2015 in review: Justice in recognition for Aboriginals


First published 18 October 2015

It is now more than three years (and three prime ministers) since the expert panel set up by the Gillard government reported on how the Constitution might be amended to provide recognition of Aboriginal and Torres Strait Islander peoples.

No Small ChangeThat panel reported in January 2012. When I read their report, I have to confess that my heart sank. I thought the panel put forward a comprehensive, but unachievable and unworkable proposal for constitutional change.

I came to their report in light of my own experience, having chaired the National Human Rights Consultation for the Rudd government in 2009. My committee knew that the Australian public was strongly in favour of a Human Rights Act, but we also knew there was next to no chance of the political elites, especially the elected politicians from the major political parties, supporting such a proposal.

So we put forward a cascading set of recommendations with various fallback suggestions for enhanced human rights protection, conceding that these were no substitute for a Human Rights Act but insisting they would be an improvement on the status quo. That has proved to be the case.

Given that there were no fallback recommendations in the expert panel report 'Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution', and given that the panel's key recommendation was a non-discrimination clause providing 'The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin', initially I kept my own counsel.

I only spoke up on 9 July 2012 when the National Archives invited me to join two of the Indigenous members of the expert panel, Professor Megan Davis and Alison Page, along with Professor Michael Dodson, in an ABC broadcast to consider the panel's recommendations. At that time, I said:

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.

Not wanting simply to pour cold water on the panel's recommendations, I concluded, '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.'

Prime Ministers Gillard, Rudd and Abbott rightly found the key recommendations of the panel to be an instance of expert overreach; none of them endorsed or pursued the recommendations of the panel.

For two years, the Abbott government seemed to be waiting for some consensus to emerge around the recommendations of the panel. Malcolm Turnbull is yet to show his hand. Progress has been slow. Abbott said he was committed to completing the Constitution, rather than changing it. That sounded almost like a theological challenge — to complete something without changing it.

There will be no amendment to the Constitution unless a broad cross section of Indigenous leaders seek it. It has been in response to Indigenous misgivings about the existing constitutional provisions that our political leaders have been prepared to consider amendments to the Constitution.

No referendum will succeed unless the majority of Australians are convinced about the necessity, correctness and certainty of the proposed amendments.

The expert panel was wise when insisting that any proposed amendments:

  • contribute to a more unified and reconciled nation;
  • be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
  • be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
  • be technically and legally sound.

The co-chairs of the panel, Patrick Dodson and Mark Leibler, said: 'The logical next step is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.'

At the moment, 'the outdated notion of race' appears in two constitutional provisions.

Section 25 is a provision which has never been used and never will be. It is modelled on one of the post-Civil War amendments in the US Constitution penalising states which exclude people from voting in state elections on the basis of their race. Everyone is agreed that section 25 could be simply repealed. It is the low hanging fruit of constitutional change.

Section 51(26) provides that the Commonwealth parliament can make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'. That section could be replaced with a new power to provide that the Commonwealth parliament can make laws with respect to 'the cultures, languages and heritage of the Aboriginal and Torres Strait Islander peoples and their continuing relationship with their traditional lands and waters'.

The art and statesmanship of constitutional change is in matching Indigenous aspirations, constitutional architecture, and public support. In preparation for their meeting with Abbott and the leader of the opposition Bill Shorten on 6 July 2015, the 40 Indigenous leaders chosen by government issued a statement after a two day caucus stating:

A minimalist approach, that provides preambular recognition, removes section 25 and moderates the races power [section 51(26)], does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples.

The Indigenous leaders said:

There was significant concern expressed that the Constitution as it stands enables current and future parliaments to enact discriminatory measures against Aboriginal and Torres Strait Islander peoples. Any reform option must address this concern.

At this stage, there are several proposals on the table that are aimed at addressing this issue ranging from: a standalone prohibition of racial discrimination (proposed new section 116A); a new, contained power to make laws for Aboriginal and Torres Strait Islander peoples that does not extend to making adverse discriminatory laws; and a role for a new advisory body established under the Constitution. 

So what is the way forward? There is no absolutely secure way of ensuring that laws are made only for the benefit of Aborigines. That is a matter for parliament. That's why it is so important that we have more Indigenous representation in our parliament.

