Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
Roundtable discussion

ARMSTRONG, Ms Leah, Chief Executive Officer, Reconciliation Australia

COOMBES, Mr Lindon, Chief Executive Officer, National Congress of Australia’s First Peoples

DAWSON, Mr Peter, Co-Chair, Indigenous Youth Engagement Council, National Centre for Indigenous Excellence

GARTRELL, Mr Tim, Campaign Director, Recognise

GOODA, Mr Mick, Aboriginal and Torres Strait Islander Social Justice Commissioner

HOSCH, Ms Tanya, Deputy Campaign Director, Recognise

HIGHLAND, Mr Gary, National Director, ANTaR

MALEZER, Mr Robert Leslie, Co-Chair, National Congress of Australia’s First Peoples

STRELEIN, Dr Lisa, Director, Corporate Strategy, Australian Institute of Aboriginal and Torres Strait Islander Studies

Committee met at 11:21

CHAIR ( Senator Crossin ): I declare open this public round table discussion convened by the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. On behalf of this committee, I would like to acknowledge that this hearing is being held on the traditional lands of the Cadigal people of the Eora nation. I do pay my respects to those elders both past and present. I want to also extend that respect to other Aboriginal and Torres Strait Islander people who are present here today.

These are public proceedings. We have cameramen here who will be filming us for some of the time. I remind them that committee members' and participants' laptops and personal papers are not to be filmed during the proceedings. I also remind all participants that in providing information to the committee you are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a participant on account of evidence given to the committee and such action may be treated by the parliament as contempt. It is also contempt to give false or misleading information to the committee. I thought this morning to get us started each organisation might like to present a few thoughts on the topic for three to five minutes and then we will have a general round table discussion.

Mr Malezer : Firstly, I would like to add an apology on behalf of the other co-chair, Jody Broun, who is unable to be here today.

Dr Strelein : I would also like to pass on apologies from our chairperson, Professor Mick Dodson, and our principal, Russell Taylor, who obviously have a strong interest in this issue but are unable to be here today.

CHAIR: To set the scene, I thought we might give everyone three to five minutes to lay out some views on where people are at with this agenda. I will start on behalf of the committee. As you know, we have handed down the report into the act of recognition. We have been meeting each time that parliament has met, which has not been very often yet, this year. We had a discussion with people from Recognise at one of our meetings, and we have decided in the first instance to continue that discussion. There was another meeting between the committee and Recognise this morning for an hour for the committee to touch base with where their campaign is at, the research they have done and some forward planning that they have got underway. This is the first of what we see as a number of round tables. Predominantly, I think where we are now at is starting to look at the recommendations of the select committee and to finetune what we think the question would be to put to the people. I think the next step for this committee is to focus on what it is that we would like people to vote on during any constitutional referendum.

We are very conscious of the fact that we are constrained with the election coming up. There are only five sitting weeks of the parliament left, and two of those are Senate estimates. We have decided that, during the Senate estimates, we will meet again with Recognise. We are unsure as to whether or not we will get in another round table before the election because we need broader committee members to have input into that. At this stage, we will still proceed as much as we can with the work on the agenda, given, of course, that we are facing quite a number of weeks and months when the parliament will be prorogued and we wait to see what happens. Essentially, that is where we are at.

In order to progress our work further, we need to have this round table discussion today and some input from some of the key players and key organisations. Thank you for your attendance today. Who would like to go first? Will we start with you, Tim and Tanya, as Recognise?

Mr Gartrell : We appreciate the time we had this morning to bring the committee up to speed with a lot of the information that we have already shared with most other people in this room. To go to our submission very quickly, and being mindful that we did have some time with you this morning, we think it is really important that the committee does not seek to restart the expert panel process. This is so that the committee continues to progress the issue rather than go back and reinvent the whole process again. We think the expert panel did a very thorough job. The consultations were very wide and deep, and the expert panel's report should be used as a starting point to help move things along. This should give the committee confidence that it does not need to go back and restart a whole range of consultations.

Similarly to what you said before, Senator, we believe that the tasks really need to be broken down so that this committee can hand over to the next. I understand that select committees get prorogued and then reformed, so our view would be that, if there is a discrete amount of work that can be carved off for this committee as it is formed and handed onto the next one, again, that will stop a reinvention and another delay in progressing the model.

Ms Hosch : We also noted in our submission the need to have all the engagement with this committee accessible and transparent, particularly in relation to making those processes readily available for Aboriginal and Torres Strait Islander people to participate in. We think having that transparency is important. We also think that, because of our demographics and because of the active nature of younger Aboriginal and Torres Strait Islander people on this issue, it is really important to engage with those groups around the country. That is really important and we are very happy to help the committee to try to facilitate that engagement with some of those youth committees around the country.

Obviously there needs to be as much broad engagement with the depth and diversity of Aboriginal and Torres Strait Islander leadership as possible because it is very diverse. The work in engaging with those groups is going to need to be ongoing and there needs to be open dialogue. We think that a group even like this as a starting point is a good representation to get that ball rolling. We also know from our engagement with Aboriginal and Torres Strait Islander people that there is an expectation that the engagement between the committee and the processes is frank and open, particularly around the way that the model is designed. There is definitely a great deal of interest from Aboriginal and Torres Strait Islander people to be involved in the development of the process as broadly as possible, not just through a few leadership organisations. Obviously, it is important to use the assets that we do have available. Organisations such as the National Congress of Australia's First Peoples and other Indigenous organisations to help facilitate a lot of that engagement.

Mr Gooda : I was a member of the expert panel. We went through a long, in-depth process of consultation. We came up with a series of recommendations and we believe that is the basis of where we should start from. I do not think there is any great value in redoing that process. You can take some hints from the panel's foreword, that we understood that there would be a political process following the submission of our report and what we put in might not come out the same way as it was originally presented. Our view is that we would stand ready for any consultation on any changes that would occur. To be realistic, that is going to happen whether we are there or not. Any changes to the recommendations that are going to be put to the people would be run by the panel either collectively or individually. I am suggesting that the joint select committee should look at that collectively rather than doing it individually—which the media would do anyway. I think it is a great starting point. The panel understood that it might not quite be the same as that presented.

In saying that, there are a few points I want to make. It was an in-depth consultation process. People said that we overstepped our boundaries with the terms of reference. We were asked to just look at constitutional recognition. But in our consultation phase, and a lot of Aboriginal and Torres Strait Islander people knew this, we recognised that to be recognised we wanted something meaningful and for us that meant looking at the things that are being used against us, particularly sections 25 and 51(xxvi). We have come in with our recommendations to repeal those parts.

The other important recommendation goes to the non-discrimination recommendation. That was overwhelmingly the view that we got from our consultations, particularly when we talked about it conjunction with the treatment of Aboriginal and Torres Strait Islander people and indeed other people through those other two sections in the Constitution.

The repeal of section 51(xxvi) presented some difficulty for us in how you would keep the validation of things like the Native Title Act and some of the heritage protection acts—the things where that power has been expressly used to enact laws in this country. What we came up with is the new power. Maybe questions should be how we validate things like the Native Title Act if we do repeal section 51(xxvi) and put that challenge to the committee rather than creating a new power that, I think, talks about advantage.

You are going to come across a whole range of views in the Aboriginal world. We have to take notice of those views; however there has been an overwhelming sense from the Aboriginal and Torres Strait Islander people I talk to—even though there is that wide range of views—that the majority of people want this to happen. I do not think we should be surprised. As a matter of fact, I am encouraged that we have that range of views across the Indigenous community. It is impossible to expect any part of the community to talk with one voice and I do not know why it always seems to be different for us—that we have to have this one view. The recommendations are a great starting point and I endorse the words of Tanya and Tim about how we move forward on this.

CHAIR: Okay. Who would like to go next? I am going to jump to the congress.

Mr Malezer : If I might make two quick observations and hand over to my colleague Lindon Coombes, I just want to reiterate—as you are already aware—the congress was purposely established to promote and protect the rights of Aboriginal and Torres Strait Islander peoples as first nation peoples. Secondly—again as members of the committee are already aware—congress has welcomed the opportunity to talk to parliamentary committees in relation to the issues as a way of engaging them. We do not have a partisan view in relation to governments but we certainly welcome this opportunity. I will finish by saying that it is an honour to participate at a round table with our esteemed colleagues; we are pleased to be here. I will hand over to Lindon who can make a statement for us.

Mr Coombes : Are you happy to take prepared statements?

CHAIR: Sure.

Mr Coombes : Firstly, we would like to acknowledge the traditional owners of the country, the Gadigal people of the Eora nation. We pay our respects to them for the privilege of being able to meet here.

As the committee is aware, the congress is a national representative body for the Aboriginal and Torres Strait Islander peoples of Australia. The United Nations Declaration on the Rights of Indigenous Peoples is the foundation and guide for congress in upholding and strengthening our collective and individual rights in recognition of our status as first peoples. Congress has a responsibility to ensure the intent of the declaration, and the rights expressed in it, are embedded in Australian laws, practices and institutions and to ensure that our peoples are aware of their rights and are supported in their pursuit of those rights. We are concerned with ensuring the rights of Aboriginal and Torres Strait Islander peoples are recognised and understood. We are very conscious of the need to establish and maintain a productive relationship with the government to ensure that the right to self-determination and free, prior and informed consent are observed.

Congress recognises the diversity of views among first peoples and congress members on this important topic, surveys of our members overwhelmingly demonstrate their support for constitutional recognition and the elimination of racial discrimination in the Constitution. As the committee is aware, congress representatives were included on the expert panel that delivered its unanimous report to government in January 2012. We emphasise that the panel's recommendations were unanimous across the 22 panel members—representatives drawn from across the political spectrum including parliamentarians, conservatives, progressives, business leaders, academics and lawyers, Aboriginal and Torres Strait Islander people and non-Indigenous people.

The expert panel's recommendations were the result of an enormous amount of time, resources and engagement. The expert panel ensured that Aboriginal and Torres Strait Islander communities were consulted so that the recommendations reflected a balance of views of the first peoples of Australia. The recommendations were carefully researched to ensure legal clarity and were widely supported during the consultations and focus-group meetings undertaken by panel members. The expert panel's recommendations were designed to make simple but substantive improvements to the Constitution and at the same time have the potential to receive popular support in a referendum. Through surveying our own congress members we know the recommendations are widely supported by our membership. Congress continues to support the expert panel report and its recommendations. We reiterate that the recommendations must be accepted and endorsed as a framework for constitutional reform. If there is any question to vary from this framework and all of the recommended changes, any new proposals will require a negotiation with Aboriginal and Torres Strait Islander peoples.

In the time since the expert panel's report was released congress has been working to promote the case for constitutional reform, to inform ourselves and our peoples about these important proposed reforms and to encourage debate and discussion about constitutional recognition. We are currently focused on the development of educational materials congress members and Aboriginal and Torres Strait Islander communities. We have held a number of community forums around Australia regarding constitutional recognition and will continue to hold forums on a regular basis. There have been held in Blacktown, Dubbo, Port Augusta, Launceston, Bowral, and with Jumbunna at the University of Technology, Sydney. We are also working with Recognise to support the campaign Journey to Recognition.

Congress supported the Act of Recognition as an appropriate step towards our objective: a successful referendum that delivers true recognition and equality for first peoples, substantive reform not just symbolic recognition. To that end we have consistently called for both major parties to make serious commitments to the expert panel's five major recommendations and to the timing for the referendum. Together with this multipartisan commitment and political leadership congress supports a persuasive community led campaign to ensure that all Australians can understand and support the fundamental need for these reforms. We welcome the committee's efforts in this regard and strongly advocate for a continued level of energy and engagement to continue to build popular support.

As there is a two-year sunset clause in the Act of Recognition, we need strong and concrete steps to lead us down that path over the next two years. Congress encourages a two-year plan that genuinely engages the community broadly and also the Aboriginal and Torres Strait Islander communities. We suggest that there are a range of processes that might be used during this period such as a constitutional convention or summit to generate awareness and community support to ensure a successful referendum in the next term of government. Congress welcomes further discussions regarding these proposals. Congress encourages the committee to ensure a timetable is outlined prior to the September election to ensure that continuity and momentum remain with the reconstituted committee post-election.

We conclude by reiterating that, consistent with the UN Declaration on the Rights of Indigenous Peoples, Aboriginal and Torres Strait Islander people should provide their free, prior and informed consent to legislation for their benefit. The full participation of Australia's first peoples in every stage of the process of developing a model for consideration by all Australians is an essential principle. This approach ensures that Aboriginal and Torres Strait Islander people's views are never far from the process and offers a model of genuine partnership and reconciliation.

CHAIR: Thank you very much for that. Leah, I am going to go to you as a Reconciliation Australia next.

Ms Armstrong : Thank you very much, Chair. I do not want to reiterate because I think Tanya and Tim have covered off both Recognise and Reconciliation Australia's submissions quite well. In summary, we have been given the opportunity to lead the public education campaign movement, and constitutional recognition has been the major next step in the reconciliation movement for quite a few years. It was a major recommendation on the winding up of the Council for Aboriginal Reconciliation. So for us this is a very important opportunity to take that next step in reconciliation. Also the fact that we have, as Lindon has just said, the multi-party commitment, that the Act of Recognition has been passed and we do not want to lose the momentum. We see it is quite important, as you said, that there be some clear steps taken in the next term to help the movement along, to help us generate that public education campaign and keep it high on people's public radar and agenda.

I know Tim and Tanya spoke to you earlier about what we are doing around that, around the Journey to Recognition, around our partnerships and relationships with community organisations and we are holding many events and constitutional recognition. I think we do need to continue that movement by getting some sort of clear process going forward. As Mick and Tanya have said: we do not want to reinvent, we want to move forward on this.

CHAIR: Gary, can we come to you for a few comments to start with?

Mr Highland : My name is Gary Highland and I am the National Director of ANTaR. In the interests of transparency I should also inform the committee that I worked as the executive officer to the expert panel for the year that the panel was in operation, but I am here in my ANTaR capacity. ANTaR welcomes the opportunity to speak to the committee about our views on this issue. We believe that the recommendations of the expert panel should form the basis of any constitutional amendment that is put to the Australian people in a referendum.

We commend the panel's processes and its report. We remind the committee that the panel visited 85 different communities during its year in operation. It received more than 3,500 submissions and it was also informed by qualitative and quantitative Newspoll research. We think the fact that such an eminent and diverse group of Australians would produce a unanimous report also speaks highly. However, we also note that there has been public comment in response to the panel's report—by people such as Professor George Williams, Professor Anne Twomey, Professor Frank Brennan and Professor Greg Craven, as well as people like Warren Mundine, all of whom would maintain that they are supporters of constitutional recognition, but they had some concerns about elements of the expert panel's report. We urge the committee to also engage with those people, to ensure that any amendment is further refined and also take into consideration both the panel's report and the public comment that has been made by people in response to the panel's report.

As well as legal experts, we hope that the views of the thousands of Aboriginal people who engaged with the panel are also part of this process. As Mick has pointed out, there was a diversity of views expressed to the panel. But if you go through the records of the consultations and the submissions, there are really some themes that keep emerging again and again. I have drawn out three themes that I think were really important to people who engaged with the panel—particularly Aboriginal and Torres Strait Islander people. Firstly, people wanted recognition in the Constitution and greater inclusion in the life of the nation. They felt that their absence from the founding document matched the historical exclusion that many Aboriginal and Torres Strait Islander people have experienced from other aspects of Australian society.

Secondly, Aboriginal and Torres Strait Islander people told the panel that they wanted the discriminatory elements of the Constitution removed. For many of them, these elements were a reminder of the racism that they had experienced in their daily lives, and removing those sections would send a strong message that this kind of behaviour would be no longer tolerated in Australia.

