January 21

Aboriginal constitutional recognition

The 323 page report on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution by an expert panel, released on 19 January 2012, admits that the proposal is unlikely to be put the people in the near future.

The panel counsels against their take-it-or-leave- it single question referendum being put to the people in a referendum unless there is bipartisan support and is supported by the majority state governments.  That may not be sufficient to ensure success. 

The problem is that the panel has overplayed its hand. The package contains elements which will be seen as unacceptable and going beyond their brief.  It is not be because most people wish anything but the best for aboriginal people. 

It is more likely to be a suspicion that these provisions will hand over substantial and increasing legislative and executive power to the courts which are not accountable directly to the people in the way that the Parliament is, if only at elections. It will  be seen to disturb the separation of powers where the courts exercise essentially judicial and not legislative powers.

The most extraordinary provision is the proposal general anti-discrimination clause. This goes beyond anything which relates to aboriginal recognition. Only the expert panel can explain why it went so far beyond its brief.

A more detailed comment with the proposed provisions, including the constitutional clauses recommennded to be removed, as well as a note on the following telephone poll – follows.  Not that the telephone poll is not and does not purport to be an opinion poll. 



Mercifully, the report does not propose that the Preamble to the Constitution Act be changed. No does it propose the insertion of a new preamble into the Constitution itself. This, you may recall, was attempted in 1999 and went down to a bigger defeat even than the Keating-Turnbull republic.

The idea of changing a preamble to such a document is at the very least curious. Can you imagine what the English would say to a proposal to change the preamble to the Act of Settlement or the Americans the preamble to the constitution of the United States ?

A preamble speaks from the time legislation is adopted. It should not be changed. 

The Expert Panel make one recommendation in five parts and not five recommendations. This is a package; if it is adopted there will be one question.


..spent provision…

First, they recommend the repeal of provision in the constitution which is no longer relevant.  Such provisions are said to be "spent".

The one targeted is section 25.  It is based on something which has not happened for very long period of time and will not happen again.  It provides that ”.. if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.”

…race power…

The second part of the recommendation is to change the power of the federal Parliament under section 51 (xxvi) to legislate with respect to the people of any race. This is  the so-called “race power”. 

The essential objection to this is that the Parliament could legislate to impose disadvantages on the people of a specific race, however unlikely.

This originally used to read "the people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws.”

At federation Aboriginal issues were for the States.

The essential purpose of the 1967 referendum was to allow the federal Parliament to legislate with respect to the Aboriginal people.  The referendum removed the phrase  "other than the Aboriginal race in any State”.

  The referendum also removed section 127 which provided that

“ In reckoning the number of people of the Commonwealth, or the state to another part of the Commonwealth, Aboriginal natives shall not be counted.” 

…new Aboriginal power…

Now of course the expert panel did not mean to take away the power of the Parliament to legislate with respect to Aboriginal people.  Instead of the simple provision in section 51, this power would be in a new section 51A which contains a mini-preamble.

This reads:

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.

This is obviously designed to enable the Parliament to legislate positively for the aboriginal people and not to their disadvantage.  The opening clauses indicate that.

There will be considerable opposition to this.  It will  argued that this will lead to litigation and will effectively will involve the High Court in making assessments as to whether any such legislation involves the advancement of the Aboriginal people.  It will be argued that it will be completely wrong to have the High Court involved in such policy issues, and that these are for the Parliament and government.

…broad discrimination prohibition….

In addition there will be a new section 116A on the “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.

This  will be opposed the basis that it will involve the High Court in an increasing amount of litigation as to whether Parliament or government has discriminated not only with respect to Aboriginal people but at any time on the grounds of race, colour, or ethnic or national origin.  It will be said that this is in many ways the introduction of the Bill of Rights. The most likely result would be to  move much public policy from the elected Parliament and government to the High Court.

Leading republican Professor Greg Craven told Patricia Karvelas from The Australian (21/11 it was a "dog of a proposal" to ban discrimination based on race, ethnicity or nationality must be struck out. "The problem is there's an almost infinite category of things that can be connected to ethnicity, race or colour and if you're saying to the High Court that you have a blank cheque to decide that something is a problem you have no idea where that provision will go," he said.

I told Ms. Karvelas said people would reject an option that could lead to the High Court deciding if laws were for the "advancement" of indigenous Australians.

"I think once people hear the debate they will be very suspicious," he said. "People want parliaments to make laws not the judges to decide. This would be a recipe for that, that's the danger."

...recognition of langauages…

The final recommendation of the expert panel is a new section 127A  on the "Recognition of languages.”  This provides:

(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.

….don’t put the referendum…

Realising that a defeat would almost be guaranteed, the panel  says that the referendum should only proceed when it is likely to be supported by all major political parties, and a majority of State governments.   It says this should not be held at the same time as a referendum on constitutional recognition of local government.

 Before the referendum is held, the report says, there should be a properly resourced public education and awareness programme.

….likelihood of success…

The extract from The  Australian’s poll on 20 January 2012 above probably indicates the reservations the public will have about these proposals.

The poll is a self-selecting one and does not purport to be a scientific opinion poll.  But it is a guide and indicates that while the public would support the removal of discriminatory provisions, they do not seem to be interested in constitutional recognition and especially in provisions to redress historical disadvantage. 

That said, earlier public opinion polls indicated support for constitutional recognition  – before constitutional recognition was explained. It is likely that this report with its far reaching general proposal will impact on public opinion.  


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