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Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
13/03/2015
Public consultation for constitutional recognition

CHALMERS, Mr Gordon , Private capacity

CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Inow invite you to make a short opening statement. After you have spoken, I will invite members of the committee to put questions to you. If there is anybody else at the back who wishes to come forward and make comment at all, feel free to move up now.

Mr Chalmers : I am a PhD student in the School of Historical and Philosophical Inquiry at the University of Queensland in Brisbane. I would like to thank the committee for the opportunity to speak here today on this very important issue.

Today I would like to bring to the committee's attention a problematic issue with the constitutional recognition campaign that I believe will be a major obstacle to its progress towards a referendum. What I want to demonstrate to the committee today is how the proposed constitutional amendments, despite apparently being concerned with repealing outdated racial powers from the Constitution, will actually result in the continued legal racialisation of the original peoples of this continent. In demonstrating this, I want to detail to the committee how the proposed repeal of a generic and explicit race power in section 51(xxvi) will result in the entrenchment of an Aboriginal and Torres Strait Islander specific and hidden race power.

As we all know, there is as yet no final wording for what is intended to be put before the Australian people at a referendum. However, we do not need any final wording to undertake a meaningful analysis of what is being proposed. There is enough to look at in terms of the parameters within which this issue is being framed. What I mean by this is that, at one essential level, the constitutional recognition campaign is concerned with the constitutional recognition of a particular problematic legal category of person, namely the Aboriginal person. Here I am going to focus on Aboriginal people rather than Torres Strait Islanders.

Just who is an Aboriginal person for the purposes of Australian law? It is only when we ask this question that we start to become aware of the very different meanings ascribed to what are effectively the legal and non-legal usages of the word 'Aboriginal' and how, in this whole constitutional recognition climate, there is far too much ambiguity and not enough clarity around which sense of this word we are actually using at any given time, because ultimately it is the legal construct of Aboriginality, the Aboriginal person at Australian law, who would be recognised in the Constitution.

Going back to the question of just who is an Aboriginal person for the purposes of Australian law: this question is answered by High Court jurisprudence. Justice Deane, in the 1983 Tasmanian dams case, said that an Australian Aboriginal is:

… a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognised by the … community as Aboriginal.

The descent requirement is key here. Descent is the feature that links identity to biological characteristics. It links Aboriginality to particular biological lines of descent from the people who lived in this continent before colonisation. Descent, like race, involves an essentialised biological deterministic construction of identity. Descent is race by another name.

Therefore what we effectively have in the proposed moves to repeal section 51(xxvi) and replace it with some kind of provision that gives the federal parliament the power to make laws for Aboriginal and Torres Strait Islander peoples is what I refer to as the repeal of a generic and explicit race clause—because it is generic; it applies to any and every race, and it is explicit because the word 'race' appears, so it is the repeal of a generic and explicit race clause—and its replacement with an Aboriginal-and-Torres-Strait-Islander-specific and hidden race clause. It is only when one starts to unpack what the definition of 'Aboriginal' is that you actually begin to see that it has racial elements, and therefore I say it is hidden.

This joint select committee spoke out against the concept of race in the October 2014 Progress report, where it said that it had:

… received overwhelming evidence that it is no longer acceptable for the Commonwealth to make laws with respect to race, and recommends the repeal or amendment of section 51(xxvi) in order to remove the constitutional reference to race.

But what this committee has not been made aware of, and what the Australian population has not been made aware of, is that any new power to legislate for Aboriginal people, the legal identity 'Aboriginal', is in contradiction to the stated intention to remove constitutional powers to make laws with respect to race. Moreover, this committee stated in recommendation 5 of the October 2014 Progress report that, in its view, any proposal for constitutional recognition of Aboriginal and Torres Strait Islander peoples 'must preserve' 'the Commonwealth's power to make laws with respect to Aboriginal and Torres Strait Islander peoples'—again contrary to the previously stated intention to remove constitutional powers to make laws with respect to race.

One must therefore ask: why is there racial exceptionalism with regard to the Indigenous peoples of this land? Why are the Indigenous peoples of this land the only people who are required to be constructed legally as a racial group, particularly when we know that race is dead? It is a pseudoscience. The Human Genome Project has put the final nails in the coffin of race. Should we not be concerned with taking all traces of race powers out of our laws, both the explicit and the implicit race laws?

