience elsewhere, the Law Council supports a process of Constitutional reform which:
(a) seeks immediate Constitutional recognition of the distinct identities of Indigenous Australians, and provides some protection of the rights of Indigenous Australians by inserting a general guarantee of racial equality; and
(b) ensures that there is ongoing discussion of the rights of Indigenous Australians, provision for the negotiation of agreements, and a mechanism to confer Constitutional protection on such agreements.
SUBSTANCE OF CONSTITUTIONAL REFORM
22. In terms of the substance of Constitutional reform, the Law Council notes that much of the political discussion to date has focussed on recognition of Indigenous Australians in the Preamble to the Constitution. However, the Law Council is encouraged that none of the Australian Labor Party’s 2010 election commitments, the agreements with the Australian Greens and other independent MPs, or the Prime Minister’s letter of 7 September 2010 to the Member for Lyne, the Hon Rob Oakeshott, suggests that the agenda for Constitutional reform is confined to the Preamble.
23. As stated at the outset, the Law Council supports an approach to Constitutional recognition which gives effect to preambular reform, securing enforceable rights for Indigenous Australians. The Law Council considers a referendum confined to preambular recognition only would be of little practicle effect. The recommended enabling provisions would also provide an opportunity to remove archaic provisions, based on discriminatory policies of the past century, and to secure a guarantee of substantial racial equality.6
4 Consistent with articles 18 and 19 of the UN Declaration on the Rights of Indigenous Peoples.
5 S Pritchard, “Recent Constitutional Developments in the Northern Territory: The Kalkaringi Convention” 4 (15) Indigenous Law Bulletin 12.
6 It is in any event questionable whether section 128 of the Constitution applies to the Preamble as opposed to the Constitution itself, such as to render altogether uncertain whether a referendum is required at all to amend the Preamble.
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24. Whilst the Law Council does not support, at this stage, the development of an extensive catalogue of Indigenous rights for inclusion in the Constitution, it considers it imperative that the agenda for reform must:
(a) extend beyond the confines of the Preamble; and
(b) be informed by a substantive concept of equality.
25. In particular, the Law Council considers that the following options for Constitutional reform merit serious consideration7
Section 25 :
(a) the removal of those remaining sections of the Constitution which discriminate on the ground of race; relevantly, section 25 which anticipates the disqualification of persons of a particular race from voting;8
Section 51(xxvi)
(b) the removal of section 51(xxvi), and its replacement with a power on the Federal Parliament to make laws “with respect to Aboriginal and Torres Strait Islander peoples”, (such laws not being based on race rather, as the Chief Justice, the Hon Robert French, has commented, “on the special place of those peoples in the history of the nation” 9
Preamble );
(c) the insertion in the Preamble of new paragraphs recognising Aboriginal and Torres Strait Islander peoples as the first peoples of Australia with distinct identities and histories, as well as their prior occupation and ownership, continuing dispossession, and particular status in contemporary Australia;10
Equality and
(d) the insertion of a general guarantee of racial equality and prohibition of racial discrimination. Such a guarantee would have the effect of securing the protection of those Indigenous rights which have been recognised (such as native title rights), as well as rights which might be negotiated and recognised in the future (through agreements, decisions of the High Court amplifying Mabo No 2, etc).11
Constitutional Conferences
7 Professor Jeremy Webber has proposed as options for Constitutional reform the removal of provisions which bear traces of discriminatory policies, including s 25 and perhaps even s 51(xxvi), a Bill of Rights, constitutional measures designed to promote autonomy for Indigenous peoples, and a preamble or some other some symbolic constitutional declaration: Jeremy Webber, “Multiculturalism and the Australian Constitution” (2001) 24 University of New South Wales Law Journal 882, 889-890.
8 See, for example, 1988 Report of the Constitutional Commission; Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians A Submission to the Commonwealth Government 1995; November 1996 Bathurst People’s Convention; the December 2000 Final Report of the Council for Aboriginal Reconciliation.
9 See, for example, 1988 Report of the Constitutional Commission; and the The Hon Justice Robert French, “The Race Power: A Constitutional Chimera”, chapter 8 in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (2003, Cambridge University Press) 180, 208.