Lastly, people said to the panel that they did not want to be worse off as a result of any change. Their experiences had left many Aboriginal and Torres Strait Islander people wary of any government initiative, no matter how well intentioned, and they wanted assurances that any change would not leave them in a more disadvantaged and marginalised position.

It seems to me that those are modest, reasonable and worthwhile things to ask for, and we would hope that the committee would also take into consideration those sorts of things when it is looking at further refining the model that will go to the Australian people. For ANTaR's part, we want to be a part of that discussion, and we commit to engaging in that discussion in an open, respectful and consensus-building way. I was particularly drawn to the comments that Senator Brandis made in the debate on the act of recognition, when he said that the tone of the debate was important. We agree with that, and we drew on those comments in our submission.

Ultimately ANTaR will be guided by views of Aboriginal and Torres Strait Islander people as to whether we are in a position to actually support the proposed amendment that goes to a referendum. Those people will include the members of our reference group—many of whom are also members of the panel, the current and former social justice commissioners and the National Congress of Australia's First Peoples. We see ourselves as very much a support organisation and we will be guided by the views of Aboriginal people as to our final decision on our involvement in the referendum campaign. However, we are optimistic. We are heartened by the fact that this debate has been a very constructive one. We are emboldened by the fact that this initiative has multiparty support, and as a result we have actually started working very closely with RECOGNISE and other groups to build the grassroots momentum for change.

We detail in our submission the things that we hope to do in the coming year that we hope will make a contribution to a successful outcome, and I have brought one of them along. This is hot off the presses yesterday. It is a little card that we have produced that will initially go to our membership, and it is aimed at giving them some tools to engage in conversations about this issue in their family, their workplace and their community groups. Obviously we have done it for our membership, but it is the sort of thing that we hope would also find use with other organisations and in parliamentarians' electorate offices, government departments and things like that. I have passed a copy of this to the secretariat to pass on to the senators. Thank you.

CHAIR: Thanks for that. Dr Strelein, I am going to go to you. Peter, I am deliberately leaving the best till last.

Dr Strelein : AIATSIS has conducted research and been involved in debates around constitutional reform for more than two decades, and I think it is really important for the committee to be aware that all of this discussion draws on that kind of history of discussion of these issues. The work that the expert panel did draws on long conversations, which are a great opportunity for the committee to play with the models and to get the right fit, because a lot of these have been teased out in discussion over a long period of time. So we can really look at some solid ways forward.

In that context, I think it is very important that the committee ask themselves the right question. In all these discussions, one of the concerns that we have had is that the way that the points for discussion have been framed is to look at the proposal most likely to succeed. In drawing on the importance of this opportunity for constitutional reform and not underestimating its importance for our nation building and the way that the Constitution frames our identity as a country, what we should be looking for is the best option that will succeed, not the option that is most popular. It might be a subtle distinction, but I think it is a really important distinction. We should look at what is the best model that is likely to succeed rather than what is the model most likely to succeed. We risk entering debates about the lowest common denominator, and I think that we can aspire to more than that. We have the time and the opportunity to engage in an educational program and we have opportunities to promote the options that the committee thinks best set up the country for the future. I think it is important that we not underestimate our capacity to drive that forward. So that is one of the points we would make.

The other point I would like to make is that the work of the expert panel, as has already been said, looked at a variety of views—not just taking that as the starting point for the discussion but also recognising that that starting point has already negotiated somewhat of a middle ground and acknowledging that there will be options out there that take a far more radical approach to what the Constitution should look like, whether from the perspective of engaging in a fuller charter of rights and freedoms type discussion or specifically around the rights of Indigenous peoples. So we are looking at what we have in front of us in terms of the panel's recommendations as already having negotiated some of that middle ground about what might be the most appropriate options and the likeliest to succeed. We are recognising the work that has already been done there.

We have lots of time for discussion, so I will not get into details, but we should draw courage and strength from the fact that this is a multiparty commitment and that we have an opportunity to take the idea of nation building and the role of our Constitution in our country very seriously. I mean not just in terms of symbolic recognition but also the practical elements, as Mick said. The constitutional framework for the relationship between the Commonwealth and Indigenous people and the states and Indigenous people has really practical outcomes in terms of how it supports or otherwise agreement making between states and Indigenous people, whether it is under the Native Title Act or under alternative settlement processes; how it might support efforts in relation to language; and the impact that it has on social and emotional wellbeing. So there are both practical, direct impacts in terms of legislative frameworks and indirect impacts in terms of the relationship between Indigenous people and government. I am very happy to talk about some of the more practical ways in which constitutional reform can impact on some of the things we have seen around the way the Native Title Act was negotiated and the relationship between Indigenous people and the states in relation to land. Those are some things that we could explore in more detail over the day as the committee might wish.

Mr Dawson : I want to start by saying that as a young Indigenous person it is a great privilege to be invited to sit at this table with the rest of the leaders in the room. I am here on behalf of the Indigenous Youth Engagement Council, which is a group of young Indigenous Australians from around the country that is brought together by the NCIE. We develop best practice models of engaging with young Indigenous people on the issues that affect us.

In March last year we held an Indigenous youth forum on constitutional recognition. Over 70 young Indigenous Australians travelled to Redfern to learn about the issue, share their own perspective and develop youth campaigns to take back to their communities. The forum was a huge success. We now have a large cohort of young Indigenous leaders around the country from every state and territory skilled up and ready to campaign for constitutional recognition. We plan on releasing our youth report on constitutional recognition in the coming months which will draw on the perspectives of the 70 or so participants who came to the forum last year. In the report our youth council makes a number of recommendations on the proposed changes to the Constitution and also provides a blueprint for an Indigenous youth-led campaign or youth arm of the campaign.

In terms of the Indigenous youth perspectives on changes to the Constitution, our council is of the view that they are incredibly important in informing the proposed changes. This is for a few reasons. First, over half of the Indigenous Australian population is under the age of 25, so for that statistical reason alone it is essential that our views and aspirations form the basis of the proposed changes to the Constitution. But the moral imperatives for our involvement are much deeper than that. We are the generation who will inherit these changes and we are most affected by them, so in that sense we are the best in shaping future relationships between Indigenous and non-Indigenous Australians.

The response from participants at our forum was overwhelmingly supportive of constitutional recognition. One hundred per cent of participants in follow-up surveys and during the forum supported changing the Constitution to recognise Aboriginal and Torres Strait Islander people. The council endorses the expert panel's recommendations as a starting point for the proposed changes to the Constitution with a couple of caveats. Participants at the forum raised an issue—like some people have said today—with the word 'advancement' that was used in the expert panel's proposed statement of recognition because they saw it as possibly being inconsistent with the Indigenous people's rights to self-determination in the sense that it allows governments to determine what is for our benefit and not necessarily take into account the views of Indigenous peoples. Historically, the word 'advancement' has been used in different ways and has different connotations—some negative and some that can be taken as a positive. As such, our youth council has recommended rephrasing the government's obligation to Indigenous Australians as being more of an enabling role, enabling us to determine our own development, rather than advancing us. I can speak to that in more detail later.

In terms of the extent of change, while 100 per cent of the participants at our forum supported recognising Aboriginal and Torres Strait Islander people in the Constitution, they also felt it would be a somewhat hollow gesture if it were not accompanied by a genuine attempt to prevent further discrimination against Indigenous people. As such, we have recommended that any constitutional amendments put to the Australian people at a referendum reflect the principles of both Indigenous recognition and nondiscrimination, as recommended by the expert panel. This includes removing the sections of the Constitution that permit racial discrimination and also inserting a prohibition on racial discrimination.

Finally, and this is a bit broader than just changing the Constitution, the participants are of the view that constitutional recognition should be accompanied by a genuine review of current legislation policy for consistency with the very principles that we are proposing to recognise. So, if the nation's supreme legal document is to formally recognise Indigenous Australians as the first Australians, with unique cultures and heritages and relationships to lands and waters, the rest of the political and legal systems should follow suite, particularly when we look at a number of existing policies and laws that could arguably be damaging the culture, language and heritage of Indigenous peoples. Rather than taking an ad hoc approach to reviewing legislation and policies, we have recommended that the government work with Indigenous peoples to develop a long-term plan to implement the declaration on the rights of Indigenous peoples as part of the broader package of constitutional reform. We have also made a number of recommendations on Indigenous youth involvement in the process going forward. We welcome these opportunities to present at these kinds of forums and hope that they will be continued. Thank you.

CHAIR: Okay. That is great. Senator Brandis, I wonder if you might kick off some of the discussion by talking about the three points we spoke about earlier today. I think what we need to do is to spend the time we have got to really get to the nub of the issue here. The nub of the issue for us now is: how does this committee take the recommendations of the expert panel and, in consultation with you, form a question that can be put to the Australian people? I will get Senator Brandis to kick off on that.

Senator BRANDIS: I will try and rise to that challenge.

CHAIR: As ideas; it is a bit bumpy so strap yourselves in!

Senator BRANDIS: Is it the view of everyone around the table that the recommendations of the expert panel, which, as a few of you have pointed out, are themselves the process of a negotiation and a compromise, are the right set of recommendations to go forward? A number of you have said so, though not everyone. Mr Gooda, what do you think?

Mr Gooda : We were part of it. Since the report was released and from comments that have been coming from some of the experts that people mentioned, like Professor Craven, Professor Twomey—

Senator BRANDIS: Professor Williams.

Mr Gooda : and Mr Mundine, we have formed the view that there is a process that we have got to go through. I maintain my view that this is a good starting point for the committee. I am pragmatic enough to understand that it now has to go through a political process. The next step is a political process between the major parties in parliament, and most likely that will happen after the election. I think it is a good starting point.

I have always said that, in my view, if there is any deviation from the recommendations, Aboriginal people have got to be somehow consulted. That is going to present difficulties on its own. We tried as hard as we could to get out. I have been in this business for 25 to 30 years, and I know that you are not going get to every Indigenous person in Australia and, even if you do that, you are not going to get a unanimous view.

Also, in relation to the expert panel, we formed a view at our last meeting to come together in whatever forum the consultations took—and now that is the standing committee—to talk about what changes might be put to the people. I think it is a good starting point. I am just recognising the practical realities of politics in this country.

Senator BRANDIS: Sure, Mr Gooda. But the question I am asking myself is: is it a good ending point, frankly? If the evidence from all the different stakeholders gathered around this table is that this set of recommendations is the best consensus view you are ever going to get out of the Indigenous community and the various Indigenous stakeholder groups in Australia and that, if you try and unpick this, you are not going to do any better than this, if this is it, if this is the best chance at a broad though not unanimous census there will be, it is important for us to know that. Mr Highland, is that the case? You were the secretary of the expert panel.

Mr Highland : Obviously, I am here in a different capacity.

Senator BRANDIS: I understand that, but I am going to pick your brain in whatever capacity. It seems to me that you, as the secretary of the expert panel, would be in a very good position to answer my question. Does this represent the ultimate consensus position, or is there a way to go?

Mr Highland : We have said in our submission that the public comment in response to the panel's report indicates that there needs to be further refinement. We want to be a part of that, but we will also be guided by the views of people like the Congress of Australia's First Peoples, the social justice commissioner and others as to whether we can be in a position to support that. Clearly, in a referendum you need overwhelming public support. When there are people out there who are concerned about some elements—and we heard a colleague today talking about the term 'advancement'—there are some areas that will need refinement, in my view.

Senator SIEWERT: I read your submission where you talked about Professor Twomey and Professor Williams—not so much Professor Craven, because he did not come to talk to the panel, but those two other lawyers did. They were very strongly listened to; it is just that people do not always agree with lawyers. Their views were taken into account very strongly by the panel. I think it is important that this is on the record—that they had a say. I am not saying they cannot continue to comment, but the things they said were taken on board by the panel and the panel still made the recommendation that it made, throwing everyone's comments into the mix.

Mr Highland : As we pointed out, our starting point is strong support for the panel's recommendations, but we know that not everyone has that view and we think there needs to be a dialogue so that we can come to some form of consensus before it goes to the public. Those people were friends of the panel; they engaged very closely with the panel. They subsequently made public comments that, whilst they were supportive of much of what the panel had to say, were concerned with some elements. We believe that one of the roles of this committee, as others have pointed out, is not to reinvent the wheel but to start from the very good work that was done by the panel members and take that further. One way of doing that is engaging with those people who made comment on the panel, to see if we can come to some common ground.

Senator SIEWERT: I understand what you are saying. The point I am making is that the panel took on board those comments and still came up with the recommendations it came up with. Yes, we need to consider it again, but it is not as if those people were disregarded. When you take all of those comments, with all the other heads around the table, the panel still made the recommendations it made. If you already have a group of different stakeholders around the table, surely it is broader Australia that we need to be engaging now. If we are going to be moving from the panel's comments it should be about how they are going to go down with broader Australia. It is neither the academics nor the lawyers who are going to be voting for this.

Mr Highland : That is exactly what I said in my opening statements. I do not think it is just about the lawyers and the academics—although I think you need to take on board the views of those people who have made public comment on this. That is why I brought up those three issues, which seem to me to come back time and time again. It has to be about those aspirations that Aboriginal people expressed to the panel and have expressed subsequently—they need to be realised. I 100 per cent agree with you that it cannot just be about the lawyers and the academics, but I still think that those three aspirations form a useful basis as to whether or not, if there is to be a refinement, that refinement would be a departure from the principles of the panel and also the views that people wanted to get out in the process.

I think you can get hung up on the process. Clearly, you need to be very careful to ensure that anything that comes up is technically sound, but the people who engaged with the panel did not come to the panel and say, 'We think we need a new section 51A.' Their comments were far more straightforward than that. They said, 'We want recognition, we do not want racism and we did not want to end up worse off as a part of this process.' I think that if you engage with some of those critics and got them in a tent and asked them, 'Do you think you can do this in another way?' and be open to that, then it is worth doing.

Senator SIEWERT: What I am deeply concerned about is that where you are going now is reinventing what the panel did. My deep concern is that we could be doing that for the next 10 years. The question that I thought Senator Brandis asked was: 'Can we go from that basis? And then obviously we are going to have to refine it, because it is manifestly obvious that there is now a political process in place and we need to talk about it. But if we are going back and saying to people, 'How would you redo this?' I must admit, I have really strong concerns.

Mr Highland : I do not think that is what I am saying. If you read the submission, that is not what we are saying. We cannot be more unequivocal.

CHAIR: I don't think that is the discussion we are heading towards today. That might be your interpretation of what Gary is suggesting; that is not my interpretation. What I really wanted people to focus on was the elements we spoke about earlier, in the private meeting.

From my point of view there is broad consensus and no disagreement that section 25 needs to be repealed—that is, the removal of the Racial Discrimination Act. I do think what would be useful is a discussion about a preamble—'yes or no?' It would be useful to have a discussion about whether it should be embodied in the Constitution. If it is, no matter what form that takes, is it new section 51A you put in? Or do you use these words and use that as a preamble?

The other element is—what you raised Peter—the problem with the word 'advancement' here. That is the kind of road I would like us to start to go down; to look at these recommendations and start to mould them into something a little bit more substantial for us to work with.

Senator BRANDIS: I am sort of with Senator Siewert a bit on this. I do think, because of the process that has been exhaustively gone through by the expert panel, the expert panel's recommendations have a certain status before this committee. I do not think they should be taken as conclusive. I think we are perfectly at liberty to explore them and test them, as it were. You said, Mr Gooda, 'They're a starting point,' and I said, 'Are they also the end point?' They certainly are the starting point, and whether they are the end point is really the focus of this discussion.