It has been reassuring to have a parliamentary joint committee on Indigenous recognition co-chaired by Aboriginals Ken Wyatt and Senator Nova Peris from either side of the aisle. And now they have been joined in the Senate by the Independent Jacqui Lambie and the Liberal National Party's Jo Lindgren proudly claiming their Aboriginal heritage.

In an attempt to limit the scope of the Commonwealth parliament's power to benign purposes, and in line with the fallback request of the Indigenous leaders for 'a new, contained power to make laws for Aboriginal and Torres Strait Islander peoples that does not extend to making adverse discriminatory laws' I suggest that any forthcoming Constitutional Convention consider an amendment of section 51(26) so that the Commonwealth Parliament will have power to make laws with respect to:

the preservation, protection and enhancement of the cultures, languages and heritage of the Aboriginal and Torres Strait Islander peoples and their continuing relationship with their traditional lands and waters.

Though there has been much talk about 'minimal' and 'symbolic' change versus 'substantial' or 'real' change, we all need to remember that there is no such thing as only a small constitutional change in the Australian Commonwealth with its constitutional sclerosis. The lesson from 1967 is that a modest change carried overwhelmingly by the Australian people provides the impetus for change.

In light of the concern expressed by Indigenous leaders that 'current and future parliaments (are able) to enact discriminatory measures against Aboriginal and Torres Strait Islander peoples', and given that their option of 'a standalone prohibition of racial discrimination' is not a possibility, I suggest an amendment to the Acts Interpretation Act specifying that all future Commonwealth legislation is subject to the Racial Discrimination Act except when the later statute specifies that it is to prevail.

I suggest an amendment in these terms:

In interpreting a provision of an Act, the interpretation that would best achieve consistency with sections 9 and 10 of the Racial Discrimination ACT 1975 is to be preferred to each other interpretation, unless the Act specifies that sections 9 and 10 of the Racial Discrimination ACT 1975 are not to be considered when interpreting a provision of the Act.

When considering the prospects of an Aboriginal body (Noel Pearson's counter-proposal to the non-discrimination clause), I continue to be troubled by the mistrust of Australians about any new body of any sort being put into the Constitution. The Productivity Commission has a proven track record in providing advice to government and parliament. But Australian voters would be naturally suspicious of any proposal to place the Productivity Commission into the Constitution.

If an Aboriginal body were to be added, there would need to be certainty about its composition and mandate, including its relationship to the National Congress of Australia's First Peoples, and including aspects which would render it more likely to succeed long term in this role than ATSIC.

If it were to maintain even the local legitimacy of ATSIC, the constitutional body would need to be serviced by elected local and regional councils. It would also be necessary for us to be able to imagine how the constitutional body would value-add to legislative deliberation.

There are major problems with each of the substantive constitutional add-ons suggested by Aboriginal leaders. As prime minister, Tony Abbott appreciated that neither had any chance of adoption by referendum during the life of the next parliament.

Justice grows out of recognition that Aborigines and Torres Strait Islanders have a place at the table of public deliberation whenever the state is contemplating laws or measures applicable only to them. Modest constitutional change could contribute to procedural and substantive justice for First Australians.

Frank BrennanHuman rights lawyer and Jesuit priest Frank Brennan in the author of No Small Change: The Road to Recognition for Indigenous Australia. This article is an extract from his AIJA Oration in Judicial Administration at the Federal Court of Australia, Melbourne, 16 October 2015. Read the full version here.

Topic tags: Frank Brennan, Indigenous recognition



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Existing comments

There are also supporters of an Aboriginal state, along the lines of the recently created Nunavut in Canada. The Aboriginal Provisional Government was established in 1990 for the purpose;[Paul Coe sued the Commonwealth for Aboriginal sovereignty (Coe v Commonwealth [1979] HCA 68) and see Kevin Gilbert 'Treaty 88'. All advocated for an Aboriginal state. Agence France Presse (21 August 1998) claims Australia blocked a United Nations resolution calling for the self-determination of peoples, because it would have bolstered support for an Aboriginal state within Australia. Among those supporting such a state are the Council for Aboriginal Reconciliation[Wikipedia]
Father John George | 14 January 2016

