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Tuesday, 12 March 2013
Page: 1403


Senator SMITH (Western Australia) (12:39): I rise today to add my thoughts to the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. The purpose of this bill is to give expression to the parliament's recognition of Aboriginal and Torres Strait Islanders as the original inhabitants of Australia and also their ongoing connection with their traditional land and waters, cultures, languages and heritage. It establishes a mechanism to review the preparedness of the Australian community to support a referendum giving constitutional recognition to Aboriginal and Torres Strait Islander peoples and the preferred form of these proposed constitutional changes.

My own party's record regarding Aboriginal and Torres Strait Islander issues and representation is a proud one, most notably the election of the first Aboriginal Australian to sit in federal parliament and the election of the first Aboriginal Australian to sit in the House of Representatives. There are of course many other achievements and milestones that have been characterised by strong bipartisanship. I begin by echoing the comments of the shadow Attorney-General, my colleague Senator the Hon. George Brandis, in regard to the care and caution that must be shown in this debate as we move towards the finer detail of a proposition. He has said in this debate that it is 'just as important to persuade people with conservative views as people who consider themselves to be progressive. If this is to happen, the proposal must be modest and the tone of the debate must be respectful.'

I come to this issue with a great deal of caution, indeed some apprehension. I am very cautious about the merit of recognition in our constitutional document. That said, I believe there to be tremendous merit and popular support for two of the proposals contained in the expert panel report, Recognising Aboriginal and Torres Strait Islander peoples in the Constitution; namely, those proposals that seek to remove reference to race. I also recognise that others have started from a similar position to my own and have been able to reconcile their concerns and are now prepared, while remaining cautious, to modest proposals.

The difficulty in finding an appropriate form for securing recognition in our Constitution and the legal uncertainty it introduces should not come as a surprise to anyone who has taken the time to properly understand the report of the expert panel. I have been drawn to the more conservative and cautionary analysis and scrutiny given to this issue by accomplished constitutional experts. I think it is a shame and an ominous sign that their views have not been given more coverage.

It is worth reminding ourselves how we got to the debate on the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. As a preface, I would add that I do not believe we are close to a point where there is a clear, concise and popular proposition. The expert panel reported to the Prime Minister on 19 January 2012, recommending a referendum on five constitutional changes. The first would remove section 25, which contemplates the possibility of state laws disqualifying people from voting at state elections on the basis of their race. The second would remove section 51(xvi), which can be used by the Commonwealth to enact legislation to discriminate for or against people on the basis of race. The third involves the insertion of a new section 51(a) that would recognise Aboriginal and Torres Strait Islander peoples and preserve the Australian government's ability to pass laws for the advancement of Aboriginal and Torres Strait Islander peoples. The fourth would insert a new section 16(a), banning racial discrimination by the Commonwealth. Finally, the fifth would insert a new section 127(a), recognising that Aboriginal and Torres Strait Islander languages were the country's first tongues while confirming that English is Australia's national language.

Recognising that there was not yet enough community awareness or support for change and wanting to maintain momentum for change, this bill was prepared to assist Australians to become familiar with formal recognition of Aboriginal and Torres Strait Islander peoples ahead of constitutional change. I note that this approach has a parallel in our history and was used in the 1890s to build and maintain momentum amongst the colonies for Federation. The comments of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in its interim report in January this year makes a salient point that is worth emphasising. The committee cautions that if the proposal is the victim of overreach it will fail. While the committee does not seek to limit the scope of public discussion, it nevertheless considers that only a relatively modest proposal is capable of engendering the bipartisan consensus which is a prerequisite to success.

My caution has two root causes. Firstly, in my mind the link between constitutional recognition of Indigenous peoples and better outcomes for them, their families and communities has not yet been established. I think constitutional recognition is unfounded if there is not an expectation of some tangible, practical improvement in the lives of Aboriginal and Torres Strait Islander peoples. As we embark upon this public discussion on the merits of any constitutional amendments, I believe Australians have a clear view of what their Constitution has been designed to do, or more accurately what it has not been designed to do. In the simplest terms, I believe they see their Australian Constitution as a rule book, established as a set of guidelines for how a newly created Federation was to govern itself and conduct its activities. I accept that for a smaller group of Australians, the Australian Constitution may be seen not so much as a rule book but as a mission statement, a catalogue of intent, ideals and statements about where we want to be heading as a nation. I am not opposed to any of those things; aspiration is a virtue. No nation can be secure for long without a clear notion of its identity or purpose. For me, as a self-confessed constitutional conservative, I am not persuaded that the ideal place to be giving expression to these aspirations for reconciliation and recognition should be in the text of the Australian Constitution.

