The Hon Robert French AC provides the second post in our book forum on Dylan Lino’s Constitutional Recognition: First Peoples and the Australian Settler State.? To see all posts please click here. Click through for a post by Dani Larkin, as well as Dylan Lino’s reply.

BY THE HON ROBERT FRENCH AC

Dylan Lino’s work discusses ‘recognition’ well beyond the limits of the ‘big-C’ written Constitution into what he calls the ‘small-c’ constitution. That terminology encompasses ‘institutions, practices and norms falling outside a codified constitutional text that nonetheless concern the fundamental distribution of public power within the political community’. Recognition in that sense includes a treaty or Makarrata entered into between the executive government of the Commonwealth and a suitably representative Indigenous body. Indeed it could extend to subnational agreements involving the executive governments of the States and the Territories and an overarching agreement involving the executive government of the Commonwealth to which all were party. Parliamentary ratification or approval of such agreements would not confer upon them any statutory effect although statutory and/or administrative measures might be put in place to operationalise particular aspects of them, which might include the establishment of a Voice to the Parliament or Parliaments.

Constitutional recognition is said in the book to respect Indigenous identity if it alters the basic distribution of ‘public power’, whether inside or outside a big-C Constitution. Recognition effecting power redistribution is viewed as a dynamic process subject to ongoing contestation over its terms and for its future modification, supplementation or replacement. It is cast, for the foreseeable future, as a work in progress.

The operation of the small-c constitution, as understood in this book, includes common law constitutionalism in whose applications the courts play a part. A particular case of that application was the recognition of customary Indigenous title to land and waters effected in Mabo v Queensland (No 2). Its constitutional character was asserted by Justice Gummow in Wik Peoples v Queensland:

To the extent that the common law is to be understood as the ultimate constitutional foundation in Australia, there was a perceptible shift in that foundation, away from what had been understood at federation.

The common law of native title carries with it what may be seen as a species of ‘small-c’ constitutional recognition. It involves translation of aspects of an Indigenous society’s traditional relationship to land and waters into rights and interests at common law. It is a translation into the language of the common law, albeit within the limits of that language. It is not transformative of traditional law and custom. They remain as they are. Nor does its obverse, the common law doctrine of extinguishment, affect those laws and customs or the traditional rights and interests arising out of them. Extinguishment describes the application of principles by which the common law’s translation, or recognition, is withheld or withdrawn in the face of legislative or executive acts inconsistent with the subsistence of the common law rights and interests.

Constitutional recognition, as discussed in the book, is protean in content and dynamic in development. There is a question whether it can draw upon the idea of the recognition of native title at common law. That was a recognition which effected a redistribution of power under the Australian legal system in favour of its First Peoples, it created justiciable rights — incomplete and heavily qualified as it was by extinguishment and vulnerable to Commonwealth statutes and judicial exegesis.

Recognition as translation can be applied to an Indigenous concept of the identities of Australia’s First Peoples, giving them a reality cognisable by the small-c constitutional system. The effect of such a translation upon power distribution is not necessarily to be found in the legislative, executive and judicial sphere. Real power can be located in non-statutory policies and practices in so called ‘soft law’. It can also be located in institutional cultures informing engagement with First Peoples. Cultural change can support a societal understanding of Indigenous Australians and their history which transcends narratives of colonial dispossession and injustice and responds to a rising trajectory of claims to be known and respected as key participants in Australia’s history, Australian society, and the maturing of Australian nationhood. The role of symbolic recognition, major or minor, should not be underestimated. Symbolic recognition, as discussed in the book, covers recognition without any legal consequence. It should not, on that account, be dismissed as a non-contributor to the dynamic process of recognition. It would, for example, be a bold conclusion that the Welcomes to Country and Acknowledgements of Country which are repeated day-in-day-out in countless events, public and private, across Australia have no impact upon societal and institutional cultures and awareness.

The extended idea of constitutional change discussed in the book encompasses recognition through a treaty or Makarrata and through the instrumentality of a Voice to the Parliament. So far as the Voice is concerned, objections have already been advanced against any proposal for express reference to it in the written Constitution. It has been portrayed by some as compromising representative democracy by creating a third chamber of the legislature limited to a racially defined group.