Can I put to you, Mr Highland, that your three general principles that you recited in your submission, that Indigenous people wanted recognition in the Constitution—that is already ticked, in the sense that this committee would not be holding these meetings unless there was a multiparty consensus in favour of that principle.

Mr Highland : That is right, yes.

Senator BRANDIS: Number 2, they wanted discriminatory elements removed. I have not heard anybody who has participated in these discussions who would disagree with that. Although, whereas everybody agrees that section 25 answers that description, there are different views about whether section 51(xxxvi) does.

Mr Highland : That is right.

Senator BRANDIS: Thirdly, they did not want to be any worse off as a result of any change. That is fair enough. That is kind of the Hippocratic prudential principle. So I think everybody could agree with that. You could agree with those three principles without agreeing with the expert panel's proposed language, couldn't you?

Mr Highland : You could. From the point of view of our organisation—and I restate, we strongly support the expert panel's recommendations and we have said that time and time again—the point I was making was that not everyone agrees with that. There are people out there, like Professor Williams and others, who support the bulk of the expert panel's recommendations but have some concerns about some elements. My point was: if this committee is not just going to be a rubber stamp for what has already been done, then I assume you would want to engage with some of those people so that you get the overwhelming community support that you need. I do not for a minute think anything I have said should be interpreted to mean that I think there should be major change. I don't. I think there should be refinement and I think there should be a dialogue, but our organisation strongly supports the expert panel's recommendations as the starting point for this dialogue.

Senator BRANDIS: Let's have that dialogue now. Let's go through the recommendations of the expert panel. Recommendation 1 is that section 25 be repealed. Does anyone disagree with the that—that that should be part of the referendum question?

Mr Malezer : We don't disagree with it, but I suppose we would like to have a bit of a debate as to whether it needs to be repealed. There is no doubt that it is discriminatory, but it does not have application.

Senator BRANDIS: It is obsolete really.

Mr Malezer : Yes. So I just wanted to make the point that, say that was the only proposal to go to referendum, I think that it would be more a matter of disinterest; is this going to mean something or change something?

Senator BRANDIS: It might interest you, Mr Malezer, but I have heard an historian give a paper about section 25 and make the case very persuasively that, properly understood, it was an affirmative action provision, because what it did was give the colonial or the state parliaments an incentive to extend the franchise to Aboriginal people because if they did not do that then they would have fewer numbers counted in their representation in the House of Representatives. So, although it read on the face of it like a racist provision, the intention was in fact the opposite. That is kind of an aside. The fact is I think we can all agree it is obsolete now, can't we?

Mr Malezer : I think that is really what I was saying; it is obsolete. Whether there is a referendum to remove it; I would say, well—

Senator BRANDIS: You wouldn't just have a referendum to do that. No.

Dr Strelein : We are kind of making an assumption that our values as a society have evolved to the point where that provision will never have operation. So it is not absolutely obsolete. It still has practical impact. Should a state ever decide to pass discriminatory legislation and the Commonwealth wanted to suspend the racial discrimination act to let that happen, technically it could come into operation.

Senator BRANDIS: That is very theoretical.

Dr Strelein : Yes, I know.

Senator BRANDIS: You have to assume, I think, that there is a certain minimal level of forward progression in people's thinking. We don't want to go back to the absolute monarchy either, but we don't need to write the Constitution to prohibit it.

Senator SIEWERT: Isn't the point you were making, Les, that, if you were just going to have a referendum to say 'we are going to get rid of the race powers', you would not be supporting it? The lowest common denominator is: we all agree to do that; well we don't want to bother doing it.

Mr Malezer : Yes. And I just want to add to that—because I was really taking up the challenge in your question—we had a protracted discussion or discussions on the use of the word 'race', and I think it was a very informative one. We were concerned that having a reference to 'race' in the Constitution may be undesirable in any event. I am just explaining that in order to put it in context that this was not lightly considered; it wasn't ad hoc. When we looked through the Constitution, we saw section 25 and we considered all things. We said that part of what we recommend should be to include the removal of section 25. That is where we arrived. But I go back to my answer to the question, which was: if the question was the removal of section 25 alone, I would be disinterested.

CHAIR: I suppose the issue is, if you are going to put a question or questions to the general public and if this is seen to be a clean change, would you include repealing section 25? If we are actually going to repeal section 51 and put either a new section 51A in or a preamble, do you tidy everything up about it rather than leaving it loose.

Mr Gooda : I think Les touched on it. There was a long discussion about the word 'race' in our Constitution. We could not find another constitution in the world that mentions race. We are a liberal democracy in the 21st century, why should we, even if it is obsolete, have powers in the Constitution that anticipate laws made on the basis of race. Talk about obsolete things; race is now almost obsolete as a concept anyway. I think there was an overwhelming thing, besides the impact of section 25 and 51(xxvi) that the mere fact of the word 'race' in our Constitution is something we should generally remove. So the answer, from my perspective, to Senator Brandis's question is: yes, remove it.

Senator BRANDIS: Can we then have the discussion that both of you have mentioned now about references to race at all? If we remove section 51(xxvi), does it need to be replaced by a head of constitutional power? I think one of the real challenges here is that the expert panel's proposed section 51A does two entirely different things. It contains, in effect, a preamble, though it is kind of an internal preamble, and then it contains a legislative head of power. If you want to get rid of race from the constitution entirely then presumably that also means not having any references to a specific race, including Aboriginal and Torres Strait Islander peoples, does it not?

Mr Highland : I think we have to get past this 19th century notion that Aboriginal and Torres Strait Islander people are a race or races. People owe their identity to descent, to community acceptance—and clearly you need to have legislation for groups of people in society, including the most disadvantaged people in our society and the first people in our society, without describing them as a race.

Senator BRANDIS: I am putting the question: if we have recognition in the constitution, why does that recognition have to be in the form of the grant of a head of power?

Mr Gooda : We did look at the option of putting it in a preamble, but we do not actually own a preamble. My understanding is that what passes as a preamble to our constitution is a British act.

Senator BRANDIS: As the covering clauses.

Mr Gooda : To do a preamble, our thinking at the panel was that a preamble would mention a whole lot more than recognition of Aboriginal and Torres Strait Islander people.

Senator BRANDIS: You are right about that.

Mr Gooda : But then the whole issue of Aboriginal and Torres Strait Islander people would be lost in that argument about the rule of law—the sort of things that you put in a preamble to a constitution. As I said in my opening comments, it is almost a technical question for me. If you remove the head of power upon which a whole lot of legislation relies in this country, what do you replace it with to validate things like the Native Title Act? For me, that is a key question. It is almost a technical question. The concepts are pretty much agreed: recognition, removal of race, removal of the two powers, the non-discrimination stuff. That is what we were told. That is what I meant by saying that there has almost got to be a bit of fiddling with the language in here to get to the point. It would not worry me in the least if we did not mention race—because I share the same concerns that you do, Senator, that if we remove race and then we mention race—and with respect, Gary, I think it is a really cute argument to say that Aboriginal and Torres Strait Islander people are not a race. No-one else believes that. People out there do not believe that. We came up with that solution to answer the one question: if we remove section 51(xxvi), how do we validate some of the acts that are beneficial to us?

Senator BRANDIS: Of course, one of the ways to address the same issue would be not to remove section 51(xxvi) but to amend it.

Mr Gooda : Yes, I thought that if you just removed the word 'race', it would read something like 'to make laws for groups for whom special laws are necessary'.

Senator BRANDIS: At the moment though, with this section 51A that has come to us from the expert panel, it is almost as if somebody has very cleverly worked out that you can avoid the problem of having an Indigenous-specific preamble at the front of the constitution with all the obvious problems that that involves by having what Mr Leibler described to me as an internal preamble. But, if you are going to have an internal preamble, which is what most of this language in the draft section 51A is, it has to be a preamble to something. You cannot have a preamble without there being something for it to work upon. It is almost as if the conferral of the head of legislative power is there to justify the preamble.

Senator SIEWERT: Just to clarify that, the reason we did that power was for exactly what Mick has just said. It was because people were really worried that there was not then a head of power for acts like the Native Title Act. You are right in one way, that it was the place to put it, because we have that preamble there, and we did for a very long time think about a preamble and we got a lot of advice on preamble put into the act. There was very strong consensus that it should be in the act, for all the reasons we talked about before—about why you have it stand alone in front of the Constitution.

CHAIR: So you are saying, as per the expert panel's recommendation, section 51(xxvi) should only be repealed if it is replaced with a preamble to section 51.

Senator SIEWERT: If you did not go ahead with the head of power that has recommended where it is and still remove 51(xxvi) you have to go back and think about—I agree with Mick—what you do about the powers the Commonwealth already has, such as native title—

Senator BRANDIS: Senator Siewert, I am not disagreeing with you; I just want to tease out these issues. It does follow from that approach, which seems to me to be a perfectly rational approach, that you cannot do that but then at the same time do what Mr Gooda has been talking about and remove all references to race from the Constitution. We either have to wrap our minds around the proposition that because of the unique place Indigenous people have in Australia and historically, before there was a Commonwealth of Australia in this land mass, we do make special recognition for them and therefore we do not have a racially blind constitution, or we do not.

Dr Strelein : There are two different questions. I think that is what people have been saying about the concept of race being irrelevant to what you had said, about the fact that we want to recognise within our Constitution the unique history and place of Indigenous peoples. That is a political history. It does not necessarily have to be a racial history.

Senator BRANDIS: I suppose you are drawing a distinction, Dr Strelein, between race and—I do not know if this is a word—indigeneity.

Dr Strelein : That is right. So the political history gives warrant for why we look at things like land rights, why we look at political institutions and why we look at the preservation of language and culture. Those languages and cultures are not being protected anywhere else in the world. The unique place of Indigenous peoples in this country is the reason for having a head of power in relation to Aboriginal and Torres Strait Islander peoples, and race is really a justification for distinction which colonisation relied on for centuries. The idea that Indigenous people had a unique place in the Constitution is separate from the concept of race, if we take a more modern and more appropriate race-blind approach to our political history and our legal history.

Mr Malezer : There are a few points we have covered that I want to pick up on. Let me start by saying, if you look at the United Nations Declaration on the Rights of Indigenous Peoples, you will not see a reference to race at all. There is no reference in there except to say that indigenous people shall not be subject to racial discrimination.

Going back to the point that Mick was correctly making, it was important to have in the Constitution a head of power to make laws for Aboriginal and Torres Islander peoples for the advancement, for want of a better word, it is. That is not to create a temporary provision or so on, it is to recognise distinct inherent rights that are carried on by peoples, peoples before they were colonised and peoples since they were colonised.

The best non-controversial example is to use the Aboriginal Heritage Act. Someone could run the legal argument—incorrectly—that the Aboriginal Heritage Act, if there is no race power, if there is no head of power, is racial discrimination because it is recognising a group based upon characteristics of ethnicity and culture et cetera. It would not be correct, and it would not be correct if you look at the convention. I will not go into it because there is a whole body of works that have been done on the convention and on Indigenous peoples and on the protection of inherent rights as concrete measures, which is not discriminatory. It may be a discussion that we have about the Racial Discrimination Act.

A head of power is required. The purpose was to put it there and say that the Commonwealth can make laws for Aboriginal and Torres Strait Islander peoples. That is what it essentially says. It was also considered, on expert, legal advice and so on—the best we could get; I am certain of that—that the preamble description was important to clarify the purposes of section 51A. That is why it is there at 51A and not back at the beginning of the Constitution. It is simply to create understanding, and it is where we come to this real problem about: do we use the word 'advancement'; do we use the word 'benefit'; what do we use that says the right things, and that this is actually for a positive purpose and not so somebody else's view of how Aboriginal and Torres Strait Islander people could be treated is implemented. That is why we have come up with 51A, the preamble, in the way it is. I would have to say—I am not a lawyer—that I could not be convinced that a head of power would not be required in the Constitution. It is there and I think it is part of recognition. It started at the beginning of this to recognise Aboriginal and Torres Strait Islander people under the Constitution and recognition had to mean something rather than say, 'Well, the Aboriginal people were here first.' It means something more than that.

Senator BRANDIS: That, if I may say so, Mr Malezer, makes perfect sense, and I agree with everything you have said. But I think there is one other thing that you have omitted to say that also is part of the discussion. I think a lot of people make the mistake of assuming that section 51(xxvi) was only ever meant to be about Aboriginal and Torres Strait Islander peoples. It is certainly, historically, subsequent to the Federation; that has been its work. In fact, if you go to the convention debates, it was not just meant to be about Aboriginal and Torres Strait Islander people.

Senator SIEWERT: In fact, it was not about them at all.

Senator BRANDIS: It was meant to be about, among others, South Pacific Islanders, who had been imported into the Queensland cane fields by the government of Sir Thomas McIlwraith in the 1880s, which was very much a proper mind issue for the founders of the federal convention. This power in section 51(xxvi), which we have always in a lazy way thought was a power to make laws in relation to Aboriginal and Torres Strait Islander people, was only ever partly meant by the founders to do that. It was also meant to give the Commonwealth parliament the power to make laws restricting or discriminating against non-Australian races.

Mr Malezer : By virtue of the 1967 referendum, the most successful referendum ever held in Australia, aren't we fully aware of that actual aspect? It was actually applying to every other race except Aboriginal and Torres Strait Islander people and, presumably, the white race. Presumably it was meant to actually apply to others including the Kanake, the Chinese, the Afghans, the Maori and other people who had come to Australia under indentured schemes or other forms during that period. I think most Australians are aware of that, and certainly in the panel you have the experts in the room on that issue, and we had the advice also of experts.

Dr Strelein : One of the questions for the committee may be in terms of that obsolescence: if we have a head of power that is specifically for Aboriginal and Torres Strait Islander peoples is the race car obsolete. Does the Commonwealth envisage that they will ever need to make laws on the base of race for people other than Aboriginal and Torres Strait Islander peoples, given that there are no laws on the books that use that bar.

Senator BRANDIS: Isn't that a bit like a section 25 argument?

Dr Strelein : That is really the argument. The other side of the argument that you are meaning to have that has not been fully considered in the consultation.

CHAIR: I think that is a bit of reinventing the expert panel's wheel really. I am sure that there are matters that they considered during their deliberations. I was not part of that but I think that is going to the reinvention area.

Mr Gooda : Senator Brandis sort of hit the nail on the head for me and, without divulging what happened at the expert panel, it was always a concern to me that we were moving race and we were putting race back in for one particular group. This is what worries me. The research tells us that, if one group is seen to benefit more than anyone else in Australia, we will lose the referendum. For me, that would be the easiest thing to run a no case against—the whole lot—because we are recommending that it goes in the package. Again, I go back to the original problem: removing the head of power would invalidate things like native title laws, which were beneficial to us—and we were told this by the experts.

CHAIR: So that is a message that says do not touch section 51(xxvi)?

Mr Gooda : No, absolutely not. We have got to do something about it, but we have got to ask the—

CHAIR: If you remove that, you have got to replace it with something.

Mr Gooda : You have got to replace a head of power. Is that the only way we can do that?

CHAIR: Peter, do you want to say something?

Mr Dawson : Mick spoke about validating existing legislation with respect to Aboriginal and Torres Strait Islander people. Patrick Dodson and Larissa Behrendt have said some of the value in constitutional recognition is a new legal and moral framework within which Indigenous policy and laws can be made. So as well as validating existing laws it is about what we want laws in the future regarding Aboriginal and Torres Strait Islander people to be about, and I think the value in linking a head of power to the principles that we are recognising with regard to Aboriginal and Torres Strait Islander people is directing what they should be about. They should be about our status as first peoples, our distinct cultures and heritage, and our relationship to land and waters. There is a risk in talking just about validating existing laws. You need to be future looking as well about what the future of Indigenous policy and laws regarding Aboriginal and Torres Strait Islander people is going to be like.

