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Constitutional Recognition of Aboriginal and Torres Strait Islander 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

TRIGGS, Professor Gillian, President, Australian Human Rights Commission


CHAIR: Welcome. I do need to remind committee members that an officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to the minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were developed.

We have a submission from the department which we have numbered 12 for our purposes, and, from the Human Rights Commission, a submission which we have numbered 20.

Professor Triggs, I am going to give the invitation to you to speak to that submission now and then we will go to questions, and then I will come to FaHCSIA.

Prof. Triggs : Thank you very much. We are pleased, of course, to have the opportunity to appear before the committee. Perhaps I could point out that Mick Gooda, our Aboriginal and Torres Strait Islander Social Justice Commissioner, sends his apologies—he had another commitment and was not able to come—but he has been, ex officio, a member of the expert panel and also, as you may know, the commission has hosted the adviser to the expert panel. So we have been engaged in this, through our commissioner, for quite some time. We very much welcome the creation of this joint select committee and we think it is an important step in achieving the multiparty support that has been spoken of today and building a momentum towards a referendum for constitutional recognition of Aboriginal and Torres Strait Islander peoples.

In short, we very strongly support the passage of the recognition bill through parliament, but we do so on the clear understanding that, from our perspective, the bill is a step only to constitutional recognition, which we strongly support. The bills should not be seen as some sort of substitute for recognition in the future, and we would like to see that that is avoided.

I would like to make two short comments: (1) about the features of the bill and (2) about implementation of it. With regard to features of the bill, we consider that the language of recognition is adequate but it could be a great deal stronger, and we would, in particular, support something we have argued for for some time and that is the point that has been made by Professor Williams: that there should be some very clear statement that a primary objective is to prevent discrimination on the grounds of race. It is a message that Australians understand. We see it daily coming through our complaints process in the commission, and we think it would have a strong impact and be something that all Australians could understand and, we believe, support.

In our submission we have also noted precedents that I think are helpful in the Native Title Act and the Aboriginal and Torres Strait Islander Act which use stronger language that might be appropriate for the purposes of the act.

Another point as a feature of the bill we would like to raise is the sunset clause. We suggest that it either be deleted or be made clearer. We are not entirely sure what its purpose is. And we think that there is no logical connection between that sunset clause and the rest of the bill's content. However, we take a particularly pragmatic approach to this. We understand this is an important step forward. We simply make these suggestions by way of being helpful but we would not in any way want to see any threat to the implementation and passing of the bill.

With regards to aspects of implementation, first, I would like to really consolidate and build on the point that Prof. Williams has made and that is the notion of public engagement and education. It is a very important part of the commission's role but in particular we would like to stress the continued participation of Aboriginal and Torres Strait Islander peoples at every stage of the process towards a referendum. A key recommendation of the expert panel's report has been that if changes other than those recommended in the report are to be put to a referendum, the government should consult further with Aboriginal and Torres Strait Islander peoples. We would not like any sense that, as they have been consulted, we now move the debate to a wider public. Of course we want to see that wider debate but we also want to be absolutely certain that we have continued engagement with Australia's first peoples.

We also acknowledge that the committee has a mandate to develop mechanisms to build engagement and support for constitutional recognition but we would like to see an explicit requirement to consult Aboriginal peoples and Torres Strait Islander peoples and organisations. That, we think, would be a stronger recognition in itself in the act that consultation should continue. We do encourage the committee to develop some form of maybe an accompanying document that sets out how steps might be taken in building the work of the committee towards a referendum. Something that is not to be included in the legislation itself but which would accompany it in appropriate ways would, we think, provide pathways and clarity for the public to see where you hope to take your work and what the outcomes would be, broadly speaking. But we think something that establishes steps and a pathway would provide a clearer sense of where we are going in the months and years of the committee's work.

