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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
04/07/2018
Matters relating to constitutional change

HARRIS, Dr Bede, Private capacity

Evidence was taken via teleconference

CHAIR: Welcome, and thank you for giving evidence today via teleconference. Do you have any comments to make on the capacity in which you appear?

Dr Harris : I'm a senior lecturer of law at Charles Sturt University.

CHAIR: Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussion.

Dr Harris : I don't have much to add to the written statement that I have submitted other than to emphasise the importance of taking a holistic view of the constitutional position of Indigenous people and to consider the impact that any reform in this area also must have on the position of Indigenous people from day to day. That is why the initial point I made was to avoid terminology—although it is probably a vain hope that we would manage to eliminate it—at this stage of recognition of Indigenous people because that suggests a mere factual recognition of the existence of Indigenous people, and what Australia needs to turn its mind to is concrete advancement of the legal position of Indigenous people under the Constitution. So it was on that basis that I framed my recommendations.

CHAIR: Did you want to say anything else on your other recommendations at this stage?

Dr Harris : No, I will elaborate on any questions the committee may have.

CHAIR: As you know, our committee has a task to deal with the previous recommendations of the expert panel and the previous parliamentary committee that was dealing with those recommendations. It was also dealing with the Referendum Council's recommendations as well as the Uluru Statement from the Heart. We are also looking at how effectively government consultation is leading to greater autonomy or independence and greater productivity or security and prosperity for First Nations peoples as well. I notice you take a view in the recommendations that an amendment should be inserted in the Constitution establishing an elected advisory Indigenous representative voice. Have you thought how that group would be comprised?

Dr Harris : I think it would be important in order to obtain the widest possible representation for the voice or the body to be national in scope rather than regional or local. I also think it important that the right to vote for such a body be along the lines, for example, of registration as a voter for the Maori seat in New Zealand Te Ahoroa is conducted—in other words, it is a voluntary self-identification of the person as being Indigenous—and that that ought to be embodied in the legislative provisions if they were establishing such a body.

CHAIR: You mentioned that it be a national body. We often get submissions that people want to see results at the local level. People are concerned about housing, health, incarceration rates and people being evicted from homes, those sorts of issues that relate not only to state jurisdictions but also to people who are living in an environment as opposed to those who interface with the parliament. Have you got any views about the effectiveness of a voice that would engage at the federal parliamentary level and these other matters that arise?

Dr Harris : How I envisaged the voice and how I understood the Statement from the Heart would be that the voice would have the role of scrutinising federal government legislation and advising the federal parliament on whether or not this legislation furthered or negatively impacted Indigenous people. I saw the role of this elected body as being purely advisory. That, of course, is not in itself enough to secure the rights of Indigenous people. That is why, in the submission, I also made the point that for real effective on-the-ground and immediate amelioration of the position of Indigenous people, you need to have a constitutional right to culture. The one that I thought was particularly well drafted was the one from the Victorian charter, because that would give people at the local, state or national level a lever with which to litigate. I would recommend that this provision be binding both on Commonwealth and state governments, and the provision would then be able to be used as a source of justiciable rights which could be litigated in the courts to achieve beneficial results for Indigenous people.

Consider that in tandem with the other recommendations that I made for a right not to be discriminated against on grounds of race or ethnicity, and with a rider that that would not prevent the enactment of measures designed to remedy past disadvantage. If you consider how those two provisions of a right not to be discriminated against and a right to culture, broadly stated, could be used in the courts, I think that would achieve and could achieve very rapid results for Indigenous people. That's certainly been the experience in other jurisdictions like the United States and Canada, where one can bring to court a case arguing that there is a positive duty on government to take steps to further indigenous rights, which could be in housing, health or education, as a dimension of the right to culture, coupled with the duty to take steps to ameliorate past disadvantage.

To summarise, I'd see the role of the advisory body—the elected advisory voice to parliament—as being on the macro level and the constitutional amendments as being one that ordinary people could use through the courts to achieve a concrete advantage for Indigenous people.

