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Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
Public consultation for constitutional recognition
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Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
Siewert, Sen Rachel
Porter, Christian, MP
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Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
(Joint-Wednesday, 10 September 2014)
Content WindowConstitutional Recognition of Aboriginal and Torres Strait Islander Peoples - 10/09/2014 - Public consultation for constitutional recognition
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QUINLAN, Mr Peter Damien, SC, President, Western Australian Bar Association
CHAIR: I welcome Mr Peter Quinlan, SC, President of the Western Australian Bar Association. Information on parliamentary privilege and the protection of witnesses and evidence has been accorded to you. I now invite you to make a short opening statement and after you have spoken I will invite members of the committee to put questions to you.
Mr Quinlan : I thank the committee and the members of the committee here present for extending the invitation to me to attend today's public hearing in relation to the committee' important work. The invitation was extended to me in my capacity as the president of the Western Australian Bar Association, and in that respect I have consulted with the Bar Council, which is the principal policy determining organisation of the Bar Association. I do not, however, purport to speak on behalf of all members of the Western Australian Bar Association in offering the reflections that I do. In accepting the invitation I hope that I also bring over 20 years of experience and practice in both Australian constitutional law and a wide practice in areas of state and federal law relating to Aboriginal and Torres Strait Islander peoples. In that context I have over a number of years taught at a number of Western Australian universities in constitutional law, and my practice brings me regularly into the areas of native title, Aboriginal heritage and what might broadly be described as laws relating to Aboriginal self-determination. I was also a participant in the Law Council of Australia's discussion forum in Canberra prior to the expert panel's report that took place in July 2011 in relation to the expert panel's work.
In both the expert panel's report and this committee's interim report in July of this year a great deal of the work was done towards the manner in which the constitutional recognition of Aboriginal and Torres Strait Islander peoples should take place and the form of words to be used. I do not propose in this brief opening submission to visit all of those matters» but to simply identify and support what appear to me at least to be the preferable conclusions to be reached from those reports and that work thus far.
In relation to the form of words, while a variety of formulations have been proposed, ultimately, I come back to agreeing with the form of words proposed in the first three recommendations of the expert panel. That falls under two broad headings: firstly, the repeal of section 25 of the Constitution. This would appear to be wholly uncontroversial and it involves the removal of a vestige of racial concepts and practices that have no place in contemporary Australia.
The repeal of section 51(xxvi) of the Constitution and its replacement with what the expert panel described as a broad power to make laws with respect to Aboriginal and Torres Strait Islander peoples is also a form of wording which would seem to best meet the objectives of the committee. In that respect, the expert panel drew upon conclusions that are discussed in the interim report that by introducing a power specific to Aboriginal and Torres Strait Islander peoples in place of section 51(xxvi) of the Constitution, it enables the Constitution to move away from outdated notions of race but for the power to be based on the special place of the Aboriginal and Torres Strait Islander peoples in the history of the nation. That is a comment that has been endorsed by the expert panel and was considered by this committee in its report and which appeared for the first time, I think, in this context in extrajudicial writings of the current Chief Justice of the High Court.
Those, in our view, seem to be the essential steps toward which recognition of Aboriginal and Torres Strait Islander peoples can move forward. The matter which remained controversial in the expert panel's recommendation is of course section 116A—that is, the Constitutional prohibition on racial discrimination. In that respect, I would echo and endorse the views of Mr Neil Young QC, which are referred to in the committee's report that, ultimately, the proposed enactment of 116A may complicate the objective of recognising Aboriginal and Torres Strait Islander peoples in an appropriate way within the Constitution. In that respect, the controversy, if I can put it that way, is not and, of course, should not be the necessity for the elimination of all forms of racial discrimination. That is a matter to which by international covenants Australia is committed. It is rather a controversy about the best means of achieving that aim and whether that end is best achieved by the exercise of democratic and parliamentary processes or in the end by judicial determination.
Recent decisions of the United States Supreme Court in relation to the 14th and 15th amendment of their constitutions probably serve to highlight the difficulties and the controversies that continue to beset constitutional democracies in relation to the means of achieving racial equality. That is a debate that I would not describe as a political debate so much as a philosophical debate, which occupies strong views on both sides and which is ultimately distracting from the fundamental objective of building and articulating the national consensus for the recognition of the unique place of Aboriginal and Torres Strait Islander peoples in the history of the nation. In that respect, the recognition clauses proposed for the alternative section 51A would, in my view, go a long way towards framing the objects and purposes of that power which is proposed without the need for the broad provision which is proposed in section 116A. Once again, I thank the committee for the invitation to attend.
