Justice for Aboriginals grows out of recognition


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

Just for once Frank, why don't we whities back off and agree to put to a referendum and agree to support whatever the indigenous communities propose. They are quite capable of doing all the analysis and assessments that are required. They don't need whities to tell them what's good for them. The age of the mission station has gone. If what they propose gets up at the referendum, it will be something that they can justly own and be proud of. If it is defeated, despite bipartisan support, it will simply demonstrate how far the rest of us have yet to move.
Ginger Meggs | 16 October 2015

You can listen to the lecture at https://soundcloud.com/frank-brennan-6/aija
Frank Brennan SJ | 17 October 2015

Ginger, if we were talking about anything but the Constitution I would agree with your wholeheartedly. But the Constitution is another matter. It belongs to all of us. It is the supreme law of the land. We all have a responsibility to make sure it works and is coherent. The proposed non-discrimination clause and the Indigenous body just don't cut it. Sorry.
Frank Brennan SJ | 18 October 2015

Your words are, as always, considered and prudent Frank. I do understand Ginger's point of view too. The Constitution didn't belong to all of us when it was first drafted and that needs to change. Indigenous peoples need more than a place at the table in discussions. Maybe a seat that says 'listen extra carefully'.
Pam | 19 October 2015

Thanks Frank. I understand the need for the Constitution to work and be coherent. Also that the Constitution should belong to all of us. But, as Pam says, at the moment it doesn't. The ancestors of we whites had considerable involvement in its drafting and acceptance, but the ancestors of indigenous peoples were left out completely. Somewhere along the line, it seems to me, the indigenous peoples of this land must have the opportunity either to endorse a constitution with which they are comfortable, or alternatively to agree to a treaty with the descendants of the invaders. I think that means that we, the non-indigenous, must accept that they, the indigenous peoples, have what I think is called 'agency'. It also seems to me that S51(26) should be scrapped in its entirety, along with S25. How could we claim to be a non-racist country when either of those sections remain? That section was not originally aimed at indigenous people (it specifically excluded them) but rather at other non-white 'races' like melanesian, polynesian, chinese, japanese, indian, and so forth. It has no more place in today's Constitution than a power to make special laws for people of a certain gender, religion, or place of birth.
Ginger Meggs | 19 October 2015

Father Brennan has again clearly sifted a range of considerations which need to be addressed for recognition of Aboriginal people -the Traditional Owners of the Continent we call Australia. Aboriginal peoples, and all Australians, need specific recognition written into the Australian Constitution that the Aboriginal tribes (there is no one 'Aboriginal' tribe/people of Australia which was made abundantly clear when I studied Aboriginal kinship systems in Anthropology at the University of Sydney) are the original inhabitants and owners of the land we call Australia. There was never a 'TERRA NULLIUS' as far as Australia is concerned. 'Terra Nullius' translates in English to a 'Land that belongs to no-one'. In International Law 'terra nullius' describes territory that nobody owns so that the first nation to discover it is entitled to take it over, as "finders keepers". We need to go back in time, long before Eddie Mabo and others began their land rights action in the High Court of Australia, to understand the context of 'terra nullius' Well before the Australian legal system, and even the laws of the Torres Strait's 'Meriam' people, the origins of Terra Nullius go to the beginnings of International Law itself. To be continued - Aussiedad
Terry Fitzgerald | 21 July 2016

May I suggest that were there to be an adequate amendment to the Constitution that such amendment be inserted but subject also to a statement by way of a prefatory averment setting down the reason for the change so that a proper inference can be drawn for the purposes of interpreting the words constituting the change to the Constitution. This may help to lessen arguments.
Adrian | 21 July 2016


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