Mr LEESER: Do you think you could get bipartisan support, let alone support from the Australian people, for those sorts of constitutional amendments, Dr Harris?

Dr Harris : Probably not at this stage, but I think this is where we really have a failure in leadership in the country. I made the point at the end of the statement that it's hard to believe, but it seems to be true, that Australia has a more conservative view of rights in general and rights of Indigenous people in particular than it did in 1967. So long as governments of both sides of the House keep on saying, 'This will never be approved by people because it's too strong or too radical,' that becomes a self-fulfilling prophecy. I think if we're looking at the political feasibility of changes like this, it's a moral question and therefore a question which requires that the major parties step up and take a moral stance to lead the people to accepting changes like this.

Australia became a signatory to the international covenant on the prohibition of racial discrimination not long after was enacted, in 1966 or 1967, as I recall, and yet we don't have in our Constitution a right not to be discriminated against on grounds of race. This is a scandalous situation. Yes, I agree with you that, as things stand, one would have a difficult time getting approval for this, and therein lies the challenge for government.

Mr LEESER: Dr Harris, you use in your submission the terms 'sovereignty' and 'treaty' and you make mention of 'makarrata'. The word 'treaty' is not used in the Uluru Statement, but 'agreement-making' is and those other terms are. I wonder if you might expand a little bit on what they mean and how they might play out, as it were, in any recommendations we might make.

Dr Harris : What I was emphasising in that part of my submission was that I think the term 'treaty' is just another word for 'agreement', so it doesn't really matter what label you attach to it. 'Makarrata' could be used, or 'compact', 'consensus' or anything you like. The essential point is that it's an agreement between two or more parties to achieve particular outcomes. What I was at pains to emphasise was that we need to move away from the concept that treaties are necessarily made between nation-states, which are sovereign in the international law sense. You can, as is shown by the experience of other countries—the Nordic countries and Canada—have a treaty within a country between different societal groups within that country. I was making the point that, irrespective of what you label it, you can still have such agreements signifying a commitment to achieve certain objectives. That's all well and good, but I think it's very important to move beyond the concept of a treaty in the sense of a statement of intent. As any constitutional lawyer will tell you, a treaty entered into by the executive doesn't become law unless and until it takes concrete form in the form of legislation or constitutional rights.

I was also keen to emphasise the need to say that treaty might be important as a first step in signifying an intention to achieve the other objectives, but the other objectives, the constitutional objectives, are what will really give effect to the treaty.

Mr LEESER: Can I just go to your model of an Indigenous representative body. At the end of the first paragraph in your submission, you say:

An analogy could be drawn between the function of the proposed representative body and that of the Parliamentary Joint Committee on Human Rights established under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which examines legislation for compatibility with human rights and reports to both Houses thereon.

This is in designing the Indigenous representative body. Can I put to you the prospect that, if it uses the human rights parliamentary scrutiny model that in some respects the voice, the representative body, will be perhaps less effective because, by the time matters get to that body, effectively, the political positions of government and opposition have largely been determined. It's very rare that that body makes any appreciable difference to the legislative process. Would it not be better, therefore—I say that as a member of that committee—to have the advice being given to the minister so it can be considered at an earlier point in the process so it can have a chance of being taken into account before it gets put into the political scrum so to speak.

Dr Harris : Yes, I think that's a valid point that I haven't thought of. I think, as long as the advice on draft legislation, for example, is given at the most opportune point during the legislative process, it will tend to enhance the effectiveness of an Indigenous advisory assembly. So, yes, the most effective point at which the advice is given should be the one which would be incorporated in any legislation establishing such a voice to parliament.

Mr LEESER: I think Senator Dodson was asking you about the composition of the body. Do you want to say anything further on the composition? Because, in many respects, the primary task of this committee is to work out how to put some meat on the bones of what the advisory body should look like.