CHAIR: Thank you very much, Mr Quinlan.
Senator SIEWERT: Can we go to 116A, because it seems to me that that is your main point in terms of the expert panel's recommendations.
Mr Quinlan : It is the aspect of the expert panel's recommendations which, it seems, would be the hardest in relation to building consensus, because it goes far more broadly than the question of Aboriginal reconciliation and of Aboriginal and Torres Strait Islander peoples being recognised in the Constitution, because it draws in those debates about whether or not the best means of protecting fundamental rights are by parliamentary democracy or by judicial determination.
Senator SIEWERT: Can you take us through the form of words you would support in terms of the interim report.
Mr Quinlan : Yes. The form of words which is proposed in the expert panel's report in terms of the recommendations for the proposed section 51A with the opening words, from a constitutional perspective would be the most appropriate form of words. One could add to that the 'suffix', as Mr Porter described it, of 'without discriminating against those peoples', although, from a constitutional perspective that is probably unnecessary, for the reason that the proposed power, with the preambular words, ultimately would be interpreted to be laws for the benefit, ultimately, of Aboriginal and Torres Strait Islander peoples—excepting, of course, that the form of words in that case would leave far more discretion to the parliament for determining what, in the particular case, was an appropriate law for the benefit of the Aboriginal and Torres Strait Islander peoples.
That is a matter which was dealt with to some extent in relation to section 51(xxvi) in a High Court decision in 1999 of Kartinyeri v the Commonwealth, where there was a division in the court as to whether or not, following the 1967 referendum, section 51(xxvi) could only be used for the benefit of Aboriginal peoples, or whether it could still authorise what might be described as adverse discriminatory laws. The court was fairly evenly divided in that question, in as much as two members found it unnecessary to decide; two members found that discriminatory adverse laws were still available; and two members, via different routes, found that in modern day Australia only laws for the benefit of Aboriginal peoples would be able to be upheld.
Those were conclusions reached in the context of an amendment to section 51(xxvi) which had no preambular recognition words in it. Once you see the preambular words in the proposed section 51A it would seem to me that the conclusion would be unmistakable that the laws specifically enacted under that provision would be intended to be laws which were designed to acknowledge the unique place of Aboriginals people and their continuing connection with the land, culture, heritage and «matters» of that kind.
Just to divert a little bit in dealing with that question, the real difficulty that arises in this context, from a constitutional point of view, is that legislative changes do not always proceed in one direction. That is, on occasion benefits are given. Then an amendment might be made which takes them back a little but which still, on the whole, might be described as—
Senator SIEWERT: If you were starting here—
Mr Quinlan : Yes—if you were starting here. That was the debate in Kartinyeri. It was about whether or not excluding one part of Australia from the operation of the Aboriginal heritage protection act could be described as a law for the Aboriginal people, because the amendment act itself, if you like, could only be described as adverse, but it had to be seen in the context of the entirety of the act. And that is something to take into account in terms of the way in which parliamentary democracy works. It is not all in one direction. Programs are tried, they are found wanting in certain respects by the parliament, and they are changed. They are changed in one direction or another in relation to which there can often be a great deal of debate as to what the proper policy is.
I do think that an enactment of section 51A, as it is framed by the expert panel, would on the whole be construed beneficially but it would nevertheless leave room for those legitimate but reasonable differences between members of parliament as to how aims are best achieved.
One thing I should say in relation to a suffix which said, 'but not so as to discriminate adversely against such peoples': I think there would be little doubt that that would impact on all of the other provisions of section 51 of the Constitution. That is, it would be a limitation—it may be an appropriate limitation but it would be a limitation which would apply to all the other heads of power in much the same way as section 51(xxxi) of the Constitution operates, which is the acquisition power. So the limitation on acquiring property only on just terms applies throughout the other heads of power.
Mr PORTER: That would be the case if you separated out 51(xxvi) into a new chapter 51A and had that suffix style inclusion in it?
Mr Quinlan : I think it probably would, because if you have a provision that says—remembering, of course, that all of the powers are concurrent with one another—'parliament may make laws for the peace, order and good government with respect to Aboriginal and Torres Strait Islander peoples, but not so as to discriminate against them,' I think that that suffix would probably apply to all the powers of the parliament in much the same way as the 'otherwise than on just terms' or the 'on just terms' operates in section 51(xxxi).