Dr Strelein : It also comes back to why the Commonwealth felt the need to introduce those laws in the first place. When you are looking at why the Native Title Act exists you could potentially rely on the external affairs power, particularly now with the declaration on the rights of Indigenous people, but not every government feels comfortable using the external affairs power to underpin legislation.

Senator BRANDIS: There are very good reasons for that.

Dr Strelein : Yes, that is right. The way that our Constitution is currently structured is that plenary powers stay with the state. So the Commonwealth must actually articulate the powers that they want to exercise. One of the reasons why the Native Title Act, for example, exists—and this goes back to the political history of the relationship between Indigenous people and the state—is that Indigenous people's land and heritage is incredibly vulnerable to exploitation by the rest of the Australian community for advancement and for economic development in particular. The states often find it very difficult to resist that need to exploit the resources for the benefit of the broader community. The Commonwealth has come in and said it wants to occupy some of this space and provide a check on the exercise of power because Indigenous people's minority rights, or their rights as Indigenous peoples, need additional protection. So having that shared power between the Commonwealth and the states, particularly over Indigenous peoples land and heritage, provides a really useful check and balance for that protection. That is where the Native Title Act, with the benefit of section 109, provides additional security to Indigenous people's rights to their land that they would not necessarily have enjoyed if, for example, the Western Australian legislation had gone through 20 years ago.

Senator BRANDIS: Can I bring this part of the discussion to a conclusion. Is it the view of all in the room, having had this discussion over the difference between the race power and a power specifically in relation to Australian Indigenous peoples, that it is necessary to have a head of legislative power dealing specifically with Australian Indigenous peoples? Nobody disputes that proposition?

Mr Gooda : You need a way of validating this.

Senator BRANDIS: You want the Australian parliament to be able to make laws specifically for Indigenous peoples?

Mr Gooda : No. I want to validate the laws that we have already got, more than make laws in the future.

Dr Strelein : So what happens if the same situation exists then—deal with it then?

Mr Gooda : The overwhelming sense I get, and it is largely personal, is exactly what I expressed before and what Senator Brandis said. We are asking the Australian population to remove race and then we are mentioning race again.

Dr Strelein : I fundamentally disagree with that.

Mr Gooda : Why?

Dr Strelein : It is important that we protect people against discrimination on the basis of race because it is still out there as a concept. In my view the Indigenous peoples of Australia have a different political history and a cultural heritage that is important to us as a nation. It is important that we continue to recognise—

Mr Gooda : That is a recognition.

Dr Strelein : and protect. You have got to have a way of protecting.

Mr Gooda : That is the non-discrimination stuff.

Senator BRANDIS: Dr Strelein, once you say that, you immediately assume as a fixture in our Constitution ad imbalance of power between Indigenous and non-Indigenous Australians. I accept that that is the case today. I do not accept—and one would have to be a pessimist to assume—that that would forever by the case. Our Constitution does not say the Commonwealth parliament should have powers to make laws in relation to women because with the progression of time—the founding fathers could think about that but nobody would say that is necessary now because of the equality of the sexes.

Dr Strelein : We do have that. We have the Sex Discrimination Act.

Senator BRANDIS: The moment you say that there has to be a protective power you are assuming an inequality—

CHAIR: I'm going to go to Gary and then to Les.

Mr Highland : In response to everyone's views on this, it seems to me that, clearly, the parliament needs to make laws with respect to Aboriginal and Torres Strait Islander people. Aside from the work that people like Les and Mick have done for many years on people's inherent rights as Indigenous peoples, on the basis of need and in the national interest you have to have those laws. Aboriginal people are the most disadvantaged people in the country. We would all like to agree with you that that will not be the case forever. Even if it is not the case, there are things about Aboriginal culture and languages that are unique to this country and that all of us need to nurture and protect as a part of our common heritage. Aside from the need argument, there is a national interest argument about something that is unique and distinct that would be a tragedy for our nation to lose. So I would assume that, aside from the equality issues, there will always be a need for things like Aboriginal heritage legislation and native title legislation so that those things are protected.

Senator BRANDIS: Maybe, maybe not. We do not have special laws to protect the heritage of other contributors to the national story.

Mr Highland : That is because they are not unique to this country. They are valued parts of this country but—

CHAIR: Les, we will finish with your comment.

Mr Malezer : If women had been treated in this country the way Aboriginal people have been treated, then the Constitution would have provisions in it to protect women's right to equality. If it involved not having property rights, being hunted down and shot without recourse to justice, stolen generations et cetera then surely the Constitution would want to protect those rights. In answer to your question I want to say that it is important to remember that we are talking about the Constitution. I heard Tony Abbott in parliament this year in the Closing the Gap debate and he referred to the Treaty of Waitangi. He wondered why the Treaty of Waitangi was not being taken into account. It is a constitutional document of New Zealand. But in Australia we do not have a Constitution that reflects a culture in Australia that first peoples are equal and respected as the first peoples in Australia. That is really what the whole game is about. You can continue to have a Constitution that is non-discriminatory and makes no reference to Aboriginal and Torres Strait Islander people, but that then reflects the culture of the nation. The culture of the nation surely should be that the first peoples are respected, that injustices of the past are corrected and that the first people's rights as a people, not as a race, to self-determination, land and so on are protected. That is the Constitution that I think we all want, or should have, at the end of the day.

Proceedings suspended from 12:44 to 13:12

CHAIR: Do people feel we have exhausted the discussion about section 51? We do not want to be here all week.

Senator BRANDIS: I want to raise another issue—not an issue of canvas but a different issue in proposed section 51A—advancement.

CHAIR: What you are alluding to is the proposal by the expert panel of a new section 51A, particularly the words: 'Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander people'. Let us shift the discussion now to the wording proposed by the expert panel for the new section 51A. Peter, you raised that initially with some objection.

Mr Dawson : The basis of the Indigenous Youth Engagement Council's recommendation on that is the views expressed by the participants in our youth forum. Some participants raised an issue with the word 'advancement' and questioned what 'advancement' means, who determines what advances Aboriginal and Torres Strait Islander people and whether that is consistent with the principles we are recognising in the preamble to proposed section 51A.

Some of the stuff that came up regarding advancement was that it could been seen to freeze our socioeconomic position in time. Are Indigenous Australians always in need of advancement, if advancement refers to alleviating disadvantage? Do we want to define Indigenous peoples in relation to disadvantage? That was one of the things raised by participants—especially in the National Centre of Indigenous Excellence, which looks at positive strengths based language and at the excellence, resilience and innovation of Indigenous peoples in changing the deficit language of disadvantage. If advancement refers to alleviating disadvantage, is it necessary to have that in there? Does it fit with recognising the unique status of Indigenous Australians as first peoples by defining us in relation to disadvantage? That was one point. The other key one is the subjective nature of the term—so governments can always argue that their policy is for the advancement of Indigenous peoples. There is a possibility there that they could do that independently of the wishes of Aboriginal and Torres Strait Islander people.

CHAIR: Do you even need that sentence then? Could you have a new section 51A that goes to the recognising, acknowledging and respecting? You do not need that fourth line. Is that what you are arguing?

Mr Dawson : What would be useful would be to look at what principles are behind the wording? What is the expert panel trying to do with the wording? I think there is broad agreement for the principles of recognition and non-discrimination, and it looks to me that that one goes to what the laws concerning Aboriginal and Torres Strait Islander people should be about. They are obviously putting that in there to limit or to tidy up the head of power.

Senator BRANDIS: That may not be its effect, because those words are not part of the grant of the conferral of legislative power.

Mr Dawson : No, but they may be read to give context to the head of power.

Senator BRANDIS: They may be.

CHAIR: If you have a look at the proposed wording, in the next sentence after that, you could do away with these words:

Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;

You can get rid of that, because the next sentence is:

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

If you have a look at the words, you could delete that.

Mr Dawson : The other caveat on it would be a non-discrimination provision, if it gets up, because perhaps the intention behind advancement would be covered. In trying to make laws positive laws for Aboriginal and Torres Strait people, it might imply laws that do not discriminate on the basis of race. Maybe it is a doubling up, but my personal opinion is that you would want to use that section acknowledging the need to secure the advancement. I think it is about parliament's responsibility to Indigenous Australians and providing context to the head of power.

Senator BRANDIS: The problem, Mr Dawson, with that observation, if I may say so, is that the way that the Constitution works, the heads of power are not couched in purpose of terms. They are couched in the most matter of fact way. They are expressed in the most matter of fact way. So section 51 says, 'The parliament shall have power to make laws for the peace, order and good government of the Commonwealth of Australia in relation to'—and then 1, 2, 3, 4 and so on. What this provision is seeking to do is to confer legislative power on the Commonwealth parliament to make laws in relation to Aboriginal and Torres Strait Islander people. Because of the device that the expert panel came up with, they decided to use this grant of power as the opportunity to insert a preamble. So, unlike any of the section 51 heads of power, this head of power will have a preamble. But—and I am with Senator Crossin on this—if you look at the first three of the four parts of the preamble, none of them are really purposive in the sense that they do not try and suggest the nature or purpose of the legislation that will be made under the grant of the head of legislative power. The first one simply says:

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;

That records an historical fact.

Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters—

that records, I suppose, a mixture of historical fact and anthropological fact.

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples—

that is not a fact, that is really the heart of the constitutional recognition that this is seeking to achieve. If you leave out the next bit, which seeks to characterise and, you might be right, limit the purposes for which laws may be passed, then it works perfectly well and we do not have this silly argument about what advancement means and whether it is subjective or whether it is condescending or what it is. But I take your point that you would need a protection against racial discrimination elsewhere, or else that singling out of Aboriginal and Torres Strait Islander peoples as a defined or declared object of legislative power could be used for bad as well as good reasons.

Mr Dawson : I am not a lawyer, I am only a law student, but my understanding of the legal definition of the term 'advancement' in relation to Indigenous Australians, most of it comes from special measures in the Racial Discrimination Act. Judges have been called on to determine whether a law or a policy is for the 'advancement'. My understanding is that it is undecided; it is up in the air. It has ranged from—the current position is that it is highly desirable to consult with Aboriginal and Torres Strait Islander people in determining what is for their advancement. Now that can shift over time.

Senator BRANDIS: It certainly does not limit the power of the parliament to make up its own mind—

Mr Dawson : No.

Senator BRANDIS: on what constitutes advancement. The only entity upon which the power is conferred is the Parliament of the Commonwealth of Australia. And by identifying the desirability of advancing the interests of the Aboriginal people, it does not limit the parliament's capacity to—it does not affect, as it were, a subdelegation in any way to Aboriginal people of the exercise of that power.

Mr Malezer : It does allow the parliament to make a law that breaches the rights of Aboriginal and Torres Strait Islander people.

Senator BRANDIS: But the parliament might have an opinion that a law was beneficial for Aboriginal people and some members of the Aboriginal community might have the view that it was against their interests. We had that very debate over the Northern Territory intervention, when the parliament was of the view that these laws were beneficial to Aboriginal people in the Northern Territory, and there were plenty of Aboriginal people in the Northern Territory who had the same view and there were plenty of people who had the opposite view.

Mr Malezer : But let us take the view that it is not beneficial for Aboriginal and Torres Strait Islander people; the parliament can still pass that law. For example, if they decided that all Aboriginal and Torres Strait Islander people would be returned to reserves—it has happened in Australia—then those powers will allow the parliament to do it.

Senator BRANDIS: But a conferral of a head of power can do that anyway. What you are saying is that we need this advancement part of the preamble to qualify the law, the way in which the law could be written. I do not think that is right. But I think Mr Dawson is right when he says that to avoid against your hypothesis, Mr Malezer, you need elsewhere an antidiscrimination provision.

Mr Malezer : I would bring up the case of Hindmarsh Bridge, where the interpretation by the High Court was that it was quite possible for the parliament to make a law that took away the rights of protection of Aboriginal heritage, which is definitely not in the interests of the Aboriginal and Torres Strait Islander people.

Senator BRANDIS: Well that is under 51(xxvi) presumably.

CHAIR: Rachel, I am keen to ask you: why did the expert panel decide on that form of words? I tend to agree with you, Peter, and your youth cohort; it seems a bit demeaning to me that you would put that in there.

Senator SIEWERT: 'Advancement' was used because it was more legally understandable and it was—

Senator BRANDIS: Who told you that?

CHAIR: 'Need to secure the advancement' seems pretty—it is a bit of a put-down really.

Senator SIEWERT: They were the words that we were advised to use from a legal perspective, rather than 'benefit'. It was said that 'advancement' was more understandable than the word 'benefit' and people really did not like the idea of using the word 'welfare'. I actually like—

CHAIR: But why would you choose either? Why even include that in that? Why even include 'benefit' or 'advancement' in the Constitution at all?

Senator SIEWERT: For the very reasons that we have been talking about: people saw that we still need to address, as Lisa was saying, the historical disadvantage, and, until those issues were addressed, there would be potentially a need to ensure that it was clear that the Commonwealth still had the powers to make laws or pass policies that actually address that.

CHAIR: Sure, but doesn't the next group of sentences say that?

Senator SIEWERT: The next group of sentences was enacting that first—

Senator BRANDIS: But that is not what its legal effect is.


Senator BRANDIS: It is not what its legal effect is at all.

Senator SIEWERT: Go on; tell me why.

CHAIR: And I do not understand the use of the words 'peace, order and good government'.

Senator BRANDIS: That is because they are in the introductory words of section 51.

Senator SIEWERT: Yes.

Mr Dawson : Can I ask a question? If no other head of power has a preamble section to it, how is it certain in the law what the effect of a preamble would be to that head of power?

Senator BRANDIS: The Constitution confers power upon the parliament. The terms of the grant of power are to be read by reference to subject matter of the power. As I said earlier, before the luncheon break, the problem with section 51A—it might have been, in a sense, a smart political compromise, but it is a bit of a lawyer's nightmare. What it seeks to do is put into one constitutional provision two entirely different things; they are even grammatically different and the legal effect is completely different. One is the grant of power, which is to make laws about Aboriginal and Torres Strait Islander peoples, and the other is the preamble stuff.

I understand why the decision was made to do it that way, because the committee was looking for an Indigenous specific provision in order to support an Indigenous specific preamble. But the effect of it is to put what is essentially a dignified or symbolic series of words ahead of a substantive power-conferring set of words. And, if I may say so, and I am also mindful of what Senator Siewert said, it does not really help. As you said, Mr Dawson, what 'advancement' means is always going to be subjective. Let us say this is in operation, right, and section 51(xxvi) was gone and we have the debate about the Northern Territory intervention. The people who were not in favour of the intervention thought that it was for the advancement of Aboriginal people in the Northern Territory—

Senator SIEWERT: No, they thought it was a special benefit.

Senator BRANDIS: and the people who were in favour of it thought it was for the advancement of the Aboriginal people of the Northern Territory. That was the view of the government of the day; it was the view of the subsequent government, the government of Mr Rudd, which adopted most of those laws. It was not the view of the Greens, who had the complete opposite view, and Aboriginal opinion was split. So just to say something is for the advancement of the Aboriginal people does not get you over the proposition that different people will have different legitimately held views about what is advancement and what is not.