In the 1920s, some colonists considered how the Commonwealth could give leadership through humane policies in the Northern Territory. Humanitarians petitioned the Commonwealth in 1927 to get together with the States to consider establishing a 'model Aboriginal State'. Bearing 7,113 signatures, the petition for a 'model Aboriginal State' argued: 'If we regard the native races as our spiritual equals, if we recognise their rights and do not treat them merely as chattels, if we assist them to accommodate their methods to new conditions, if we return to them areas of country on which they may work out their own salvation safeguarded from the envious eyes of encroaching white population, we shall at least have the satisfaction of knowing that even at the eleventh hour we have endeavoured to redeem any neglect, indifference or maladministration in the past and to do substantial justice. And the aboriginal will pay us back. We shall assuredly find that we have races of people who will be of immense help in developing our empty Northern Estate particularly in the more torrid zones. And we shall find that, relieved of so much attention to material affairs, the self-sacrificing spiritual work of missionaries will be greatly accelerated.'
Father John George | 14 January 2016

The problem for the predominately non-Aboriginal advocates of constitutional recognition, along with an ill-informed pack of mainstream media sheep, is the simple fact that the vast majority of Aboriginal people around Australia are either indifferent or strongly oppose the idea that they regard as a meaningless token gesture.
Professor Gary Foley | 15 January 2016

If you drive from Brisbane to Toowoomba you drive through an area where 115,000 people were murdered. they were "pigs to be slaughtered" by the Pommy cops of 150years ago. resentment is still there on both sides. We have 99 cops here in the place who must be bored to insanity. EXCEPT when they get the few remaining Aboriginal young people and to watch the fat overweight Biggest Losers trying to put them in Wacol Prison [ it's the one on the right as you speed past. There is 80% aboriginal prisoners in there for not going to register and for jumping the pathetic trains or for telling the cops what their Grandparents called them. Our local Member for Federal is the spokesperson for Labor opposition for Aboriginals. I tell you the Labor voters don't know him and he has little to nothing to say in the defence of Aboriginals. IT IS SAD TO THINK AFTER ALL THE YEARS THE JESUITS LIKE MacKillop to Brennan are still getting nowhere. It's because of BLATANT RACISM. If they were the Muslims it would be front page of the Tory Papers. Time for Change. We need another Gough. Another clean out of OUR church authority FIGURES. There are NO LEADERS where JESUS would have stood, except Brennan. God love the man and keep his health because THAT IS IT. We have lost the guys and women who gave their lives to struggle street.
Francis Douglas | 15 January 2016

An excellent summary of the debate concerning genuine Aboriginal recognition in the Constitution. The only omission seems to be any reference to the need for a Treaty, or a series of local agreements with local Indigenous groups acknowledging past dispossession and injustice. "Treaty" is what many Aboriginal leaders I have talked to want!
Ian R. Yule | 15 January 2016

Yes, in addition do we need a change in the constitution to give Indigenous people in certain regions autonomy, if they request it e.g. TSI, Cape York, Arnhem Land. If the Commonwealth has no power to do this, should this be incorporated in the constitution. Of course for most indigenous people this is no longer possible
John Thompson | 15 January 2016

In the early eighties I was Chairperson for a newly formed a Tasmanian auxiliary of the Treaty Committe for Aboriginal people formed by Dr. Coombs. The gap that is missing with regard to aboriginal rights for aboriginal people ( First Nation) is tharn different to our neighbours in New Zealand the Commonwealth of Australis needs a treaty between it and the aboriginal people. I cannot envisage any lasting solution with the precondition of a treaty.
William Spencer | 15 January 2016

I'm glad that Gary Foley has entered the discussion this time. He was absent, if I remember correctly, from the comments when this article was first posted. For me, Frank's article is just another example, albeit well-meaning, of a whitey trying to tell Aboriginal people what's best for them and why they should accept something less than what they deserve. If we whites really want reconciliation with the first peoples of this country, we should ask them what they want us to do and then set about convincing the electorate to agree to that. Frank should be addressing his epistles to federal politicians, especially those in government, rather than telling Aboriginal people to modify their requests in the interests of getting some meaningless concessions from government.
Ginger Meggs | 16 January 2016

We need to be far more progressive and respond to Aboriginal peoples' calls to recognition of Sovereignty & the calls to self-determination, treaty/ies as so well articulated by the President of the Uniting Church, Jan 26th 2016
Georgina | 25 January 2016


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