Mr PORTER: Ultimately, I guess the answer is that it depends on what the High Court determines. They could not, but it is a strong possibility.
Mr Quinlan : Absolutely. It would be. And it could not be lost sight of that the proposals for recognition in this way would be an important and significant change to the Constitution. That is what they are intended to be. The work of this committee is intended to bring about a recognition in the Constitution, and this is just a personal view but I always find rather disappointing provisions of constitutional instruments that have no effect clauses: 'We'll say all of these things but we don't want it to have any effect.' I think that is worse than not doing it at all. That is a personal view—
Mr PORTER: Usually they have effect anyway.
Mr Quinlan : Yes. If one is going to have these changes, as I think the nation should and as I think the consensus is building, then there is of course attention to be given to what direct effect it is intended to have but it must be recognised that the instrument itself will be different.
Senator SIEWERT: I am going back to whether they apply to all the other provisions under 51 and looking at, if they did, what impact that would have.
Mr Quinlan : I suspect very little in practical terms.
Senator SIEWERT: That is what I am just looking at, thinking that if it did apply then we would need to look at some of them but I do not think it would make a difference to others.
Mr Quinlan : I heard Ms Solonec question whether or not, for example, the Northern Territory intervention legislation might be challenged in relation to such a discriminatory provision. That might be an example because, from memory, that legislation of course was made under the Territory's power, under section 122. It is difficult to think of any other modern Australian legislation. In a sense, this is the point as to where the nation is at present, that the expectation of section 51A is that it is a non-discriminatory provision. I think it is important to recognise that, from a broader constitutional point of view, there is a role for both the parliament and the courts in the way they interpret and approach the constitutional instrument. One would expect that it would be used by the parliament for the objects that it reflects. It does seem that that kind of a provision is absolutely necessary to ensure the validity of law, such as the Corporations (Aboriginal and Torres Strait Islander) Act and «matters» of that kind.
There can be debate about that. It might be argued that certain of those laws might be upheld under the external affairs power but, in reality, there is room for disagreement about some of those laws. It would be necessary to have a specific power. The race power, section 51(xxvi), is the provision under which the Native Title Act was upheld. One could argue that it could be upheld under other bases but that is it at the moment. This similar provision would apply to the Aboriginal Heritage Protection Act which, I think, was referred to or at least comparable provisions were referred to by the High Court in the dams case as being supported by the race power. An alternative is necessary. I suppose, in some respects, I am a constitutional purist in thinking that the Constitution should say yes to less than more, because they are intended to be documents that last for decades, hopefully, and our Constitution has lasted longer than most countries' constitutions.
Senator SIEWERT: This one is the hardest to change.
Mr Quinlan : Albeit that most constitutions throughout the world do get changed not through «electoral» vote but through overthrow. That being said, those questions of the relationship between the parliaments and the courts will come up, no matter how these issues are worded. Unless the people of Australia, in agreeing to the referendum did so with their eyes open, that they were intending to do something positive—that is the consensus that needs to be built, not from a legal point of view but it is part of the important work of the committee. There are two aspects: articulating what the consensus is for change and then there is building upon that so that there is an understanding across the board as to what these changes are intended to do.
Mr PORTER: I tend to agree with your analysis of Kartinyeri as to what it may or may not say can and cannot occur under section 51(xxvi). It might not surprise you to know that it has been put to this committee on more than one occasion that Kartinyeri reveals the problem that needs to be solved, the problem being that it is conceivable, at least under section 51(xxvi), to enact legislation which is, in a substantial sense, discriminatory and adverse. It then flows from that that there is a problem that Kartinyeri reveals that must be cured, which I understand is what the drafting of 116A is designed to do. Because it is so far-reaching and it extends well beyond Indigenous people and well beyond the federal level of government, I also tend to concur that it is a substantial change to the Constitution and would be a difficult part of this process going forward; whether that is advisable or not advisable is another matter.