Mr Malezer : If I can avoid using the Stronger Futures example, the intention to provide recognition in the Constitution did involve discussion about preamble text. What I understand, in that section 51A proposal was the convenient marriage of having preamble text that recognised Aboriginal and Torres Strait Islander people who were here first et cetera with the purposes of a head of power. That was what was most important—that is, to say, 'Yes, there can be a head of power to make a law, but the intent of the head of power also needs to be clear.'

I think that we looked at that in the context of going to a referendum. There is already a head of power in there to make laws for Aboriginal people; it is already there. So why are we doing this and combining recognition with a head of power—and that is to make it clear that we want this to serve a positive purpose. We want this to serve the purpose of recognition and respecting the first peoples in the area. It could have become a preamble to the Constitution, but it was felt it served a secondary purpose by being included at 51A. Why have a head of power to make laws for Aboriginal and Torres Strait Islander people—and that is what that text is there.

I will pick up the other question about acknowledging—the fourth preamble paragraph. I had not considered it before, but it could very well be possible for that to not be there and look at the three. I would have to examine that more closely but that could be possible, because, at the end of the day, even after deliberately looking at that word and trying to deal with it, I think we accepted the advice to us that, at the end of the day, the court will do an interpretation of whatever word you put in there, and you cannot be certain of what that interpretation will be. I know you are certain of it.

Senator BRANDIS: Of course, that is right. But, even more so, the word we are debating, the word 'advancement' is not a term of a received legal meaning. It is just a word in common speech. What it means to you and what it means to a High Court judge—you do not need to be a lawyer—

Mr Malezer : It means something to me, because I come from Queensland under the Department of Aboriginal and Islander Advancement.

Senator BRANDIS: Without necessarily expressing myself to be of the view that the word 'advancement' should be there at all, if you wanted to achieve what you are talking about, the better way of drafting it would have been to say, 'The parliament shall'—blah, blah, blah—'have the power to make laws with respect to the advancement of Aboriginal and Torres Strait Islander peoples.' So you do not confuse a preamble with a grant of a head of power.

Mr Malezer : Potentially that could enhance the recommendations that come from the panel. But let me also point out: you may not be aware, but there are two pieces of legislation, the Aboriginal and Torres Strait Islander Commission Act—the preamble still exists from that—and the Native Title Act. If you look at both of those preambles, you will see that it goes to great extent to repeat the sorts of things that are in there but it goes the additional step, which is to say, 'in line with Australia's international obligations under the conventions.'

Senator BRANDIS: I do not think we will be recommending that. One way to make sure you will lose a referendum in this country is to say that it will be decided by international treaties.

Mr Malezer : I was not around when Australia decided to sign those treaties, but I do not think it fooled the public.

Mr Dawson : Could I mention one alternative. The expert panel's report canvassed some international examples of constitutional recognition of indigenous peoples in other countries, and one of them is the Norwegian constitution. It includes something along the lines of acknowledging the parliament's responsibility to create conditions enabling—in their case, Sami people—indigenous people to develop, practise and maintain their culture. I think that something along those line would be much better suited to that fourth one, considering the three that go before it, and also in line with—

Senator BRANDIS: Doesn't the third one do that for you: 'respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples'?

Mr Malezer : I think it could be clearer in the parliament's role to enable Aboriginal and Torres Strait Islander peoples to determine their own cultural development. That is a provision that, in terms of the Norwegian context, has led to the development of the Sami parliament and things like that. Something like that I think would sit a lot better with the three recitals that go before it, in terms of recognising the value of Indigenous cultures, languages and heritage. To tie that in in a self-determination context—the government's role is enabling Aboriginal and Torres Strait Islander peoples to determine their own development of those things that you just recognised. That to me makes more sense and I think may go more to the principle behind the expert panel's inclusion of the word 'advancement' in terms of the government's responsibility to Aboriginal and Torres Strait Islander people.

Mr Highland : In terms of some context, the panel took very seriously Aboriginal people told it. I mentioned that in the submission. They did not want to be worse off as a result of this process. They were mindful of the fact that, should there be no qualifier and this change should go through, Aboriginal people might be the only group of people in society for whom you could make detrimental laws. So it was thought that there needed to be a qualifier on that and the legal advice was—it is in the report—that the term 'advancement' would be appropriate because it is used in other Australian acts. I am told there is a tradition of international jurisprudence that uses that term. So that was what the decision was.

Subsequent to that clearly 'advancement' is a contested term. There are a number of commentators who have said that they do not think that is an appropriate term. It is a contested term not just legally but also politically and historically. As Les has pointed out, 'advancement' is a very different word to a Queensland Aboriginal person from a Victorian Aboriginal person. For someone brought up in Queensland is all about a government department that oppressed them. If you are in Victoria, it is about Aboriginal aspirations for their rights and the formation of the Victorian Aborigines Advancement League. It is a contested term around the country. From talking to different Aboriginal people, there is not an agreement as to what that term means. It is important to remember it is not even part of the substantive power but it has a potential to divert the debate to a whole range of issues, like the discussion we are having now. Personally, I think people should take into consideration the comments that some commentators have made that there might be a better word to use than 'advancement'.

Senator BRANDIS: Like 'wellbeing'.

Mr Highland : I am not a lawyer and I do not seek to second guess—

Senator BRANDIS: No. None of these words are lawyers' words.

Mr Highland : 'Wellbeing' is another term which, it seems to me, does not have the historical connotations that 'advancement' has.

Senator BRANDIS: What you could do, which I am rather more attracted to, is have just like every other section 51 head of power and not have any purpose of limitations on it at all and rely on elsewhere a prohibition against discrimination, as proposed in section 116A. Without committing myself to that view, from a technical point of view I think that would meet the concern you have.

Senator SIEWERT: Senator Brandis, how would you then see that—I think we can progress with what you are saying, potentially. What would you say then for that fourth point?

Senator BRANDIS: I would take it out.

Senator SIEWERT: You would take it out and then just reword 'the parliament shall'?

Senator BRANDIS: Yes.

Senator SIEWERT: I understand you are trying to make progress. The issue there was the very strong concern—what Gary has just said—about making sure that we are not sending a signal that we think we have finished our businesses with Aboriginal and Torres Strait Islander peoples. That is why we wanted to put that fourth line in there. I absolutely understand the word and I am not wedded to the word 'advancement' if we can come up with a better word. I really like better what you have been saying.

Senator BRANDIS: Do we have a copy in the room of the act of recognition that was passed by the parliament?

Senator SIEWERT: We actually took that out. This was purposely left out because we could not reach agreement.

Mr Highland : Could the secretary get it on line?

CHAIR: Peter, if we did not use the word 'advancement' what would you use—peace, order, good government and—

Mr Dawson : I prefer a more positive direction to the parliament about their role in making laws and policies about Aboriginal and Torres Strait Islander people and I think something that fits perfectly with the opening recitals to the head of power is an enabling role—create the conditions enabling Aboriginal and Torres Strait Islander people to protect, maintain and develop, something like that, and then all the things you just recognised—their culture, their language, their heritage, relationship with lands and waters.

Senator BRANDIS: You could have that discussion for a long time but there is also a political reality to be faced here. Our advice from research which tested work that Recognition Australia have done is that one thing that would kill this referendum is if its opponents are able to say that this is divisive or it provides special rights for one group of people that are not enjoyed by others. The further you go down that line, the more you give those who want to make that argument a hook.

Mr Dawson : I think it is definitely a balance, but I do not think something like what I just suggested would go down the line of special rights. I think creating the conditions that enable Aboriginal and Torres Strait Islander peoples to practise and maintain their cultures has nothing to do with special rights for a separate group of people. It is about Aboriginal and Torres Strait Islander peoples' right to self-determination and the government facilitating that.

Senator BRANDIS: I am just having a look at what the act ended up saying.

CHAIR: There is a view that this should be a new introduction to section 51 rather than a preamble to the whole Constitution and that it fits better in that part of the Constitution than—

Mr Highland : I would not want to have to tell you what I think of that view. I want to think more about it and listen to more people before I make a decision on that. Obviously ANTaR will be guided by the views of people like Mick Gooda, the congress and those sorts of people.

Dr Strelein : The overall concern about addressing the issue of a preamble to the Constitution is that, while Indigenous people have done a lot of work around recognition might look like in an Indigenous context, a preamble to the Constitution presumably would want to include other things and the groundwork around that has not been done. I think that is why this resolution has come about: because, quite frankly, non-Indigenous people have not done the groundwork about what we think we are as a nation and what we want to see in a preamble to our Constitution. So unless we could do something very simple like 'Victoria, New South Wales, Western Australia et cetera and the Indigenous peoples of Australia come together to form et cetera'—like a treaty—a conversation about what our identity is in order to have a complete preamble, I think, would be a much longer conversation than is comfortable.

Senator BRANDIS: It is also a conversation that is probably never going to come to an end. We will not get a referendum about it to pass.

Dr Strelein : Exactly.

Senator BRANDIS: Just to finish off the earlier conversation we were having, you are right, Senator Siewert, that the act of recognition which the parliament passed does not contain anything along the lines of the fourth of the preamble clauses. It contains words based on the first three only.

Senator SIEWERT: Yes.

Senator BRANDIS: I am bound to say there is a certain symmetry or harmony in having the words proposed at the referendum reflect the words that the parliament has already unanimously adopted in the act of recognition.

Senator SIEWERT: But the issue there was that, as you know, there was concern around that particular point and that, in order to ensure that the act got up, there was an agreement by everybody that that not be included. But the terms of reference for this committee were to look at all of those.

Senator BRANDIS: Yes, that is true.

Senator SIEWERT: We certainly did not agree to that on the basis that it would permanently wipe out any further discussion. We were really clear about that.

Senator BRANDIS: No, I am not trying to fit you up with that. I am simply saying that this is the act in the form in which the parliament gave it to us. If you were of the view, as you obviously are, Senator Siewert, that the word 'advancement' or a similar word should be there—in other words, that the grant of powers should be qualified by a purposive statement—then there is another way to do that, as I said before. That is to say 'may make laws for the advancement of Aboriginal and Torres Strait Islander people'.

Senator SIEWERT: I am not necessarily wedded to it, particularly if the Aboriginal and Torres Strait Islander community come back and say otherwise. Gary has just made a really cogent argument to change those words. I am not wedded to these words, but I think there is still a strong sense in the community that we need to be looking at the concept.

Dr Strelein : Yes. Basically, I think you have addressed the mischief that people are looking at. The fear within the Indigenous community is the High Court's warning in Hindmarsh, which is that the words 'make laws for Aboriginal and Torres Strait Islander people' may be used against Aboriginal and Torres Strait Islander people. That is what the term was used to address and, as you said, there is an alternative there, which is to make a conscious decision to have a non-discrimination clause. If, when it comes down to it, there is to be a separation between those two things and the committee or the parliament judges that a non-discrimination clause is too problematic, too broad or whatever then there has to be some recognition in the committee's report that these two propositions are linked.

Senator BRANDIS: I absolutely agree that they are linked, but I think people are too sanguine about what including the word 'advancement' or a similar word will mean. Let me give you a hypothetical case. Let us say you had a government that took a very, let us say, Thatcherite view of the welfare system, and the ministers in that government decided 'We're going to cut back a whole lot of welfare payments that are specifically designed to assist Aboriginal and Torres Strait Islander peoples' and their political opponents said, 'You can't do that. This is not for the advancement of Aboriginal people' and they replied, 'Yes it is, because we think the real vice in Aboriginal Australia is welfare dependency and we think this tough love will end up improving the lot of future generations of Aboriginal people.' That is a policy argument. The problem here is you are conflating a policy argument with an argument about constitutional limitations.

Mr Dawson : You are talking about whole peoples here in terms of their welfare interests. Would you not be arguing in terms of people who are unemployed or supporting parents without regard to whether they are Aboriginal peoples or non-Aboriginal peoples? How do you arrive at the fact that there is a certain characteristic of a group of peoples that is inherent to that group, without being discriminatory?

Senator BRANDIS: Any measure that a government takes in relation to Aboriginal and Torres Strait Islander peoples is going to represent as being for their good. Then people will argue about whether, in fact, it is for their good. And that is a policy argument.

Dr Strelein : The question is: does it discriminate?

Senator BRANDIS: Correct, which is why I said before that the real argument here should be about section 116A.

Mr Dawson : I would say the question is this: does it respect our rights and our own development as a people and our right to self-determination, in addition to, 'Does it discriminate against us?' That is my opinion.

Mr Malezer : You have to remember that no government cannot make those laws anymore, because of the Racial Discrimination Act.

Dr Strelein : This is all about the Commonwealth.

CHAIR: I am going to try to move this on a bit now. Should we have a look at section 116A? Do we feel we have exhausted new section 51A or section 51(xxvi)?

Senator BRANDIS: I think we have had the discussion we needed to have.

CHAIR: Let us move on and have a discussion then about section 116A and whether or not there should be a new section inserted along the lines of the expert panel's recommendation.

Mr Dawson : The point that was just made, that the Commonwealth government is the only group in Australia that can legally discriminate on the basis of race, is a very undesirable situation. The Racial Discrimination Act has only been suspended on three occasions and each time it has been in relation to Aboriginal and Torres Strait Islander people. Inserting a prohibition on racial discrimination in the Constitution would effectively extend that to the Commonwealth government. It could not simply be repealed with the passage of further legislation. I am highly supportive of the prohibition of racial discrimination.

Senator BRANDIS: I would just point out to you that the qualifying words in subsection (2) of proposed section 116A really open up the same argument we were having before about advancement because, to use once again the intervention in the Northern Territory as the example here, those who thought that was a good thing would say 'If it discriminates, then it's a measure for the purpose of overcoming disadvantage' and people who had a different view would say, 'No, it's not. It's pure discrimination and this is a bad law.' That is going to be a policy argument.

Senator SIEWERT: We will always have policy arguments. The point of the intervention originally, as you know, is it suspended or exempted the Racial Discrimination Act.

Senator BRANDIS: It did. But it exempted the Racial Discrimination Act so as to enable a number of policy measures to be given effect to.

Senator SIEWERT: But it meant that people could not argue that it was discriminatory because it exempted it. Subsequently, the amendments were made—

Senator BRANDIS: That would not be a problem here, because it is in the Constitution.

Senator SIEWERT: You would have to have the argument, whereas before they could just say, 'Well, we have exempted it.'

Senator BRANDIS: Well, that would have been done—and I was a minister in the government that decided to do that—on the advice of the Attorney-General's Department that it was a prudent measure to, as it were, eliminate that legal hazard to the operation of the other laws.

Senator SIEWERT: Exactly.

CHAIR: Is there a need to have the phrase 'ameliorating the effects of past discrimination'? What does that mean?

Senator BRANDIS: Could Mr Highland perhaps tell us how the expert panel came up with these words?

CHAIR: Why have those words in there?

Mr Highland : I would need to go to my notes.

Dr Strelein : It is a restitution—

Mr Highland : Clearly it gets back to that whole issue of past discrimination of people, not wanting to be worse off. I am happy to get back to the committee on that.

CHAIR: I do not understand why you would not just have, 'for the purposes of overcoming disadvantage or protecting cultures, language and heritage of any group'.

Mr Highland : I know Professor Davis is intending to come today; she would be able to explain it far better than I can.

Senator SIEWERT: She has got caught up.

Mr Highland : She would be able to explain the panel's rationale far better than I could.

Dr Strelein : The distinction is you have 'overcoming disadvantage' it is about current disadvantage, whereas there are arguments for measures that—

CHAIR: No, that is not what I am talking about.

Dr Strelein : The next phrase goes to restituting historic discrimination or disadvantage.

