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Department of the Senate Work of Committees Year statistics: 1 January to 31 December 2012; and half-year statistics: 1 July to 31 December 2012


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January 2013

Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples

Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012

© Commonwealth of Australia 2013

ISBN 978-1-74229-741-5

Printed by the Senate Printing Unit, Parliament House, Canberra.

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Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples

Members

Senator Trish Crossin, Chair Northern Territory, ALP

Senator the Hon George Brandis SC, Deputy Chair Queensland, LP Senator the Hon Nigel Scullion Northern Territory, CLP

Senator Rachel Siewert Western Australia, AG

Senator Matt Thistlethwaite New South Wales, ALP

Mr Robert Oakeshott MP New South Wales, IND

Ms Janelle Saffin MP New South Wales, ALP

Mr Ken Wyatt AM MP Western Australia, LP

Secretariat

Mr Tim Bryant, Secretary Dr Sean Turner, Principal Research Officer Ms Kate Campbell, Administrative Officer

PO Box 6100 Parliament House Canberra ACT 2600 Ph: 02 6277 3540 Fax: 02 6277 5719 E-mail: jscatsi@aph.gov.au Internet:http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committ ees?url=jscatsi_ctte/jscatsi/index.htm

TABLE OF CONTENTS

Membership of Committee iii

Chapter 1: Introduction and overview of the Bill ............................................ 1

Conduct of this inquiry ........................................................................................... 1

Policy context and background to this inquiry ....................................................... 1

Overview of the Bill ............................................................................................... 4

Chapter 2: Views on the Bill .............................................................................. 7

Racial discrimination in the Constitution ............................................................... 7

Statement of Recognition ....................................................................................... 9

Relationship to the work of the Expert Panel ....................................................... 12

The Bill's role in setting out the path forward ...................................................... 12

The review outlined at clause 4 of the Bill ........................................................... 14

Deferral of referendum ......................................................................................... 16

Sunset clause and legislative recognition as an 'interim step' .............................. 17

Committee processes and a possible advisory group ........................................... 19

The suitability of Australia's referendum machinery ........................................... 21

Additional Comments by Senator Siewert ..................................................... 23

APPENDIX 1: Submissions received .............................................................. 29

APPENDIX 2: Public Hearings and Witnesses .............................................. 31

Chapter 1

Introduction and overview of the Bill 1.1 On 28 November 2012, the Parliament agreed that a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples be appointed to inquire into and report on steps that can be taken towards a successful referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples.

1.2 The Parliament asked that, as part of this work, the committee consider the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, with a view to securing strong multi-party support for the passage of the Bill through Parliament.

1.3 Along with a preamble, the Bill has three substantive parts:

(a) a statement of recognition by the Parliament, on behalf of the people of Australia, of Aboriginal and Torres Strait Islander peoples (clause 3);

(b) a requirement for the Minister with responsibility for Indigenous Affairs to commence a review of support for a referendum to amend the Constitution within a particular timeframe (clause 4); and

(c) a sunset clause, which provides that the Act should expire two years after enactment (clause 5).

Conduct of this inquiry 1.4 The committee advertised the inquiry on its website and in The Australian, The Koori Mail and the National Indigenous Times. The committee received 24 submissions, which are listed at Appendix 1.

1.5 The committee also held a public hearing in Sydney on 22 January 2012. The names of witnesses who appeared at the hearing are at Appendix 2.

1.6 The committee thanks all who contributed to the inquiry.

Policy context and background to this inquiry

The work and recommendations of the Expert Panel

1.7 In December 2010, the government appointed an Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (the Expert Panel). The Expert Panel was asked to investigate and report to the Government on the options for constitutional recognition of Aboriginal and Torres Strait Islander peoples that would be most likely to obtain widespread support across the Australian community.

1.8 To prepare its report, and to help build public awareness of the issue of constitutional recognition, throughout 2011 the Expert Panel led a broad national consultation and community engagement program. This process included:

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• extensive consultations in communities, towns and cities across Australia,

with an emphasis on capturing the views of as many Aboriginal and Torres Strait Islander people as possible;

• individual discussions with high-level stakeholders;

• a formal public submissions process, with written submissions added to the Expert Panel's You Me Unity website;

• the commissioning of Newspoll to undertake quantitative and qualitative research to help build an understanding of the likely levels of community support for various options for constitutional recognition; and

• advice from leading practitioners of constitutional law to ensure the various proposals for constitutional recognition considered by the Expert Panel were technically and legally sound.

1.9 The Expert Panel delivered its report, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, to the Prime Minister on 19 January 2012. The report recommended a referendum on the following constitutional changes:

(a) the removal of section 25 - which contemplates the possibility of State laws disqualifying people from voting at State elections on the basis of their race;

(b) the removal of section 51(xxvi) - which can be used by the

Commonwealth to enact legislation to discriminate for or against people on the basis of their race;

(c) the insertion of 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;

(d) the insertion of a new section 116A, banning racial discrimination by the Commonwealth; and

(e) the insertion of a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country's first tongues, while confirming that English is Australia's national language.

1.10 The Expert Panel, referring to the record of unsuccessful referendum proposals in Australia, also concluded that the government and the Parliament should, prior to holding a referendum, consider whether the circumstances would be conducive to its success. On this point, the Expert Panel suggested that:

…the failure of a referendum on recognition of Aboriginal and Torres Strait Islander peoples would result in confusion about the nation's values, commitment to racial non-discrimination, and sense of national identity.

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The negative impact on Aboriginal and Torres Strait Islander peoples would be profound.1

1.11 The Expert Panel made a series of recommendations in its report on the process leading to a referendum, including steps to ensure cross-party and broad community support for constitutional change. In part, these recommendations were based on the Expert Panel's view that 'achieving a successful referendum outcome should be the primary consideration of the Government and Parliament.'2

The Joint Select Committee and the Bill

1.12 When the government established the Expert Panel in December 2010, it repeated a commitment made following the 2010 election to hold 'a national referendum on this issue during the term of the current government or at the next Federal election.' However, in introducing the Bill, the Minister for Families, Community Services and Indigenous Affairs stated that the government agreed with the Expert Panel 'on the importance of holding a referendum at a time when it has the most chance of success.' According to the Minister, the government also recognised that 'there is not yet enough community awareness or support for change to hold a successful referendum at or before the next federal election.'3

1.13 The Bill and the establishment of the Joint Select Committee are both intended, at least in part, to help build community awareness and support for constitutional change and maintain momentum towards a successful referendum.

1.14 For its part, the Bill, according to the Explanatory Memorandum, will 'enable all Australians to become familiar with formal recognition of Aboriginal and Torres Strait Islander peoples ahead of constitutional change.'4

1.15 As the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) reported in its submission, the Bill:

…was drafted in consultation with Aboriginal and Torres Strait Islander leaders, and key individuals and organisations involved in the movement towards constitutional recognition of Aboriginal and Torres Strait Islander peoples, including former members of the Expert Panel.'5

1.16 As the Minister outlined in her second reading speech, the committee has been asked to consider the Bill as its first order of business. Thereafter, the committee will:

1 Expert Panel report, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (January 2012), p. xvii.

2 Expert Panel report, p. xvii.

3 The Hon. Jenny Macklin MP, Minister for Families, Community Services and Indigenous Affairs, Second Reading Speech, House of Representatives Hansard, 28 November 2012, pp. 13653-54.

