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Tuesday, 26 February 2013
Page: 870


Senator SIEWERT (Western AustraliaAustralian Greens Whip) (12:45): I rise to make a contribution to the debate over the bill that we are currently discussing. The Australian Greens have a long history of supporting and campaigning for Aboriginal rights and promoting constitutional recognition and reconciliation. Not only do we believe that we need to recognise Australian and Torres Strait Islander peoples in our constitution; our policy is also to ensure that we have treaties with and recognised sovereignty for Aboriginal and Torres Strait people. We recognise that sovereignty was in fact never ceded by Aboriginal and Torres Strait Islander peoples. However, we do believe that the treaty and the sovereignty issues need to be addressed a bit further down the track. I will come back to those issues later on in my speech.

The Greens have worked tirelessly to progress the issue of constitutional recognition of Aboriginal and Torres Strait Islander peoples. We believe that not only is this important as a further step in reconciliation but also we need to include substance in those amendments. We have been committed to recognition of Aboriginal and Torres Strait Islander peoples in our constitution, as I said, for a significant period of time. In fact, I would go so far as to say that as long as the Greens have existed there has been support for constitutional recognition. It was in our agreement with the Gillard government that there would be a referendum either before or with the next election. We were very disappointed that in fact this could not occur, but we realised that it was not achievable and so acknowledged that we needed to put in place another process.

It is clear to us that there has been significant progress in the national conversation, but we are not there yet. There is still significant work to be undertaken to reach agreement not just on what would be a model that is supportable through a referendum but also to ensure that it is a good model. It cannot be just any model; it must be a good model or a good set of questions and good changes to our constitution. Very importantly, it must have the support of Aboriginal and Torres Strait Islander peoples. That was one of the key things that the expert panel took as one of its guiding principles: any model, or any question, for a referendum had to have the support of Aboriginal and Torres Strait Islander people.

I was a member of the expert panel and I would like to acknowledge the work of the expert panel, which I think—I probably need to display a bit of modesty here—presented a very good report to the Prime Minister in January 2012. I would like to acknowledge the people that put a year's worth of their life into this report, both those members of the expert panel and people who were part of the secretariat—some of whom I notice are in the chamber today. I would also like to acknowledge the work that they put in, because I know it was also a year of their lives that they put into this report.

While we are disappointed that we cannot achieve a referendum by the next election, we do acknowledge that this recognition by parliament is an important step along the path to constitutional change. The bill has provided an opportunity for reflection on the purpose of an eventual referendum, has enabled more consultation and has enabled a discussion by the parliament on the importance of constitutional recognition. As we have heard, we hear multiparty support for constitutional recognition and constitutional change. There have been many submitters both to the expert panel and to the select committee's inquiry into the bills. We heard from the National Congress, ANTaR, the Human Rights Commission and a whole range of people who made submissions to the inquiry.

I would like to read out a quote that is from the expert panel's report about constitutional recognition:

Constitutional recognition is an important step that must be taken in order to redress the discrimination and disempowerment Indigenous Australians have suffered since settlement.

There have been repeated comments, both to the inquiry into the bill and to the expert panel, about the need to address constitutional recognition and the discrimination that Australia's first peoples have felt ever since colonisation.

The Gilbert + Tobin Centre of Public Law told the select committee inquiry into the bill that:

Recognition needs to deal with the fact that the Constitution was drafted on a premise of racism, essentially. It was drafted at a time when, in the words of our Prime Minister, Edmund Barton, we needed a power in the Constitution to enable the federal parliament to pass laws against 'the coloured and inferior persons' within the Commonwealth. Those words in the Constitution and that racist power have now been extended to Aboriginal people. Section 25 still recognises the possibility that states might enact laws that disenfranchise people on the basis of their race. Certainly from my dealings across the community, including with very conservative groups, it is that element of racism that most motivates people to think that they need to fix the Constitution to move beyond the values of the time.

ANTaR told the committee that:

… inclusion of language which recognises the need to remove or reform racially discriminatory elements in the Constitution should be added, confirming parliament's support for changes which go beyond the symbolic—again, a key recommendation of the panel. The inclusion of a reference to the need to continue efforts to close the social and economic gap that Australia's first peoples experience should also be a key feature.

The Australian Greens share this view. We believe that the final model that is put to a referendum should address the legacy of racial discrimination and enable the federal government to legally act to meet its often stated commitments under Closing the Gap but also under the United Nations Declaration on the Rights of Indigenous Peoples, which was often quoted to the expert panel. We agree that the joint select committee provides a framework for such triggers and other milestones to be delivered and acted upon. We believe that we need to maintain the momentum for constitutional recognition. The significance of having several of the parliamentarians who were on the expert panel also included in the committee we think is a good move in terms of being able to continue that work, but also in bringing new thoughts into the panel.

It is important to recognise that the bill we are currently debating does not include all the recommendations of the expert panel, but I understand from the select committee's terms of reference that the committee will not be limited in considering the recommendations. The words in the bill that we are considering reflect the carefully chosen words of the expert panel. Every word was carefully considered. I would like to remind people of the recognition outlined in the bill:

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.

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.

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.

Those are very important statements.