This committee and many others have expressed a concern with maintaining the myriad of special measures legislation that rests upon the power to racially construct Aboriginal peoples, but is it sufficient to maintain a legislative regime that rests upon Aboriginal racial exceptionalism, that rests upon the false concept of race, just for the sake of administrative expediency? I will not go into the details of how the special measures regime in Australia is reliant upon the legal construction of Aboriginality and its structural alignment with disadvantage; I will just refer you to a Current Issues Brief from the Department of the Parliamentary Library. It is Current Issues Brief No. 10 2002-03, by Dr John Gardiner-Garden, entitled 'Defining Aboriginality in Australia'. He deals with it very well there. Gardiner-Garden, in writing about the legal category of Aboriginality with disadvantage within the special measures framework, said that within Australian law:

… 'Aboriginal' is effectively being used as a surrogate for something else, , a poor proxy for 'people with the needs which a piece of legislation is trying to address' … Another approach entirely may be required. Perhaps these difficulties will be alleviated only when the surrogate/proxy term is abandoned and the 'something else' is spelt out. If legislation is intended to benefit people with a particular need, why not define the need?

Ultimately the question needs to be asked: is this nation, faced with the legal racial exceptionalism inherent in maintaining a power to legislate for Aboriginal people, going to be willing to accept the maintenance of laws that do not accord with contemporary scientific reality, particularly under circumstances where we understand the detrimental historical and continuing effects of maintaining a power to construct peoples racially for the purposes of controlling their administration on this continent?

CHAIR: Mr Chalmers, can you remind me of the decision that Justice Deane was involved in?

Mr Chalmers : It was the Tasmanian Dams case; the Franklin Dam one that you referred to earlier today.

Senator SIEWERT: Have you given thought to what another approach might look like? There a couple of reasons the expert panel wanted to keep the Commonwealth power to make laws for Aboriginal and Torres Strait Islander peoples. One is so that the Commonwealth still has an involvement and the other is so that the current laws, such as native title, remain valid under an amended constitution.

Mr Chalmers : The statement you mentioned, 'another approach entirely may be required', was a quote from Gardiner-Garden. It is one that I support to varying extents. As Gardiner-Garden says, these pieces of legislation are being used to address a perceived need, to address certain perspectives. At the moment, in order to achieve those objectives there is a kind of administrative expediency that comes with defining Aboriginal people racially, but legal drafters, whose job it is to write legislation that is consistent with the whole raft of existing legislation and the Constitution, work on this sort of thing every day. I am sure that they can apply their minds to this issue and construct legislation that achieves similar objectives without relying on false categories to do that. I am not an expert in drafting, so I would not suggest a wording of any sort. There are 20-odd pieces of federal legislation where the Aboriginal race of Australia is mentioned. It is the only named race in Australian law—in federal law, at least. A lot of work would need to be put into reconfiguring that legislation so that it still achieves its purposes without relying on false concepts.

Senator SIEWERT: I understand what you are saying. I am presuming you are not arguing with the fact that we should be addressing Aboriginals' and Torres Strait Islanders' disadvantage and their dispossession, which is what some of that legislation is about.

Mr Chalmers : I am not necessarily taking a position either way. What I am wanting to point out is that we have, in this constitutional recognition matter, a conflation of two very different agendas. We have a necessary Constitutional reform agenda being conflated with an Aboriginal rights agenda. I do not think that we can kill two birds with one stone in this issue. I think that, absolutely, the necessary constitutional reform that has to happen with regard to taking race out of the Constitution is supported nationwide, and probably worldwide. I do not think that that necessary reform needs to be muddied by trying to make the issue one about the recognition of Aboriginal and Torres Strait Islander peoples. It is an issue that stands alone as a necessary process of legal reform.

CHAIR: The only comment that I would make is that we also have to look at the legal judgements that have been handed down in which definitional work may have been done that assigns a set of values or a construct around the word 'Aboriginal'. There is certainly Justice French's ruling in recent times. There would be some others to do with Hindmarsh and the Hindmarsh case. It would be interesting to look at both the Wik and Mabo decisions, because there would have been some consideration around who was defined as being Aboriginal or Torres Strait Islander and that construct, and then to look at Justice Deane—so we will have a look at that.

Mr Chalmers : I am not sure about the addressing of that issue in those first two cases that you mentioned. Certainly, in Mabo, Justice Brennan followed Justice Deane's definition of who is an Aboriginal person. It is a definition that is applied consistently throughout the country, and with authority.

CHAIR: It was also defined in the ATSIC Act, and there were a number of other acts at different times, including the Aboriginal education strategic initiatives programs, and NIELNS was another strategy in which they defined 'Aboriginal'. So there are a number of acts that also would have set legal precedents in respect of the point that you are making.

I have no further questions, given that we have a number of witnesses. Thank you for your input. It has been informative.