We also strongly support the creation of an advisory body whose membership includes members of the Aboriginal and Torres Strait Islander community and also the wider community. I noticed, Madam Chair, that you mentioned the Irish example and the consulting with children. It is slightly off your point I know but the Attorney-General has, through the commission and through her own department, been consulting children in relation to the appointment soon to be announced of a children's commissioner. We have just been doing a bit of work on this and 25 per cent of Australians are children. We are really rather keen to see a much greater level of consultation. Obviously constitutional amendments is a very sophisticated subject but to engage in questions like racial discrimination, which I think captures the issue rather than the complex constitutional argument gets to the range of people that will be benefiting from this constitutional change and from the process. So I rather liked your example. It was a very nice one.

CHAIR: Major General Chalmers, you are going to speak for FaHCSIA?

Major Gen. Chalmers : I would like to start by acknowledging the traditional owners of the country on which we meet and elders past and present. The department thanks you for the opportunity to appear today before the committee but we have no opening statement.

Senator SCULLION: I have some questions for clarification. I am not absolutely sure about the motivation. I have verballed government by suggesting the motivation for the bill as generously as I could. But there are a couple of submissions that highlight what, I think, people could reasonably say are obvious omissions given some of the fundamental recommendations of the expert panel. I think the first area is the term 'securing the advancement of' and issues to resolve that in this bill. The other is clause 4. One would expect it normally to include a reference to the removing of the race provisions.

I think a lot of people were surprised not to see that in the context of the reading of the expert panel's report. I was wondering whether you would be able to comment on your motivation for excluding those particular issues.

Major Gen. Chalmers : The bill is an act of recognition. It is a step in the process towards constitutional recognition. The government is firmly of the view that it should not be seen as in some way replacing 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.

Senator SCULLION: Given that your principal answer to my question going to the motivation of the bill is that the bill is an act or recognition, why would you give an act of recognition a sunset clause?

Major Gen. Chalmers : Again, I think 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.'

Ms Doherty : I would just add that it was not thought appropriate to include in an act of parliament other recommendations of the expert panel that go to the constitutional change—such as changing section 25 or whatever. With racial discrimination, there already is the Racial Discrimination Act. The government is committed to a prohibition against racial discrimination, so it was not thought necessary within the bill itself.

Senator SCULLION: Professor Triggs, part of your submission links this recognition with Closing the Gap. Could you explain to me why it should expand from a recognition—and I think people understood what recognition was—to include the excellent motivation of Closing the Gap and why they should be reflected in this bill?

Mr Dick : We put that in as a suggestion, being an area where we know that there is bipartisan commitment already through the Closing the Gap process and also because the panel itself, with its proposal around advancement, was also looking to there being an explicit recognition that there remains a situation of disadvantage experienced by Indigenous people. That is purely the reason that it was proposed.

Senator SCULLION: The only other part that springs to mind was the inclusion of the issues about dispossession in the bill. We are dealing with a transitionary path and this is a committee that is looking into a specific bill, but clearly we are talking about the future and getting to a place. So I find some difficulties in specifically asking this question and perhaps you could answer it the best you can. I am not sure if your intention was to allow the scope of this constitutional change via this bill to include the issues of dispossession or was it specifically a recommendation to include the issues around dispossession as part of a constitutional change?

Mr Dick : The submission says that the commission is concerned that there is not sufficient acknowledgement that dispossession has had a serious impact on Indigenous cultures, continued livelihoods and those sorts of things. We specifically at point 1 in our submission note that there has been what we think is a more appropriate level of recognition in what was originally the Aboriginal and Torres Strait Islander Commission Act but is now the Aboriginal and Torres Strait Islander Act in the Native Title Act and, as AIATSIS pointed out, the Council for Aboriginal Reconciliation Act.

It is really about telling the story in a way in which this situation has evolved over centuries and inspiring people, that it is something we need to rectify. In this case it is a Constitution that continues to permit discriminatory treatment, that Indigenous peoples have suffered as a result of that and that, basically, we desire for them to have the same chance as everybody else has.

