Dr Matthew StubbsBY MATTHEW STUBBS

2016 presents an opportunity for decisive progress towards substantive recognition for Aboriginal and Torres Strait Islander peoples in the Australian Constitution. Purely symbolic statutory recognition now exists in all but one of the States, and at Commonwealth level. However, agreement as to the appropriate model for a substantive (not merely symbolic) change to the Australian Constitution remains elusive, with yet another process designed to secure agreement set in train in late 2015.

State Constitutional Recognition Approaches Completeness

The process of securing recognition in each of the State constitutions began with Victoria in 2004, followed by Queensland (2009), New South Wales (2010), South Australia (2013), and most recently Western Australia (2015).

These five State constitutional recognitions, along with the federal statutory recognition in the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth), are symbolic – they state a recognition or acknowledgement of Aboriginal (and, in some cases, Torres Strait Islander) peoples, but do not otherwise change the law by offering any new protection for the existing legal rights of Aboriginal and Torres Strait Islander peoples or by creating any new rights or freedoms for Aboriginal and Torres Strait Islander peoples. The purely symbolic nature of this recognition is reinforced by ‘no legal effect’ clauses in Victoria, Queensland, New South Wales and South Australia. Also known as non-justiciability clauses, these expressly exclude any impact on existing law. An example is s 1A(3) of the Constitution Act 1975 (Vic):

The Parliament does not intend by this section—

(a) to create in any person any legal right or give rise to any civil cause of action; or

(b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.

These non-justiciability clauses are unnecessary, as clauses merely expressing recognition of Aboriginal and Torres Strait Islander peoples would not have been regarded as relevant in the interpretation of statutes or application of the common law. What is worse, these non-justiciability clauses also send a negative signal which has the potential to undermine the symbolic value of the recognition itself.

Western Australia is to be applauded for its decision not to enact a ‘no legal effect’ clause, albeit that the Constitution Amendment (Recognition of Aboriginal People) Act 2015 (WA), which came into force on 17 September 2015, places the recognition in a preamble, as opposed to in the body of the constitution (where it appears in the other States except Queensland). In the same amending legislation, Western Australia removed the long-spent s 42 of its Constitution Act 1889 (WA), which had deferred the creation of an elected Legislative Council until ‘the population of the Colony has … exclusive of aboriginal natives, attained to 60 000 souls’ (this event occurred on 18 July 1893). This provision, which was discriminatory on its face, had echoes of s 127 which was removed from the Australian Constitution in the 1967 referendum.

The breadth of these State constitutional recognitions varies. All contain a fundamental statement that recognises Aboriginal and Torres Strait Islander peoples as the ‘first peoples’ of the State (or of Australia). They also expressly acknowledge connection to country: Aboriginal and Torres Strait Islander peoples’ first occupation of, traditional custodianship of, and continuing connection to, the land (and sometimes waters). Beyond these fundamental recognitions of status as first peoples and connection to country, Aboriginal and Torres Strait Islander cultures, heritage and languages are specifically noted in the majority of State recognition clauses. Only a minority of these clauses address the exclusion of Aboriginal and Torres Strait Islander peoples from past constitutional practices, and only one (South Australia) admits to the ‘injustice and dispossession’ suffered by its Aboriginal peoples. Curiously, only one speaks expressly to what in all likelihood motivated all of them: Western Australia’s constitutional preamble now recites that ‘Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia’.

The remaining State yet to recognise its Aboriginal peoples in its constitution is Tasmania, and change is in the air on the Apple Isle. The Standing Committee on Community Development of the House of Assembly of the Tasmanian Parliament, in its report Constitutional Recognition of Aboriginal People as Tasmania’s First People tabled on 27 November 2015, recommended ‘that the Constitution of Tasmania should be amended to include recognition of Aboriginal people as Tasmania’s First People’. The Committee also recommended that no non-justiciability clause be included, although it did not take a position on the final form of recognition, instead advocating further consultation.

Given that it is understood that constitutional recognition in Tasmania enjoys the support of all three major parties, it appears that the project of ensuring that Aboriginal and Torres Strait Islander peoples are recognised in each of the State constitutions is close to completion. Of course, there is much work still to be done in every State and Territory to address major legal issues concerning Aboriginal and Torres Strait Islander peoples, including in relation to alarming incarceration rates, and in 2016 South Australia will join Tasmania as only the second State to enact a reparations scheme relating to the Stolen Generations. After all, constitutional recognition in the States has been a symbolic act; the journey of reconciliation must also include substantive legal changes beyond the State constitutions. Nonetheless, achieving recognition in all State constitutions is meaningful, and action to achieve it has enjoyed considerable success. These recognitions redress the remarkable silence in the constitutive documents of the States about the prior and continuing existence and contribution of Aboriginal and Torres Strait Islander peoples, whose cultural traditions are amongst the oldest in the world. To the extent that some of these State recognition clauses also acknowledge exclusion from settler legal processes and injustices suffered by Aboriginal and Torres Strait Islander peoples since settlement, they represent a step on the path to reconciliation by facing up to the wrongs of the past.

