It is now more than three years since the Expert Panel set up by the Gillard Government reported on how the Constitution might be amended providing recognition of Aboriginal and Torres Strait Islander peoples.
The Abbott Government has been waiting for some consensus to emerge around the recommendations of the panel. Progress has been slow. No one thinks it realistic to seek a constitutional amendment during the life of this Parliament.
The best to be hoped for is a commitment by all major political parties to an agreed referendum question when going into the next federal election, with the understanding that the new government and the new parliament would proceed to put a referendum to the people, perhaps on Saturday 27 May 2017, the fiftieth anniversary of the successful 1967 referendum.
Prime Minister Abbott says he is committed to completing the Constitution, rather than 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by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.’
At the moment, ‘the outdated notion of race’ appears in two constitutional provisions.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 Everyone is agreed that section 25 could be simply repealed. 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. The key provisions of the Constitution cannot be thrown out of kilter. Our Constitution is still an appendix to an Act of the Imperial Parliament. It is a monarchical, not a republican, Constitution. It does not include a bill of rights. It prosaically lists the powers of the Commonwealth Parliament. The Imperial Act contains an old worldly preamble; the Constitution contains no preamble.
There has been a lot of talk about including a preamble in the Constitution. But any preamble would need to state our main national characteristics and express the key reasons for deciding to constitute and maintain the Australian federation. That would best be done, if and when, Australians decide to become a republic. The urgent need is not for a comprehensive preamble but for an acknowledgment of the assured place of Aboriginal and Torres Strait Islander peoples in our history and as part of our continuing national identity. All Australians could be surer of our distinctive national identity and place in the world if the Constitution were to acknowledge indisputable facts unique to Indigenous Australians. Adapting the language used by the expert panel and adopted unanimously by the Australian parliament, we could include an Acknowledgment at the commencement of the Constitution along these lines:
We, the people of Australia, recognise that the continent and the islands of Australia were first occupied by Aboriginal and Torres Strait Islander peoples.
We acknowledge the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.
We acknowledge and respect the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.
The expert panel suggested a constitutional ban on racial discrimination. In the absence of a bill of rights, why would we contemplate a comprehensive constitutional ban on racial discrimination by the Commonwealth and the states but not a ban on sexual discrimination or discrimination on the basis of sexual orientation or religious belief?
Anyway, a constitutional ban on racial discrimination is not as simple as it seems. When legislating for native title in 1993 and 1998, the Keating and Howard governments were unable to agree to the demand by Indigenous leaders that all provisions of the Native Title Act be strictly subject to the Racial Discrimination Act. In the Senate, the Democrats and Greens had proposed such an amendment but the major parties, in government and in opposition, agreed to oppose it because of its ‘so-called clause busting capacity’.
Anyone serious about a constitutional ban on racial discrimination should first clear the decks by trying to convince the major political parties to amend the Native Title Act as previously suggested by the minor parties. They would first need to convince the Business Council of Australia, the National Farmers’ Federation, and the Minerals Council of Australia to agree to native title amendments which previously were thought to put in doubt future pastoral and mining activities. Without these precautions, a constitutional guarantee of non-discrimination would be a clause buster of nuclear proportions. It’s just not on.
It’s time to learn the real lessons which followed the 1967 referendum. That referendum kick started the change from terra nullius to land rights, and from assimilation to land rights. Prime Minister Harold Holt appreciated that a modest referendum carried overwhelmingly provided the political mandate for policy changes. The catalyst for change was the Council for Aboriginal Affairs which he then set up to advise government and to engage daily with public servants and politicians when considering policy and administrative changes. Any modern equivalent would not restrict its membership to ‘three wise white men’ even of the eminence of Dr HC Coombs, Professor WEH Stanner and Barrie Dexter.
Noel Pearson is right to insist that Aboriginal leaders need a place at the table when new policies are being formulated. An Indigenous council is needed to advise government. Coombs, Stanner and Dexter constantly lamented that they lacked a statutory charter setting out their role and responsibilities. Any new council would need a clear legislative mandate. But there is no need to tamper with the constitutional architecture, seeking the inclusion of such a council in the Constitution. Indigenous representation is always a fraught exercise. At least in the first instance it would be impossible to design a constitutional provision for a Council which was technically and legally sound, ensuring the untrammelled sovereignty of parliament.
Four decades after the passage of the Northern Territory land rights legislation, and two decades after the first recognition of native titles, there are major policy issues which demand Indigenous participation at the table. Many Aboriginal communities now have title to large areas of land, but they often cry that they are land rich and dirt poor. It is time to review the balance between the security and utility of land. Aborigines want to secure their land base for future generations, but they also want to use the land now in an economical way which requires the capacity to lease, mortgage and sell some land. Remote communities need to be able to work with government determining their practical life choices, including decisions about which services are affordable in distant sparsely populated locations.
Our Constitution unamended makes no mention of Aborigines and Torres Strait Islanders. It is premised on the outdated notions of terra nullius and assimilation. It is time to modernise the Constitution, eliminating the outdated notion of ‘race’ and including an acknowledgment of the nation’s Indigenous heritage and ongoing identity. This is no small change. But it is a change which is necessary, correct and certain. Indigenous leaders may want to delay such incremental change, convinced that more substantive change might be achievable in future. That is surely their prerogative. But should they seek constitutional inclusion now, an Acknowledgment and a Commonwealth power to make laws with respect to the matters acknowledged would be a principled, safe way forward to complete our Constitution.
Frank Brennan is the author of No Small Change: The Road to Recognition for Indigenous Australia (University of Queensland Press). This piece first appeared in The Weekend Australian, 16-17 May 2015.