Dr Harris : I would imagine that it would be a body elected by all adult persons identifying themselves as Indigenous who are enrolled as voters for federal elections. You might have a candidate standing on a list system and elected according to proportional representation. Both Maori and non-Maori seats are filled in New Zealand by using a system of lists and proportional representation. Or you might have Australia divided into a number of Indigenous electorates, each returning a certain number of members.

I think the critical thing in designing the electoral system would be to ensure the widest possible view. I tend to have a rather negative view of electorate based voting systems because, where you draw the boundaries really becomes determinant on what voices are heard. So probably my first recommendation would be a nationwide list system, following which a system of multimember electorates, using transferable votes like we have for the Senate, and the more members the better.

Mr LEESER: The list system implies parties, though, doesn't it?

Dr Harris : Well, you may have parties or positions or groups forming. Way back to ancient Greece and Rome, it has been a common feature of political endeavour that factions and parties form.

Mr LEESER: Was that a feature of the ATSIC elections, do you know, or of the Congress elections—that people stood in parties or groupings?

Dr Harris : I don't know; I'm sorry. I mean the critical thing is that the diversity of Indigenous voices—and there may be sections within the Indigenous community—be heard, and it may be that, in its deliberations on proposed government legislation, there will be differences of opinion within an Indigenous voice to parliament which will have to be resolved through a process of voting within the body. That's why it's important that the body itself be as representative as possible of the Indigenous community in Australia.

Ms BURNEY: Dr Harris, I'm just looking at your recommendations in your submission, and I want to focus on the recommendations you have made around section 25 and section 51(xxvi). Part of the challenge we've got, of course, is that we've got that from the expert panel's report and other reports, and then there's the Uluru statement that—quite remarkably, to me—said we shouldn't worry about those bits of the Constitution. You've covered off the idea of a voice as well as repealing those two sections. Can you just talk us through your thinking on that?

Dr Harris : The issue I have with those sections is that section 51(xxvi), as was established by dicta in the Kartinyeri case, is one which can be used either for the benefit of or adversely to Indigenous people. It's just a blank-slate power, unconstrained, and therefore it's problematic in the sense that if the project is designed to enhance the constitutional position of Indigenous people then 51(xxvi) creates a problem.

The same can be said of any of the other powers. If you had an Indigenous corporation subject to the corporations power, it could either be used beneficially or adversely. So, to me, the really critical thing is—and this is why I place such emphasis on the question of rights, because rights constrain parliament in its exercise of legislative power—of having the right to avoid discrimination on grounds of race or ethnicity, subject to—which is very common in many countries—charters and bills of rights, a power to enact laws for the benefit of persons who have suffered historic disadvantage. I think that if we did that—if we put constraints on the way in which parliament can use its constitutional powers—that would certainly address the problem that is currently presented by section 51(xxvi).

Ms BURNEY: I'm interested in what you've shared with the committee and also what's in your paper as to the way in which we might design a voting system. That is extremely difficult. I suspect we'll get to a point where we do the best we can, really, in the sense of pleasing as many people as possible. What you're clear about—as has been everyone else—is that it needs to have legitimacy in the Aboriginal community. But I would argue it also has to have legitimacy across the board. Would you just talk us through that please?

Dr Harris : If the point of the voice is to give Indigenous people a voice, as it obviously is, then it has to be acceptable in its mode of election to Indigenous people. Since we're talking about the national Constitution, the concept of the voice will have to be one with appropriate moral leadership of politicians that Australia, as a whole, comes to accept. There is work to be done here, and I think it was very unhelpful that the Prime Minister and others in the government talked about the concept of the Indigenous voice as potentially giving Indigenous people a legislative role that isn't given to everyone else. Of course that tends to taint and delegitimise the concept in the eyes of the broader public, whereas in fact it's certainly not the case that an Indigenous voice to parliament would exercise legislative powers at all. It would be merely advisory. I think we need to come out with a very firm commitment to explaining why this would be legitimate. In fact, when you think of it, as I've said in the paper, it's a very modest request to be satisfied for the benefit of Indigenous people.

