Perspectives on the recognition of Indigenous Australians in the Commonwealth Constitution

On 29 May, Associate Professor Alex Reilly from the Adelaide Law School joined the South Australian Commissioner for Aboriginal Engagement, Khatija Thomas, and Professor Elizabeth Handsley of Flinders University in an Australian Association of Constitutional Law seminar considering the You Me Unity Expert Panel proposal for the recognition of Indigenous Australians in the Commonwealth Constitution. Ms Thomas opened the session by explaining the importance of constitutional recognition for Aboriginal Australians, and warning of the need for extensive community engagement and education prior to the holding of a referendum. Professor Handsley provided an overview of the 44 constitutional referenda that have been held since federation, and pointed to indicators for their success and failure. She also discussed initiatives being undertaken in the constitutional law course at Flinders which focus on the place of Indigenous Australians in the Constitution. Alex set out the principles for the recognition of Indigenous Australians in the Constitution and discussed how the proposal addresses these principles. Below is a summary of what he said.

In its proposal, the Expert Panel recommends repealing sections 25 and 51(xxvi) of the Constitution, and adding three new sections:

–          s51A, which is a new power in the Commonwealth parliament to make laws for Aboriginal and Torres Strait Islanders;

–          s116A, which is a general prohibition against discrimination on the grounds of race, colour, ethnicity  and national origin, with a ‘special measures’ clause to allow laws that are for the purpose of overcoming disadvantage and past discrimination.

–          S127A, which declares English to be the national language in Australia, and recognises Aboriginal and Torres Strait Islander languages as the ‘original Australian languages’ which are part of Australia’s ‘national heritage’.

There are three principles of recognition. The first principle of constitutional recognition is to provide for a positive presence for Indigenous Australians in the Constitution, and in particular to recognise their prior occupation of Australia, their continuing cultural connection to land and waters, and their unique culture and heritage.

The two sections that refer to race in the Constitution indicate that the Constitution was intended to be the founding document of a white nation that excluded or limited the rights of people of other races, and that eliminated the racial and cultural difference of Aboriginal people over time. Symbolically, then, removing the race power, and removing the only other section in the Constitution to make reference to race, s 25, is of great importance.

Beyond reference to race, the Constitution’s silence in relation to the place of Aboriginal and Torres Strait Islanders in the Australian nation is palpable, and is in stark contrast to constitutions of other settler nations, notably Canada, South Africa and a host of South and Central American nations. This is clearly intended to be addressed in the referendum proposal.

Beyond recognition of their unique place in Australian society, there are two positive legal protections that Aboriginal people seek from constitutional change. The first is constitutional protection of the socio-economic and citizenship rights that Indigenous people share equally with non-Indigenous Australians. The Constitution fails to provide this protection to any Australians, but the lack of protection has had a disproportionate impact on Aboriginal people. Under the oversight of the Commonwealth Constitution, State and Commonwealth governments have passed laws allowing for gross violations of Aboriginal rights. 

Section 116A implements the protection of equal citizenship rights. However, its general application is likely to make it controversial at a referendum, as it feeds into the highly divisive issue of whether rights should be recognised in the Constitution at all.

The second positive legal protection that Aboriginal people seek from constitutional change is the protection of their unique identity, culture and rights as the first Australians. Protection of the different rights of Aboriginal peoples has become more pressing as a result of the greater recognition of these rights in the Australian legal system, particularly since the recognition of native title in Mabo in 1992. The Commonwealth Parliament needs power to protect the existing common law rights of Aboriginal Australians and to create new rights and protections as required from time to time.

The power to make laws for Aboriginal Australians is achieved by replacing the power of the Commonwealth Parliament to make laws on the basis of race under s 51(xxvi) with a general power to make laws with respect to Aboriginal People and Torres Strait Islanders under s 51A. The power in s 51A is not limited in its terms, but is preceded by four clauses which explain why the power is being given to the Commonwealth, and which provide guidance as to the extent of the power. The format of s 51A is a clever way to introduce into the Constitution the symbolic sentiments of a preamble, while giving the sentiments substantive work to do, and thus reinforcing their value.

It is an interesting decision of the Expert Panel not to expressly limit the power of the Parliament to make laws for the benefit of Aboriginal people given that this proved a highly controversial issue in relation to the interpretation of the race power in s 51(xxvi). The Panel is confident that the opening clauses, in particular clause 4, ‘acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples’, will be used to interpret the extent of Parliament’s power to make laws under s 51A.

The final proposed amendment to add a new languages provision to the Constitution provides a platform for recognising Indigenous languages. However, the main proposal in s 127A is to make English the official language in Australia. I am concerned that declaring there to be a single national language sends the wrong message in our increasingly multi-cultural society. The dominance of English is not under threat in Australia, and if it was, that would be a reason to reconsider its place as the language of government and commerce. Since Aboriginal languages are already recognised in the opening clauses of the proposed s51A, little would be lost in omitting s 127A from the Expert Panel’s proposals.

I concluded with a comment on the Expert Panel’s recommendation that the proposed changes to the Constitution be put in a single referendum question. I suggested that because the three proposed amendments achieve very different things, some but not all of which might be supported by voters, there is a serious risk that many votes in favour of recognition of Aboriginal and Torres Strait Islanders in the Constitution will be lost in putting a single referendum question.

I would like to see three separate questions, one related to repealing s 25 and s 51(xxvi) and adding s 51A, one for adding s 116A and one for adding s 127A (although my preference would be to drop this last proposal altogether). If the outcome of the referendum led to the addition of s 51A to the Constitution but not s116A (which is the most likely scenario) this would be a very positive outcome for recognition of Australia’s Indigenous peoples in the Constitution.

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