4 Explanatory Memorandum, Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, p. 2.

5 FaHCSIA, Submission 12, p. 5.

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…work to build a secure, strong, multipartisan parliamentary consensus around the timing and specific content of referendum proposals for Constitutional recognition of Aboriginal and Torres Strait Islander peoples.

The committee will also engage with Aboriginal and Torres Strait Islander people and the broader community to secure their support for specific referendum proposals for constitutional recognition.6

1.17 As the Explanatory Memorandum makes clear, the Bill is intended only as an interim step towards recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. It is not intended to serve as a substitute for constitutional recognition.7

Overview of the Bill

Preamble

1.18 A preamble to the Bill indicates that the Parliament is committed to 'building the national consensus needed for the recognition of Aboriginal and Torres Strait Islander peoples in our Constitution.' It further states the Parliament's belief that 'this

Act is a significant step in the process towards achieving constitutional change.'8

1.19 The preamble also acknowledges 'the important work of the Expert Panel,' while recognising that 'further engagement with Aboriginal and Torres Strait Islander peoples and other Australians is required to refine proposals for a referendum and to build support necessary for successful constitutional change.'9

Clause 3: Statement of recognition

1.20 Clause 3 provides for the recognition by the Parliament, on behalf of the people of Australia, of:

(a) the original occupation of Australia by Aboriginal and Torres Strait Islander peoples;

(b) the ongoing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; and

(c) the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

1.21 As discussed in the next chapter, this statement largely reflects

recommendation 3 of the Expert Panel.

Clause 4: Review

1.22 Clause 4 legislates for a review of support for a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.

6 The Hon. Jenny Macklin MP, Second Reading Speech, p. 13654.

7 Explanatory Memorandum, p. 2.

8 Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, p. 2

9 Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, p. 2.

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1.23 This review must be initiated by the Minister within 12 months of the commencement of the Act, and the resulting report must be provided to the Minister at least six months prior to the expiration of the Act. (The Act expires two years from its commencement.) Clause 4 essentially prescribes the terms of reference for the review.

Clause 5: Sunset provision

1.24 As noted above, the Bill is intended as a step towards, rather than a substitute for, constitutional recognition.

1.25 In support of this intention, the Bill includes a two-year sunset provision at clause 5 to ensure that:

…legislative recognition of Aboriginal and Torres Strait Islander peoples does not become entrenched at the expense of progress towards the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution.10

1.26 A note within the Bill states that the sunset provision is intended to provide the Parliament and the Australian people with a date by which to consider the readiness of Australians to approve a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution.

10 Explanatory Memorandum, p. 2.

Chapter 2 Views on the Bill

2.1 Witnesses appearing before the committee and written submissions were generally supportive of the Bill, at least in principle, as a step towards a referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples.

2.2 However, a range of views were expressed on a number of issues, including:

• the absence of any reference in the Bill to the need, as identified by the Expert

Panel, to remove racially discriminatory elements from the Constitution;

• what should, and should not, be included in the Bill's statement of recognition

(clause 3), and in particular whether an acknowledgement of the 'need to secure the advancement of Aboriginal and Torres Strait Islander peoples' should be included;

• the extent to which ongoing work toward a referendum should be informed by the recommendations of the Expert Panel, and how this might be reflected in the Bill;

• the Bill's success or otherwise in setting out a clear path toward a referendum;

• whether sufficient detail is included in the Bill regarding the review outlined

at clause 4; and

• the wisdom of including a sunset clause in the Bill.

2.3 While not directly related to the Bill, in the course of conducting its inquiry the committee also heard a range of views regarding how the committee could best engage with Aboriginal and Torres Strait Islander peoples. This issue is briefly discussed near the end of this chapter.

2.4 The committee also heard arguments from Professor George Williams of the Gilbert + Tobin Centre for Public Law (UNSW) that the Referendum (Machinery Provisions) Act 1984 needed to be updated in order to prepare the ground for a successful referendum. This issue is discussed at the end of this chapter.

Racial discrimination in the Constitution 2.5 The committee heard from a number of witnesses that the Bill needed to better reflect the relationship between ending racial discrimination in the Constitution and constitutional recognition of Aboriginal and Torres Strait Islander peoples.

2.6 For example, Professor Williams told the committee that:

…the bill shows signs of losing connection with the most important aspect of recognition of Aboriginal and Torres Strait Islander peoples in the

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Constitution. That is, that recognition needs to deal with the fact that the Constitution was drafted on a premise of racism, essentially.1

2.7 Professor Williams further argued that in his view Australians are strongly supportive of removing racism from the Constitution, and therefore the decision to exclude any reference to the Expert Panel's recommendations on removing the racially

discriminatory elements of the Constitution 'sends a signal that I think is quite unfortunate in terms of any sort of public debate we might have over the coming months.'2

2.8 Concerns regarding the absence of any reference in the Bill to the need to end racial discrimination in the Constitution were also expressed by the National Congress of Australia's First Peoples (Congress), the Australian Human Rights Commission (AHRC), ANTaR, the Law Council of Australia, the Public Interest Advocacy Centre (PIAC), the New South Wales Aboriginal Land Council (NSWALC) and the Australian Psychological Association. In varying degrees, these organisations also emphasised that the Expert Panel had identified the removal of racially discriminatory elements of the Constitution as an important component of recognising Aboriginal and Torres Strait Islander peoples in the Constitution.3

2.9 Asked by the committee why the Bill did not refer to the Expert Panel's recommendations on ending racial discrimination in the Constitution, FaHCSIA responded that the Bill is only intended as one step toward constitutional recognition:

It goes to some but not all of the recommendations of the Expert Panel and really those that are appropriate are at this step but not those which would require constitutional change to enact. It is a simple statement of recognition. It is a step in the process towards constitutional change and it is intended to maintain the momentum.4

2.10 FaHCSIA also reiterated to the committee the argument put forward in the Explanatory Memorandum, namely that the government did not think it was appropriate to include in the Bill recommendations of the Expert Panel that go to constitutional change, such as the removal of the 'race' provisions. Nor was it considered necessary for the Bill to reflect the Expert Panel's recommendation for a

1 Professor George Williams, Foundation Director, Gilbert + Tobin Centre for Public Law, University of New South Wales, Proof Committee Hansard, p. 19.

2 Professor George Williams, Foundation Director, Gilbert + Tobin Centre for Public Law, University of New South Wales, Proof Committee Hansard, p. 19.

3 Ms Jody Broun, Co-Chair, National Congress of Australia's First Peoples, Proof Committee Hansard, pp. 1-2; Professor Gillian Triggs, President, Australian Human Rights Commission, Proof Committee Hansard, p. 26; Ms Jacqueline Phillips, National Director, ANTaR, Proof Committee Hansard, p. 13; Dr Sarah Pritchard, Law Council of Australia, Proof Committee Hansard, p. 21; Public Interest Advocacy Centre, Submission 23, p. 2; New South Wales Aboriginal Land Council, Submission 16, p. 3; and Australian Psychological Society, Submission 21, pp. 8-9.

