Recognising Aboriginal and Torres Strait Islander People in the Constitution

Refreshing new voices, and many of them young

On 13 February 2013, we marked the fifth anniversary of the National Apology adopted by the Parliament on the motion of Prime Minister Kevin Rudd and supported by the Leader of the Opposition Brendan Nelson. Their successors spoke well when passing the largely symbolic Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. Prime Minister Julia Gillard said she was 'conscious that on this special anniversary we acknowledge the courage that enabled Kevin Rudd to offer the apology and the generosity of spirit that enabled Indigenous Australians to accept it.' She spoke of the Constitution as 'a foundation document (which) is more than just a set of rules and procedures. It can articulate a nation's sense of itself. But our nation cannot articulate such a sense of self when there are still great unanswered questions in our midst. How do we share this land and on what terms? How adequate are our national laws and symbols to express our history and our hopes for the future?' She said, 'No gesture speaks more deeply to the healing of our nation's fabric than amending our nation's founding charter'.

With a real show of bipartisanship, Tony Abbott complimented the Prime Minster on her 'fine speech' and without any fanfare proceeded to put to rest the Howard critique of the 'black armband view' of history. He told Parliament:

Australia is a blessed country. Our climate, our land, our people, our institutions rightly make us the envy of the earth, except for one thing—we have never fully made peace with the First Australians. This is the stain on our soul that Prime Minister Keating so movingly evoked at Redfern 21 years ago. We have to acknowledge that pre-1788 this land was as Aboriginal then as it is Australian now. Until we have acknowledged that we will be an incomplete nation and a torn people. We only have to look across the Tasman to see how it could have been done so much better. Thanks to the Treaty of Waitangi in New Zealand two peoples became one nation. So our challenge is to do now in these times what should have been done 200 or 100 years ago to acknowledge Aboriginal people in our country's foundation document. In short, we need to atone for the omissions and for the hardness of heart of our forebears to enable us all to embrace the future as a united people.

Let's not underestimate the significance of John Howard's successor giving credit to Paul Keating for his Redfern speech, before then invoking the Treaty of Waitangi and calling for atonement.

A new generation of Aboriginal and Torres Strait Islander leaders were gathered in the public gallery for the passage of the legislation. Together with them were many of the leaders from earlier campaigns over the Northern Territory land rights legislation, Mabo, Wik, native title and reconciliation. They then proceeded to the National Press Club which was packed to the rafters with supporters. The two speakers were two of the up and coming Aboriginal and Torres Strait Islander leaders Tanya Hosch and Jason Glanville. Each of them spoke proudly of their diverse heritage. I realised that one of the benefits of the National Apology has been that Australians with a mixed heritage are now proud to proclaim it and share its benefits with the community at large. Tanya Hosch told the Press Club:

I was blessed to be raised in a family that is a model for the kind of nation I want Australia to be. A family where race isn't a divide, but an enricher. A family that is proud of the many strands of its heritage, and particularly of our Indigenous heritage. A family that integrates the best of all of our traditions and cultures, and which has nurtured me to play a part in bringing about this big moment in the life of our nation.

Jason Glanville told the story of his great grandmother leaving the mission with her two year old child and coming to Cootamundra and building a home. He told us:

In the Cootamundra Town Hall, where once my great grandmother was barred from being able to vote, a stained glass window now hangs. It's a picture story. In it, she is telling bedtime stories to her grandchildren in the language of their ancestors. The town that once excluded this amazing Aboriginal woman has now immortalised her remarkable story. At long last, it has recognised her. And regards her story as a source of pride. It's time our Constitution did too.

I was privileged to sit at table with many erstwhile campaigners like Lowitja O'Donoghue, Pat Turner and Jackie Huggins. But alas, Karen Middleton was the only serving journalist from the Press Gallery to join the press gallery committee in asking questions. Later in the week, I was dining with some of the gallery and I quizzed them about their absence. They told me there was not the same interest in indigenous affairs nowadays. There is plenty of work to be done if the referendum is to get up in the next parliamentary term. In the wake of the National Apology, there is a new generation of indigenous Australians able to show us the way. Hopefully our elected leaders will be aboard. Tony Abbott summed up the task and hinted at the obstacles ahead when he told Parliament: 'I believe that we are equal to this task of completing our Constitution rather than changing it.' Hopefully there will be unanimity about what constitutes completion and there will be patience and respect shown as we discuss what constitutes change to be put off for another time.

Since 1967, the Australian Constitution has made no reference to Aborigines and Torres Strait Islanders. Prior to 1967, people 'of the aboriginal race' were exempt from the Commonwealth Parliament's power to make laws with respect to the people of any race 'for whom it is deemed necessary to make special laws'. Most Australians agree that it is time for the Constitution to make positive reference to Indigenous Australians thereby affirming their status as equal citizens free from all vestiges of racial discrimination and recognising their status as Indigenous Australians.