Thoughts on Changing the Australian Constitution

Recognition in the Australian Constitution is inherently more difficult to achieve than in the flexible State constitutions. Section 128, which Sawer famously accused of rendering Australia the ‘frozen continent’ constitutionally, demands the support of a majority of Australian voters, plus majorities of voters in at least four States. It is, therefore, essential to build broad consensus and support for any proposed amendment to the Australian Constitution.

The failed referenda (and proposals that didn’t even make it that far, such as local government recognition) in the years since the last successful changes in 1977 have been well studied – for present purposes, what is interesting is the extent to which model selection has grown as a critical issue. Of course, this was nowhere better illustrated than with the failed republic referendum of 1999. Model selection is also the major hurdle facing constitutional recognition for Aboriginal and Torres Strait Islander peoples at this moment.

In theory, it would be possible to partially address the model selection issue by separating the questions. One example of this sort of approach is that being pursued in New Zealand (with its flexible constitution in any event) in considering a flag change. In November/December 2015, a referendum was held to choose the preferred design for a new flag. In March 2016, a further referendum will be held at which voters choose between retaining the current flag or adopting the new design. The constitutional procedure under s 128 is that Parliament initiates the referendum by passing a ‘proposed law for the alteration’ of the Constitution: what happens before that point is not mandated. It would be possible, therefore, to present models to voters at a plebiscite for them to choose the preferred model, and then to present the chosen model to the people at a referendum through the s 128 amendment process. However, this form of direct participation (as opposed to parliamentary determination, usually following a process of consultation) has not been used in connection with any proposed change to the Australian Constitution, and has not been proposed in respect of the recognition of Aboriginal and Torres Strait Islander peoples.

Recognition in the Australian Constitution: Current Status

In December 2015, the Prime Minister announced the composition of the ‘Referendum Council’, the body to take the next steps towards recognition for Aboriginal and Torres Strait Islander peoples. The Council’s Co-Chairs, Professor Patrick Dodson and Mark Leibler AC, were also Co-Chairs of the Expert Panel on Constitutional Recognition of Indigenous Australians.

The most significant progress in 2015 towards constitutional recognition for Aboriginal and Torres Strait Islander peoples came earlier in the year with the Report of the Joint Select Committee on Constitutional Recognition for Aboriginal and Torres Strait Islander Peoples. (Those interested in more detail on the significance of this report could refer to my commentary on it in volume 26 of the Public Law Review.) The Joint Select Committee’s report was unanimous – reflecting multi-partisan support on the committee, and thus offering the prospect of it enjoying broader support within the Parliament and in the electorate. How far that support extends in fact has not been tested (at least publicly).

The Joint Select Committee made a number of recommendations that contribute to refining the model. First, it agreed with the Expert Panel that s 25 of the Australian Constitution should be repealed. Although the section was in fact intended to punish States which disenfranchised Aboriginal people, it effect was long since spent, but its indication that discrimination of this sort would be permissible was a blight on the Constitution and an affront to Aboriginal and Torres Strait Islander peoples.

Second, the Joint Select Committee declined to proceed with the most controversial proposal of the Expert Panel, its s 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.

This provision was objectionable because it declared English to be the national language (comparison with debates on this topic in the United States demonstrates the inherent problems: as Alexander Reilly demonstrated in an article in volume 41 of the Federal Law Review). It was also unnecessary, as Aboriginal and Torres Strait Islander languages can be expressly included in the general statement of recognition, which was proposed by the Joint Select Committee to read:

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…

Third, the Joint Select Committee advocated removal of the races power s 51(xxvi) and its replacement with a legislative power specific to 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

An unresolved point is to determine where the proposed recognition and new legislative power should be placed within the Constitution. The Expert Panel’s proposal was for a new s 51A to be inserted into Chapter I of the Constitution. The proposal of the Public Law and Policy Research Unit at the University of Adelaide was for this to be done in a new Chapter IA, with the provision being s 60A of the Constitution. A third proposal by Henry Burmester AO QC, Professor Megan Davis and Glenn Ferguson was for a new s 80A. The Joint Select Committee did not make a choice between these three alternatives.