4 Major-General Dave Chalmers, Group Manager, Indigenous Coordination Group, FaHCSIA, Proof Committee Hansard, p. 27.

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constitutional prohibition on racial discrimination, as the Racial Discrimination Act 1975 already prohibits such discrimination.5

Committee view

2.11 The committee acknowledges and shares the Expert Panel's view that the removal of racial discrimination from the Constitution is an important component of constitutional recognition of Aboriginal and Torres Strait Islander peoples. In this respect, the committee notes the following point made by Mr Noel Pearson (as quoted

to the committee by the Law Council):

Elimination of racial discrimination is inherently related to Indigenous recognition because Indigenous people in Australia, more than any other group, suffered much racial discrimination in the past.6

2.12 The committee also acknowledges the point made in the Explanatory Memorandum and in evidence from FaHCSIA, that the absence of any reference in the Bill to the Expert Panel's recommendations on the 'race' provisions and racial non-discrimination does not represent a dilution of the goal of eliminating racial discrimination from the Constitution. The committee also agrees with the point made by FaHCSIA, namely that the Bill is only one step toward constitutional change, and is not intended to prescribe what should or should not be included in the proposal for constitutional change that is ultimately put to the Australian people at a referendum.

2.13 The committee believes that the issue of racial discrimination goes to the heart of the broader question of constitutional recognition of Aboriginal and Torres Strait Islander peoples. As such, it is an issue that the committee intends to explore further in its work going forward.

Statement of Recognition 2.14 Most witnesses expressed satisfaction with the Bill's statement of recognition. However, a number of submissions argued that the statement could be more ambitious in its scope.

2.15 For instance, the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) argued for bolder language in the statement. In particular, AIATSIS suggested that the statement should include recognition of Australia's hybrid political and legal histories and the right of Aboriginal and Torres Strait Islander peoples - as Australia's Indigenous people - to self-determination, consistent with the UN Declaration on the Rights of Indigenous Peoples. According to AIATSIS, the Bill could go further than the Constitution in recognising the distinct collective identities of Aboriginal and Torres Strait Islander peoples, given the Parliament 'is not

5 Ms Amanda Doherty, Branch Manager, Reconciliation and Relationships, FaHCSIA, Proof Committee Hansard, p. 26; Explanatory Memorandum, Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, p. 3.

6 As quoted by Dr Sarah Pritchard SC, Law Council of Australia, Proof Committee Hansard, p. 21. The quote is from Noel Pearson, Submission 3619 to the Expert Panel, p. 3.

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constrained by the need to pass a referendum and an act of parliament does not have the same specialised functions as a section of the Constitution.'7

2.16 The Law Council of Australia, meanwhile, expressed disappointment that, while the statement of recognition is based on the Expert Panel's recommended new section 51A, it does not include the Expert Panel's recommended statement acknowledging 'the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.' The Law Council also registered its concern with the committee over the lack of explanation, and apparent lack of consultation, regarding this omission, particularly given the Expert Panel's choice of words were based on extensive consultations.8

2.17 Australian Lawyers for Human Rights made the same point, supporting its argument for the inclusion of the 'advancement' language with reference to the fact that the words were based on the extensive consultative processes of the Expert Panel.9

2.18 ANTaR also expressed concern about the omission of any reference in the Bill to the need to achieve social and economic equality for Aboriginal and Torres Strait Islander peoples. While noting that the word 'advancement' had occasioned some debate, ANTaR suggested another form of words expressing the same intent could be included in the Bill.10 ANTaR told the Committee that, should the racially discriminatory elements be removed from the Constitution (an objective it strongly supports), the inclusion of the 'advancement' wording or words to the same effect would be necessary to maintain a head of power for the Commonwealth to make and maintain beneficial laws for Aboriginal and Torres Strait Islander peoples.11

2.19 In her written submission, Professor Anne Twomey offered a different perspective on the 'advancement' wording, suggesting that, to the extent it implied that Aboriginal and Torres Strait Islander peoples are 'backwards' or 'insufficiently advanced,' it might be considered racist. For this reason, Professor Twomey welcomed the omission of the 'advancement' wording from the Bill.12

2.20 This reasoning was rejected by the Law Council, which told the committee that the suggestion the 'advancement' wording was racist or might cause offence:

(a) did not take into account the fact that about half the Expert Panel was Aboriginal or Torres Strait Islander;

(b) did not address the Expert Panel's reasoning as to why the 'advancement' language was necessary; and

7 Mr Russell Taylor, AIATSIS, Proof Committee Hansard, p. 11, 15.

8 Law Council of Australia, Submission 6, pp. 3-4.

9 Australian Lawyers for Human Rights, Submission 17, pp. 1-2.

10 ANTaR, Submission 5, p. 5.

11 Ms Jacqueline Phillips, National Director, ANTaR, Proof Committee Hansard, p. 13, 16.

12 Professor Anne Twomey, Submission 1, p. 3.

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(c) failed to recognise the resonance of the concept of 'advancement' for many Aboriginal and Torres Strait Islander people.13

2.21 The AHRC, however, allowed that the 'advancement' language could be divisive, and suggested it might not be appropriate to include in the Bill:

I think that is a very important question and I think it is one that, ultimately, the committee is going to have to resolve. Our view at the commission is that a word like 'benefit' might be preferable but, of course, words bring laden historical interpretations and Professor Twomey may very well be right in her suggestion. ... But, again, it is something this committee can explore over time. I am not sure that I can see the value, at the moment, of picking a word and including it in the bill. So I think the short answer is that we would like to see that explored and we would like to see the right word chosen. But perhaps now is not the time in the context of the bill.14

2.22 The committee heard from FaHCSIA that the 'advancement' language was not included in the Bill because it had proven contentious and its inclusion could therefore undermine the attempt to build momentum with the Bill. FaHCSIA also reiterated the point that the Bill was only intended as one step - albeit an important one - toward constitutional recognition of Aboriginal and Torres Strait Islander peoples. As such, it did not:

...attempt to take on board all of the Expert Panel's recommendations on constitutional change. It cannot take on many of them because they are a matter for the Constitution and a referendum itself. But it really is an important and powerful symbolic statement by the parliament of support and recognition which serves as a platform to then go on and further consider issues like advancement.15

Committee View

2.23 As noted above, the committee recognises that the Bill is only intended as a step toward, rather than a substitute for, constitutional recognition. The committee expects further discussion on issues such as the inclusion of the 'advancement' wording in the proposal for constitutional change, and does not believe the omission of this wording from the Bill proscribes further consideration of the issue in the process leading to a referendum.

2.24 As with the Expert Panel's recommendations on racial discrimination in the Constitution, the committee believes the wording of the statement of recognition in the Constitution is a significant issue, and one that the committee intends to give

careful consideration to in the course of its work.