If you look to the language in the preambles of those three acts that I mentioned you will see that it is much more clear in what it is saying. It is much stronger in its aspirations. It refers to everything, including international treaties around preventing racial discrimination. Even the Council for Reconciliation Act has a very simple preamble, but it basically says 'It is desirable that we achieve reconciliation by 2001.' So it is not at some time in the future. It is very clear. We desire that, as part of this, we have an ongoing national commitment from governments at all levels by this state. It is more about a story that tells you why we need this in the first place, acknowledging that it has had a real impact on people and continues to do so.

In terms of what is then ultimately in the referendum we have said that we support the panel's recommendations and we think they are the starting point. It is the role of this committee, it is the role of other processes that will follow as to what the exact wording will be, whether it be words like 'advancement' or whether there are other words that would be better. We are not suggesting that that is what the actual recognition should be at this point. We think a big conversation should occur before we get there.

CHAIR: Mr Oakeshott, do you have a question?

Mr OAKESHOTT: I am not sure whether the witnesses heard all the evidence from this morning. But there was a suggestion for some special commissioners to work with the joint committee and to have a close link with the national congress. There has been some talk about greater emphasis in the act on the expert panel's recommendations. Then Professor Williams gave some evidence seeking greater wording around racial discrimination and the very point of what we are trying to do in removing race-based elements of the Australian Constitution. I just wonder whether any feedback could be given on any or all of those points of evidence received this morning.

Prof. Triggs : We would certainly support the linkages that are being suggested, the expansion of the role of the advisory group, with special commissioners. That all seems extremely helpful, sensible and part of the widening of the process of expert consultation. That simply needs to be developed and I am sure it will be. I am agreeing with the suggestion that special commissioners deal closely with the advisory group and the suggestion that that advisory group include additional members would certainly be supported by the commission.

Another point—and I do think it is a good one, as I said a few moments ago—is that it would be helpful to have a greater emphasis on some of the major points that were made by the expert panel, because they were well thought through, developed and so on. I can see the value of including them in this bill and ultimately the legislation. In particular, I think the point about eliminating racial discrimination is the core idea behind this. It is very difficult to sell constitutional ideas. People do not understand it. We clearly need leadership, as Professor Williams has pointed out. We need public education and leadership on this issue. But I think if the core language were to be wrapped around the idea of ending race discrimination that would, I think, be a message that Australians would overwhelmingly support.

CHAIR: Mr Oakeshott, any other questions from you?

Mr OAKESHOTT: No, that is it. Thank you.

Ms SAFFIN: I have a question for Professor Triggs. The committee heard concerns from some witnesses and in submissions about the omission from clause 3 of the bill of an acknowledgement to secure the advancement. It is around that word and concept of Aboriginal and Torres Strait Islander peoples. Does the commission have a view on whether these words should be included in the bill? Also, more broadly, does the commission have a view on the suggestion made by Professor Twomey in her submission that the use of the word 'advancement' could be interpreted as being racist?

Prof. Triggs : 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. It is an old phrase—it is an American phrase actually, from the notion of advancement of coloured people, if I remember correctly. One has to be careful about language and I think that maybe Professor Twomey has a point. 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.

Ms SAFFIN: Thank you for your comment on that. It is one of those issues that elicits a lot of discussion—just trying to get it right. Everyone is clear on the concept and what everybody is trying to do; it is about how to best express that. I also have a question for FaHCSIA—either Ms Doherty or Mr Chalmers. It is to do with the review. Several submissions suggested that the review, as it is currently framed in the bill, would be too focused on identifying the most popular proposal—that is their interpretation of it, not ours—for constitutional change as opposed to the best proposal that can secure popular support. Could you respond to this notion.

Major Gen. Chalmers : I might hand over to my colleague in a minute, but I just say 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.

Ms Doherty : I do not have too much to add to that. I think the government sees the committee's role as working through these issues around the support that will be needed, acknowledging the complexity of the bipartisan support as well as community support and Aboriginal and Torres Strait Islander agreement with the issues. It is a difficult issue, I agree.

