Principles of Recognition

By Alexander Reilly
Aboriginal Flag Puzzle Piece

This article is part of our June theme, which focuses on Indigenous People and their human rights. Read our Editorial for more on this theme.

Comments on the You Me Unity Expert Panel Report on recognising Indigenous Australians in the Constitution.

In November 2010, the federal government established an Expert Panel to consider options for amending the Constitution to provide for the recognition of Aboriginal and Torres Strait Islander people. After wide consultation in 2011, the panel submitted a report to the government in January 2012 with a concrete proposal for constitutional change. In this article, I set out the principles for the recognition of Indigenous Australians in the Australian Constitution and discuss how the proposal addresses these principles. I offer a critique of the content of the proposals, and suggest an alternative form for bringing them to the Australian people at a referendum.

Principles of Recognition

The Constitution’s silence in relation to the place of Aboriginal and Torres Strait Islanders in the Australian nation is palpable…

The Australian Constitution is notorious for its lack of an express commitment to a national ethos or to values that bind the Australian people together. The extent of the people’s solidarity is expressed in their agreement to unite in “one indissoluble Federal Commonwealth”. 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. The first principle of constitutional recognition, then, 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 attempt to do this through the introduction of a new preamble to the Constitution at the time of the republic referendum in 1999 was an abject failure, and reminded those advocating for change of the importance of strategy and due process in bringing proposals for change to the Australian people.

In the Constitution as originally drafted, there were only two direct references to Aboriginal Australians. They were expressly excluded from the Commonwealth Parliament’s power to make laws with respect to the people of any race in section 51(xxvi), and they were excluded from the reckoning of the numbers of the people in the Commonwealth in section 127. This latter exclusion was premised at least partly on the understanding that Aboriginal people were a “dying race”, and that there was no long term purpose in counting them as among the people of the Commonwealth.

At the only referendum that has considered the place of Aboriginal Australians in the Constitution in 1967, section 127 was repealed and the race power was amended to remove the exclusion of Aboriginal people from the scope of the power.  The race power was included in the Constitution at federation to provide the Commonwealth with power to make laws that discriminated against non-white peoples in Australia, particularly Pacific Islanders and Asians, based on their “race”. The change in 1967 to extend the power to Aboriginal Australians was supported by the people on the basis that it would allow the Commonwealth to take a positive role in making policy for Aboriginal Australians. Although the clear intention of the amendment to the race power was to advantage Aboriginal Australians, the power has been used to pass laws that have clearly been to their disadvantage, such as the Hindmarsh Island Bridge Act 1997. Only a minority of judges on the High Court have held the power to be limited to making laws for the benefit of Aboriginal people on the basis of race.

Although the clear intention of the amendment to the race power was to advantage Aboriginal Australians, the power has been used to pass laws that have clearly been to their disadvantage…

Symbolically, removing the race power, and removing the only other section in the Constitution to make reference to race, section 25, is of great importance. Reference to “race” in a modern Constitution is highly anomalous. The Australian Constitution was 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. Although section 51(xxvi) was rehabilitated in 1967 as a positive power to benefit Aboriginal people, the power remained based on race as the point of distinction between peoples, which was not the basis of difference Aboriginal Australians claimed in Australia. Nonetheless, because amendments to section 51(xxvi) at the referendum in 1967 were promoted and accepted as a positive change for Aboriginal people, care must be taken in repealing the section.

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 the forcible removal of Aboriginal children from their families, the removal of Aboriginal communities from their traditional lands, the exclusion of Aboriginal people from public spaces and the exploitation of Aboriginal workers. Under the Constitution, the health and education outcomes of Aboriginal Australians are well below that of the general population, and imprisonment rates are nearly 13 times higher.

To further the first principle of protection of equal citizenship rights, the Expert Panel has recommended the inclusion of a new section 116A into the Constitution:

Section 116A Prohibition of racial discrimination

  1. The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
  2. Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group

It is proposed that this section will be located immediately after the only express right or freedom that is currently recognised in the Constitution, the Freedom of Religion clause in section 116.

The proposed section 116A is not a protection limited to Aboriginal Australians. In fact, the reference to discrimination on the basis of “national origin” would seem unlikely to apply to Aboriginal Australians at all.  On the other hand, the exception made for special measures in section 116A (2) clearly has particular relevance to Aboriginal people, particularly when read in conjunction with the proposed new power in the Commonwealth Parliament to make laws with respect to Aboriginal and Torres Strait Islander peoples in section 51A, discussed below.

