Aborigines and Torres Strait Islanders in Australia's Constitution

Since 1967, the Australian Constitution has made no reference to Aborigines and Torres Strait Islanders.  Prior to 1967, people 'of the aboriginal race' were exempt from the Commonwealth Parliament’s power to make laws with respect to the people of any race 'for whom it is deemed necessary to make special laws'.  Most Australians agree that it is time for the Constitution to make positive reference to Indigenous Australians thereby affirming their status as equal citizens free from all vestiges of racial discrimination and recognising their status as Indigenous Australians.  

This can only be done by a super majority of the Australian population at referendum with a majority of voters in four of the six states voting in favour.  This will only happen if any proposal is supported and strongly backed by the major political parties.  We are now a sufficiently mature polity to know that will not happen unless any proposal has first met the approval of a broad range of respected Indigenous leaders.  That’s why the Report of the Expert Panel, chaired by Pat Dodson and Mark Leibler, including key Aboriginal leaders and academics and members of the major political parties, published in January 2012 is a useful starting point.  But it is not the final word.  

The Panel is right to have recommended that any referendum proposals be first discussed with all political parties, the independent members of the Commonwealth Parliament, and also 'State and Territory governments and oppositions', and that any referendum proceed only 'when it is likely to be supported by all major political parties, and a majority of State governments'.  The atmosphere in our national parliament is so toxic at the moment that I cannot see these conditions being met in time for the next federal election.   

Uncontroversially, the Panel has recommended that the outdated and now racist section 25 of the Constitution be repealed.  Gone are the days when the Commonwealth would contemplate people of a particular race being excluded from the franchise for the House of Representatives.  That much is easy.

The Expert Panel has presented the government with a number of measures going beyond the simple 1988 suggestion that section 25 be repealed and section 51(26) be replaced with a power to make laws with respect to Aborigines and Torres Strait Islanders.  The Panel has suggested some splendid words of acknowledgement:

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; 

Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; 

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

The Panel has proposed that these words form the preamble for a new section 51A. I wonder whether they would not be better placed in the preamble of the revised Constitution which, on our becoming a republic, will replace the Commonwealth of Australia Constitution Act (UK) which contains a now outdated preamble. 

Another of the Panel’s suggestions is the inclusion of a one line prohibition of racial discrimination: 'The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin', followed by a double pronged special measures exemption for laws or measures having 'the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group'.

Understandably many other members of the community will look to lawyers, not to answer whether racial discrimination is a good or bad thing nor to work out what special measures should be permitted, but rather to determine whether the insertion of such a clause in a Constitution which does not have a comprehensive bill of rights is workable and desirable, and to assess how such a stark constitutional provision would sit with the complex plethora of existing laws prohibiting such discrimination.

The general non-discrimination clause proposed is a variant on the equality right proposed by the 1988 Constitutional Commission which tentatively put forward a comprehensive constitutional bill of rights. That Commission included legal luminaries Maurice Byers, Leslie Zines and Enid Campbell, and political legends Gough Whitlam and Rupert Hamer. They first proposed a modest improvement and expansion of the few rights presently articulated in our Constitution and then the addition of a new Chapter VIA of our Constitution entitled 'Rights and Freedoms'.

They treated these two matters separately 'not because the rights and freedoms presently protected by the Constitution are necessarily more important than rights and freedoms which are not so protected, but rather because we estimate that proposals to alter the Constitution to strengthen and extend existing guarantees are less likely to be misunderstood than proposals to incorporate in the Constitution guarantees of an entirely new kind.'  In the end, not even the former won acceptance at the referendum; and of course, no major political party was interested in proposing the latter.

These luminaries were very upfront in acknowledging 'that adoption of the proposed new Chapter on Rights and Freedoms would produce a radical change in the effective allocation of power as between Parliaments and the Courts. It would, for practical purposes, give to the courts the last word in deciding a wide range of issues which are sometimes very difficult and which many people regard as issues which cannot always be satisfactorily resolved by methods of adjudication.'

The Australian 1988 Constitutional Commission did propose an equality right similar to that proposed by the Expert Panel.  But it was part of a general chapter on rights and freedoms which included a clause which provided:  'The Rights and Freedoms guaranteed by this Chapter may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.'

It also included a clause: 'The rights and freedoms guaranteed by this Chapter do not abrogate or restrict any other right or freedom that a person may have.'  You can’t just insert one constitutional right in the Constitution without words of limitation for balancing all other rights.  And when you are trying to build on the jurisprudence of a 37 year old, 60 page Racial Discrimination Act, you can’t just write a one line blank cheque for the judiciary.  I think this suggestion from the Expert Panel will need to be abandoned if we are to get to the next base for Indigenous recognition in the Constitution.

When considering section 51(26), the Expert Panel has recommended a provision stipulating that the Commonwealth Parliament have power to make laws 'with respect to Aboriginal and Torres Strait Islander peoples'.  Aware that such a law making power theoretically could be exercised in a manner adverse to Aboriginal and Torres Strait Islander peoples, the Panel has suggested a special preamble for the newly proposed section 51A 'acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples'.  I am one of those contemporary Australians who flinches a little at the word 'advancement'.  It is a very 1970s word.  The government will be wanting to 'advance' Aborigines from where to what?  

Of more concern to me as a lawyer is the prospect that such a broad preambular statement might be an invitation to disaffected citizens to litigate policy questions in the High Court.  For example, groups opposed to the 'Stronger Futures' legislation passed by Parliament last month might turn to the High Court expecting a ruling on whether the legislation is classifiable as being for the 'advancement' of Indigenous Australians. What criteria could a court possibly develop to answer such a question?  Those worried that the Commonwealth Parliament might use any 'race power' to act against the interests of Aborigines might want to consider whether the legislative power should relate to objects rather than people.  For example, the Commonwealth Parliament could be given the power to make laws  'with respect to Aboriginal and Torres Strait Islander land rights, heritage protection, languages and cultures.

The Expert Panel has given us some great talking points.  But there is a lot more work to be done before we settle on a constitutional formula for decent and workable constitutional recognition of Indigenous Australians.

At 8 pm on Monday 9 July 2012, Frank will join Professor Mick Dodson, Professor Megan Davis and Ms Alison Page on ABC Radio National's Big Ideas to discuss the topic “Where to from here? How do we recognise Indigenous Australians in the Constitution?”

Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.