10 See, for example, Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians A Submission to the Commonwealth Government 1995; November 1996 Bathurst People’s Convention; the December 2000 Final Report of the Council for Aboriginal Reconciliation.
11 For example, the December 2000 Final Report of the Council for Aboriginal Reconciliation.
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26. In addition, the Law Council raises for consideration (and supports) the insertion of a new provision, similar to section 105A of the Constitution, providing a commitment to Constitutional conferences or other processes to discuss Indigenous rights.12 A provision similar to section 105A might vest in the Commonwealth power to make agreements with the Indigenous peoples of Australia on a range of subjects. Such provision might provide, like section 105(A), for the agreement/agreements to override other laws. This approach would obviate the need to put to referendum an extensive catalogue of rights or detailed arrangements and provide, at the same time, a source of Constitutional authority for such agreement/agreements.
12 In its 1988 Final Report, the Constitutional Commission noted that during the period in which it had been conducting its review of the Constitution, there has been a revival of interest in the possibility of some sort of formal agreement being entered into between the Commonwealth of Australia and representatives of Aborigines and Torres Strait Islanders. The Constitutional Commission commented:
“There is no doubt that the Commonwealth has sufficient constitutional powers to take appropriate action to assist in the promotion of reconciliation with Aboriginal and Torres Strait Islander citizens and to recognise their special place in the Commonwealth of Australia. Whether an agreement, or a number of agreements, is an appropriate way of working to that objective has yet to be determined.
A constitutional alteration to provide the framework for an agreement provides an imaginative and attractive approach to the immensely difficult situation which exists. But any alteration should not be made until an agreement has been negotiated and constitutional alteration is thought necessary or desirable. Section 105A, on which a possible alteration may be modelled, was approved at a referendum in 1928 after the Financial Agreement had been entered into between the Commonwealth and the States in 1927. The electors, therefore, were in a position to know precisely what was being approved.”
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BACKGROUND
THE AUSTRALIAN CONSTITUTIONAL BACKGROUND AND THE 1967 REFERENDUM
1. The preamble to the Commonwealth of Australia Constitution Act 1901, an Act of the Parliament to the United Kingdom at Westminster, provides:
“Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established”.
2. It is well-known that the “people” referred to in the Preamble to the Constitution did not include Aborigines and Torres Strait Islanders. In 1901, the only two references to Indigenous people in the Constitution were couched in language of exclusion:
(a) Federal Parliament was denied power to make laws with respect to people of “the aboriginal race in any State”: section 51(xxvi))13; and
(b) section 127 provided: “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”14
3. Both the Convention debates and Quick and Garran in their 1901 Commentaries on the Constitution make clear that the so-called race power in s 51(xxvi), in its original form, was a racist and discriminatory provision.15
4. Section 25 of the Constitution provided (and continues to provide):
“[I]f 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.”
5. At the time of Federation, legislation in Western Australia and Queensland precluded Aboriginal men from voting. During the decade of the Constitutional Conventions, only in South Australia were Aborigines placed on electoral rolls and able to vote for delegates to the Conventions.16 It was not until 1965 that Queensland allowed voting rights for adult Aborigines and Torres Strait Islanders.
6. Nor, in drawing up the Constitution, did the Founding Fathers see any reason to include women in their deliberations. Section 41 of the Constitution provided (and continues to provide) that no adult with the right to vote at State elections shall be prevented from voting at Commonwealth elections. Section 41 was adopted to ensure that women who had gained the vote in South Australia in 1897 could also vote in Commonwealth elections. As at Federation, only women in South Australia and
13 Section 51(xxvi) provided Federal Parliament with power to make laws with respect to “The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”.
14 On the background to s 127, see G Sawer, “The Australian Constitution and the Australian Aborigine” (1966) 2 Federal Law Review 17, especially at 25-30.
15 For discussion, see George Williams, “Race and the Australian Constitution: From Federation to Reconciliation” (2000) 38 Osgoode Hall Law Journal 643 at 649-650;
16 See Fr F Brennan SJ, Securing a Bountiful Place for Aborigines and Torres Strait Islanders in a Modern, Free and Tolerant Australia Constitutional Centenary Foundation, 1994, at 6.