Ms BURNEY: I agree with you. The final point that I would make, and it is one that we're going to have to grapple with very much as a committee, is the time frame you've put around this process. We know that Uluru recommended three things, essentially. We know that the expert panel and the other parliamentary committee recommended a number of things. And we also have to look at, as part of our terms of reference, whether or not the present arrangements are adequate in terms of consultation with First Nations people. But just getting back to that point of how you would see a roll out of this process, you've recommended a number of changes to the Constitution, which we could argue, if you put them all up at once, might be too much. Can you just give us an idea of how you would see us proceeding?

Dr Harris : I suppose there are two sides to that argument. On the one hand you can have drip-fed reform and piecemeal reform one bit at a time; or on the other hand you could have an entire package that was presented as a coherent whole, each performing its own separate function. I don't know how one would prioritise these processes. I see the concept of a treaty as one which could end up being purely symbolic, in that you have something you can put into the Constitution that says the government's going to negotiate with Indigenous people on the achievements of Indigenous rights, and nothing concrete comes of that. So although I understand that the statement from the heart does give a degree of prominence to a treaty. It is precisely because of this point, that a treaty is meaningless unless it actually leads to concrete legislation or constitutional provision, that I would see the rights to culture, rights to non-discrimination as being the most important parts of the package and then perhaps the voice to parliament and the treaty. I acknowledge, of course, that it is a very difficult road to travel, but we've been on it for 10 years now and nothing concrete has happened. I would hope that when the committee gives its recommendation there will be a very strong moral case put for something radical to be done.

CHAIR: Dr Harris, have you turned your mind to the notion of the truth-telling process that was also raised at Uluru?

Dr Harris : No, not in this paper. Was the reference in the Uluru statement to truth telling—forgive me, but I've forgotten—in the sense of a truth and reconciliation commission to allow people to express their sufferings as a result of historical inequality?

CHAIR: Well, it's not clear. We've had people talk to us about some sort of statutory entities like the Truth and Reconciliation Commission in South Africa, but it's more at the local level, trying to get to common ground about the narrative over settlement and the impacts of settlement upon First Nations peoples. I think it's more the question of getting an understanding across the nation rather than a commission that was to search for who did what and then bringing it to prosecution in some way.

Dr Harris : I understand. I certainly think that there is a role for an educative process to be undertaken. I've tried in my submission to say we would feel enormous sympathy with the entire population of Australia today if what happened to Indigenous people in the 1780s happened now through some invasion. I think any process that brought home on an emotional and personal level what invasion meant would be all to the good.

CHAIR: This is my last question. I'm not sure how much moral imperatives determine how governments operate or how parliaments operate, I must say—not that I'm cynical about that, but often it's the prescript in a particular piece of legislation or in the Constitution that tends to govern their behaviour. I'm not saying that people aren't concerned about many important issues. I'm just worried about this notion that, if we do something, it'll have a moral capacity to deliver good outcomes. Would you like to comment on that?

Dr Harris : What I meant was more that there needs to be a moral case for the changes. Then, with the changes, let's see what Indigenous people are able to do when equipped with constitutional tools such as these rights that I mentioned to advance themselves. So what I was saying was more that the government could and should make up its mind to say it's time to do the right thing—not, 'People won't accept doing the right thing,' but, 'Come along, everyone; let's do the right thing.' I acknowledge that's a very difficult thing to do, because you have many interest groups who are opposed to it, but this is the burden of leadership.

CHAIR: Thank you, Dr Harris. Thank you for your written submission and for your availability. We certainly appreciate what you've put to us. The transcript will be available to you. If there are matters in the transcript that you feel haven't recorded your words appropriately then please get in touch with us. If there are any further matters that you want to put to this committee to influence our interim report, which is due at the end of July, we'd appreciate getting that by 16 July. We have to plough on after the July period, of course, to deliver a final report in November. Thank you for your attendance and for your contribution.

Dr Harris : Thank you very much for hearing me.