Parliament Report Delivers Mixed Bag on Constitutional Recognition

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A Parliamentary committee tasked with recommending options for the government to recognise Aboriginal and Torres Strait Islanders in the Australian Constitution has suggested a referendum on the issue must preserve the Commonwealth’s ability to make laws with respect to Aboriginal and Torres Strait Islander peoples.

In an interim report released this week, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples suggested that a successful referendum could preserve those powers while offering new protections to ensure they were not used to adversely discriminate against Aboriginal and Torres Strait islander peoples.

The Committee, which is chaired by Liberal Member for Hasluck, Ken Wyatt – one of only two Aboriginal people in federal Parliament – held off making direct recommendations but outlined the key areas of debate facing the government as it attempts to draft a proposition capable of passing at a referendum.

Most attention is given to options that involve inserting clauses recognising Aboriginal and Torres Strait Islander peoples as the first occupants of the continent, as well as their ongoing connection to its land and waters.

While the idea of attaching a preamble to the Constitution is discussed, the report also outlines serious objections to such a process.

At the heart of the dilemma is how a referendum would approach Section 51(xxvi) of the Constitution, known as the ‘race powers’, which allow the Parliament to make laws for “people of any race for whom it is deemed necessary to make special laws”.

The landmark 1967 referendum removed an exemption to Aboriginal people originally contained in this section, allowing the Commonwealth to make laws in regards to them. However, according to the report, concerns remain that the section “could be used to enact laws that discriminate against the people of any race”.

This has happened three times since the 1990s – in the Hindmarsh Islands affair, in the Wik debate, and to launch the NT intervention.

An Expert Panel convened to examine the question of Constitutional recognition previously reported that a large majority of the Australian community support changing the section.

While acknowledging such feelings, the report notes that changes risk invalidating key legislation, including the Native Title Act.

“For this reason, the committee agrees with the Expert Panel that changes to the existing terms of section 51(xxvi) should be accompanied by a new legislative power in order to achieve continuity with the Commonwealth’s power to make laws for Aboriginal and Torres Strait Islander peoples,” the report noted.

The report also examines a proposal made by the Expert Panel to insert a new section into the Constitution which would enshrine the Racial Discrimination Act, preventing parliament from suspending it as it did in the NT intervention legislation.

The proposal– which is shaping up as key battle ground – has been backed by legal academics such as Professor Megan Davis and could allow for litigation against Commonwealth programs which breach the section.

This option is seen as offering stronger protection against discrimination than other proposals which would insert safe-guards guaranteeing any laws made in regards to Aboriginal and Torres Strait Islander people would not “discriminate adversely against them”.

However, the committee also received advice that it would be “likely to have wide-reaching application and be heavily litigated” and could have “potential for divisive debate about [the referendum’s]merits.”

In one of the more decisive statements made in the report, the committee indicated it was unlikely to support a distinct recognition of Aboriginal and Torres Strait Islander languages.

The report also backed calls for a section of the constitution that references the ability of states to bar members of a certain race from voting to be repealed.

“The committee is not persuaded of the section’s ongoing utility, and considers that it can be removed without consequential effects to the Constitution,” it said.

While the committee’s final report is due in June 2015, Minister for Indigenous Affairs Nigel Scullion has promised a draft proposal for changes to the Constitution would be ready for public examination this year.

The broad proposal to recognise Aboriginal and Torres Strait Islander peoples in the Constitution currently has support from both the major parties, as well as the Greens, but there is strong – and growing — opposition in Aboriginal communities.

Max Chalmers

Max Chalmers is a former New Matilda journalist and editorial staff member. His main areas of interest are asylum seekers, higher education and politics.

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