This can only be done by a super majority of the Australian population at referendum with a majority of voters in four of the six states voting in favour. This will only happen if any proposal is supported and strongly backed by the major political parties. We are now a sufficiently mature polity to know that will not happen unless any proposal has first met the approval of a broad range of respected Indigenous leaders. That's why the Report of the Expert Panel, including key Aboriginal leaders and academics and members of the major political parties, published in January 2012 is a useful starting point. But it is not the final word.

Expert panel's recommendations

The Panel is right to have recommended that any referendum proposals be first discussed with all political parties, the independent members of the Commonwealth Parliament, and also 'State and Territory governments and oppositions', and that any referendum proceed only 'when it is likely to be supported by all major political parties, and a majority of State governments'. The atmosphere in our national parliament is so toxic at the moment that I cannot see these conditions being met in time for the next federal election.

Uncontroversially, the Panel has recommended that the outdated and now racist section 25 of the Constitution be repealed. Gone are the days when the Commonwealth would contemplate people of a particular race being excluded from the franchise for the House of Representatives. That much is easy.

The Expert Panel has presented the government with a number of measures going beyond the simple 1988 suggestion that section 25 be repealed and section 51(26) be replaced with a power to make laws with respect to Aborigines and Torres Strait Islanders. The Panel has suggested some splendid words of acknowledgement:

• Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
• Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
• Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

The Panel has proposed that these words form the preamble for a new section 51A. I wonder whether they would not be better placed in the preamble of the revised Constitution which, on our becoming a republic, will replace the Commonwealth of Australia Constitution Act (UK) which contains a now outdated preamble.

Another of the Panel's suggestions is the inclusion of a one-line prohibition of racial discrimination: 'The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin', followed by a double-pronged special measures exemption for laws or measures having 'the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group'.

Understandably many other members of the community will look to lawyers, not to answer whether racial discrimination is a good or bad thing, nor to work out what special measures should be permitted, but rather to determine whether the insertion of such a clause in a Constitution which does not have a comprehensive bill of rights is workable and desirable, and to assess how such a stark constitutional provision would sit with the complex plethora of existing laws prohibiting such discrimination.

The general non-discrimination clause proposed is a variant on the equality right proposed by the 1988 Constitutional Commission which tentatively put forward a comprehensive constitutional bill of rights. That Commission included legal luminaries Maurice Byers, Leslie Zines and Enid Campbell, and political legends Gough Whitlam and Rupert Hamer. They first proposed a modest improvement and expansion of the few rights presently articulated in our Constitution and then the addition of a new Chapter VIA of our Constitution entitled 'Rights and Freedoms'.

They treated these two matters separately 'not because the rights and freedoms presently protected by the Constitution are necessarily more important than rights and freedoms which are not so protected, but rather because we estimate that proposals to alter the Constitution to strengthen and extend existing guarantees are less likely to be misunderstood than proposals to incorporate in the Constitution guarantees of an entirely new kind'. In the end, not even the former won acceptance at the referendum; and of course, no major political party was interested in proposing the latter.

These luminaries were very upfront in acknowledging 'that adoption of the proposed new Chapter on Rights and Freedoms would produce a radical change in the effective allocation of power as between Parliaments and the Courts. It would, for practical purposes, give to the courts the last word in deciding a wide range of issues which are sometimes very difficult and which many people regard as issues which cannot always be satisfactorily resolved by methods of adjudication'.

The Australian 1988 Constitutional Commission did propose an equality right similar to that proposed by the Expert Panel. But it was part of a general chapter on rights and freedoms which included a clause which provided: 'The Rights and Freedoms guaranteed by this Chapter may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'.

It also included a clause: 'The rights and freedoms guaranteed by this Chapter do not abrogate or restrict any other right or freedom that a person may have'. 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.

When considering section 51(xxvi), the Panel has recommended a provision stipulating that the Commonwealth Parliament have power to make laws 'with respect to Aboriginal and Torres Strait Islander peoples'. Aware that such a law-making power theoretically could be exercised in a manner adverse to Aboriginal and Torres Strait Islander peoples, the Panel has suggested a special preamble for the newly proposed Section 51A 'acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples'. I am one of those contemporary Australians who flinches a little at the word 'advancement'. It is a very 1970s word. The government will be wanting to 'advance' Aborigines from where to what?

Of more concern to me as a lawyer is the prospect that such a broad preambular statement might be an invitation to disaffected citizens to litigate policy questions in the High Court. For example, groups opposed to the 'Stronger Futures' legislation being debated in Parliament might turn to the High Court expecting a ruling on whether the legislation is classifiable as being for the 'advancement' of Indigenous Australians. What criteria could a court possibly develop to answer such a question? Those worried that the Commonwealth Parliament might use any 'race power' to act against the interests of Aborigines might want to consider whether the legislative power should relate to objects rather than people. For example, the Commonwealth Parliament could be given the power to make laws 'with respect to Aboriginal and Torres Strait Islander land rights, heritage protection, languages and cultures'.