There are, however, ways of defining and giving effect to a Voice to the Parliament, including reference to it in the Constitution, which could not be so characterised by any bona fide critic and yet has a small-c constitutional significance. They include:

  1. Express constitutional empowerment of the Parliament, without obligation, by legislation, to provide for the establishment of an Indigenous authority which can proffer advice to the Parliament and the executive on laws, regulations and administrative practices affecting Indigenous People.
  2. The making of an agreement between the executive government and a suitably representative Indigenous body for the establishment of a Voice to the Parliament. Such an agreement would not have constitutional or statutory effect even if ratified and approved by the Parliament.
  3. The enactment, with or without express constitutional authority, of a law creating such a body designated as a Voice to the Parliament. It would be open to include in such a law a requirement for Indigenous consultation before any amendment to or repeal of it. It is doubtful that any such requirement could be entrenched against express overriding legislation however disregard of the requirement would come at a political cost. If a precedent is necessary, reference can be made to intergovernmental agreements in Australia supporting uniform national laws, whether by reference of powers or otherwise, which purport to constrain amendment without the consent of the participating polities.

The composition of the Voice and the means of selecting or establishing its members would require careful consideration. An elective process of some kind would be necessary. It would have to be acknowledged that disputed elections would occur from time to time and internal conflicts would arise from time to time, as they do in the Parliament itself.

The establishment of a Voice along any of the above lines, and whether or not authorised by express constitutional provision, would not impose a constraint on legislative power. However it would be more than merely symbolic as advice from the authority could be addressed directly to the Parliament and considered by its committees and in debate. A particular mechanism to give effect to the Voice would be an administrative or legislative requirement for a First Peoples’ Impact Statement informed by the Voice and accompanying any legislative or regulatory change capable of affecting Indigenous communities or individuals.

There are some terms used in discussion of constitutional recognition in Dr Lino’s book which may require care in their deployment in advocacy for recognition. Firstly, the term ‘Settler State’, which appears in the title of the book, may be seen as attaching second order legitimacy to the current Australian polity. Its usage and utility in the theoretical discussion of recognition may be accepted. It is not clear, however, that it serves any useful purpose beyond that arena and it may provide a weapon to be turned against the proponents of recognition. Secondly, the concept of Indigenous ‘sovereignty’ can also be weaponised by critics of compacts, agreements or Makarratas on the basis that it implies co-existing but inconsistent authority and the ‘fragmentation’ of Australia. That argument can be defused to some extent and for some audiences, but not for all, by reference to the native title recognition model. That is to say, the authority of Indigenous societies over their traditional land and waters may be seen as a species of sovereignty within an Indigenous legal framework. Recognition of that authority in the context of a non-statutory compact or Makarrata does not involve compromising the sovereignty of the Crown, as explained in Mabo, under the non-Indigenous legal system. Thirdly, discussion of ‘identity’ politics in this context can be a distraction. It can lead to the recognition debate being placed by some in the same category as other species of ‘identity politics’. The idea of a continental identity for Australia’s First Peoples, a pan-Indigenous peoplehood, is of course a legitimate unifying construction in support of a national approach to recognition. As the book points out, it is not the only mechanism which may include local Indigenous peoplehood constitutionally recognised through sub-national treaty making as apparently envisaged by the Uluru Statement. Individual First Peoples, as Dr Lino points out, could be guaranteed representation in an Indigenous Parliament Advisory Body which would itself be a pan-Indigenous institution — referring to the Final Report of the Referendum Council published on 30 June 2017.

There is much more in Dylan Lino’s book than can be encompassed in a brief blog post. It will inform ongoing debate about constitutional recognition to those who are seriously engaged in it. It also, and particularly, is a valuable addition to the scholarly literature on recognition for First Peoples in Australia.

The Hon Robert French AC was the Chief Justice of Australia from 1 September 2008 until 29 January 2017.

Suggested citation: Robert French, ‘Book Forum on Dylan Lino’s Constitutional Recognition: First Peoples and the Australian Settler State on AUSPUBLAW (14 August 2019) <https://auspublaw.org/2019/08/book-forum-the-hon-robert-french-ac/>