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Thursday, 7 February 2013
Page: 522


Mr MELHAM (Banks) (11:20): Before I address the bill, I want to make a few remarks about Lou Griffiths. It is only with the announcement by the member for Aston that I found out that Mr Griffiths passed away yesterday from a heart attack. Mr Griffiths is someone with whom I have had an association for many years. When I was shadow minister for Aboriginal affairs, from 1996 to 2000, I had lot to do with Noel Pearson and Mr Griffiths was a very close friend of Mr Pearson. Mr Pearson was documenting Mr Griffiths' life on film. I knew Lou before that and I have had contact with him. He is a great loss. He has been a passionate advocate of Indigenous rights and causes. He took the view that it was important to document the history of what was happening in relation to Indigenous issues at the time, to enlighten people as to the justness of that cause. I offer my condolences to his family and friends. He is a great loss to the community.

It is interesting in light of this debate as well. The struggle that continues to be had for recognition and for basic rights takes its toll on a lot of people in the Indigenous community, both Indigenous and non-Indigenous. I think that it is a very good thing that the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 before the House has the appropriate bipartisan support of the parliament. I think it is worthwhile getting a bit of history here. I am not one who says, 'This should have been an early referendum.' The reason that I say that is that, in my opinion, it would be lost overwhelmingly. Part of that was the way that Indigenous affairs was dealt with from 1996 to 2007. The reality is that it was in the frame in the broader community as a result of native title amongst other things. I commend the current Leader of the Opposition for his approach and those honourable members opposite. I think he has played an important part in this. This is not an area that should be the centre of partisan debate. It is hard enough as it is.

In 1999 the parliament passed two bills to put to the people: one was a republic bill, another was the preamble. The preamble was supported by both sides of parliament. The Labor Party and I voted for it in the parliament, but it was not an appropriately bipartisan preamble. It was one that was imposed by the government at the time. It was not done with proper consultation with the opposition or, more importantly, with the Indigenous community. I remember speaking out on a number of occasions during the referendum, saying to people, 'If you want to protest, vote against the preamble and not the republic.' What is interesting is that whilst there was the to-and-fro on the republic, the republic actually got 46 per cent of the popular vote; the preamble only got 39 per cent of the popular vote, and that was when both sides were supposedly barracking for it. I cheered when it lost, because I thought that it was not a preamble that was worthy of the public's support on the basis of how it was brought into being.

This is a different situation. The act of recognition that we are passing is an appropriate interim measure to hold us to a time when we can bring the public to a position of support for not just changes, but substantive changes, to the constitution. And the Constitution does need substantive change, particularly in relation to section 51(xxvi). In the Kartinyeri case, or the Hindmarsh Island bridge case, six justices of the High Court gave judgements. His Honour Justice Cowen was disqualified in that case, because he had given a legal opinion to the Senate Legal Committee. I, with my starry, blinkered eye, had felt that the High Court would pick up the sentiment of the 1996 referendum and what it was about in terms of removing the words 'other than the Aboriginal race' in any state. The reality is that two judges of the High Court said that with that constitutional change the provision in relation to Aboriginal people was to be interpreted as the legislation was first enacted in 1901. So, not just beneficial laws for Aboriginal people but detrimental laws could be passed by government for the Aboriginal people. Two judges of the High Court did not offer an opinion. His Honour Justice Kirby said: no, you could only use the clause for the benefit of Aboriginal people. Her Honour Justice Gaudron said: look, in this day and age it should not be used to the detriment.

So what we had was a referendum with 91 per cent support that, as it turned out, could be used by governments to discriminate against Aboriginal people. Now, the Constitutional Commission of 1988, before the Kartinyeri case, recommended a change in that provision. There is as a result of the expert panel a new section 51A that is being considered to replace 51(xxvi). The last clause in that section 51A reads:

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.

I am indebted to the Law Council of Australia for its excellent discussion paper, because I think that has a lot of the arguments in it. It points out that the current Chief Justice of the High Court, Chief Justice French, in 2003 provided a detailed overview of the post-1967 High Court jurisprudence in relation to section 51(xxvi), culminating in Kartinyeri v The Commonwealth. He was of the view that a current High Court would probably take the interpretation I mentioned earlier: that you can legislate to the detriment of Aboriginal people as a result of that constitutional change. He too was, I think, agitating for constitutional change.