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Western Australia had the vote. The Commonwealth Franchise Act 1902 (Cth) was titled “An Act to provide for an Uniform Federal Franchise”. It was intended to enfranchise all Australian women. It also contained a provision in section 4 which sought to disqualify persons of coloured races from voting. Section 4 provided that:
“No aboriginal native of Australia, Asia, Africa or the Islands of the Pacific except New Zealand shall be entitled to have his name placed on an electoral roll unless so entitled under section 41 of the Constitution.”
7. Section 4 was retained, as section 39(6), in the Commonwealth Electoral Act 1918 (Cth). Section 39(6) was omitted by the Commonwealth Electoral Act 1962 (Cth), thereby removing all qualifications upon indigenous people’s right to vote.
8. At the 1967 referendum, 92% of Australians voted in favour of Constitutional amendments to remove the negative references in the Constitution to Indigenous Australians:
(a) the words “other than the aboriginal race” were deleted from section 51(xxvi), thereby enabling the Federal Parliament to legislate for people of any race, including Aborigines and Torres Strait Islanders; and
(b) section 127 was also repealed, with the result that Aboriginal natives were no longer excluded from being counted in the numbers of people of the Commonwealth or a State. By 1967, all Aboriginal people had the right to vote in Federal and State elections Accordingly, there was no basis for excluding them from the calculations of quotas for the constitution of the House of Representatives under section 24 of the Constitution, and no other relevant purpose for section 127.17
9. The removal of negative references to Indigenous Australians raised the question of how to move beyond non-recognition to achieve appropriate substantive recognition of Aboriginal and Torres Strait Islander peoples in the Constitution.
10. In April 1991, the Constitutional Centenary Conference held in Sydney presented to the Prime Minister, State and Territory Premiers and Chief Minsters, and Opposition Leaders a statement which recommended among other items for action that the reconciliation process should “seek to identify what rights the Aboriginal and Torres Strait Islander peoples have, and should have, as the indigenous peoples of Australia, and how best to secure those rights including through constitutional changes”.
THE 1967 AMENDMENT TO SECTION 51(XXVI)
11. The 1967 amendment to the race power in s 51(xxvi) has produced a body of High Court jurisprudence which suggests that notwithstanding its amendment the power is capable of supporting laws which are both beneficial, as well as laws which discriminate on the ground of race.
12. Prior to 1967, Professor Geoffrey Sawer suggested that having regard to “the dubious origins of [section 51(xxvi)] and the dangerous potentialities of adverse discriminatory treatment which it contains, the complete repeal of the section would be preferable to any amendments intended to extend its possible benefits to the Aborigines.”18
17 Ibid at 36.
18 G Sawer, “The Australian Constitution and the Australian Aborigine” (1966) 2 Federal Law Review 17 at 35.
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13. In 1988, in its Final Report, the Constitutional Commission noted that until s 51(xxvi) was amended in 1967, Parliament could “pass special and discriminating laws” relating to the people of any race. As Professor Harrison Moore had pointed out in 1910, the provision was intended to enable the Commonwealth to pass the sort of laws which before 1900 had been passed by many States concerning “the Indian, Afghan, and Syrian hawkers; the Chinese miners, laundrymen, market gardeners, and furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of Queensland, and the various coloured races employed in the pearl fisheries of Queensland and Western Australia.” The Constitutional Commission concluded:
“It is inappropriate to retain section 51 (xxvi.) because the purposes for which, historically, it was inserted no longer apply in this country. Australia has joined the many nations which have rejected race as a legitimate criterion on which legislation can be based. The attitudes now officially adopted to discrimination on the basis of race are in striking contrast to those which motivated the Framers of the Constitution. It is appropriate that the change in attitude be reflected in the omission of section 51 (xxvi.)”.19
14. In conjunction with the recommendation for the omission of section 51(xxvi), the Constitutional Commission recommended the insertion of a new paragraph (xxvi) which would give the Federal Parliament express power to make laws with respect to those groups of people who are, or are descended from, the indigenous inhabitants of different parts of Australia. The recommendation was made because:
(a) the nation as a whole has a responsibility for Aborigines and Torres Strait Islanders; and
(b) the new power would avoid some of the uncertainty arising from, and concern about, the wording of the existing power.20
15. Further, the Constitutional Commission observed that approval of such alteration of section 51(xxvi) would retain the spirit, and make explicit the meaning, of the alteration made in 1967 which Justice Brennan has described as “an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial”.