13 Dr Sarah Pritchard, Law Council of Australia, Proof Committee Hansard, p. 20-21.

14 Professor Gillian Triggs, President, Australian Human Rights Commission, Proof Committee Hansard, p. 28.

15 Major-General Dave Chalmers, Group Manager, Indigenous Coordination Group, FaHCSIA, Proof Committee Hansard, p. 30.

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Relationship to the work of the Expert Panel 2.25 In addition to discussing how the Bill should capture the Expert Panel's recommendations for constitutional change, a number of witnesses and written submissions also addressed the extent to which ongoing work toward a referendum should be determined by the recommendations of the Expert Panel, and how this might be expressed in the Bill.

2.26 Professor Twomey suggested the Expert Panel had done some very good work, but that its recommended wording for a referendum should be considered a first draft and not 'be set in stone.' For this reason, Professor Twomey was supportive of the reference in the Bill's preamble to the need for further engagement with Aboriginal and Torres Strait Islander peoples and other Australians to 'refine proposals for a referendum'.16

2.27 However, Congress, ANTaR, AHRC, PIAC and the Human Rights Law Centre (HRLC) suggested the Bill should, in fact, place a stronger emphasis on the work of the Expert Panel, and in particular its recommendations.17

Committee view

2.28 The committee agrees that the work of the Expert Panel provides a solid foundation for the process of constitutional reform. The committee is satisfied that the Bill, as currently drafted, properly acknowledges the important work of the Expert Panel and its proposals for constitutional change.

The Bill's role in setting out the path forward 2.29 Several submissions commended the Bill as a means of building momentum and setting out the procedure toward a referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples.

2.30 Professor Twomey pointed to a parallel here with the history of federation, writing that after the Constitution was first drafted in 1891, momentum towards federation was maintained by the colonies enacting legislation setting out the procedure for the election of a new constitutional convention and the process for putting the revised draft Constitution to the people in a referendum.18

2.31 Mr Tim Gartrell, the Campaign Director of Recognise, explained to the committee that Recognise hoped:

16 Professor Anne Twomey, Proof Committee Hansard, p. 18; and Professor Anne Twomey, Submission 1, p. 2.

17 National Congress of Australia's First Peoples, Submission 18, p. 2; ANTaR, Submission 5, p. 3; Australian Human Rights Commission, Submission 20, p. 2.; PIAC, Submission 23, p. 2; and HRLC, Submission 14, p. 3.

18 Professor Anne Twomey, Submission 1, p. 1.

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…the day the act passes will be a major milestone on the journey to full constitutional recognition. It will be the day the parliament makes its down payment of good faith for the journey ahead for the rest of us.19

2.32 Mr Gartrell also informed the committee that following the introduction of the Bill, Recognise had detected a rise in media attention and public awareness of the issue of constitutional recognition of Aboriginal and Torres Strait Islander peoples.20

2.33 However, other submissions were critical of the lack of detail in the Bill regarding the steps that would now be taken toward a referendum. The Gilbert + Tobin Centre for Public Law, for example, expressed 'real concerns about the adequacy of this Bill as, per the preamble, "a significant step in the process towards achieving constitutional change."' The Gilbert + Tobin Centre argued that without a clearer identification of the specific steps to a referendum and mechanisms to engage the public, the Bill in fact risks sending two undesirable signals: one, that the debate can simply be deferred for two years, when the Bill will expire as per the sunset clause; or two, that debate will be conducted through the Parliament and political leaders, rather than through the community.21

2.34 Similarly, while supportive of the intent of the Bill, ANTaR suggested in its submission that the Bill needed to:

…outline a clear process to generate the required awareness and community support to ensure a successful referendum. While the draft Act includes a clause, under which the Act would cease to have effect after two years, it does establish a mechanism or outline a process to take place at that point. The way the Act is currently drafted, there is a risk that the issue of Constitutional Recognition could fall off the radar of a future Parliament.22

2.35 PIAC argued that the government needed to provide more detail on the timeframe and mechanics of the process set out in broad detail in the Bill. If this information was not contained in the Bill itself, PIAC considered the Minister should provide it separately.23

2.36 NTSCORP, meanwhile, suggested that while the Bill would help build momentum and support for constitutional change, without a broader recognition campaign it would be insufficient.24

19 Mr Tim Gartrell, Campaign Director, Reconciliation Australia/Recognise, Proof Committee Hansard, p. 2.

20 Mr Tim Gartrell, Campaign Director, Reconciliation Australia/Recognise, Proof Committee Hansard, p. 5.

21 Gilbert + Tobin Centre for Public Law, Submission 2, pp. 1-2; Dr Paul Kildea, Director, Referendums Project, Gibert + Tobin Centre for Public Law (UNSW), Proof Committee Hansard, p. 18.

22 ANTaR, Submission 5, p. 4.

23 PIAC, Submission 23, p. 2.

24 NTSCORP, Submission 10, p. 2.

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2.37 Responding to criticism that the Bill did not set out a detailed path to a referendum, FaHCSIA told the committee that it believed the establishment of the Joint Select Committee and the inclusion of a review provision in the Bill (as discussed below) provided a process to determine the way forward to a referendum. This work would proceed in parallel with the work of Recognise (formerly You Me Unity) to build community support and awareness.25

2.38 FaHCSIA also suggested there was a danger in trying to over-engineer the process at this point:

Setting in place a plan now which locks us into certain milestones and certain decisions could set us up to fail. [The] Government has set in place a number of processes, and those processes are designed to act in parallel to get us to a place where the Australian people are ready to make a decision on this issue.

So I think we have in place now a number of processes. The bill is one of those processes and I think there is a danger that we might try to load too much into it. It is an important milestone but nonetheless it is only one step in this journey. I think the committee is another, and much more important, ongoing process.26

Committee view

2.39 The committee believes that the Bill, together with the establishment of the committee itself, provides the Parliament with the political architecture necessary to build and maintain momentum toward constitutional recognition of Aboriginal and Torres Strait Islander peoples. The committee also notes that there are a number of processes underway to build this momentum; not all of these processes are set out in the Bill, nor is it necessarily practical or desirable to do so. Nevertheless, the committee does not underestimate the difficulty of securing the passage of appropriate amendments to the Constitution recognising Aboriginal and Torres Strait Islander peoples. Only 8 out of 44 proposals to amend the Constitution have succeeded; it is 36 years since the last successful referendum. Controversial proposals are invariably foredoomed to failure. For that reason, the committee cautions that if the proposal is the victim of over-reach 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 pre-requisite to success.

The review outlined at clause 4 of the Bill 2.40 A number of witnesses and submissions suggested there was insufficient detail as to the purpose and resourcing of the review outlined at clause 4 of the Bill.

25 Ms Amanda Doherty, Branch Manager, Reconciliation and Relationships, FaHCSIA, Proof Committee Hansard, p. 29.

26 Major-General Dave Chalmers, Group Manager, Indigenous Coordination Group, FaHCSIA, Proof Committee Hansard, p. 29.

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The committee also heard concerns that the review was too focused on measuring support for constitutional change, rather than seeking to build this support.