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. Let's hope we can contribute to the workplan which awaits our parliamentarians, COAG, the nation's think tanks, universities, Indigenous organisations, Indigenous media and the mainstream media if we, the Australian people, are to duly acknowledge the first Australians in our Constitution.

Wrestling with the political realities

The conservative side of politics has always been more successful than Labor in proposing constitutional change in Australia. That's not because Liberals or Nationals are more committed than Labor to constitutional change. The Australian Constitution is a very democratic instrument. Our politicians cannot amend it without the approval of the people. The people are very unlikely to approve an amendment proposed by politicians unless both sides of the parliamentary chamber support the change. Even then, the people may suspect that the politicians are in cahoots acting against the interests of the people.

In the field of Aboriginal affairs, a referendum proposed by an Abbott government would be more likely to win support from the parliamentary Opposition than one proposed by a Gillard Labor government. This has nothing to do with the personalities of the two leaders; it has everything to do with the Coalition being the more difficult side of politics to bring on board with constitutional change when it is in Opposition.

Given the present opinion polling and the divisions in the Gillard government, it is no surprise that Tony Abbott is confidently preparing his team for government. Anything he says about constitutional change therefore carries considerable weight. Last week he spoke at the Sydney Institute and repeated some of the themes from his very welcome parliamentary speech backing the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. Each time he has broken from the John Howard mould and demonstrated a bipartisan spirit by referring to Paul Keating's 1992 Redfern speech. He told the Sydney Institute: 'There may come a time, perhaps some decades hence, when we can be relaxed and comfortable about the circumstances of indigenous Australians – but it's not now. Our failure to come to grips with this remains, in Paul Keating's resonant phrase, a stain on our nation's soul.'

Having demonstrated his willingness to move beyond the anti-black-armband view of history, each time he has been quick to indicate that he is not opening the Pandora's box of wide ranging constitutional reform. The cautious sting was in the tail of his parliamentary speech: 'I believe that we are equal to this task of completing our Constitution rather than changing it.' Last week he underlined that caution when he told the Sydney Institute:

An acknowledgement of Aboriginal people as the first Australians would complete our Constitution rather than change it. Aboriginal people need to know that they will never be regarded as just a historical footnote to modern Australia. Done well, such an amendment could be a unifying and liberating moment, even surpassing the 1967 change or the apology, so it's worth making the effort.

Within 12 months of taking office, an incoming Coalition government would put forward a draft amendment and establish a bipartisan process to assess its chances of success. The difficulty of crafting an amendment that satisfies Aboriginal people while reassuring the wider community that we are not creating two classes of citizen should not be under-estimated.

Australians of all political persuasions will have differing views about what constitutes completion, and whether it requires any change. We also need to get used to the idea that there will be a divergence of Aboriginal opinion about the desirable content of the Constitution, and about how best to proceed to seek constitutional change. Last week's election of Adam Giles, the first Aboriginal Chief Minister of the Northern Territory, presented the nation with an indigenous leader who unashamedly speaks more as a Liberal in the John Howard mould about indigenous affairs. He says, 'Our future in the Northern Territory is about jobs, jobs, jobs, not welfare, welfare, welfare.' He jokes that his Aboriginal father would be 'turning in his grave' to know his son was now a conservative. When working for the Howard government reviewing indigenous policies, he realised that 'welfare and socialism are what's killing Aboriginal people'. Within the indigenous communities as well as amongst Australians generally, there will be a range of views as to what constitutes completion without substantive change of the Constitution. And there will be those who think completion without real change won't be worth the paper it's written on.

In his parliamentary speech, Tony Abbott pointed across the Tasman at the Treaty of Waitangi whereby 'two peoples became one nation'. Things are not looking that simple and complete in New Zealand. The conservative government there had to cut a deal with the Maori Party in 2008, setting up a Constitutional Review Panel which is still looking at a range of issues including 'the role of the Treaty of Waitangi within New Zealand's constitutional arrangements'. The panel has had to counter allegations that it has a secret agenda 'about making the treaty an overriding piece of law which cancels all other law out'. It will be interesting to watch the New Zealand panel as it consults and reports by the end of the year. I well recall Sir David Lange, the expansive ex-prime minister of New Zealand, once laughing at us Australians during an after dinner speech because we are always seeking the final settlement of indigenous grievances. He said the best you could ever do was seek durable agreements which lasted a generation or two. That sounds more like change than completion. There will be a lot of hard work to be done to complete or change the Australian Constitution, regardless of who is Prime Minister after 14 September 2013. There's plenty for young educated Australians to do to help this vital stage of nation building.