If there are a group of people who consider that there is a problem that needs to be cured, one of the potential responses is to have some kind of suffix to 51(xxvi), but again I am not sure whether there is a problem that needs to be cured. It is difficult to know what that kind of suffix might achieve or cause in terms of interpretive effect for all of the other legislative powers of the Commonwealth. The question that I put previously that you were addressing in part is that 116A would clearly have substantial limitations on the types of things that occur in terms of legislative power at the moment. Section 51(xxvi), with some form of suffix, would also be likely to have an effect. It has been put by some to this committee that a possible replacement for 51(xxvi) might be to remove a person's base power and have a subject matter power. The subject matter power, if properly drafted, alongside other heads of Commonwealth power, would support all the legislative instruments that we have at the moment. There is also doubt as to whether or not that is the case.
So reverting back to a person's power, the question becomes: if there is a 51(xxvi) replacement with some form of suffix, what legislation might be affected? The Northern Territory intervention legislation was mentioned earlier. Native title is another one that springs to my mind potentially with compulsory acquisition and this Kartinyeri effect that sometimes in the Native Title Act an overall benefit is limited in certain geography or for certain groups. With your deep knowledge of these things, are there other things that spring to your mind that we would need to consider in an audit of possible legislation?
Mr Quinlan : One could look at the Corporations (Aboriginal and Torres Strait Islander) Act 2006 for the reason that it sets up a regime for control and oversight of what are described as Aboriginal corporations, which are different to a corporation formed under the Corporations Act.
Mr PORTER: Yes, and arguably more onerous in some respects.
Mr Quinlan : Yes, so in some respects one could say that, because that act is placing greater oversight on corporations of that nature, there would be an argument that that is discriminatory against them. Then there would be a debate as to whether or not in fact it was adversely discriminatory or whether it served an advantageous purpose. The real question that I come back to here is not so much whether one wants to achieve the lack of adverse discrimination as to where that question gets determined. Does it get determined in the parliament or does it get determined in the courts? That is why I began by saying that no-one, I hope, would disagree that the elimination of all forms of racial discrimination is an absolute necessity in our nation. At the margins of public policy there is debate as to what measures are the best measures to achieve that. We saw that recently, for example, concerning the debate over whether or not there should be a repeal or an amendment of section 18C of the Racial Discrimination Act. What I found particularly pleasing about that debate was that the issue went one way and then went the other way as a result of public debate and public views about it. We did not revert to legalism about it. The government reached a view which was different from that which had been expressed before for sound public policy reasons. That is really where the debate is: how much room for legitimate disagreement there is at the parliamentary level.
In a sense, to go back to the Kartinyeri case, the most creative way of approaching this issue, which might be one to reflect upon in terms of the form of wording, was Justice Gaudron's. Justice Gaudron in Kartinyeri's case did not reach the conclusion, as did Justice Kirby, that section 51(xxvi) could only be used for the benefit of Indigenous persons. Justice Gaudron concluded that because it referred to special laws deemed necessary the parliament had to deem that the law was necessary because of some particular feature of the people it was dealing with. Justice Gaudron said the parliament's response had to be reasonably appropriate and adapted to whatever that need was. That gives a good deal of leeway to the parliament to determine what is an appropriate law, but Justice Gaudron concluded that it is difficult to see, in 1999, when the case was decided, that it could ever be reasonably appropriate and adapted for the parliament to pass a law which was intended to discriminate against Aboriginal people. So her honour reached the same conclusion but did so in a way which gave a greater degree of flexibility to the way in which parliament might address an issue than a blanket prohibition which then became justiciable and dealt with in that way.
Certainly, wording of the kind with the suffix in section 51 could have an invalidating effect on some legislation. It is difficult to predict. My instinctive reaction is that it would not have a great deal, but that is difficult to say. Members of the committee will recall that, after the decision in Wik v the state of Queensland, amendments were made to the Native Title Act which were described in extra-parliamentary statements as including 'bucket loads of extinguishment'. The Wik amendments could be seen on one view of those provisions to be deliberately targeting in an adverse way native title rights and interests. That is an effect which the committee needs to be conscious of.
Mr PORTER: I have springing to mind I think it was Justice Keane's judgement in Aurukun Shire Council when he, in effect, said—I am coarsely paraphrasing—the determination to balance what is the appropriate mix of rights between the rights of women and children to be free from alcohol fuelled violence and the rights of Indigenous persons in that shire community to be able to purchase alcohol without restriction is an impossible determination for him as a judge to make.
