May 19

Constitution: indigenous recognition?

Recognising indigenous people in the body of the constitution could be simpler than doing so in a new preamble, the co-chair of a panel advising the federal government says.

Lawyer Mark Leibler on Thursday told AAP (19/5) that  acknowledging Aboriginal people's prior ownership of the land in a preamble also could require the addition of a new statement of values.

"If you have something in the body of the constitution itself, it would be pretty easy to restrict it to recognition of our indigenous people," Mr Leibler told Sky News.

"But once you go outside, to a preamble … then there's a view that it would have to be wider and include a statement of values.

"That, in itself, may create complications."

Mr Leibler said including a statement of values could, in fact, make it harder to win a referendum on the issue. The federal government has promised to hold a referendum before or at the next election

.Labor's expert panel on constitutional recognition of Aboriginal and Torres Strait Islander peoples on Thursday released a discussion paper detailing "some ideas for change".

(Continued below) The possibilities floated include:

  • inserting a statement of recognition in a preamble;


  • inserting a statement of recognition in the body of the constitution;


  • adding a statement of recognition along with a statement of values in a preamble; and


  • adding a statement of recognition along with a statement of values in the body of the constitution.

 The discussion paper suggests a statement of values could refer to Australians' commitment to democratic beliefs, the rule of law, gender equality and an acknowledgment of freedoms, rights and responsibilities.

Mr Leibler believes the legal consequences of recognising indigenous people won't vary if it is done in the preamble or the body of the constitution.

"What would make a difference is the way in which the recognition is worded.

"The discussion paper also raises the possibility of repealing or amending the constitution's race powers contained in section 51(xxvi).

This section allows the commonwealth to discriminate against indigenous Australians.

"We have one of the unique constitutions in the world today which doesn't prohibit racial discrimination," Mr Leibler said.

"There is a strong view that race ought to have no place in our constitution – it ought to go."

He said a specific power could then be added to enable parliament to legislate for the benefit only of Aborigines on the basis they were the country's original inhabitants.

The panel is due to hand its final report to the government by December.


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