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.
That 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