Mr Quinlan : Yes. At the time that the High Court decided its case in Wurridjal, which was about the Northern Territory intervention, when there were very strong views, I wrote an article which touched upon that debate. It was not intended to enter into the correctness or otherwise of the legislation but really to note the difference in the language that was being used by those proponents of the intervention and those who were opposed to it, the different Indigenous voices that were coming out of that debate. It pointed to a similar sort of thing: what story is told and what narrative reveals about what is occurring. This battle serves to demonstrate the complexity of some of those public policy issues and this question of where best they are resolved.
Mr PORTER: I am very interested in your view that if you separated out a redrafted section 51(xxvi), for instance, in a new section 51A and did have a suffix which was an anti discriminatory suffix that, going forward, that would likely affect interpretation of all of the Commonwealth heads of power in section 51. Would it also therefore be fair to assume, as I do, that if you had the preambulatory words to a new section 51AA, which are also meant to effect a non-discriminatory outcome, if you like, they would also have an interpretive effect across the entire Constitution in due course?
Mr Quinlan: They may do but, for want of a better word, the effect would be far more muted
Senator SIEWERT: [Inaudible]
Mr Quinlan: Yes. It is for this reason: those words of recognition would in my view clearly define the meats and the bounds of the power with respect to Aboriginal and Torres Strait Islander peoples. So in interpreting the extent of that power and what can be done under that power you would have to have reference to those preambular words, but those preambular words do not of themselves create a restriction. They do not create a prohibition. It is the inclusion of a prohibition in a head of power that has the effect of creating a prohibition on other heads of power.
Senator SIEWERT: Which is what the suffix would do.
Mr Quinlan: Yes. Section 51(xxxi) of the Constitution is really the classic example, because it says the Commonwealth may make laws with respect to the 'acquisition of property on just terms'. The High Court has said that because there is a specific prohibition on the acquisition of property otherwise than on just terms that prohibition flows through to the other heads of power, so you cannot make a law about lighthouses, for example, and not provide just terms for the acquisition of property. It is the inclusion of a prohibition within a head of power that can have the effect of affecting other heads of power. Section 51(xxxi) is probably the clearest exception—the taxation power may also—to the general rule that you read all of the heads of power separately.
Mr PORTER: One final question with respect to section 25: I concur with your view that it is probably the least controversial of the suggestions being made. It has been described by some as an odious and racist provision. I think the history is probably a little bit more complicated than that. As I understand it it was always meant to mirror the types of protections that you had in relevant amendments in the American constitution to effectively provide the Commonwealth with the means of punishing, for want of a better word, any state who sought to exclude persons of race from voting in that state by an ancillary limitation on their representation in the federal parliament. It may well be uncontroversial. It may be difficult to conceive of a time when that power was needed by the Commonwealth. You practice in this area. I am broadly aware of the fact that in the United States there have been brought or are being brought some actions on the basis that certain procedural requirements in states for voting, whilst not directed at a race, have a disproportionate effect as a matter of empirics on persons of some rather than other races, and in actual fact the relevant and equivalent provisions in the American constitution have been used in recent times.
Mr Quinlan: Yes. They are not quite the equivalent provisions. They relate to the 14th and 15th amendments. I have to get this right: I think it is the 15th amendment is the one which says that there should not be any discrimination:
The right of citizens … to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
There is a section 2, which says:
The Congress shall have the power to enforce this article by appropriate legislation.
So typically in the US constitution you have these guarantees in the Bill of Rights which are then backed up with the constitution. I think the particular provisions that you are referring to are the voting rights acts, which were passed in the 1960s as part of the civil rights legislation. They were designed to provide federal oversight to gerrymanders and voting practices principally in the southern states which, whilst being, as they say in the jurisdiction, 'on their face' non-discriminatory, in practical terms discriminated against African American people. So there was a requirement that any changes to voting boundaries requirements would have to be vetoed by the federal «electoral» authority.
In fact, it was those provisions which last year the current US Supreme Court struck down as being invalid. A good example of, as I referred to, constitutional protections against racial discrimination can themselves wax and wane in terms of who they protect. So the US Supreme Court has now invalidated provisions which were argued to be necessary for the practical protection against racial discrimination in the south because they were seen to be inconsistent with the constitution. In the same way, the United States amendment 14 dealing with a prohibition on racial discrimination, the equal protection clause, was recently used by the US Supreme Court to strike down affirmative action policies in state universities.