CHAIR: No, the clause is 'ameliorating the effects of past discrimination'. I do not understand why you would put that in the constitution. I would have thought that would be an inherent outcome of any future legislation or policy decision. I do not see what benefit there is in having that in the constitution.

Dr Strelein : By introducing a non-discrimination clause into the constitution, you also provide a mechanism for non-Indigenous people to make an argument that laws that may provide compensation for past dispossession, for example, are based on race and therefore discriminate against non-Indigenous people. So the idea behind special measures provisions, generally, is to make it clear that you can do something for the benefit that may be discriminatory in the sense that it is for Indigenous people only, but because it is beneficial it is not prohibited. So this makes it clear that it is not just for current disadvantage but to provide a mechanism for compensation for past injustices.

Senator SIEWERT: The stolen generation, for example.

Mr Dawson : It originates from the convention on the elimination of racial discrimination and our Racial Discrimination Act that, as an exception to the prohibition on racial discrimination, governments can take special measures.

CHAIR: Is 'ameliorating' the right word?

Senator SIEWERT: That is what we were told.

Senator BRANDIS: If Mr Dawson is right—and if I may say so, he seems to know a lot about this—these are words that come out of a pre-existing treaty or pre-existing provisions somewhere.

Mr Dawson : Maybe not the exact words, but it is the principle of this exception to prohibition.

Senator BRANDIS: And if this is a phrase that comes out of a treaty or some other legislative instrument then it will presumably have had accrued to it a body of jurisprudence which will explain—

CHAIR: Do we know where it comes from?

Dr Strelein : It is the convention on the elimination of racial discrimination and the Racial Discrimination Act.

CHAIR: Is that where these words comes from?

Dr Strelein : It is not those words specifically. That is what we mean about the special measures intent.

CHAIR: Again, I am looking at Mr and Mrs Joe Suburb, and they are going to say: 'What the hell does that mean? I don't know, so I am going to vote no.'

Dr Strelein : I understand your concern about the wording, but I guess what I am saying is, again: what was the intention to overcome? And limiting special measures to current disadvantage would be problematic because of past—

CHAIR: I think when you put this argument to someone to vote on it on the day of the referendum, you are going to have to put those arguments. This wording, though, is wording that I think ordinary Joe Blow is not going to relate to. They will say, 'No, I don't get this. No.'

Senator BRANDIS: This is interesting, because when we were talking about section 51A, we were having largely a legal argument about the structure. We are not having a legal argument about this one, because structurally it seems to me to be perfectly commonplace. There is a general prohibition expressed in totally generic language and then there is a carve-out, and that carve-out is based, apparently, on some pre-existing formulae in another instrument. So that is unexceptionable from a legal point of view. But I think Senator Crossin is right: if our main aim here is to get this referendum through then we do not want to give those who will say, 'Well, this is about giving Aborigines and Torres Strait Islanders special treatment,'—we do not want to give that argument a hook. Hence I ask, purely for the sake of being a devil's advocate, do we need section 116A at all as part of this package? I can see why it is there. From a legal point of view it is better that it is there, but if we are going to be outcomes focused do we absolutely need it or are we prepared to make a judgement about the goodwill and decency of the Australian parliament? And if the Australian parliament did something that was racially discriminatory are we prepared to have that argument in the court of public opinion rather than in the High Court about why it is wrong?

Mr Malezer : I hope I have already answered that, because the answer is on my face. The Racial Discrimination Act has been overridden by the Commonwealth on a couple of occasions. Once the Racial Discrimination Act is overridden there is no protection at all in the Constitution against racial discrimination. When the expert panel were involved in the discussion about whether there should be any reference in the Constitution at all to race, that was when the discussion on 116A came up—that all reference to race should be removed, as in section 25, and that there should be a specific provision in there to say that laws should not be made on the basis of race, which is there.

Senator BRANDIS: I understand the argument from a drafting point of view—that is the right decision in my opinion—but I was asking a broader question about Australian politics. As Senator Crossin in my view rightly says, if having section 116A, particularly section 116A(2), in the package poses a real risk that the whole thing is going to fall on its face are you prepared not to have it as part of the package and just rely upon the race power—or the ethnicity-indigeneity power, shall we call it?—in section 51A and not rely upon a constitutional guarantee?

Senator SIEWERT: One of the clear messages we got was that people liked that. When we did the polling originally, when we were part of the expert panel, one of the strongest measures that people supported was this one. It did not have the word that, admittedly—it was more straight up: do you support—

Dr Strelein : Same as the Racial Discrimination Act.

Senator SIEWERT: Yes. I think it was the one that got the strongest positive result. People really supported the concept, but you are right it is when they look at the words—

Senator BRANDIS: You know how you could do it, just thinking aloud: you could take out subsection (2), so it would be just the prohibition on discrimination; you could rewrite the grant of power section of section 51A so as to say for the advancement or for the wellbeing or whatever; and you could qualify section 116A by saying 'subject to section 51A, …'.

Mr Dawson : I think the other point to be made about the prohibition on racial discrimination is that it is a general prohibition that applies to all Australians.

Senator SIEWERT: That is why it got strong support.

Mr Dawson : That is actually a good message, I think, to Australians at a referendum that everyone should be treated equally under the Constitution. Every Australian has the right to live free from racial discrimination and that is now enshrined in our Constitution, but the historical and political fact is that the Racial Discrimination Act has been suspended only in regard to Aboriginal and Torres Strait Islander people and there is a history of racial discrimination towards Aboriginal and Torres Strait Islander people and that is why it should be addressed in this referendum and this proposal with 'Recognising Indigenous Australians …', because it is fundamentally contradictory to have a Constitution that continues to allow discrimination against us but also recognises us. Doing it at the same time makes sense, but I think it is actually a good thing to have in there in terms of public support because it applies to all Australians. There are no special rights in there.

Senator BRANDIS: But it is also fundamentally contradictory to have a Constitution that recognises Indigenous Australians and allows for special laws to be made in their favour, if we want to approach this from a point of view of a nation free from all forms of discrimination. What in fact this committee is being asked to do—I am not criticising this; I am just point out the logical issue—is to write all racism out of the Australian Constitution but make special provision for one race: that is, the Aboriginal and Torres Strait Islander races. The justification for doing that is their unique place in Australian history. That is what it amounts to, isn't it?

Senator SIEWERT: Yes.

Mr Malezer : Then how do you describe it—if it is not doing exactly that?

Senator SIEWERT: Yes, there are arguments you can have around that—

Senator BRANDIS: It is, but I am just pointing out that there is a certain inconsistency in the past which we have been given.

Senator SIEWERT: Yes, you are right, there is. And that is what the expert panel was struggling with as well.

Senator BRANDIS: The simple answer I think is to be upfront about it; to say, the reason the inconsistency—although strictly not logically supportable—is philosophically, morally and historically supportable is because of the unique place of Aboriginal and Torres Strait Islander peoples in this continent.

Mr Malezer : And the pre-existing rights that need to continue to be protected, including the right to cultural heritage protection.

Senator BRANDIS: I think that has got to be done by individual laws, not by the Constitution.

Dr Strelein : I think that proposed section 116A needs to stand. If it is going to be in the package, I think it needs to stand as a general provision, not—

Senator BRANDIS: So you would take out proposed subsection 2, would you?

Dr Strelein : I would replace it with the one that is in the Racial Discrimination Act which is about special measures.

Senator BRANDIS: What if it is largely the same?

Dr Strelein : Well, it is generic, so it applies—

CHAIR: What does it say?

Dr Strelein : It has the same intent, but the RDA talks about—

Mr Malezer : No, it is actually concrete measures under subsection 2 of the convention. Subsection 2 says that, 'concrete measures taken to protect inherent rights are not temporary measures, that is special measures, and are required to ensure that equal rights are enjoyed'. This was something taken up particularly by the government of New Zealand when it passed the Foreshore and Seabed Act to take away the rights of the Maori people to foreshores and seabeds. The New Zealand government tried to argue that that was a special measure because they had replaced it with a process where people could claim compensation if they lost any rights, but they were corrected. They were told, 'no, you are actually discriminating against a right, a property right, that the Maori people held'. And that is where they were reminded that it is necessary to ensure that those rights are recognised and protected, and that is referred to as being concrete measures, not discrimination.

Dr Strelein : That comes back to the complexity around the law of equality, which is basically that you can take into account relevant differences and you do not take into account irrelevant differences. So the fact that Indigenous people have a unique relationship with land means that the Native Title Act is not a special measure, it is a right that—

Mr Malezer : Well, I don't want to use the word equality—it is not equality when you go and take somebody else's land and call it your own. That is not equality. The Mabo High Court decision acknowledged that the people owned the land prior to the Crown claiming rights over it.

Dr Strelein : Yes, that's right. But what you are saying is you do not need to rely on special measures.

Senator BRANDIS: Even a provision in the Constitution is to protect something that the High Court declared to be so on the basis of all the evidence including the anthropological evidence that was led in those cases.

Dr Strelein : So you don't need the Constitution.

Senator BRANDIS: No, you don't.

Dr Strelein : Well, you do! It is that fundamental relationship between the parliament and the common law—

Mr Malezer : Remember it took from 1788 to 1992 to arrive at that point. In the meantime, the law—

Dr Strelein : The Commonwealth could have taken a different view.

Senator SIEWERT: All right. Could we just test what Senator Brandis was just saying about keeping the broader section 116A as a general provision, and then taking the other, more substantive stuff—whether we go with the words that you are suggesting or the words that are there, or another version—and moving them back to section 51A. That seemed to me a way that would work and that would be more desirable.

CHAIR: So in a way, combine section 116 with section 51A but—

Senator BRANDIS: Subject to section 50A.

CHAIR: Yes, make subject to—have them mutual.

Senator SIEWERT: So either have a new set of words or amend those words.

Mr Dawson : Does that mean that a special measures exception does no longer apply to people other than Aboriginal and Torres Strait Islander people?

Dr Strelein : That would be the effect.

Senator BRANDIS: It would not be in the Constitution. The Racial Discrimination Act is still more of—

Mr Dawson : It means that laws that could be classified as special measures in relation to another ethnic group could then be challenged on the basis

Senator BRANDIS: Yeah, I know.

Dr Strelein : It could mean that the special measures clause in the Racial Discrimination Act would be unconstitutional. That would be the problem.

CHAIR: If it were applied to any group other than Indigenous people, if it was not in a separate section.

Dr Strelein : The provision itself—having a carve-out in the act would be inconsistent with the Constitution.

Senator BRANDIS: There is one little link that is missing in this discussion. That would only work—that is, removing subsection 2 and making subsection 1 subject to section 51A—if we inserted in the grant of the head of power, 'power to make rules for the advancement'—or, if we do not like that word, the 'wellbeing' or 'benefit' or whatever the word is—of Aboriginal people. So the carve-out is relocated to the substantive grant of power in section 51A itself.

CHAIR: But then aren't we saying—

Dr Strelein : It is a different carve—

CHAIR: But then isn't the problem that, if the parliament goes to introduce a law, especially a special measure, that is not targeted at Aboriginal and Torres Strait Islander people, there is no clause in the Constitution that would allow—

Senator BRANDIS: If were racially discriminatory: correct.

Dr Strelein : It would mean we would have to have the argument about whether this is a relevant difference or any relevant difference. So you would have to go back to the equality argument: is this actually discriminatory, to draw a distinction?

CHAIR: But isn't that the very reason section 116 is separate to section 51?

Senator BRANDIS: I don't think so. When was the last time the parliament made a law in relation to special provisions for a particular race other than Indigenous races?

CHAIR: Never. That's right.

Senator BRANDIS: That baby would go out with the bath water when we remove section 51(xxvi).

CHAIR: Are we ready to move on to section 127A about the recognition of languages?

Mr Malezer : Can I point out in that last discussion that 51(xxvi) currently exists; 'the Commonwealth can make laws for any race' is currently in there. I just want to point that out.

Senator BRANDIS: Nobody is disputing—or at least I am not disputing—that, if you remove 51(xxvi), you wouldn't have a law to the effect of section 116A(i).

Mr Malezer : Yes.

Mr Dawson : I think it doesn't make sense to move any part of the prohibition of racial discrimination and the special measures exception, however it is worded, into the head of power. I think it should stand alone. It should be a general prohibition, a general exception for all Australians.

Mr Malezer : I will just add, in relation to the second paragraph, that has been fairly standard from the convention and the RDA to say you cannot discriminate but you can take special measures to overcome disadvantage et cetera.

Senator BRANDIS: I know that. But I have two points. Firstly, it is one thing to have a provision like that in a law that is amendable by the parliament; it is a much graver thing to have it in the Constitution, which is unlikely ever to be amended to remove it. Secondly, as Senator Crossin—in my view rightly—keeps pointing out, clearly, having something like that in the referendum question makes it much more vulnerable to opposition from those who say, 'this is about giving Aboriginal people special rights that other people don't have'.

Senator SIEWERT: But it actually isn't. It is actually for any group.

Mr Malezer : We had different feedback as expert panel. We were actually told there was strong support to remove provisions of racial discrimination and have a guarantee against that.

Senator BRANDIS: (inaudible) some personal qualifying words in subclause 2. I accept what you say about there being strong support for a general prohibition on discrimination; I would have expected that to be so. But we are talking about subclause 2 which is the permission to discriminate by special measures and by special—

Mr Malezer : No, it is actually a definition of discrimination. It says it is not discrimination. It is not permission to discriminate.

Senator BRANDIS: That is not the way it is going—

Mr Highland : Obviously, like Senator Brandis, I very much want this to succeed, but there is no point succeeding if it is not meaningful. If the very process disempowers Aboriginal people and disengages them, then it is not worth doing.

Senator BRANDIS: Nobody wants to make things worse, as you rightly point out.

Mr Highland : Exactly. If I am understanding correctly, you are proposing that the qualifier in 51A is removed—so 'advancement' or a better word is removed—and then any components or special measures in the prohibition is removed. How do you then go and explain to Aboriginal people, who have been very fulsome and very distrusting—understandably distrusting given the history of their interactions with government in this country—that they will not be worse off as a result of that change? That, to me, is the test that would determine whether it is worth doing or not.

Senator BRANDIS: The answer to your question is this: I think from an advocacy point of view the most logical place to start with this is to delete the recognition. The act of recognition, as we discovered earlier, does not contain the fourth clause of the preamble. So the proponents of these measures go to the public arena and say, 'This is to give effect to this important statement, this unanimous statement, of the intent of the parliament about the recognition in the Constitution of Aboriginal and Torres Strait Islanders. But it is about something else as well: it is about empowerment.' And the empowerment part of it is the grant of a head of constitutional powers so that parliament can make laws in respect of the advancement, wellbeing, benefit or whatever—a purpose of worth—of Aboriginal peoples. Then, because we have removed 51(xxvi), it seems logical to enact section 116A(1).

I think you stumble on the special treatment argument because of section 116A(2), but you do not want to entirely remove the capacity for special measures, so you introduce section 116A(1) with the qualifying words 'subject to section 51A'. That seems to me to be a logically neat package. You can tell Aboriginal people that the goal of recognition and the goal of empowerment and the capacity of the parliament to make laws for their benefit have all been achieved by this package, as well as the removal of racially discriminatory provisions from the Constitution, section 25 and section 51(xxvi), and a general prohibition against racial discrimination in section 116A, while preserving the capacity to make special laws for their wellbeing. I think the argument you are then going to have is not going to be with the Aboriginal people; it is going to be with the general community and particularly the conservative community. The removal of subsection (2) of 116A, in my opinion, would make that argument easier for the proponents to make. That is my answer to your question.

Mr Highland : Thanks for that.

