The slow journey towards recognition of Aboriginal people in the white fella rule book

By Monique Hurley
Rusty Stewart/flickr

Earlier this year, the first Aboriginal woman elected to federal Parliament, Senator Nova Peris, called on “white fellas” to support the movement to recognise Aboriginal and Torres Strait Islander peoples in the “white fella rule book” without having to “beg” for it.

In principle, constitutional recognition of Aboriginal and Torres Strait Islander peoples has bipartisan support from both the Liberal Party and Australian Labor Party. The Australian Human Rights Commission has reported that the recognition of Aboriginal and Torres Strait Islander peoples in the constitution has the potential to address a history of exclusion and change the context in which debates about the challenges faced by Aboriginal and Torres Strait Islander communities take place.

A change to the wording of the constitution could bring about a change in political discourse and public perception of Aboriginal and Torres Strait Islander peoples. This has the potential to usher in a new era for the broader reconciliation process and create an opportunity to tackle systemic disadvantage from a new perspective. This is important because, as former High Court Justice Michael Kirby has said, “constitutional words are important; but they are not enough. A new attitude of mind and heart is necessary”.

Slow going

The journey towards constitutional recognition has been slow. An Expert Panel proposed amendments to then Prime Minister Julia Gillard in January 2012. In November 2012, the Parliament agreed that a joint select committee should be appointed and, in December 2013, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was finally established.  The Joint Select Committee released its Interim Report on 15 July 2014 and a Progress Report on 27 October 2014. The Progress Report recommended, among other things, that the referendum should take place at or shortly after the next federal election in 2016.

In March earlier this year, the government announced a review into public support for constitutional recognition of Aboriginal and Torres Strait Islander peoples. The work of the Recognition Review Panel ran in parallel to the work of the Joint Select Committee and it tabled its Final Report on 19 September 2014.

The Recognition Review Panel’s Final Report highlighted that current levels of awareness and support have not yet reached the point where a referendum would be successful. While this is a disappointing outcome, the Recognition Review Panel were confident that the required level of awareness could be reached if the government finalised an increased public awareness strategy and also finalised the timing of the referendum (which should be, according to the Recognition Review Panel, no later than the first half of 2017).

Despite Prime Minister Tony Abbott’s promise in his “First 100 Days Of Government” report to have the draft wording of any constitutional reform finalised by “late 2014”, this deadline will not be met. Comments made by Prime Minister Abbott in September earlier this year indicate that it is a 2017 referendum date that the government is working towards, because it would be “difficult to run a bipartisan referendum campaign in conjunction with a highly partisan election campaign” in 2016.

The wording

Any change to the constitution requires a referendum, which must pass in a majority of states as well as having an overall majority. This is a notoriously difficult hurdle to jump, with only 8 out of the 44 referendums held since 1901 being successful.

The Expert Panel, which reported to former Prime Minister Gillard, formulated the following proposed amendments to the constitution:

  1. remove section 25, which says the states can ban people from voting based on their race;
  1. remove section 51(xxvi), which can be used to pass laws that discriminate against people based on their race;
  1. insert a new section 51A, in order to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples;
  1. insert a new section 116A, banning racial discrimination by government; and
  1. insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first tongues, while confirming that English is Australia’s national language.

The Joint Select Committee’s Interim Report recommended removing section 25 and considered there to be “some merit” in the Expert Panel’s recommendation to remove section 51(xxvi) and insert a new section 51A. The Joint Select Committee did not, however, favour including a provision along the lines of section 127A.

In terms of a prohibition on racial discrimination, the Joint Select Committee favoured a “targeted provision that would prohibit the Commonwealth from making laws that discriminate adversely against Aboriginal and Torres Strait Islander peoples” rather than the insertion of a new, broad section 116A.

The Joint Select Committee’s Progress Report echoed the findings of the Interim Report. In particular, it recommended removing section 25 and repealing or amending section 51(xxvi) to remove the reference to race. The Progress Report also agreed with the Interim Report’s finding that recognition of Aboriginal and Torres Strait Islander languages could be better achieved by other means and therefore did not recommend inserting the Expert Panel’s proposed section 127A.

In relation to the insertion of section 116A, the Joint Select Committee put forward three structural options as follows:

  1. inserting a new section 51A with a broad prohibition of racial discrimination incorporating the Expert Panel’s section 116A amendment; or
  1. inserting a new section 51A with a limited prohibition of discrimination by the Commonwealth against Aboriginal and Torres Strait Islander peoples; or
  1. redrafting section 51(xxvi) to allow the Commonwealth Parliament to make laws with respect to Aboriginal and Torres Strait Islander peoples with the option of enacting an Act of Recognition.

The Progress Report calls upon the Parliament to consider these three options, noting that any proposal must preserve both existing Commonwealth laws relying on section 51(xxvi) and the Commonwealth’s power to make laws with respect to Aboriginal and Torres Strait Islander peoples.

Bipartisan support

Prime Minister Abbott has made it clear that recognising Aboriginal and Torres Strait Islander peoples in Australia’s constitution is a “national crusade” that should be important to all Australians. Opposition Leader Bill Shorten also supports constitutional recognition, saying that change is needed to “rectify the wrong” of failing to recognise Aboriginal and Torres Strait Islander peoples.

While there is bipartisan support for the recognition campaign in theory, cracks have recently emerged as to the form of working that would be put to Australians at a referendum.

Statements by Bill Shorten at this year’s Garma Festival have demonstrated that his support for a referendum is now contingent on the insertion of a broad anti-discrimination section in the Constitution as part of the recognition process (such as the section 116A proposed by the Expert Panel).

As set out in the Recognition Review Panel’s Final Report, “a broad prohibition from racial discrimination would not be supported by constitutional conservatives who argue that this goes beyond the objective of recognising our first peoples and mischaracterises our Constitution – a document that generally does not confer rights on individuals, but rather allocates power across the federation”.

It is likely that the current government falls in the “constitutional conservatives” camp, given the role that Attorney-General George Brandis would play in any potential constitutional reform and in light of his comments on the Racial Discrimination Act (1975). This is particularly the case given previous statements by Prime Minister Abbott, when in opposition, that he would have reservations about any amendments that might amount to a “one clause bill of rights”.

Bipartisan support is essential for the successful passage of any referendum. Further, the Expert Report noted that any referendum should only proceed when it is likely to be supported by all major political parties and a majority of state governments. The divergence of political opinion that is likely to arise in relation to the Expert Panel’s proposed section 116A could see the journey towards constitutional recognition of Aboriginal and Torres Strait Islander peoples come to a standstill. This would be a truly unfortunate outcome and a major setback to the broader reconciliation process.

Showing your support

If you are interested in getting involved in the recognition movement, the Recognise website contains a wealth of information about how you can do this, including simple steps, like following Recognise on social media, to more involved steps, like attending events, calling talkback radio and writing to newspapers telling them about why you think recognition is important.

Monique Hurley is a Melbourne lawyer. She has volunteered with the Homeless Persons’ Legal Clinic and interned with Justice Connect and the Castan Centre for Human Rights Law. 

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