That is not going to be easy to achieve. I used to be a criminal defence lawyer, so I am not a constitutional lawyer, but I have to say, I am worried—and I think the point is made—that even in the proposed new clause, given the way it is constructed, there is a possibility that detrimental laws could be made against Aboriginal people. Aboriginal people are in the same class, under this clause, as people of any race—in other words, migrants as well. It is a clause that is open to any race within Australia at the moment. And I think we need to get it right. I think we need to tweak it. I do not believe governments of the day should be able to legislate specifically in relation to the detriment. When it comes to advances for Aboriginal people, I will tell you this: it was not the Constitution that gave them advancement in the court cases of the last few decades; it was actually the enactment of the Racial Discrimination Act of 1975 that protected Aboriginal people against discriminatory action by the states.

That Commonwealth act is the reason native title survived to allow the successful Mabo cases, and to, in effect, overcome the discriminatory laws of the Joh Bjelke-Petersen era. An act of parliament can be quite powerful in protecting the Aboriginal race and other people in this country. That needs to be understood. That is why the act that we are passing is an important act. It is a little bit more than symbolism. It is an act of the parliament, a Commonwealth act, that will prevail over state and territory laws, although at the moment the provisions we are particularly wanting to pass are symbolic provisions. The problem with an act of parliament is that it can be overwritten by a later act, which is what the debate was all about when the Wik judgement was delivered along with the native title amendment acts. As shadow Minister for Aboriginal Affairs at the time, I was in the middle of that fight. The truth is that those native title amendment acts overrode the Racial Discrimination Act.

So, it is all right to pass this bill that we are talking about today, but we should also state beyond any doubt that we should not be interfering with the Racial Discrimination Act. That was one of the objections I had to the intervention in the Northern Territory, which was discriminatory, because I do not support discriminatory laws. I support positive discrimination, because true equality requires differential treatment. That is how you bring people up to an equal level—the disadvantaged and the dispossessed. It is not discrimination in terms of international law. Positive discrimination is not discrimination. It is engaging in equality matters. The bill before the House at the moment in relation to recognition, which is why everybody people supports it, at clause 3(1) says:

The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

This is indisputable. It further states in clause 3(2):

The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

This also is indisputable. It does not matter what non-Indigenous people think about their association with their traditional lands, Aboriginal people have that association and it is what they think that counts. But it is important that non-Indigenous people acknowledge that association, so that is an important clause. Clause 3(3) states:

The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

Again, this is a non-contentious clause. It seems to me that the respect has to be two ways. Non-Indigenous Australians need to start substantially respecting Indigenous Australians. That is what true reconciliation is about. It is not a one-way street, it is a two-way street. We cannot have a situation where, every time there is a clash, Aboriginal people and their rights have to give way. The world did not fall in for Australia when the Mabo decision was delivered by the High Court, when the Native Title Act was first enacted, when Wik was enacted. There was a lot of ignorance and prejudice out there, and that is why we have to take our time to repair some of that damage of false perceptions that was inflicted on the community.

What is appealing for me now is that conservative governments around the country are having Indigenous land use agreements by consent with Indigenous Australians when it comes to pastoral leases. The pastoralists are no longer seeing themselves under threat through misinformation. Indeed, the miners who have an international perspective, like Rio Tinto, have to deal with Indigenous people in other countries and they understand how to deal with them in Australia.

So, it is an excellent thing that this act before the parliament has cross-party support. It should. If we have got our differences of opinion, we should not be slugging it out in a public way, because this is non-threatening. This actually enriches us as a nation. We need to respect our first Australians. They are not a threat to us, they are an asset. It is hard enough as it is for them. The Parliament of Australia, through in its Native Title Act was only recognising what the High Court had found under the common law.

I think we have moved on. As I said earlier, I applaud the attitude of the current Leader of the Opposition because I think people like Noel Pearson and others, who we have sat with and talk to, have influenced him, and that is a good thing. I am not saying that on both sides of the House we are always going to be in a love-in and hugging one another in unanimous agreement—that is not the case—but this is one area in which I think we should work out our differences. I know that there has been some tweaking of this so that all sides could agree. It is not about the government blindsiding the opposition. They are the alternative government and we should be at one on this, but we should stick to these basic principles. It diminishes all of us if we do not. As I said, there are some pitfalls. The Constitution is unacceptable as it is at the moment—it is discriminatory. Any decent, two-bob lawyer will tell you it is. So we as a parliament should be uniting to try and in future make it non-discriminatory and acceptable to everyone. That is why it will take time. You cannot have a referendum tomorrow because it will not pass, and that would be a tragedy.

I commend the bill to the House and congratulate everyone, including Ken Wyatt, on their work to date.