Mr Malezer : If I may go to that argument: in 51A, you can put in a parameter sentence to say, 'In order to overcome disadvantage'—blah blah blah.

Senator BRANDIS: Yes, can you do it that way.

Mr Malezer : However, what it then leaves unaddressed is in relation to where there may be—we cannot envisage it—a need to make a law to deal with another group—let us call it an ethnic or cultural group—where a disadvantage has occurred. I do not know what that might be. It could be the protection of Afghani workers in Shepparton, or something like that.

Senator BRANDIS: No, this is where you completely lose things. I thought the one thing we were all agreed about this morning was to get rid of race out of the Constitution, to draw a sharp distinction in our minds between race and indigeneity, and to have these protections limited to Australia's Indigenous peoples.

Mr Malezer : No, that is not what I am talking about. I am saying in the event that there might be a need to provide a protection to another group in Australia who are being victimised on the basis of their race, and that that provides a specific or particular protection. It could be to take some workers from one place to another place in a matter of safety so that they can work.

Senator BRANDIS: But there is a general prohibition on racial discrimination.

CHAIR: I think we agreed about an hour ago that it has never happened before, other than to Indigenous people. So the likelihood of it happening in the future would be—

Mr Malezer : How would you account for recruiting people of particular ethnic groups to become interpreters to work in customs, in security, on the basis that it is desirable to have those people in those positions?

CHAIR: We do that now.

Senator BRANDIS: Race isn't an issue at all—they have certain skills.

Mr Malezer : If it is on the basis that if you are dealing with people who speak Greek language, you want to have Greek interpreters, how do you say that these people must be able to speak Greek? It is discriminatory.

CHAIR: You just say it is a requirement of the job.

Dr Strelein : Then people say you are discriminating against them—

CHAIR: In the Northern Territory we advertised for Indigenous interpreters.

Mr Malezer : You do not see that as being based upon, in this case, race?

CHAIR: No, I don't—

Senator BRANDIS: It would be based upon a competency, namely the competency of a given language.

CHAIR: Yes. It is not necessarily based on the race of that person. You could be a Greek interpreter and not be Greek. I can be an Indigenous interpreter and not be Indigenous. I could just speak the language.

Dr Strelein : The risk is that you clog up the Australian Human Rights Commission. You could say it is not about language; it is because I am not Greek.

Senator BRANDIS: That is a commonplace conundrum. Chinese restaurants are allowed to employ Chinese staff because they want to have a Chinese ambience in their restaurant.

Mr Dawson : I think you would have to get legal advice possibly from the Australian Human Rights Commission on the definition of 'discrimination' internationally and in Australia—

Senator BRANDIS: Yes. That is a well-established exception.

Mr Dawson : and ensure that that exception is in the Constitution, the special measures exception.

Mr Malezer : I understand there are occupations where you have to apply to the Human Rights Commission to get an exemption to argue that it is not actually discriminatory.

Dr Strelein : Certainly for an identified Aboriginal and Torres Strait Islander person only identified position, rather than just a competency about being able to communicate and understand Aboriginal and Torres Strait Islander societies. For that you have to apply for an exemption under a special measures provision—and it is called 'special measures provision'.

Senator BRANDIS: You do not put the body of statute law into a constitution.

Dr Strelein : But what we are arguing is that you may be limiting the freedom of the parliament to enact laws that are what we would now consider special measures by not having a special measures carve-out in the Constitution. If you say that we are only putting the first part of the prohibition against discrimination in the Constitution and not the carve-out that we sometimes use as a parliament to make beneficial laws, you will be limiting your freedom as a parliament.

Senator BRANDIS: As is said to Senator Crossin before, I do not remember any parliament that passed special laws in relation to a race other than to Aboriginal and Torres Strait Islander people.

Mr Malezer : I think there can be different interpretations of what a constitution is supposed to be. I simply want to point out—look at existing section 116. Is that something that should be in the Constitution?

CHAIR: That is what we have been talking about—whether you have 116 separate or combine it with the new 51A.

Senator SIEWERT: Can I suggest that we get some advice on the proposal Senator Brandis has made and get some advice on whether the issues that Les you are raising are going to be problematic.

CHAIR: All right. Let us have a look then at the section to do with recognition of languages. Is there a need to put it in there at all?

Senator BRANDIS: Can we ask Mr Highland why it is there?

CHAIR: We have 'respecting the continuing cultures, language' in section 51A.

Mr Highland : I felt it was important to let the committee know that I was employed by the expert panel, in the interests of transparency, but I am not here representing the expert panel; I am here representing ANTaR, which is very active in constitutional recognition. I think I would do the panel a disservice, because I was not a panel member, to be the quasi spokesperson for the panel.

Senator BRANDIS: That is fair enough, Mr Highland, but I thought you might actually know the answer to the question. Perhaps Senator Siewert knows.

Mr Highland : At ANTaR we support that recommendation because many Aboriginal people spoke in very moving terms—and I am sure the panel members who participated in the consultations would attest to this—about the threat that they felt to their language and their languages and the fact that they really identify that with their very sense of existence. One of the panel members, Noel Pearson, has both spoken and written very movingly about his language and his fears that that is under threat and his desire for there to be some affirmation at the highest level of the nation that as a nation we want to nurture and protect those languages, particularly since so many of these languages are no longer with us.

CHAIR: It does not actually say that. It does not actually say that when you read it.

Senator SIEWERT: Trish, could I ask that—

CHAIR: No, I just have to—when I read that, it is blindingly obvious. We are stating that the national language of this country is English. I find that a bit too patronising, really. But subsection (2) of the proposed 127A really duplicates the wording in section 51A:

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

In fact, that wording I think is stronger than section 127A, quite frankly, and I don't actually—

Senator SIEWERT: Could I ask Congress, Recognise and Peter, because I have had some pretty strong feedback about the wording of this, but I would rather hear from you first, and then I am happy to provide the feedback that I have had from sessions I have been in.

Mr Malezer : I want to just say first off that I strongly supported this section 127A. I know that it has been attributed to Noel Pearson strongly supporting it, but there were a number of people who spoke about languages, and we had discussed it long before we got down to looking at text such as what is in there now. What is critical for me and why I continue to support it is that it is said that languages are part of our national heritage, and I think that is the key wording that needs to be supported. So, even though 51A and 116A refer to cultures and languages, so it is already in there, neither of those are likely to lead to a need to protect the languages as heritage. That is why I strongly supported 127A.

A number of people, including colleagues in Congress, are offended by 127A(1), which says that the national language of the Commonwealth of Australia is English. They are saying, 'Why should that be affirmed?' I say: 'Do I understand you? What language are you using?'

As I understand it, that sort of wording was already proposed for a referendum previously by the Prime Minister at the time, John Howard. The idea of having recognition of language as part of the national heritage is a question of saleability. It is something that would be able to be supported by conservatives and radicals alike in Australia on the basis, on one side of this, of acknowledging that English is the national language and, on the other part, of recognising that Aboriginal languages are part of the national heritage. If that is the trade-off, I can see the advantage in that and I can see the value of having that come up in the referendum.

The biggest concern is that we are going to lose these languages in 50 years. That is the official evaluation of the languages. What support is going there is only in relation to what happens in the schools, not what happens in the communities, and it does not take much to lose a language. It is lost in one generation. To have language protected as part of the national heritage—remember, we are talking about up to 260 languages here—is a big part of the concern in Australia about the loss of Aboriginal identity, that the loss of these languages is going to be fatal to Aboriginal and Torres Strait Islander peoples' identity, particularly surrounding cultural groupings and surrounding the use of law and customary practices within Aboriginal communities.

So, to just sum up, it is a balance. Okay, there are going to be people saying, 'Why should we be putting that in there?' and that is to balance it up against referring to English. Even though it is referred to in the other parts of the proposals, it is that section which actually puts it as part of our national heritage.

Senator BRANDIS: Please can I make a couple of points arising out of what you have said. By the way, I like proposed subsection (1). I think it is a good thing that we recognise English as the national language. It is a non-trivial point because, as you are probably aware, there is a big and very divisive debate in the United States at the moment about whether English should be recognised as the language of the United States of America. English is the language of black America as well as the language of Anglo-Saxon and European America, but it is not the language of Spanish America. So there is a very divisive debate and there are many people, particularly in California and Florida, who say that there are two national languages of America, English and Spanish. I am not predicting that this will happen here, but I make the point that it is not a—

Mr Malezer : Also take into account New Zealand and Canada. They are our colleagues as far as settler states go. Anyway, I hear what you are saying.

Senator BRANDIS: So I think (1) actually does have some useful work to do. In relation to (2), let me make the obvious point that it is purely symbolism, but it may be that it is only symbolism you want. But nobody should think it is anything more than symbolism. But I have a problem with what I think you think is the most important part of this, and that is the last words, 'a part of our national heritage'. I would not have a problem if there were a full stop after the word 'languages' in line 2, but I have a problem on two levels. First of all, I do not know what you have to do to be part of the national heritage, but these are languages some of which are spoken by a tiny number of members of a language group in one part of Australia. Simply by reason of their sheer smallness, I have a problem with the idea that that is part of the national heritage. But I also, more importantly, have a pragmatic problem. The moment you go here, you are going to open up this argument, 'What is the national heritage?' Why shouldn't, for example, a Greek person be able to say: 'I'm a third-generation Australian. My grandfather built the Snowy Mountains Scheme. The Snowy Mountains Scheme is part of the national heritage. The postwar European migration is one of the most important parts of our nation's story and therefore it's part of the national heritage. Why isn't Greek a language that is part of our national heritage?' The risk you run is diverting this whole thing into a debate about what the national heritage is.

Mr Malezer : This is what I was saying on 25 April, actually.

Mr Highland : I think this is an example of where further discussion can improve the model and lead to greater refinement. The issue, however, is in relation to your comment about one language spoken by a handful of people. We are talking about languages in the collective. The bottom line is that this country is unique in having these languages that are still spoken today and have been spoken for tens of thousands of years. So I think you can say that these languages collectively are part of the national heritage. Certainly I take your point that if you isolate one language then that is a part of that regional heritage, but I do not think that is a reasonable interpretation of that given that it talks about languages in plural. The issue of heritage is like a lot of these things: we need to have a dialogue, we need to have refinement and we need to respectfully listen to one another. I take your point about the heritage: we need to have a think about that.

Dr Strelein : My comment on languages would be that obviously AIATSIS has a lot of interest in the preservation and promotion of Aboriginal and Torres Strait Islander languages as Australian languages. Our centre that deals with language is called the Centre for Australian Languages. So I think recognising that Aboriginal and Torres Strait Islander languages are Australian languages is really important.

Senator BRANDIS: As I said, I would be happy enough if there were a full stop after 'languages'.

Dr Strelein : Yes, I understand. I think that recognition is the most important aspect of that. In terms of what is national heritage, I think there is also an important connection to be made, when you are talking about languages, with what languages talk about. Aboriginal languages are unique in the world. They are something that we have an obligation to preserve for the world in terms of linguistic diversity. But also those languages contain ways of talking about our land, about knowledge systems and about the history of the land. So all of those concepts that are contained in language are certainly part of our collective national heritage as well.

Senator BRANDIS: But, Dr Strelein, even if that all be true—and you obviously have an expertise in this field which I respect and defer to—if something is inaccessible to all but a very small number of people, aren't you struggling with that concept that it is part of the national heritage of a country of 23 million people?

Dr Strelein : There is work to do, then, in translating those concepts and that language for broader consumption—and that is a lot of what AIATSIS does: making those kinds of languages not only accessible to the rest of Australia but to the next generation of Indigenous people from those communities.

Senator BRANDIS: Does it also include, by the way, dead Aboriginal languages—Aboriginal languages that nobody speaks anymore but there is some surviving, gripping evidence of?

Dr Strelein : Absolutely, and there is a very strong movement to revitalise those languages. Our collections contain a whole lot of tapes of spoken languages that can be used to revive languages not just phonetically but—

Senator BRANDIS: I can understand that people would say, 'This is part of our history,' or that this is an interesting anthropological fact about a part of Australia at some time in the past, but to be part of the national heritage it seems to me there has to be some relationship between the broad sweep of Australian history and the relevant putative fact that is part of the heritage.

Dr Strelein : And it is the linguistic landscape that we—

Mr Malezer : [inaudible] Australian history.

Dr Strelein : Well, and the linguistic landscape is quite unique, compared to the rest of the world, partly because of the number of dialectic differences and linguistic differences that exist within quite small areas. Anyway, this is a debate about the importance of language as heritage; I am not disagreeing that it may not be the right thing to put forward in terms of constitutional—

CHAIR: I want to ask this question, though: does the inclusion of this, at this point in time, totally hijack the whole debate about recognising Indigenous people in the Constitution? If we are going to be sidetracked by a debate about which is Australia's pre-eminent language and whether we should be protecting Indigenous languages past or present, doesn't it totally detract from and hijack the agenda about recognising Indigenous people in the Constitution and what we are trying to achieve by a new section 51A?

Mr Malezer : It could, but it is the winding back of all the things that would be possible in providing the recognition, and we are already giving up any acknowledgement of rights et cetera and getting right back down to what becomes the bare bones. The view was strongly expressed in the panel by the Aboriginal people that languages were the culture—the survival of the culture.

CHAIR: So again I ask, then: take Mr and Mrs Brown, sitting in non-Indigenous suburbia; wouldn't they see that that recognition is outlined in the new section 51A that says: 'Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples'? Wouldn't they see that as encompassing what you are trying to achieve?

Mr Malezer : Yes, but that is what I addressed by saying: in the other reference, referring to it as being part of the national heritage gives it some status that otherwise is not there, because there has always been acknowledging Aboriginal languages but it has not been protected as such.

CHAIR: So why do we need a separate section on recognising languages when it is already in the new proposed section 51A?

Mr Malezer : For protection.

Dr Strelein : It does not protect them. The current wording does not protect them.

Mr Dawson : Can I make a point?

Senator BRANDIS: By the way, Mr Malezer, I think it is a very nice sentiment—

CHAIR: Sorry—Peter?

Mr Dawson : At the constitutional recognition forum that we held, the young Indigenous people that came really struggled to understand why it was in there. We had technical, legal workshops with law professors and members of the expert panel, and most people struggled to explain to us and the other participants why it was in there. Everyone agreed on the unique importance of Indigenous languages, and I would say that it is clear that they are part of the national heritage. I have heard people give welcomes to country before, where they have spoken about the fact that this land recognises that language; it has been spoken on this piece of land for thousands of years and it resonates with this country. It is part of our holistic definition of who we are and our relationship to country. I would also point out that many Australian towns and cities have Aboriginal names, so I think it is firmly part of our national heritage.

So I am not against it being in there. I think there would have to be a really clear message about why it was being separately recognised, for it to make sense, because it is already mentioned in the preamble to the head of power. Because of that, it automatically, straightaway, raised questions from the young people we were talking to. And that is probably a good litmus test for people in Australia who do not necessarily have any understanding of constitutional recognition so far; they look at that and they go, 'Why is it mentioned twice?' If there is a clear explanation of that, it might make more sense. Or is it possible to edit the preamble's mention of languages to reflect the national heritage component? I do not know. Does it have to be separate?

Senator BRANDIS: I think it is fair enough to acknowledge language but, given one of our tasks here is economy of words and presenting a proposal with the maximum chance of success, I really do not see that it is necessary to do it in two places in the one package.

Senator SIEWERT: Has that come out in any of the polling that you have been doing—the issue of a separate provision for the section on language?

Mr Gartrell : Not unprompted—but then there is not much recognition of any of the model details when unprompted.

Senator SIEWERT: And when prompted?

