Closing the Referendum gap

The Federal Government today introduced the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 into Parliament, with Minister Macklin asserting that this will be an “important step towards recognising Indigenous people in Australia’s Constitution” and “an opportunity for Parliament to show its support and commitment to constitutional recognition of Australia’s First Peoples”.

This bill is the Federal Government’s response to the extensive consultation that took place around Australia, which culminated in the Report of The Expert Panel on Constitutional Recognition of Indigenous Australians, in January 2012. The Panel made five key recommendations for constitutional reform, the most important were to recognise Aboriginal and Torres Strait Islander peoples, to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples, and to prohibit governments from passing laws which discriminate on the basis of race. These recommendations are consistent with Australia’s commitment to the UN Declaration on the Rights of Indigenous Peoples.

The new bill has been introduced not merely to recognise Indigenous Australians’ place in our constitutional past, present and future, but as a way to build up popular support for a referendum that will alter our Constitution.

There have been concerns expressed that this bill might merely be a stalling tactic, and it could have been seen as a weak placebo for real constitutional reform. However the bill, while brief, and somewhat unorthodox, is another step forward and shows some positive signs for continuing our constitutional reform processes.

The Bill is certainly short, with only 5 sections; its preamble is nearly as long as its two substantive sections. The preamble (which draws upon one of the recommendations of the Expert Panel) states that

 The Aboriginal and Torres Strait Islander peoples were the first inhabitants of Australia.

The Parliament is committed to placing before the Australian people at a referendum a proposal for constitutional recognition of Aboriginal and Torres Strait Islander peoples.

The Preamble goes on to acknowledge the important work of the Expert Panel, and its proposals for constitutional change. It also states that further engagement is needed to build the support necessary for a successful constitutional amendment (which under s128 of the Constitution requires the approval of a majority of voters in a majority of states).

The first operative section of the bill is Section 3, which recognizes that Australia was ‘first occupied’ by Aboriginal and Torres Strait Islander People, acknowledges the ‘continuing relationship’ of Indigenous people with ‘their lands and waters’ and

acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

The second operative section is section 4, which requires a review of the Expert Panels’ proposals, as well as other proposals, and an assessment of the level of community support for constitutional reform. A two year sunset clause is included, in order to put in place “a clear timeframe to build towards change and ensures the focus remains on the ultimate goal of constitutional recognition.”

The Expert Panel had made five key recommendations for changing the Constitution:

  • Remove Section 25 – which recognises that the States can ban people from voting on the basis of their race;
  • Delete section 51(xxvi) – the so-called ‘race power’, which can be used to pass laws which discriminate on the basis of race;
  • Insert a new section 51A – to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples;
  • Adopt a new section 116A, prohibiting governments from passing laws which discriminate on the basis of race;
  • Insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first tongues, while confirming that English is Australia’s national language.

There has been extensive legal commentary on the various proposals for constitutional recognition of Indigenous Australia, for instance by Professor George Williams, the Law Council of AustraliaProfessor Megan Davis, the Cape York Institute and myself. Many more submissions and suggestions can be found at the You Me Unity Website  and the UNSW Indigenous Law Centre page.

However it is disappointing that this Bill does not really engage with any of the suggestions expressed either by the Expert Panel or others.  In her press release, the only reference the Minister makes to the recommendations of the panel is that:

The Australian Government agrees with the findings of the Expert Panel that a referendum should be held at a time when it has the most chance of success.

The Minister did make note of the key Expert Panel recommendations in her statement to the House of Representatives the day before the bill was introduced.

There are some positive signs in this bill: it recognises, albeit weakly, the history, culture, languages and heritage of Indigenous Australians, (but it in no way protects Indigenous Australians’ rights and relationships to land, language and culture). The bill puts in place some plans to review and reconsider the process of constitutional reform, and a Joint Select Committee has been established to progress Indigenous constitutional recognition and build support across Parliament.

It was feared that this bill might merely be parliamentary procrastination, and be seen by both Indigenous communities and the wider Australian public as a panacea for genuine constitutional reform. But if bipartisan support can be maintained, if the review process is robust, and if wide ranging engagement on the meaning of reform ensues, then we can look forward to a referendum in the not too distant future. We should grasp the historic opportunity to remedy our constitutional deficit, close the referendum gap and fully recognize Indigenous Australians in our fundamental legal document.

UPDATE: The ‘Recognition Act’ passed the House of Representatives on 13 February, 2013, on the 5th Anniversary of The Apology to Indigenous Australians, with bipartisan support. It is expected to pass the Senate and receive Royal Assent by the end of February 2013.

5 comments

  • A key question has to be “What do Australia’s First Peoples, as cultural partners in Australian life, have to say about this legislation and this approach.?”

    And, yes, of course – there will be a wide range of positions.

  • Agree, it is positive, but it is lacking. It shows parliamentary commitment, yes, but commitment to what exactly..?

    • Thats a good question Shireen, is it like the ‘Clayton’s Law’ ~ the recognition you have when you cannot tolerate full strength recognition?

      • Doesn’t it simply amount to further Parliamentary recognition of prior occupancy, cultures, languages and consequent rights, whilst also making a commitment to a defined process of pursuing national assent to constitutional recognition of these matters?

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