The general application of section 116A is likely to make it controversial if it were to be put to the Australian people at a referendum, as it feeds into the highly divisive issue of whether rights should be recognised in the Constitution. For this reason, I argue below, it would be sensible to put the proposal to introduce section 116A into the Constitution as a separate question to the people at a referendum.

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 removing section 51(xxvi) of the Constitution and replacing it with a proposed section 51A, which states:

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples

  • —      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;
  • —      Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

Section 51A is the centrepiece of the proposed amendments. It replaces the power of the Commonwealth Parliament to make laws on the basis of race with a general power to make laws with respect to Aboriginal people and Torres Strait Islanders. The power 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 section 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. Attempts to add a preamble to the Constitution in 1999 were mired by the problem of where to place the preamble, and whether a new preamble could be used to interpret the Constitution. The 1999 proposal included a “no legal effect” clause which seemed to immediately undermine the genuineness of the sentiments expressed in the preamble.

There has been some criticism of the concept of “advancement” … it has an association with social Darwinism and liberal ideas of progress.

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 section 51(xxvi). The Panel is confident, based on legal advice, that the opening clauses, in particular clause four, “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 section 51A.

There has been some criticism of the concept of “advancement”. Jon Altman has pointed out that it has an association with social Darwinism and liberal ideas of progress. Advancement also has connotations of achieving equal citizenship and moving towards the mainstream. These connotations seem contrary to the purpose of section 51A, which is to empower the Commonwealth to make laws predominantly to provide for the unique cultural, social and economic rights of Aboriginal Australians. Is there a danger that “advancement” might be a licence to use section 51A to pass intrusive paternalistic laws that might, from the perspective of self-determination, be thought not to benefit Aboriginal peoples?

Replacing the race power with section 51A raises an interesting constitutional question not encountered before in Australia (as a Commonwealth legislative power has never before been removed from the Constitution). How does the amendment affect the validity of legislation previously passed under the race power? For legislation that is accepted as beneficial (or securing the advancement) of Aboriginal Australians this is not likely to be a problem, as it will be supported by the new section 51A. But what about the validity of legislation which is considered detrimental to Aboriginal peoples, such as some aspects of the amendments to the Native Title Act 1993 in 1998, or the Hindmarsh Island Bridge Act 1997? In theory, if section 51A does not support this legislation, and it can rely on no other source of legislative power, it will be invalid. This prospect might lead to an early call on the High Court to determine the scope of section 51A.

The final proposed amendment is to add a new languages provision to the Constitution.

Section 127A Recognition of languages:

  1. The national language of the Commonwealth of Australia is English.
  2. The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

For the Expert Panel, this provision was a way to expressly recognise Indigenous languages. However, the main proposal is to make English the official language in Australia. This provision concerns me. The juxtaposition of English as the “national language” and Aboriginal languages as “original” and “part of our national heritage” tends to relegate Aboriginal languages to history. Furthermore, declaring a single national language sends the wrong message in our increasingly multi-cultural society. The unofficial status of English has never been a problem in Australia. Its dominance is not under threat, and even if it was, that would be a reason to reconsider its place as the language of government and commerce. The reason that the Expert Panel gave for supporting this change was its popularity, but this popularity might be based on an intolerance of difference and diversity.

The juxtaposition of English as the “national language” and Aboriginal languages as “original” and “part of our national heritage” tends to relegate Aboriginal languages to history.

There is a considerable irony in an Expert Panel focusing on the recognition of Aboriginal Australians in the Constitution putting forward a proposal to recognise English as the national language. It is, after all, English that has replaced the speaking of Aboriginal languages. Furthermore, there are current policy debates about the place of Indigenous languages in school curricula.  In 2009, the Northern Territory Government controversially introduced a policy that English be used exclusively in the first four hours of every school day. The recognition of English as the national language might serve to take such policies out of the political domain, and place them beyond reproach.

Importantly, Aboriginal languages are already recognised in the opening clauses of the proposed section 51A, thus achieving a constitutional recognition of Aboriginal languages. Little would be lost, then, in the omission of the proposed section 127A from the Expert Panel’s proposals.

The referendum process

The Panel recommended that the proposed changes to the Constitution be put in a single referendum question. I believe this would be a mistake. The three proposed amendments achieve very different things. There will be people, like me, who favour some but not all of the proposals. 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 posing a single referendum question.

Alexander Reilly is an Associate Professor in the Law School at the University of Adelaide. Alex teaches and researches in various areas of public law, including constitutional law, migration law and Indigenous legal issues. Alex is the co-author of Rights and Redemption: History, Law and Indigenous People (2008) and Australian Public Law (2011), as well as many articles in peer-reviewed journals.

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