Secondly and more substantively are the serious but conveniently ignored legal considerations. Of all the commentary and analysis, I am most inclined to trust the work of Professor Anne Twomey, Director of the Constitutional Reform Unit at the University of Sydney, who has given careful and dispassionate accounts of the possible legal pitfalls and shortcomings of various forms of recognition canvassed to date. I particularly agree with her comment that a lack of clarity about the purpose of Indigenous recognition will always leave the issue open to accusations of it being a 'false promise or a Trojan Horse'. For this reason, I am particularly pleased the bill has been silent on what form recognition should take. It is a wise course that this bill lacks a form of words for agreement and is silent on whether recognition should be incorporated in a preamble or in the substantive provisions of the Constitution.

I believe progress can easily be made in two areas proposed by the expert panel while others, with sound reason, are more contentious and should be treated with great suspicion. The propositions to remove section 25 and section 51(xvi) should be agreed to. Section 25 has been regularly recommended for repeal by many constitutional review bodies since 1959. In the words of Professor Twomey:

It is therefore appropriate to repeal it - not as a racist provision, but one whose work is now done.

Section 51(xvi) should be repealed on the basis that there should be no provisions in our Constitution that permit laws to be enacted by reference to race. A repeal of this section would also be acceptable to many. A difficulty arises here because this particular section underpins the Native Title Act 1993 and the heritage protection of sacred sites. I do remain confident that there is an answer to this dilemma. It may be that a refined and carefully worded new power could be substituted. However, the remedy proposed by the expert panel is most definitely unacceptable. It has proposed, firstly, that 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 should be treated with great caution; and, secondly, a new section 116A that would introduce into the Constitution a prohibition of racial discrimination. This suggested remedy has been construed by some as giving effect to a small bill of rights, the essence of which will be to give a greater role to the courts than to parliament in determining the meaning of 'advancement' and 'discrimination'. On these points I encourage the reading of analysis by Professor Twomey again, who has suggested:

The greatest controversy will hang on the fact that it would ultimately be a matter for a court to decide what was, or was not, for the advancement of Indigenous Australians

In regards to the new section 16A, she has commented:

… such a provision can be interpreted by the courts in ways that were not intended and there is no option of reversing such an interpretation by legislation.

And further:

The level of discretion left to the courts in determining what amounts to discrimination, who is protected and whether a law or executive act is for the purpose of overcoming disadvantage etc, is significant.

On this point, I am confident Australians will treat with great reluctance the shift of these judgements from parliament to the courts. If we stay on this course of approach to constitutional recognition the proposal will fail, not because people do not endorse the principles inherent but because they object to a shift of power on matters of definition from parliament to the courts. This is a concern shared by even Aboriginal commentators who have correctly identified that this could open a Pandora's box of litigation and dispute.

Above all else, I am curious that in a modern era like this with all the high hopes for a brighter reconciled future between Aboriginal and Torres Strait Islander peoples and other Australians, our constitutional remedy still involves at its core the acknowledgement of one group of Australians to the exclusion of others. I believe the only acceptable constitutional reform for a modern, progressive nation such as ours is one that seeks to remove all reference to race.

My final comment goes to the purpose of the review and its role in assessing the readiness of the community to support a referendum and the identification of proposals most likely to be supported. I agree with the sentiments of some others that there is a more important question than one of success or popularity. I think again the comments by Professor Twomey deserve greater appreciation by many. She says:

The more important question is what form of amendment is right, appropriate and consistent with the operation of the rest of the Constitution. There should be scope for the making of some kind of judgement as to what the best form of amendment would be, as well as would attract the most popular support.

She adds:

It may be inappropriate for example to make an amendment that is popular if it causes unresolved conflicts with other constitutional provisions potentially giving rise to unanticipated and unwanted consequences. More thought needs to be given to the long-term operation of any constitutional amendment and how it will operate consistently with the rest of the Constitution.

To end, I agree that popularity can only be part of the measure of a proposal's suitability.