16. Writing extracurially in 2003, the Hon Robert French provided a detailed overview of post 1967 High Court jurisprudence in relation to section 51(xxvi), culminating in Kartinyeri v Commonwealth (1998) 195 CLR 337, the so-called Hindmarsh Bridge decision. The Chief Justice commented that as construed by a now substantial body of High Court jurisprudence21, there is nothing in section 51(xxvi), “other than the possibility of a limiting principle of uncertain scope, to prevent its adverse application to Australian citizens simply on the basis of their race”. It followed that there is “little likelihood of any reversal of the now reasonably established proposition that the power may be used to discriminate against or for the benefit of the people of any race”.22
19 Final Report of the Constitutional Commission: Summary, at 55.
20 Ibid.
21 Pre-1967 decisions include Robtelmes v Brenan (1906) 4 CLR 395; and Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 507-8l. See discussion in J Eastick, “The Australian Aborigine: Full Commonwealth Responsibility under the Constitution” (1980) 12 Melbourne University Law Review 516. Eastick also refers at 523-531 to various statutes apparently enacted in reliance on the power in s 51(xxv).
22 The Hon Justice Robert French, “The Race Power: A Constitutional Chimera”, chapter 8 in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (2003, Cambridge University Press) 180, 206.
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17. The Chief Justice concluded by adopting the recommendation of the Constitutional Commission in 1988 that the race power be replaced by a provision empowering the Commonwealth Parliament to make laws with respect to Aborigines and Torres Strait Islanders: “Such laws are based not on race but on the special place of those peoples in the history of the nation”.23
18. The Law Council considers it essential that any discussion of Constitutional recognition of Indigenous Australians must involve consideration of the potentially unacceptable consequences of section 51(xxvi) in its current form, and of more appropriate approaches as suggested by, amongst others, the Constitutional Commission and the Chief Justice, the Hon Robert French.
THE DECISION OF THE HIGH COURT IN MABO
19. With the 1992 decision of the High Court in Mabo v The Commonwealth (No 2)24, the myth that Australia was terra nullius at the time of acquisition of sovereignty was finally dispelled from Australian law.
20. The first stage of the Federal Government's response to the decision in Mabo was the enactment of the Native Title Act 1993 (Cth), which created an opportunity for at least some Indigenous people to receive formal recognition of their customary ownership of country. The second stage was the establishment of a land fund to help address the land needs of dispossessed Indigenous people who, because of their dispossession, would rarely be able to demonstrate continuous connections to land required under the Native Title Act. This led to the establishment of the Indigenous Land Corporation to manage monies drawn down each year from the land fund.
21. The third stage was to be a “social justice package” consisting of further measures directed to structural reform, and to advance the cause of social justice for Aboriginal and Torres Strait Islander peoples. This package was promised by Prime Minister Keating in his second reading speech on the Native Title Bill. In 1994, the Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, told the 12th Session of the UN Working Group on Indigenous Populations:
“The social justice package presents Australia with what is likely to be the last chance this decade to put a policy framework in place to effectively address the human rights of Aboriginal and Torres Strait Islander people as a necessary commitment to the reconciliation process leading to the centenary of Federation in 2001.”
22. In June 1993, the Council for Aboriginal Reconciliation and the Constitutional Centenary Foundation convened a conference in Canberra on The Position of Indigenous People in National Constitutions to explore some of the Constitutional options with respect to Australia’s indigenous peoples.
23. In March 1995, comprehensive “social justice package” reports were provided to the Prime Minister by, amongst others, the Aboriginal and Torres Strait Islander Commission (ATSIC)25, the Council for Aboriginal Reconciliation26
23 Id at 208. and the Aboriginal
24 (1992) 175 CLR 1.
25 ATSIC was established in 1989 under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), with the following objectives (ss section 3): to ensure maximum participation of Aboriginal and Torres Strait Islander people in government policy formulation and implementation; to promote Indigenous self-management
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and Torres Strait Islander Social Justice Commissioner.27 Each of these reports raised the need for Constitutional reform.