The Joint Select Committee’s three recommendations refine and enhance the model for recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. But, perhaps the key choice made by the Joint Select Committee was to advocate ‘substantive’ recognition. ‘Substantive’ recognition extends beyond the merely symbolic State constitutional acknowledgements, and beyond the mere removal of arguably ‘racist’ provisions such as ss 25 and 51(xxvi), to include legal protection against discrimination for Aboriginal and Torres Strait Islander peoples.

At this point, the Joint Select Committee left open three choices. First, a broad, free-standing non-discrimination clause applicable to all Australians, as advocated by the Expert Panel in its proposed s 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.

The remaining two proposals both chose not to extend their non-discrimination protection to all Australians, but instead to limit the protection to Aboriginal and Torres Strait Islander peoples (so as to remain within the scope of recognition for Aboriginal and Torres Strait Islander peoples, and not to stray into questions of constitutional protection of the rights of all Australians, which could endanger support at a referendum). The second option was a narrow provision applying only to Commonwealth laws, attached to the legislative power expressed as noted above (but subject to an express statement that this would be the sole legislative power to make laws on this topic, to prevent circumvention of the qualification), which would now be subject to an anti-discrimination qualification:

the Parliament shall, subject to this Constitution, have power to make laws with respect to Aboriginal and Torres Strait Islander peoples, but so as not to discriminate against them.

Third, there was a middle-ground position offering Aboriginal and Torres Strait Islander peoples protection against discrimination in Commonwealth, State and Territory laws:

(1) 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.

(2) A law of the Commonwealth, a State or a Territory must not discriminate adversely against Aboriginal and Torres Strait Islander peoples.

If the work of the Joint Select Committee is taken as a guide, the choice for the Referendum Council would be simply between these three models. However, it appears likely that the Referendum Council will undertake a broader consideration of models in its consultations.

The Referendum Council met on 14 December 2015. Its agenda, according to a press release on the Prime Minister’s website, included making plans for ‘upcoming national consultations that will provide the opportunity for all Australians to have their say on recognition’. Notwithstanding the reporting date specified for the Referendum Council of 30 June 2016, there has been no further public statement to the end of January 2016 about its work.

Opportunities in 2016

Past experience indicates that arbitrary deadlines should not be put on the process of refining the model for recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. Just one illustration of this is the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth), which was originally subject to a sunset clause to expire on 28 March 2015, but which had to be extended, and is now set to expire on 28 March 2018, unless extended again.

Nonetheless, it is now a long time since the Expert Panel began its work in December 2010, and even since it completed its work in January 2012. The Joint Select Committee then worked from December 2013 to June 2015. The Referendum Council now has the opportunity to make its own contribution up to June 2016. If that contribution continues the process of narrowing options for the model, then it would still be possible to hold the referendum on the 50th anniversary of the 1967 referendum (which would be Saturday 27 May 2017).

However, it may be that the Referendum Council instead broadens the field of options, by considering proposals such as an Aboriginal and Torres Strait Islander body to advise the Commonwealth Parliament. In that case, the sunset clause on federal statutory recognition of March 2018 would be likely in need of further amendment. Even better, the sunset clause should be abolished and the statutory recognition should remain until the Australian Constitution is amended, at which time it could be repealed, rather than relying on, and repeatedly changing, a sunset provision.

Broad consultation with the community, and especially with Aboriginal and Torres Strait Islander communities, is of course absolutely essential. However, there comes a point where consultation has revealed most important perspectives, and the Parliament must do its duty by choosing the model that it incorporates into the ‘proposed law’ that s 128 then submits to the wisdom of the Australian people. Although the more recent proposal of an advisory body necessitates proper consideration, the time for productive consultation on this issue is surely drawing to a close.

The process of securing recognition of Aboriginal and Torres Strait Islander peoples in the State constitutions is almost complete. 2016 offers an opportunity to make progress on achieving ‘substantive’ recognition in the Australian Constitution. That opportunity will have been seized if, by the end of the year, a model has been chosen, and a date set for a referendum on that model for inserting meaningful recognition of Aboriginal and Torres Strait Islander peoples into the Australian Constitution.

Dr Matthew Stubbs is an Associate Professor at the Adelaide Law School, University of Adelaide.

Suggested citation: Matthew Stubbs, ‘2016: The Year of ‘Substantive’ Progress on Constitutional Recognition for Aboriginal and Torres Strait Islander Peoples?’ on AUSPUBLAW (5 February 2016) <https://auspublaw.org/2016/2/2016-the-year-of-substantive-progress/>