2.41 AIATSIS suggested that the review, as currently drafted, is unclear as to the review's process and purpose. To the extent that the clause does outline a process, AIATSIS argues, this process largely duplicates the work of the Expert Panel 'and may not achieve anything that has not already been achieved.' In particular, it was felt the review only provides for the measurement of public support, rather than for its creation. AIATSIS told the committee that instead of the review proposed in the Bill, the committee might consider a process similar to that established in the Council for Aboriginal Reconciliation Act 1991 (Cth), wherein a body with statutory powers and functions was given 'operational work to do in promoting reconciliation, leading

discussion and educating.'27

2.42 In its written submission, AIATSIS also suggested that the terms of the review indicated that it should identify which proposals for constitutional recognition of Aboriginal and Torres Strait Islander peoples would be most likely to gain the support of the Australian people. According to AIATSIS, the review should in fact identify 'the best proposal that can succeed, rather than the most popular.'28

2.43 ANTaR also told the committee that it believed more detail was needed about the proposed review, including:

…what the scope of that review would be—I would suggest it should not be confined to the issues identified in the bill but include the broader issues raised by the panel; who will undertake that review; the question of Aboriginal representation; what the process might be and what the resource implications of that process might be, since the Bill at this stage is said to have no resource implications; as well as the reporting provisions.29

2.44 HRLC noted that no provision had been made in the review clause for who will actually conduct the review. HRLC suggested that, consistent with the right of self-determination, the Bill should 'provide that the persons undertaking the review include representatives of Aboriginal and Torres Strait Islander organisations and communities.'30

2.45 HRLC also expressed concerns that the review might be limited to considering the recognition issue only, and not the broader recommendations of the Expert Panel. As such, HRLC recommended that 'both the Bill and the Explanatory Memorandum be revised to promote a review process that considers the full range of recommendations of the Expert Panel, without limitation.'31

27 Mr Russell Taylor, Principal, AIATSIS, Proof Committee Hansard, p. 11-12; Mr Nick Duff, Senior Project Manager, AIATSIS, p. 14; and AIATSIS, Submission 19, pp. 2-3.

28 AIATSIS, Submission 19, p. 3.

29 Ms Jacqueline Phillips, National Director, ANTaR, Proof Committee Hansard, pp. 12-13.

30 HRLC, Submission 14, p. 2.

31 HRLC, Submission 14, p. 4.

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2.46 Reconciliation Victoria recommended that the review should not only consider the levels of support for amending the Constitution (as currently required at 4(2)(d)) but also how this support can be developed. If the review shows there is insufficient support for a successful referendum:

…then the Committee should be in a position to make recommendations to the Parliament as to the means by which this support can be developed, averting the potential for extensive delays or even side-lining of a referendum on this critical issue.32

2.47 Responding to criticisms regarding the review, FaHCSIA told the committee that:

...the form and shape of the review has deliberately been left open. So, there is a process that needs to be gone through to determine what will best be achieved by the review. The review was put in place in order to ensure that there is a clear process for parliament to consider next steps towards the ultimate goal of constitutional recognition. So in the government's view the review itself is an important mechanism. But how it operates and what it will achieve is still something which is to be determined and something, perhaps, for the committee to consider.33

Committee view

2.48 The committee acknowledges the need to maintain momentum and build support toward a referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples, and recognises the contribution the review outlined at clause 4 of the Bill would make in this respect. As noted above, the committee is satisfied that the mechanisms currently in place, including the review outlined at clause 4, provide a good architecture for moving toward a referendum.

Deferral of referendum 2.49 Generally speaking, witnesses acknowledged the need to defer a referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples in order to build greater public awareness of and support for constitutional reform.

2.50 The St Vincent de Paul Society expressed 'deep sadness' at the delay in 'taking this important step in our national journey of recognising the historical truth and honouring the First Peoples.'34

2.51 Other submissions, however, expressed strong support for the idea of not holding a referendum at the current time, and instead using the Bill as part of a process to build momentum towards constitutional change.

2.52 For instance, the Redfern Legal Centre wrote that its consultations with both non-Aboriginal and Aboriginal and Torres Straits Islander peoples indicated a general

32 Reconciliation Victoria, Submission 13, p. 1.

33 Major-General Dave Chalmers, Group Manager, Indigenous Coordination Group, FaHCSIA, Proof Committee Hansard, p. 29.

34 St Vincent de Paul Society, Submission 24, p. 3.

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lack of awareness about the issue, and it therefore welcomed 'the Bill's approach of setting up a timetable for constitutional change, rather than attempting to introduce constitutional change at this stage.'35

2.53 In its submission, the NSWALC acknowledged the need to defer the referendum, and expressed support for an extended timeframe toward constitutional recognition, 'provided the additional time is used to build awareness and help ensure informed support of Constitutional recognition as well as undertake proper and meaningful consultation with Aboriginal peak bodies, organisations and communities.'36

Sunset clause and legislative recognition as an 'interim step' 2.54 While a number of witnesses and submissions argued against the inclusion of the sunset provision in the Bill, others suggested it was an appropriate means of indicating that the Bill is only an interim step toward constitutional recognition, rather than an end in itself.

2.55 Several submissions argued that parliamentary recognition of Aboriginal and Torres Strait Islander peoples would have value independent of constitutional recognition, and therefore the sunset provision should be removed. Ms Elisa Arcioni, for example, argued against the inclusion of the sunset clause, noting that the two forms of recognition are different. Ms Arcioni noted that to 'have the legislative recognition rendered ineffective through the sunset clause may signify that recognition has been removed, and at a time when there is no alternative (ie constitutional) recognition yet in place.' Ms Arcioni also queried the view that the existence of legislative recognition would work against any future constitutional recognition.37

2.56 Similarly, AIATSIS told the committee that it believed a parliamentary statement of recognition would have value independent of constitutional recognition, not least because it would be 'volunteered by the parliament rather than being a legislative reaction to something that the courts have already done, as was the case in the Mabo decision.'38 On this point, AIATSIS suggested the sunset clause:

…might undermine or dilute the value of that piece of legislation, which… could be forever on the books as a sign of the commitment for legal leadership and intent of the Australian parliament towards its Indigenous citizens.39

2.57 AIATSIS also argued that, if the intent was to prompt further action toward constitutional recognition, the withdrawal of parliamentary recognition would not in itself be sufficient to prompt further action toward a referendum. As such, if the intent is to create a 'commitment mechanism' to prevent momentum toward a referendum

35 Redfern Legal Centre, Submission 9, p. 2.

36 NSWALC, Submission 16, pp. 3-4.

37 Ms Elisa Arcioni, Submission 3, p. 1.

38 Mr Russell Taylor, AIATSIS, Proof Committee Hansard, p. 11.

39 Mr Russell Taylor, Principal, AIATSIS, Proof Committee Hansard, p. 14.

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slipping, a better option would be to set a date for a referendum, with the option of extending this date later if necessary.40

2.58 Like Ms Arcioni and AIATSIS, Professor Helen Irving also argued that parliamentary recognition would be valuable in itself, and the sunset provision is 'unnecessary and should be reconsidered.' Professor Irving suggested that a mandatory expiry date:

...may, in reality, work against the Act's capacity to effectively 'pre-constitutionalise' ATSI recognition. That is to say, it may create a sense that the issue is temporary, or encourage a view that the Act lacks seriousness.41