Ms SAFFIN: Ms Doherty, leading on from that, we heard from everybody today, and in the submissions everybody is saying that detail is lacking in terms of a plan. Would you like to comment on that. Overwhelmingly, everybody is saying, 'Show us your plan, show us your plan—the next steps.' Could I hear from you, please.

Ms Doherty : The setting up of the review provision and the joint select committee in our view sets up a process for the committee to work through what is the right process. Also, there is You Me Unity working through its community awareness and support raising. The two need to be in sync, to work together to progress constitutional recognition.

Major Gen. Chalmers : I might add that plans are great but this is an endeavour which we cannot afford to fail on. Setting in place a plan now which locks us into certain milestones and certain decisions could set us up to fail. 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.

Ms SAFFIN: That is why, in hearing from a lot of people, I do not support the view that because of all that is not in place nothing is happening. The fact that all of this is in place is good architecture. It is good political architecture to move us forward. I can see that clearly.

There was just one other issue you raised, Professor Triggs, in terms of some of those steps. It was not locking us in, as Major-General Chalmers was saying, but just a bit more about process. You said something not in the bill but outside it. Were you thinking of something like an explanatory memorandum or something like that or just some statement?

Prof. Triggs : Without being legally technical, and one does not need to be, something of the adoption of a modus operandi for the committee that would be a public document, again obviously not in a way that locks you in unacceptably but states how you are going to work, your working pattern, what you hope the outcomes to be over periods of time. I think that would be very important public communication of how you are operating. But certainly nothing of any formal legal standing.

CHAIR: Major-General, could you outline for me the process that FaCSIA underwent in drafting this bill? Your submission says it was done in consultation with Aboriginal and Torres Strait Islander people and key stakeholders. Perhaps you could outline who they were and how that occurred.

Major-Gen. Chalmers : Consultation was conducted with a number of key stakeholders. As we said in our submission, it included the national congress, most importantly, ANTaR. Reconciliation Australia were a key player in assisting us in developing the position. All of the former expert panel members were consulted and their views had a strong influence in how the bill was developed.

CHAIR: Some of those groups clearly think there are some aspects of the bill that do not go far enough. I am assuming you did not take that advice on board, or the minister chose not to take that advice on board.

Major-Gen. Chalmers : Going to what the department advised the minister probably is not something I should canvass, but nonetheless I think it is fair to say that we consulted very carefully and took on board the advice of particularly the expert panel but a wide range of the key stakeholders. Clearly then it was a decision for the minister on exactly what was possible and what was most useful to proceed in the exposure draft and then in the bill itself.

CHAIR: The fourth recommendation from the expert panel is not in the legislation and people have commented extensively on that today. Is there a reason for that or a background to that?

Major-Gen. Chalmers : My understanding is that it was contentious and putting things that are contentious at this step of the process could cause a hiccup, to put it colloquially, at a point where we do not want one. We are trying to build momentum, we are trying to move on. I do not think this bill should be seen as a be-all and end-all. In fact, it is not meant to be seen as the be-all and end-all. It is simply one more step, an important step but nonetheless one more step. So it does 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. As you well know—I am not telling you anything here—the government is committed to elimination of racial discrimination in all its forms. There is a legislative act that deals with that and in this case it was seen that the act of recognition should not canvass that issue again. That is not to say, and in the minister's second reading speech she made it very that government's objective, and hopefully a bipartisan objective, is to eliminate the racial discrimination aspects of our Constitution.

Ms Doherty : I add that simply because it is not in the bill does not mean it cannot be considered by the committee in any wording for constitutional reform.

CHAIR: As there are no further questions, I thank the four of you for your willingness to appear before this committee today and for your submissions. In closing the committee hearing today, I thank all witnesses for their appearance and their assistance. Thank you very much.

Committee adjourned at 12:49