This is the first step to constitutional change and it is not just symbolic. At the moment our Constitution has no reference to Aboriginal and Torres Strait Islander peoples, though it did previously. The Constitution used to say that the Commonwealth could make powers for all Australians except Aboriginal and Torres Strait Islander peoples. Fortunately, that was removed after the 1967 referendum. If you look at our Constitution you would never think that Aboriginal and Torres Strait Islander peoples are the oldest living culture on the planet, that they were on this land for generations and generations and that they are and were always the traditional owners of these lands. That needs to be in our Constitution.

Not only does this bill provide recognition; it also commits to placing before the Australian people at a referendum a proposal for constitutional recognition of Aboriginal and Torres Strait Islanders. It also acknowledges and recognises that further engagement with Aboriginal and Torres Strait Islander people and other Australians is required to refine proposals for a referendum and to build support necessary for constitutional change. Importantly, it commits us to building the national consensus needed for recognition of Aboriginal and Torres Strait Islander peoples. That puts a huge responsibility on this place, on members of parliament, to engage with this debate and to help build consensus. I believe that we need to build that consensus not as a lowest common denominator but as something that Australia can be proud of, so we can stand tall and say that we are prepared to change our Constitution to provide recognition for Aboriginal and Torres Strait Islanders and to ensure that the Constitution does not discriminate. It is also about enabling the federal government to continue to address the advancement the expert panel recommended; another word you could look at is 'wellbeing'. It is about enabling the federal government to continue to address issues around Closing the Gap and the historical discrimination of Aboriginal and Torres Strait Islander peoples. Those are the concepts that were included in the expert panel's recommendations. They recommended a whole new section, section 51A, that acknowledges the need for recognition, and I have read out the words contained in the bill. I believe we also need to acknowledge the need to secure the advancement of Aboriginal and Torres Strait Islander peoples. In the debate in this place over the next day or so, I do not want it to be forgotten that further recommendations were made.

The Greens will continue to campaign vigorously for constitutional recognition. We will continue to support and participate in the national discussion and the national consultation process, but we believe that the expert panel's recommendations should provide the basis for that. We are not saying they should not change; we are saying, 'We think you did a pretty good job; do not reinvent the wheel.' Let us find out what is capable of being supported. Let us engage in that national discussion. Let us build that consensus around what we do think we can take to the community. As someone said to me the other day, let's be courageous in our recognition. We do not get to change our Constitution very often, as was just highlighted. Out of the 44 attempts to change our Constitution, eight have been successful.

Some of the keys to success are multi-party political support, strong community support, clear questions. It will take leadership from all members of this place to engage in that national discussion. As I articulated in the Greens' additional comments to the select committee report, one of the issues of concern for us was the two-year sunset clause in this bill. The issue as put to us by members of the community, and particularly some members of the Aboriginal and Torres Strait Islander community, was that the sunset clause means that you may not care after two years about recognition. I thought long and hard about that and I have come down on the side of the argument that says we think we should have the sunset clause there because it will make sure it is a decision-making point, that it is not that the parliament does not care—in fact the parliament cares so much about this that we want to make sure that there is a decision-making point. So, we support the sunset clause. In our additional comments we did say that we would think and discuss this further. I have done that and do believe we should be supporting it, because we do need a trigger point to enable further discussion.

One of the other issues, and I feel that we really need to mention this in this place, is that there is a number of Aboriginal and Torres Strait Islander people who do not want to support this bill. They do not think we should be discussing constitutional recognition without discussing the issues around sovereignty and treaty. I acknowledge their very legitimate concerns and, as I said at the outset, the Greens support the concepts of treaty and sovereignty. I participated in a large number of discussions as part of the expert panel process and I support the recommendations and the feelings of the expert panel—that is, I do believe Australia is not ready to discuss those issues yet. I have also listened to legal advice that says that if we do proceed with constitutional recognition it will not undermine the concepts later on when continuing a national discussion about sovereignty and treaties.

I do not think this bill does so, either. While I think it is very important to acknowledge those very legitimate comments of those who say we should not proceed with this bill and with constitutional recognition, the overwhelming flavour of comments I have had back from Aboriginal and Torres Strait Islander communities is that they do want constitutional recognition. This is an essential step in the reconciliation of this nation—absolutely essential. That is why we do not believe that it is appropriate to suspend the discussion around constitutional recognition to address those issues, but I do want to acknowledge that those are live and real issues that this country still needs to deal with. A large step will be taken for reconciliation by changing our Constitution to acknowledge that Aboriginal and Torres Strait Islanders were the first occupants of this land and that they have ongoing and unbroken connection and traditional ownership of this country. It is important that they are recognised in our Constitution. It is part of a healing for this country and, as I said, it is a part of reconciling this country, because we still have a significant way to go.

I fully acknowledge that it is not the only thing and that a lot more needs to be done before we address the huge gap in life expectancy and life outcomes for Aboriginal and Torres Strait Islander peoples. We cannot pretend that this is the only thing that needs to be done. We are still making mistakes in our policies—I will acknowledge that, too. I am often the first in this place to criticise policies that are supposed to be for the benefit of Aboriginal and Torres Strait Islander peoples and I do not believe that they are of benefit. Constitutional recognition is very important. We need to make sure we have a full discussion in the Australian community and build popular support for constitutional recognition. We politicians have a very important role to play. It is quite obvious from previous referenda that where there has been political disunity, those referenda have failed. We need to demonstrate what we expect the rest of the nation to do and that is having a fully engaged and respectful discussion around constitutional recognition. We will be supporting this bill.