2.59 The St Vincent de Paul Society made a similar point, suggesting:

…it is not clear to us how the sunset provision will best ensure that parliament will reconsider the issue, or ensure that legislative entrenchment will not supplant Constitutional reform. In fact, it seems to create a risk that - unless the review gains significant attention and publicity - there will be nothing keeping this important issue in the parliament's mind at all, and at the end of 2 years the recognition could simply lapse without any significant progress being made.42

2.60 The St Vincent de Paul Society further suggested that even if the review gains significant publicity, there will only be a five-and-a-half month period between the review being tabled and the Act ceasing to have effect. It is therefore likely the Act would lapse before any referendum could take place, and the issue could again fall off the political radar:

Instead of a sunset provision we propose that if no referendum to amend the Constitution to recognise Aboriginal and Torres Strait Islander Peoples has taken place at the end of a certain period (say, 2 or 3 years) after the commencement of the Act, then the Minister must cause another review to be undertaken, in the same terms as Clause 4. This will ensure that the issue definitely remains on the political landscape past the 2-year period.43

2.61 The AHRC, meanwhile, told the committee that the sunset clause should 'either be deleted or made clearer. We are not entirely sure what its purpose is. And we think that there is no logical connection between the sunset clause and the rest of the bill's content.'44

2.62 In contrast, HRLC expressed support for the sunset clause in it submission, in the 'context of the need to build and maintain momentum towards a referendum'.45

40 Mr Russell Taylor, Principal, AIATSIS, Proof Committee Hansard, p. 12.

41 Professor Helen Irving, Submission 4, pp. 1-2.

42 St Vincent de Paul Society, Submission 24, p. 2.

43 St Vincent de Paul Society, Submission 24, p. 3.

44 Professor Gillian Triggs, President, Australian Human Rights Commission, Proof Committee Hansard, p. 26.

45 HRLC, Submission 14, p. 1.

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Similarly, the New South Wales Reconciliation Council commended the inclusion of the sunset clause, 'which will prevent the legislation becoming a substitute for a referendum… [and] provide the impetus for Parliament to maintain momentum towards a successful referendum.'46

2.63 The Central Land Council also suggested the sunset clause was

'understandable given the need to take further steps to secure constitutional, rather than legislative, recognition.'47

2.64 Reconciliation Australia/Recognise told the committee that it supported the sunset provision as a means of ensuring people understood that the Bill was not a replacement for constitutional change, but instead just one step forward toward that end. Moreover, it provides a clear timeframe in which Recognise can plan its campaign activities to build community support and awareness of the issue.48

2.65 Asked to explain the reasoning behind the sunset provision, FaHCSIA told the committee that:

…the answer to that lies in the government's intention that this act is not seen in any way to be a replacement for constitutional change or for a referendum. It is intended that the sunset clause, if you will, will force parliament to reconsider the issue, not to let it lie and not to let the legislation act in perpetuity as some sort of, 'This was all we could achieve and therefore this is all we are going to do.'49

Committee view

2.66 The committee is satisfied that the sunset provision provides a useful and appropriate mechanism for ensuring legislative recognition of Aboriginal and Torres Strait Islander peoples does not become entrenched at the expense of constitutional

recognition. The committee's view in this respect is underpinned by its understanding of the Bill as essentially an interim step toward the more important objective of constitutional recognition.

Committee processes and a possible advisory group 2.67 In the course of its inquiry into the Bill, the committee also heard a range of views on how the committee should engage with Aboriginal and Torres Strait Islander peoples in undertaking its broader work of investigating and reporting to the government on the options for constitutional recognition.

2.68 The nearly unanimous view put by witnesses was that it was imperative that Aboriginal and Torres Strait Islander people were closely involved in the work of the

46 New South Wales Reconciliation Council, Submission 11, p. 4.

47 Central Land Council, Submission 8, p. 2.

48 Ms Tanya Hosch, Deputy Campaign Director, Reconciliation Australia/Recognise, Proof Committee Hansard, p. 6; and Mr Tim Gartrell, Campaign Director, Reconciliation Australia/Recognise, Proof Committee Hansard, p. 6.

49 Major-General Dave Chalmers, Group Manager, Indigenous Coordination Group, FaHCSIA, Proof Committee Hansard, p. 27.

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committee and in the reform process more broadly. As Reconciliation Australia/Recognise told the committee:

…it is self-evident that the involvement and support of Aboriginal and Torres Strait Islander Australians in finalising the model is another prerequisite to a successful referendum. This must occur as the model is finalised and must not be an afterthought.50

2.69 In this respect, most witnesses supported the idea floated in the motion establishing the committee that the committee consider creating an advisory group whose membership includes Aboriginal and Torres Strait Islander people.51

2.70 Congress, however, cautioned that while it supported the creation of an advisory group, it was important that the group's input was supplementary to 'proper engagement with the community. It is not as an alternative to or a substitute for engagement with the Aboriginal and Torres Strait Islander communities.'52

2.71 Reconciliation Australia/Recognise suggested that the committee consider appointing at least two Aboriginal and Torres Strait Islander individuals from outside the Parliament to the committee as 'parliamentary commissioners':

We recognise this as an unusual step but it is an exciting opportunity to ensure our road to success for constitutional change has the best possible chance. The inclusion of the First Peoples in every part of the process of developing the model for consideration by all Australians is an important principle. It offers a model of genuine partnership and ensures Aboriginal and Torres Strait Islander peoples' views are never far from the deliberations of the committee.53

2.72 Reconciliation Australia/Recognise told the committee that it did not envisage that the appointment of several parliamentary commissioners would remove the need for an advisory (or 'reference') group:

We are talking about three things here. One is a couple of parliamentary commissioners. One is a reference group of Aboriginal and Torres Strait Islander peoples representatives. As to how big that is, I think we would have to go away and have a think about that and take that on notice. Off the top of my head, I would have thought at least a dozen people. Then there is the broader community engagement, which I think the committee should undertake. It is a sort of ripple from that.54

50 Mr Tim Gartrell, Campaign Director, Reconciliation Australia/Recognise, Proof Committee Hansard, p. 2.

51 Journals of the Senate, No. 128, 28 November 2012, p. 3478. 52 Ms Jody Broun, Co-Chair, National Congress of Australia's First Peoples, Proof Committee

Hansard, pp. 2. 53 Ms Tanya Hosch, Deputy Campaign Director, Reconciliation Australia/Recognise, Proof

Committee Hansard, p. 2. 54 Ms Tanya Hosch, Deputy Campaign Director, Reconciliation Australia/Recognise, Proof

Committee Hansard, p. 9.

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2.73 The idea of appointing individuals to the committee as parliamentary commissioners elicited in-principle support from a number of other witnesses, including Congress, ANTaR and AHRC.

Committee view

2.74 The committee recognises the need to closely engage with Aboriginal and Torres Strait Islander peoples in undertaking its work. The committee intends to further explore the options for establishing an appropriate mechanism or mechanisms for this engagement, and will consider the various options for an advisory group and further investigate the 'parliamentary commissioner' idea put forward by Reconciliation Australia/Recognise. In considering the appropriate mechanism(s) for engagement, the committee also intends to consult further with Aboriginal and Torres Strait Islander peak bodies and individuals on this issue.