24. ATSIC’s “social justice package” report28 noted at [4.6] that the Commission had adopted as one of the objectives in its corporate plan the securing of Constitutional recognition of special status and cultural identity of indigenous peoples. In its submission to the Council for Aboriginal Reconciliation, the Commission had pointed out that constitutional change is an issue which is "quite central to redefining ourselves as a nation in a way that would promote meaningful reconciliation..."
“4.7 "With the rejection of the doctrine of terra nullius and the emerging legal view that the powers of Government belong to and are derived from the governed that is to say the people of the Commonwealth we consider that constitutional change should not be minimalist. There needs to be recognition in the Constitution that the sovereign power accorded to Governments is derived from the people including the Aboriginal and Torres Strait Islander peoples whose native title rights predate British colonisation."”
25. According to ATSIC’s “social justice package” report at [4.8], the development of the details of an Indigenous constitutional reform agenda would inevitably take some time to emerge, however broad options raised to date had been brought together in a publication by the Constitutional Centenary Foundation entitled "Securing a Bountiful Place for Aborigines and Torres Strait Islanders in a Modern, Free and Tolerant Australia." The options raised in the discussion paper were to:
• maintain the present situation and do nothing;
• seek to recognise Aboriginal and Torres Strait Islander peoples, their history and their culture in the Constitution;
• enshrine the principle of non discrimination;
• grant the Commonwealth primacy over indigenous affairs;
• negotiate an instrument of reconciliation;
• recognise indigenous people's entitlement to self determination;
• grant self government to remote communities; and
• recognise the inherent sovereignty of indigenous peoples.
26. ATSIC’s “social justice package” report noted [4.14]-[4.15]:
“4.14 Processes will need to be set up to facilitate the negotiation of the indigenous constitutional reform agenda with the Government, to provide for effective educational and public awareness for both the indigenous and wider communities and to ensure ongoing indigenous involvement in broader processes which could lead to constitutional reform.
and self-sufficiency; to further Indigenous economic, social and cultural development, and to ensure co-ordination of Commonwealth, state, territory and local government policy affecting Indigenous people.
26 The Council for Aboriginal Reconciliation was established in 1991 as a statutory authority under the Council for Aboriginal Reconciliation Act 1991 (Cth) "to improve the relationships between Aboriginal and Torres Strait Islander peoples and the wider Australian community."
27 The position of the Aboriginal and Torres Strait Islander Social Justice Commissioner was created by the Federal Parliament in December 1992 in response to the findings of the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence.
28ATSIC, Recognition, Rights and Reform: Report to Government on Native Title Social Justice Measures, Commonwealth of Australia 1995.
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4.15 Consultations: There was overwhelming support from all meetings on the Social Justice package that Aboriginal and Torres Strait Islander peoples must be given proper recognition in Australia's Constitution.”
27. ATSIC’s “social justice package” report contained the following recommendations in relation to Constitutional reform:
RECOMMENDATION 19.
The Commonwealth Government should note that the national consultation process in relation to the Social Justice Package showed overwhelming support for the reform of the Constitution especially in relation to recognition of Indigenous peoples.
RECOMMENDATION 20.
The Commonwealth Government should adequately resource a process to manage the Indigenous constitutional reform agenda after consultation with ATSIC and the Council for Aboriginal Reconciliation.
RECOMMENDATION 21.
The Commonwealth Government should commit itself to regional, zone or State-based conventions to discuss options for Constitutional reform and to the principle of negotiating Constitutional reform and adequately resourcing these negotiations.
RECOMMENDATION 22.
Prior to any constitutional referendum, the opinion of the Indigenous community should itself be canvassed through appropriate means, including, perhaps, a survey of Aboriginal and Torres Strait Islander opinion conducted in conjunction with an ATSIC election.
The Commonwealth Government should commit itself to a major public awareness program to create an environment for change and understanding of indigenous Constitutional perspectives.
RECOMMENDATION 23.
The Commonwealth Government should commit itself to a major public awareness program to create an environment for change and understanding of indigenous Constitutional perspectives.
RECOMMENDATION 24.
The Commonwealth Government shall ensure that Aboriginal and Torres Strait Islander people are adequately represented In any national constitutional convention which is held as part of broader processes.
28. In its “social justice package” report, the Council for Aboriginal Reconciliation29 made the following recommendations in relation to the Australian Constitution:
“Acknowledging the True Place of Indigenous Peoples within the Nation
29 Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians, Commonwealth of Australia 1995.
