Dr Matthew Stubbs considers the important steps that were taken last week towards constitutional recognition for Aboriginal and Torres Strait Islander Peoples at the Commonwealth and State level.

The political spectacle of the final parliamentary sitting weeks of the year in both Canberra and Adelaide has tended to obscure coverage of some important steps that have been taken towards constitutional recognition for Aboriginal and Torres Strait Islander peoples in South Australia and at Commonwealth level.

South Australia

The Constitution (Recognition of Aboriginal Peoples) Amendment Bill 2012 was tabled in the House of Assembly on Thursday 29 November. The Bill fulfils the promise of the Premier’s announcement in May 2012 of a process to achieve constitutional recognition for Aboriginal peoples.

The State Government appointed an eminent advisory panel consisting of Professor Peter Buckskin (convenor), Hon John von Doussa AO QC, Hon Robyn Layton AO QC, Shirley Peisley AM and Khatija Thomas. The panel circulated a discussion paper, held consultations and received written submissions (including one from a group of Adelaide Law School academics, which can be accessed here), and produced a final report.

The Bill will insert a s 2 into the Constitution Act 1934 (SA) which provides various forms of recognition of Aboriginal peoples and acknowledges some of the mistakes of the past in the treatment of South Australia’s Aboriginal peoples. In particular, it acknowledges that the settlement of South Australia ‘occurred without proper and effective recognition, consultation or authorisation’ from the State’s Aboriginal peoples, who ‘have endured past injustice and dispossession’. Moreover, the Bill ‘acknowledges and respects Aboriginal peoples as the State’s first peoples and nations’ and specifically ‘recognises Aboriginal peoples as traditional owners and occupants of land and waters in South Australia’, also recognising the continuing importance of their heritage. Finally, the Bill recognises that Aboriginal peoples ‘have made and continue to make a unique and irreplaceable contribution to the State’.

As a statement recognising the important role of South Australia’s Aboriginal peoples, and acknowledging the past injustices they have suffered, the Bill represents an important step on the path towards reconciliation. It is important, however, to remember that these acknowledgements and recognitions do not alter the legal position of Aboriginal peoples. This recognition is symbolic. As a symbolic recognition, it is to be regretted that s 2(3) has been included in the Bill – it provides that ‘The Parliament does not intend this section to have any legal force or effect’. The symbolism of the recognition is damaged by this immediate statement of its legal ineffectuality. Submissions by a group of Adelaide Law School academics, and by the Law Society of South Australia, had argued that a ‘no legal effect’ clause was unnecessary – sadly, the panel did not agree with this view, and the Bill as it currently stands includes such a clause in s 2(3).

When Parliament returns in the new year, it will consider the enactment of this constitutional recognition of South Australia’s Aboriginal peoples. If passed, the proposed new s 2 will be an important statement of recognition. The more significant questions for the future will be whether legally effective, rather than symbolic, recognition of Aboriginal peoples should be used to further advance the process of reconciliation in South Australia.

Commonwealth

At a Commonwealth level, legally effective changes to the Australian Constitution have been proposed by the YouMeUnity Expert Panel in its Final Report: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (January 2012).

However, given ongoing controversy about the recommendations, and the acknowledged difficulty of securing the necessary support at a referendum under s 128 to change the Australian Constitution, the Commonwealth government has chosen to undertake symbolic recognition similar to that proposed in South Australia and already implemented in New South Wales, Queensland and Victoria.

The Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 was introduced in the House of Representatives on Wednesday 28 November. If enacted, s 3 of the Bill will provide statutory recognition that ‘that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples’, it will acknowledge their ‘continuing relationship … with their traditional lands and waters’ and respect their ‘continuing cultures, languages and heritage’.

This is intended as an interim measure – indeed, the Bill contains a sunset clause limiting its operation to a period of 2 years (s 5). The purpose of this sunset clause is to direct attention to a review required by s 4 of the Bill to ‘consider proposals for constitutional change to recognise Aboriginal and Torres Strait Islander people’ and (amongst other things) ‘identify which of those proposals would be most likely to obtain the support of the Australian people’. The review is to commence within 12 months of the Bill becoming law, and is to report within 18 months of that date. Deciding to pursue a further review recognises the two difficulties with existing proposals identified above (the controversial nature of the recommendations of the Expert Panel, and the difficulty of achieving success at a referendum under s 128). It also defers the issue of recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution until well after the next federal election.

Clearly, statutory recognition of Aboriginal and Torres Strait Islander peoples is preferable to no recognition at all; and an unsuccessful referendum would be extremely damaging. However, the sunset clause is a strange proposal – if statutory recognition of Aboriginal and Torres Strait Islander peoples is to be granted, it should be removed only if and when it is superseded by constitutional recognition or shown to be inappropriate, not through the operation of a sunset clause which will take effect after only two years irrespective of any determination of whether the statutory recognition has achieved its purposes or whether it continues to serve useful purposes into the future.

Concluding Observation

If these two Bills are successful, 2013 will be an important year in which Aboriginal peoples are recognised in the South Australian Constitution for the first time, and Aboriginal and Torres Strait Islander peoples are recognised under Commonwealth law. These would be important steps on the path to reconciliation – but in both cases the more difficult, and more important, issue of legally-effective recognition and change will await future action.

Dr Matthew Stubbs is a Lecturer at the Adelaide Law School.