The suitability of Australia's referendum machinery 2.75 In the course of its inquiry on the Bill, the committee also heard arguments from Professor Williams that in order to properly prepare the ground for a referendum, the Referendum (Machinery Provisions) Act 1984 needed to be updated.

2.76 Professor Williams argued that Australia currently has 'archaic' referendum machinery that was put in place in 1912. He suggested, for instance, that the current requirement for an information booklet to be sent to every elector was wasteful, and did not take account of changes in communication technology:

So at the moment we have got people receiving information in a lengthy written form that the evidence suggests they do not even read and it is not even permissible as a matter of law to do it in other more effective ways. It is actually a gross waste of taxpayers' money, frankly, the way [it] is structured at the moment, let alone the fact that it harms chances of success.55

2.77 In this regard, Professor Williams suggested that the recommendations contained in the 2009 report of the House Standing Committee on Legal and Constitutional Affairs should be implemented.56 In addition to addressing the current requirement or every elector to receive an information booklet, there were:

… many other things that that committee dealt with, for example setting up proper yes and no processes as occurred in 1999 should there be opposition within parliament and really just streamlining it in a way that meant that we

55 Professor George Williams, Foundation Director, Gilbert + Tobin Centre for Public Law, University of New South Wales, Proof Committee Hansard, p. 24.

56 The inquiry in question is the House Standing Committee on Legal and Constitutional Change, A Time for Change: Yes/No?: Inquiry into the Machinery of Referendums, 11 December 2009, available at http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Com mittees?url=laca/referendums/index.htm.

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had sensible processes providing a level playing field, better use of taxpayer money that reflects the technologies of today, not 1912.57

Committee view

2.78 The committee notes the concerns raised about Australia's referendum machinery by the House Standing Committee on Legal and Constitutional Affairs in its 2009 report on the Referendum (Machinery Provisions) Act 1984. In the course of conducting its work in the period ahead, the committee may give further consideration to this issue, noting that it remains to be seen whether the concerns raised would in fact have any bearing on the success or failure of a referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples.

Recommendation 1

2.79 The committee recommends that the Bill be passed.

Senator Trish Crossin Chair

57 Professor George Williams, Foundation Director, Gilbert + Tobin Centre for Public Law, University of New South Wales, Proof Committee Hansard, p. 24.

Additional Comments by Senator Siewert 1.1 The Australian Greens are committed to recognition of Aboriginal and Torres Strait Islander peoples in our Constitution and are disappointed that a referendum could not be held either before or with the next election. However, we acknowledge that recognition by the Parliament is a step along the path to constitutional change. The majority committee report identifies a number of important issues raised by submissions to the inquiry. The Greens generally support the majority report and recognise that the on-going work of the Joint Select Committee will address some of these issues. However, we believe the current Bill could be improved taking into account the evidence before the committee.

1.2 Despite short timelines, a significant number of organisations who collectively represent a significant constituency of Aboriginal and Torres Strait Islander peoples and other stakeholders made submissions which, while broadly supportive, raised concerns that have been noted by the Australian Greens as requiring greater consideration.

1.3 In particular, the Greens note that many of the submitters referenced the work of the Expert Panel and drew the committee’s attention to the fact that this body has already laid out a model and a pathway towards constitutional recognition.

1.4 Ms Jacqueline Phillips, from Australians for Native Title and Reconciliation (ANTaR), told the committee:

We believe that the reform proposals advanced by the expert panel offer a sound, robust and reasonable platform from which to take both the issue and the process of Constitutional recognition forward. The extensive consultations conducted by the panel, the detailed consideration given to the complex issues before it and the consensus of panel members behind the report's recommendations are all, in our view, compelling reasons why its report should provide the basis for the process from here on.1

1.5 Mr Russell Taylor, from the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), told the committee:

The second thing we wanted to talk to the committee about this morning is the review process proposed in the bill. We are concerned that it largely duplicates or risks duplicating the work of the expert panel and may not achieve anything that has not already been achieved. What the proposed review process does is measure the levels of support for various options rather than set out a plan for how to build the necessary report. The report of the expert panel is clear on this issue. They think that lots of work needs to be done in boosting public awareness of and support for a constitutional amendment. In our view, there is not much point so soon after the report in engaging in another similar analysis. I know that this has already been

1 Ms Jacqueline Phillips, National Director, ANTaR, Proof Committee Hansard, p. 12.

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discussed here this morning. We know what needs to be done. The trick is how to achieve it; how to do it.2

1.6 While this Bill has now laid out another step in the pathway to constitutional recognition by triggering a further review within 12 months, the submitters argued persuasively that this substantive body of work compiled by the Expert Panel should not be overlooked or duplicated during the review process.

1.7 Mr Lez Malezer, from the National Congress of Australia's First Peoples (Congress), told the committee:

The clear information we are looking for in congress in particular is how the political leadership is responding to the recommendations that have been made. I think we understood when we presented the report to the Prime Minister that the next step would be discussions between political parties to try and get bipartisan support through those recommendations and so on, and then there would be a process of winning support from the public. The impression seems to be that that is not the process that we are now proceeding through; the process seems to be more one of where public awareness and support is to be built and then political leadership will be put in a position to go forward with a referendum. So we have made it clear in our submission that we want political leadership to be shown in this process—particularly for the major parties, that leadership are able to make positive statements, consistent with the report of the expert panel, as to why these changes to the Constitution should be made.3

1.8 Furthermore, although this review provides another trigger by which the form of the question that will be put to referendum will be finalised, the Australian Greens share the wishes of those submitters, such as Congress in the quote above, who have indicated that they would like the process to move more swiftly and to give greater clarity to the direction that the final model is headed towards.

1.9 The Greens will be active in discussing with the government and through the committee to provide clarity of purpose and timing for the process moving forward.

1.10 We also strongly agree with the call for 'political leadership' as well as multi-partisan agreement that was articulated by Professor George Williams.4

1.11 The sunset clause received a great deal of attention in the submissions and evidence put before the committee, as discussed in the majority report. The lack of clarity on the process compounds concern about the sunset clause. While we appreciate the reasoning of the government in including a sunset clause and share the aim of ensuring that legislative recognition does not become a substitute for the

2 Mr Russell Taylor, AIATSIS, Proof Committee Hansard, p. 11.

3 Mr Les Malezer, Co-Chair, National Congress of Australia's First Peoples, Proof Committee Hansard, pp. 6-7.

4 Professor George Williams, Foundation Director, Gilbert + Tobin Centre for Public Law, University of New South Wales, Proof Committee Hansard, p. 19.

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necessary constitutional change, we also share the concerns expressed by some that the sunset clause dilutes the significance of the Bill.

1.12 This inquiry has also provided an opportunity for reflection on the purpose of a referendum, and submitters such as Congress, ANTAR and the Human Rights Commission have provided useful evidence that should be incorporated into the

debate. Notably we are disappointed that the recommendations of the Expert Panel in relation to removing discrimination in the Constitution and providing Constitutional non-discrimination protection were not reflected as a desirable outcome through the processes outlined in the Bill.