There is obviously a public debate as to whether minority groups should have access to affirmative action admission requirements to universities. Last year, the United States Supreme Court said that they are racially discriminatory because they discriminate in favour of minority groups. That is the kind of waxing and waning that you get when you constitutionalise these issues and they become justiciable issues rather than issues that are dealt with as a matter of public policy and parliamentary determination and debate. But the matter that you specifically refer to, Mr Porter, the decision of the Supreme Court, was Shelby County and Holder.
Mr PORTER: I apologise. I will do my own research in future. It is nice to have you here.
CHAIR: Is there a legal construct around the word 'consideration'?
Mr Quinlan : It would depend upon the context. It is a very well trodden word in a contractual context.
CHAIR: I will put it this way. Go to page 15, box 4, and the heading '51 Legislative powers of the Parliament'. If that was 51(xxvi) and said: '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, but not so as to discriminate adversely against them, and that such laws give consideration to recognising that the continent and islands now known as Australia was first occupied by Aboriginal and Torres Strait Islander peoples, acknowledging the continuing relationship with 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 and acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.' Would that be problematic?
Mr Quinlan : As I understand the question, that would be effectively putting what are the preambular provisions into the body of the power.
CHAIR: But only by giving consideration.
Mr Quinlan : Yes.
CHAIR: So, in the framing of a law, the Commonwealth is required to give consideration to those four items in the framing of that bill, and, again, it would have that proviso to not adversely discriminate against them.
Mr Quinlan : It would be an unusual constitutional provision, because inherent within the description of the power it would have so much detail. The kind of way of achieving a similar result would perhaps be to leave those provisions as preambular, if you like, and then say, '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' and then 'which it considers necessary to give effect to the «matters» above'. That might achieve the same purpose, which is that the parliament is, as it were, directed, when it exercises this power, to direct its attention to why it is being given the power.
CHAIR: I served on a committee that looks at all the legislation with respect to human rights and the UN instruments, and we applied those with rigour against the legislation. I was wondering whether that could be constructed in a way that would be inserted into the Constitution whereby those four key elements would have to be applied in the consideration of a parliament to any law that it intends creating.
Mr Quinlan : Yes. In one respect there is an echo of that in the current 51(xxvi), because the current 51(xxvi) refers to special laws or to people of a particular race for whom it is deemed necessary to make special laws. And the High Court has consistently said that the law must be a special law—that is, it must apply specifically to this group—and it must be a law that parliament has deemed necessary. The court has also consistently said that the necessity for it is a matter for parliament to determine. But it is a unique provision currently inasmuch as it provides an instruction to parliament as to the circumstances in which it should do something, but then leaving it entirely to the parliament as to whether it should or should not. I think that is what you are referring to—that you could construct the provision in such a way that it has all of those preambular provisions and then confers the power on the basis that the parliament has considered the above objectives or considers it necessary for the promotion of the above objectives. In an interpretation case at the margins, you would expect those things, as I said before, to inform the meets and bounds of that power. But one would expect, at a parliamentary level—for example, in committees looking at legislation—that the parliament itself would look, and ought look, carefully at those opening words. And if there was some controversy that said, 'This law that we are about to pass actually does not fit with these objectives'—we are not paying attention to the reason we have been given this power—then that is, as you would say at a committee level, something that you would expect, just as you would by comparing the impact of a law on a particular human right or international instrument or matter of that kind.
And certainly I would have expected that the purpose of putting that in the provision would be as it were an instruction to parliament as to why it has that power, and an important one. I would not want to embark too much on the debate about words such as 'advancement' and 'benefit'. I think ultimately they are questions, as Ms Solonec said, that it is not appropriate for me to answer. The difficulties that some people have with those words are probably better answered by Aboriginal and Torres Strait Islander peoples themselves, rather than asking me what I think about them. It would, in a sense, be nice if the need for 'advancement' or some other word were not there. But the reality of legislation such as the Native Title Act and «matters» of that kind are such that these laws are necessary however you describe them, whether you use the word 'benefit' or 'advancement' or, as I think Justice Kirby did in Kartinyeri, the word 'for'; that was the hook, and that gave everything. They are not laws for Aboriginal and Torres Strait Islander peoples if they are against them, as it were.
CHAIR: Given that time has turned against us, I thank you for the evidence you have given. Should your mind turn to «matters that arose out of the discussion we have had this morning and you wish to make a further contribution, then that would certainly be welcome. But I thank you for your attendance at the hearing.
Proceedings suspended from 11 : 16 to 11 : 32