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7. The Council recommends that an appropriate new preamble to the Constitution be prepared for submission to referendum with such preamble to acknowledge the prior occupation and ownership, and continuing dispossession of Aboriginal and Torres Strait Islander peoples.
8. The Council recommends that ATSIC and the Council be funded to conduct a consultation program with Aboriginal and Torres Strait Islander communities and organisations and with the wider community on what would be appropriate forms of words to be written as a new preamble to the Constitution with this process concluding by the end of 1996.
9. The Council recommends that such a consultation process should be undertaken on a cross-party basis with the report being provided to the Parliament.
10. The Council recommends that any constitutional reforms dealing with the rights of Aboriginal and Torres Strait Islander peoples include a question to remove the power of any State to disenfranchise any citizens on the grounds of their race.
Constitutional Prohibition of Discrimination on the Grounds of Race
11. The Council recommends that, in conjunction with other referendum questions dealing with indigenous issues, the proposition also be put that the Commonwealth's power to legislate to outlaw racial discrimination be entrenched in the Constitution.”
29. In relation to recommendation 11 concerning a Constitutional prohibition of discrimination on the grounds of race, the report of the Council for Aboriginal Reconciliation explained as follows:30
“At the same time as a referendum question is put to repeal the race-related provisions of Section 25 of the Constitution, an opportunity would arise to pose a positive question to entrench in the Constitution a new clause which would explicitly prohibit the making of laws which discriminate on the grounds of race (save where such a provision was for the specific benefit of the race involved) and providing that the Commonwealth has the power to legislate to outlaw all forms of discrimination on the grounds of race.”
30. The submission of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson, identified broad-ranging examples of possible Constitutional change to illustrate the potential range that could be considered:
1) educate the public and governments and improve race relations by stating that Indigenous peoples are unique, with unique status and history quite unlike more recent immigrants;
2) commit Federal, State and Territory governments to equalise public services and facilities within their borders to remove regional and racial disparities;
3) provide a legal and/or moral framework for public policy towards Indigenous peoples, perhaps through a preamble to an Indigenous peoples section of the
30 Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians, Commonwealth of Australia 1995.
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Constitution, with Indigenous peoples and governments to negotiate the detailed contents of the section later;
4) guarantee legal protection for treaties, land claims settlements or other agreements between Indigenous peoples and governments;
5) specify certain rights of Indigenous peoples;
6) alter the system of political representation to better reflect the diversity of community and the make up of the Australian population (for example, through multiple seats in one electorate);
7) create Indigenous Parliaments for Torres Strait Islanders and Aborigines through which we can decide matters, govern areas or advise the national parliament (as in Norway);
8) provide for customary law courts and dispute resolution;
9) establish responsibility of different levels of government, including Indigenous governing bodies for services or other matters pertaining to Indigenous peoples after a full review of the adequacy and relevance of current spending;
10) establish or recognise Indigenous self-government in principle or in specific geographic areas (like Torres Strait or the Tiwi islands or the Pitjantjatjara lands), or for certain categories of subjects (such as sacred sites);
11) establish Torres Strait Island and Aboriginal grants commissions to fund Indigenous self-government;
12) establish ecologically sustainable development planning commissions to develop integrated self-government, economic and environmental plans and structures for lands and seas under Indigenous management;
13) establish national Indigenous land rights and sea rights or processes to define such rights nationally;
14) commit governments to constitutional conferences or other processes with Indigenous people to discuss specified subjects like land and marine rights, self-government, funding and delivery of services (as did s 37 of Canada's Constitution Act, further formal political accords); or
15) add one or more Indigenous treaty or statement to the Constitution as an appendix or schedule, together with provisions for interpretation and application.”31
31 The submission noted that: “Of course, many proposals among those listed above could be enshrined in special legislation of the Australian Parliament, or achieved in a variety of other ways. No less important will be ensuring that well-intended amendments proposed by others do not have unforeseen negative effects.”
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31. In relation to Constitutional reform, the submission of the Aboriginal and Torres Strait Islander Social Justice Commissioner contained the following recommendations:
“1. That recognition of the unique place of Indigenous peoples in contemporary Australia be a fundamental principle in any national constitutional review and revision, that this include recognising the right of Indigenous peoples to represent ourselves in negotiation of constitutional change with governments.