1.13 For example, Les Malezer from Congress states that during the expert panel discussion, Congress:

…ensured that Aboriginal and Torres Strait Islander communities were consulted so that the recommendations made by the expert panel reflected a balance of providing recognition as the First Peoples in Australia, along with a protection of interest—that is, non-discrimination provisions in the Constitution... If it was just to look at the preamble paragraph to provide recognition as the first peoples, for example, we feel that that is not consistent with the discussions we had out there in the community and the balance that people wanted between having recognition as well as some substantive protections provided in the Constitution for the first people.5

1.14 AnTAR told the committee that the:

…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.6

1.15 The Gilbert + Tobin Centre of Public Law told the committee:

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

5 Mr Les Malezer, Co-Chair, National Congress of Australia's First Peoples, Proof Committee Hansard, p. 1.

6 Ms Jacqueline Phillips, National Director, ANTaR, Proof Committee Hansard, p. 13

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to think that they need to fix the Constitution to move beyond the values of the time.7

1.16 The Australian Greens share this view 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 commitments under both Close the Gap and the United Nations Declaration on the Rights of Indigenous Peoples.

1.17 Furthermore, both AIATSIS and the Human Rights Commission focused on how a lack of recognition impacts on the social and emotional wellbeing of Aboriginal and Torres Strait Islander people, particularly young people. The Australian Greens agree that at each step it is crucial that this process improves emotional and social wellbeing among Aboriginal and Torres Strait islander people and that above all it takes care to avoid creating significant uncertainty within the process that triggers distress or disengagement by Aboriginal and Torres Strait Islander people.

1.18 The submission from Recognise also demonstrated how difficult it is to advocate for a successful referendum when the model of that referendum is so unclear and the enduring problem this presents to their work to build public awareness.

1.19 Similarly, when talking about the polling that Recognise has already undertaken to test public support and the challenges of gauging the willingness of the general population to support a referendum on constitutional recognition, Ms Broun from Congress noted:

…it has to be done in parallel with really strong leadership and engagement with the broader community and also education. I think we have to have a lot more education of the community. It is great to poll people before they have the information but let us poll them when they are fully informed as well. I think we have to move people through this process and I think that takes a lot of political leadership as well.8

1.20 The Australian Greens share the view of those submitters who indicated that the work to educate the community and build support for a referendum is very difficult without greater clarity about the model and multiparty commitment to that model.

1.21 Subsequently the Australian Greens share the concerns about a review process which weighs public willingness equally to best practice, given the difficult task of building public awareness and therefore the difficulties associated with assessing the likelihood of success of particular models.

1.22 Submitters such as Congress have outlined the need for commitments to occur well before the review process gets underway, rather than there being no other significant triggers for commitment and progression between the passage of the Bill and the completion of the review process.

7 Professor George Williams, Foundation Director, Gilbert + Tobin Centre for Public Law, University of New South Wales, Proof Committee Hansard, p. 18.

8 Ms Jody Broun, Co-Chair, National Congress of Australia's First Peoples, Proof Committee Hansard, p. 4.

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1.23 The Australian Greens agree that the Joint Select Committee provides a framework for such triggers and other milestones to be developed and acted upon. Submitters have acknowledged the significance of having several of the parliamentarians who served on the Expert Panel included on this committee and their expectation that this will provide continuity in that work.

1.24 However, some submitters also raised concerns and questions and provided suggestions about how this Joint Select Committee might continue to ensure that it achieves effective engagement with Aboriginal and Torres Strait Islander peoples. The Australian Greens acknowledge those concerns and also emphasise the importance of ensuring that there are real opportunities for on-going engagement by Aboriginal and Torres Strait Islander peoples.

1.25 Similarly the Australian Greens acknowledge that while Recognise noted 'we hope the day the act passes will be a major milestone on the journey to full constitutional recognition. It will be the day the parliament makes its down payment of good faith for the journey ahead for the rest of us,' the work of Recognise is currently only funded to the 18 month mark of the life cycle of this Bill.9

1.26 It is the view of the Australian Greens that one way to demonstrate commitment and leadership would be to ensure that the resources that submitters have demonstrated to be required for education and engagement are available.

1.27 In conclusion, the Australian Greens recognise that the submitters presented some significant issues not just relating to the Bill, but also about the path to constitutional recognition, that must be addressed by the Joint Select Committee in consultation with Aboriginal and Torres Strait Islander Peoples as it continues to develop both multiparty support and a clear path towards a success for referendum.

Senator Rachel Siewert Senator for Western Australia

9 Mr Tim Gartrell, Campaign Director, Reconciliation Australia/Recognise, Proof Committee Hansard, p. 2.

APPENDIX 1 Submissions received

Submission Number Submitter

1 Professor Anne Twomey, Faculty of Law, The University of Sydney

2 Gilbert + Tobin Centre of Public Law

3 Ms Elisa Arcioni, The University of Sydney

4 Professor Helen Irving, Faculty of Law, The University of Sydney

5 Australians for Native Title and Reconciliation (ANTaR)

6 Law Council of Australia

7 Australian Christian Lobby

8 Central Land Council

9 Redfern Legal Centre

10 NTSCORP Limited

11 NSW Reconciliation Council

12 Department of Families, Housing, Community Services and Indigenous Affairs

13 Reconciliation Victoria

14 Human Rights Law Centre

15 Reconciliation Australia and Recognise

16 NSW Aboriginal Land Council

17 Australian Lawyers for Human Rights

18 National Congress of Australia's First Peoples

19 Australian Institute of Aboriginal and Torres Strait Islander Studies

20 Australian Human Rights Commission

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21 The Australian Psychological Society Limited

22 Oxfam Australia

23 Public Interest Advocacy Centre

24 St Vincent de Paul Society, National Council of Australia

APPENDIX 2

Public Hearings and Witnesses

SYDNEY, 22 JANUARY 2013

BROUN, Ms Jody, Co-Chair, National Congress of Australia's First Peoples

CHALMERS, Major-General Dave, Group Manager, Indigenous Coordination Group, Department of Families, Housing, Community Services and Indigenous Affairs

DICK, Mr Darren, Director of Policy and Programs, Australian Human Rights Commission

DOHERTY, Ms Amanda, Branch Manager, Reconciliation and Relationships, Department of Families, Housing, Community Services and Indigenous Affairs

DUFF, Mr Nick, Senior Project Manager, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies

GARTRELL, Mr Tim, Campaign Director, Reconciliation Australia/Recognise

HOSCH, Ms Tanya, Deputy Campaign Director, Reconciliation Australia/Recognise

KILDEA, Dr Paul, Director, Referendums Project, Gilbert + Tobin Centre of Public Law, University of New South Wales

MALEZER, Mr Les, Co-Chair, National Congress of Australia's First Peoples

PARMETER, Mr Nick, Manager, Civil Justice Division, Law Council of Australia

PHILLIPS, Ms Jacqueline, National Director, ANTaR

PRITCHARD SC, Dr Sarah, Law Council of Australia

TAYLOR, Mr Russell, Principal, Australian Institute of Aboriginal and Torres Strait Islander Studies

TRIGGS, Professor Gillian, President, Australian Human Rights Commission

TWOMEY, Professor Anne, Private capacity

WILLIAMS, Professor George, Foundation Director, Gilbert + Tobin Centre of Public Law, University of New South Wales