2. That the Federal Government, in consultation with the Council for Aboriginal Reconciliation, ATSIC, the Constitutional Centenary Foundation and the Aboriginal and Torres Strait Islander Social Justice Commissioner establish structures and processes of constitutional reform and national renewal which are building towards the new millennium and the centenary of the Constitution in 2001.
3. That Indigenous constitutional structures and processes provide for access by all sections of the Indigenous community through consultations and public forums to the development of positions of negotiations with governments. This will require sufficient resources for the preparation of information and consultation materials, as well as the equitable funding of forums or groups for the expression of diverse views.
4. That structures and processes for Indigenous constitutional recognition and reform be directed not only to achieving specific rights but to continuing processes for the renewal of relations between Indigenous and non-Indigenous Australians.”
32. After an extensive public consultation process, the Council for Aboriginal Reconciliation drew up two documents of reconciliation: the “Australian Declaration Towards Reconciliation” and the “Roadmap for Reconciliation”. On 27 May 2000, at Corroboree 2000, the Council presented these documents of reconciliation to the Prime Minister, other national leaders, and the nation as a whole. The “Roadmap for Reconciliation” consisted of various strategies, including “The National Strategy to Promote Recognition of Aboriginal and Torres Strait Islander Rights”. The strategy proposed a number of actions, including some constitutional and legislative processes, to assist the progressive resolution of outstanding issues for the recognition and enjoyment of Aboriginal and Torres Strait Islander rights. It aimed to ensure:
• “that all Australians enjoy, in daily life, a fundamental equality of rights, opportunities and acceptance of responsibilities; and
• the status and unique identities of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, achieve recognition, respect and understanding in the wider community.”
33. Essential actions identified by the strategy included:
“Legislation
• Governments establish legislative processes to deal with the 'unfinished business' of reconciliation, allowing for negotiated outcomes on matters such as Indigenous rights, self-determination within the life of the nation, and constitutional reform.
Australian Constitution
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• Within the broader context of future constitutional reform, the Commonwealth Parliament enacts legislation for a referendum which seeks to:
o prepare a new preamble to the Constitution which recognises the status of the first Australians; and
o remove section 25 of the Constitution and introduce a new section making it unlawful to adversely discriminate against any people on the grounds of race.”
34. In Final Report to the Prime Minister and the Commonwealth Parliament in December 2000, the Council for Aboriginal Reconciliation made, amongst others, the following recommendation in relation to the “manner of giving effect to” the reconciliation documents:
“3. The Commonwealth Parliament prepare legislation for a referendum which seeks to:
• recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia in a new preamble to the Constitution; and
• remove section 25 of the Constitution and introduce a new section making it unlawful to adversely discriminate against any people on the grounds of race.”
35. The Law Council considers that any debate leading to a referendum must have regard to the comprehensive consultations undertaken by each of ATSIC, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner in relation to options for Constitutional recognition, as well as the detailed consideration and recommendations by each of those bodies in relation to options for and processes leading to Constitutional reform.
SOME COMPARATIVE EXPERIENCES
36. Constitutional reforms in Norway have resulted in recognition of the country as bi-cultural - Norwegian and Sami - and a guarantee to the Sami people of means to maintain their distinct culture. A 1988 constitutional amendment provides:
“It is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life.”
37. In Canada, processes of constitutional reform were initiated in 1978. Section 35(1) of the Constitution Act 1982 provides:
“The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.”
38. Section 35(2) provides that the reference in s 35(1) to “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
39. Constitutional recognition has meant that Aboriginal and treaty rights can only be altered or terminated by consent or by constitutional amendment. Laws contravening s 35(1) can be set aside under s 52(1) of the Constitution Act 1982. The Canadian Supreme Court has confirmed that the words of s 35(1) should be given a generous, purposive interpretation.
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40. Section 25 creates an exemption to the Canadian Charter of Rights and Freedoms, which forms Part I of the Constitution Act 1982:
“The guarantee of this Charter of certain rights and freedoms shall not be construed so as to derogate from any Aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada including ... any rights or freedoms that may be acquired by the Aboriginal peoples of Canada by way of land claims settlement.”