Mr Gartrell : We have not done any research prompting about the model because (a) it is premature, I think, and (b), from a political science point of view, as a campaign practitioner I am not into testing really complex things with people who do not know about them. That is partly from experience in the past of testing complex things with people who do not know about them at all; you just get confused responses—and they are always done in a vacuum, not in a real campaign situation or a real political situation. So my answer to that is no.

But I do think what sits above us—and everyone here knows it—is the tension between trying to make the most of this historic opportunity and keeping it simple. That is clear. I think a lot of people who have put forward proposals for constitutional change in the past have faced that. Obviously, the simpler it is, the better it is, but it has to be meaningful and it has to pass muster with Aboriginal people. But I think we have to be careful to avoid situations like the 1988 referendums, I think, where people said, 'Here's a good opportunity for a referendum. Let's put up four things. Let's have a four for the price of one approach.' Those four are in the top six worst results.

Ms Hosch : I would just add that, even in conversations with people who are very engaged in this issue, thinking about it and advocating support for constitutional recognition, this is the area on which people will quiz me the most, trying to understand how important it is against the other things that we have been talking about today. So I would say that, if it is going to be part of the package, this will probably end up requiring quite a lot of community education work.

Senator BRANDIS: Tanya, are you saying that to make the point that those people did not really see the point of this provision being part of the deal?

Ms Hosch : It is not that they do not see the point. At face value, they see the point. I guess it is about pragmatism—the feeling that this is a very challenging exercise and, if we are going to get the best result around those other recommendations, is this one we would put on the table at the same time? It is weighing up the balance, that sort of thing, and I think it is the one recommendation that people have not immersed themselves in enough to understand its significance in the way that you have been talking about it.

Senator BRANDIS: It also, by the way, seems to me—speaking as a political practitioner who is on the conservative side of politics and knows a lot of the people around—that it is the sort of provision that is going to get misrepresented by mischievous people. I can imagine some people on the edge—the lunatic fringe—going around saying, 'Oh, there's a constitutional amendment to force people to learn an Aboriginal language or two.' I can imagine that. It is the sort of thing that in some parts of Australia would take off like wildfire.

CHAIR: Or, if you abolish bilingual education, does that mean it is unconstitutional? That might not be such a bad thing, but—

Senator SIEWERT: Can I add to what Tanya was saying. I have had exactly the same sort of feedback from people who want to be or are already engaged and see this as a weakness. I have also had feedback that Aboriginal people hate point 1 and ask why it is there. I have had people who strongly support it, but they are in the minority by far. Most people are saying that it is a stumbling block or are asking why the hell the first point is there. I am conflicted because I think it is a really important point and Les is absolutely right. The richness of language and the importance of maintaining it came up time and time and again in the consultation that we had, particularly in communities. I know from a personal perspective, from friends who are learning their language—particularly Noongar people, where the language has not been used—how important it is and how strongly it has reconnected people back to culture. It is really powerful. So I have people, friends, saying, 'This is really important' and I am really conflicted because, pragmatically, I also come from the perspective that this is one of the stumbling blocks.

Senator BRANDIS: Why aren't your concerns sufficiently addressed by the third clause of the preamble?

Senator SIEWERT: Because it came out during the consultation process as being absolutely: 'We want this to stand alone as well.'

Senator BRANDIS: There are only three clauses of the preamble.

Senator SIEWERT: Yes, that is why I am feeling conflicted, George. It is because I hear what you saying but I also hear what people are saying about the importance of language. I do not like this wording. I will put that out now on the table. I never have liked the wording from a personal perspective, but that was the consensus that we came to. I have had people almost yelling at me about not wanting No. 1.

Senator BRANDIS: Really? I would have thought—

Ms Hosch : That is interesting, because I reckon that, for every Aboriginal or Torres Strait Islander person I have spoken to about that one who is offended by it, there is another who pragmatically would say, 'I will deal with that if we get this.'

Senator SIEWERT: Exactly.

Senator BRANDIS: I think though, when you look at 127A as it is presented, with both (1) and (2), there is a real risk of offending a lot of non-Indigenous Australians of non-English-speaking backgrounds—and that is 30 per cent or more of the population.

Mr Dawson : My earlier suggestion was to rephrase the advancement and recital above the preamble about the government's responsibility to create conditions enabling Aboriginal and Torres Strait Islander people. That section would actually strengthen the languages part. If it said, 'government responsibility to enable Aboriginal and Torres Strait Islander people to maintain, practice and develop their cultures, languages and heritages' and if you had something in there about maintaining, practising and developing them, it would actually strengthen the earlier statement recognising languages.

Senator BRANDIS: I think on what you said before that we should heed very carefully that you represent the younger generation, and this one was not a big issue for them.

Ms Armstrong : I think this committee would get a very different response if they were to meet in the Northern Territory, where that reaction to the bilingual education debate is very strong about where the protection is in place to make sure that Indigenous people can be educated in their first language. I think that is where you get a much stronger—

Ms Hosch : You would get a very strong view in South Australia. There is a lot of—

Ms Armstrong : Yes, where there is a lot of revitalisation.

Ms Hosch : Yes.

Mr Highland : My understanding from what you just said was that in fact recognition, protection and nurturing of languages was important to your members; it was just that you had a problem with the specific wording. Is that right?

Mr Dawson : It was confusing to almost everyone. Everyone asked questions.

Mr Highland : Yes, but I am sure you said that people thought that the issue of protecting language was very important.

Mr Dawson : Yes, and it was the technical aspect of it that was confusing—about why it is mentioned twice and what the difference is between the two statements.

Mr Highland : This is not just an issue for remote Australia. I know some young people in La Perouse who are teaching kids Dharawaal and are recovering that language. I think not so much the specific wording but this whole issue of recognition of their language is something that is important to this country and would be very important to those urban people as much as it would be to people in Cape York or the Northern Territory. It seems everyone agrees that this is important. Don't you just put this down as 'questions of further refinement might be needed' but do not lose sight of the fact that language and the protection of it is absolutely crucial to Aboriginal people? They told the expert panel that.

Senator BRANDIS: As I said before, I actually like this provision. Apart from my quibble about whether tiny language groups can properly be regarded as part of the national heritage—but I take your admonishment that we are talking about languages plural—I actually like it. My main misgiving is the pragmatic one that it might divert the debate in a way that is unhelpful.

Senator SIEWERT: You have raised one issue. From the other perspective it is quite divisive in Aboriginal communities in that some people do not like particularly that No. 1. Maybe we need to look at wording.

Mr Malezer : I think I said it earlier today, but I learnt a long time ago that you can tell the culture of a community by its built heritage, by looking at the way buildings are and so on are as a cultural description. I see the same thing in the Constitution. How the Constitution, if one exists, is presented is also a character of the culture of the nation. I always called our Constitution a block of cement. It would sink in a river. It does not have any cultural characteristics and so on. It is simply on how administration of government occurs and the judiciary is separate. To talk about what is national heritage and have Aboriginal language in there I think is a significant part of Aboriginal recognition in this country. I think the Constitution recognising Aboriginal language is a big part of that.

CHAIR: So we have been through the expert panel's recommendations. I am wondering if there is something else we need to discuss to round off today or if there are other agenda items people want to throw up. Maybe people now have an idea of a timetable for this committee or work for this committee. Do you want us to keep networking this with other Indigenous groups and stakeholders or go back and start to formulate this into some sort of proposal that could spend the next six or eight months holding an inquiry and testing a form of words?

Senator BRANDIS: Can I make what I hope is a helpful suggestion?


Senator BRANDIS: I think this has been an extremely high-quality conversation. It is one of the best Senate round table forums I have participated in. It would be sad if the ideas and the hesitations too were lost, so I suggest that you, Madam Chair, request the participants, if they are prepared to do so, reflect upon the conversation we have had and distil their thoughts into a supplementary submission to the committee. It does not have to be terribly long—just a couple of pages maybe or longer if you want—so we can, as it were, capture this moment and the conclusions that in this interlocutory process we have all somewhat nudged each other towards.

CHAIR: For publication?

Senator BRANDIS: Unless people have an objection.

CHAIR: It would probably just summarise the discussions we have had today.

Mr Highland : We will have access to the Hansard.


Mr Highland : We can have a look at that and then think about some of that next week.

Senator BRANDIS: The reason I say that is not just for the convenience of having a summary but also because I get the feeling there are people around this table who have had their thoughts provoked by some of the conversation they have heard, and they might like to reflect on the discussion and perhaps revisit some of their own initial views. They should think carefully about the conversation we have all enjoyed. I am suggesting that people might do this after a day or two of quiet reflection rather than immediately. I sense, although there are differences, a greater degree of coming together around certain core principles than I expected there to be, frankly.

Senator SIEWERT: I think that is a great idea. Where I thought we might need some more advice at some stage is—and this has helped me think about it as well—if we come up with refined suggestions then where do we go in terms of broader consultation? I say that hesitantly because we have done the big consultation with the expert panel, but where do we go in terms of knowing that, if we come up with something we want to take to various parties for progress, it has some broader support? How do we get that broader support? In other words, I am thinking about the process from here.

CHAIR: I cannot see anything other than if you redefined this and started to shape it into a referendum question. Surely the committee, even if it were after the election, would have to hold a public inquiry into that—you would have to put that out there in a formal, public inquiry and attract submissions, probably even going around the country, and then write a report and table it in parliament.

Senator SIEWERT: But surely we want a layer before that —

CHAIR: The only other layer I can see is if we have another discussion like this with another group of stakeholders—who they would be I am not sure.

Senator BRANDIS: I thought we were always going to do something in the Northern Territory.

Senator SIEWERT: We did talk about that.

CHAIR: Yes, but who are we going to see in the Northern Territory? There are the peak Aboriginal organisations up there, made up of NAAJA, the NLC, CLC and AMSANT.

Senator BRANDIS: You know more about Aboriginal politics than I do, but I would have thought there would be a lot more stakeholders than we have had in this room—big, important stakeholders.

CHAIR: Do not forget, the Northern Territory's vote counts only for the overall country vote. Also, if you had a look at the research you showed us, the recognition in the Territory is higher than anywhere else in the country. I think people in the Territory would be better off looking at the question and giving you input into that.'

Mr Gartrell : If, over the next two or three months, this committee decides to put forward some changes to the expert panel model as a result of today's discussion, some further supplementary submissions and maybe some discussions in other parts of the country, that then gets handed to a newly convened committee. Depending on what happens at the election some people here might not be available to be on this committee because they are holding office or doing other things. So you would have a change of personnel. I would be concerned about the literacy of that group if they had not been through some of this first.

Senator BRANDIS: That is why I reckon we ought to move to do this before the election, if we possibly can.

CHAIR: That is going to be the case anyway.

Mr Gartrell : Or you hand something over to them that is partly worked up, or a draft with some reasons. I am concerned about how that changeover affects things, and about how much time you guys are going to have between now and 14 September.

CHAIR: That is right. But they are two certainties we have to deal with anyway: the limited time. There will be a change of personnel—there already is. Senator Thistlethwaite will need to come off this committee because he is now parliamentary secretary. So you are dealing with that all the time. I am assuming a new committee would go back and look at this transcript. The question for me is: do we hold another session like today in other parts of the country, and keep doing this two or three times over, talking through the recommendations; or do we say to ourselves that this afternoon we have had the pre-eminent stakeholders in this scenario, and we could—

Mr Gartrell : You have had some of the stakeholders. For example, in a constitutional referendum, what about the state governments?

CHAIR: So you think we could keep working through the expert panel's recommendations with state governments and constitutional lawyers?

Mr Highland : You have the New South Wales Aboriginal Land Council, which is a huge network of local land councils in this state. They are going to have a view on this. I do not think you can claim that this group of people is the pre-eminent group at all. I think there are other groups.

CHAIR: So there is still work to be done.

Mr Highland : The last thing you want to do is restart the whole 85-community thing—you cannot do that—but I think it is a mistake to think that you have ticked all the boxes.

CHAIR: Perhaps what we could hope to do by the election is come up with a recommendation that a new committee could then proceed with.

Mr Gartrell : Or one that identifies areas in the expert panel report that need further exploration and why they need further exploration. If you want to take a slower path, it is up to you guys how you do it.

Senator SIEWERT: This is what we are always struggling with: how long is a piece of rope? How many times do you refine something and develop it? But I absolutely agree with what you have just said, Gary: there are a whole lot of other people, and if we just said, 'Here's what we've come up with,' everyone is going to say, 'Get stuffed.'

Mr Highland : I think you refine it until it is right. I had hoped it was done, but clearly the reaction has indicated that there needs to be more work. Despite the fact that I, personally, feel greatly saddened by that, you have to keep going.

Dr Strelein : This committee has received submissions from all of those people, so it is not as if—

Senator SIEWERT: Do you think it is an acceptable process that stuff that comes out of here is circulated to people, saying, 'We've had a round table with a group—it is not seen to be the representative group, but we have thrashed it around and here is where we are at in our thinking: what do you think about it?' In other words, we do not keep going to a fresh group and saying, 'Tell us everything.' We say, 'Here's an iteration of the thinking,' and we take that iteration of the thinking and send it to the next group.

Ms Hosch : It goes back to the point we raised this morning about transparency and access to the process—that loop of making sure that your deliberations and thinking, as they progress, are always refreshed and available to everybody: that is really important. As well as consolidating where you get to before a new committee is established, there is a need to disseminate that information in a way that encourages and engages people. I am not talking about a consultation process; I am very deliberately talking about information dissemination—they are different. I think that is really important, and a good use of energy and resource to make sure that feedback is getting back out there. That is one of the things people struggle with the most.

Mr Malezer : I think this needs some purpose. On one hand, as I understand it, I recognise going around to raise awareness on the report. I would be a bit concerned if the process involving this committee is to go around and keep on re-examining the recommendations made by the panel because if there is enough picking it will all come undone. That is the issue. Also, as I understand it, the official line is that the process has not proceeded because there is not enough awareness out there in the community about what is going on. I would think that the committee itself needs to have some positive purpose as to what it is going to do. I heard Senator Brandis suggest that something should go back before the elections in terms of how to go forward. I think there have been very interesting discussions today, and perhaps there are some points in there which could be pursued a bit further. I like the idea of refinement, which Gary brought up. Some of those things we were looking at in those provisions and in the preamble—the bit on the languages and so on—could perhaps have more done to re-refine, and overcome what might be a different point.

There is a major responsibility from this point on to sell this, because if it keeps on going out there it will get picked apart, there will be a thousand different things brought up and it will not help build up this unity of support we are trying to achieve.


Mr Highland : I agree with that. Just to respond to Tanya's point: there are some lessons in information dissemination that you can learn from the expert panel process. There was a huge amount of work put into maximising the ability of anyone who was interested to have access. There were translations of a plain English version of a document into a number of different Aboriginal and Torres Strait Islander languages. There was a visual representation so people could use it to explain concepts to people who did not have literacy skills. There was a short video done. There was a whole range of things: there were do-it-yourself kits so people, if for some reason they were not one of the 84 communities, could actually have their own consultation. There is a secretariat in FaHCSIA that has all the history of that that you could tap into if you or the next committee wanted to help disseminate that information.

Ms Hosch : The point I am making, though, is that this is a very different phase to that. It is not that broad brush try to get everybody type of thing; this is about trying to engage people who are going to be critical voices and stakeholders when the model development progresses. If they are getting information about process and progress late then a lot of this work is going to have to be revisited. It is about engaging very targeted people, knowing full well that they are going to be very vocal when the time comes.

Mr Gartrell : Chair, perhaps part of the report is what has been agreed, because there wasn't agreement on things—recognition, section 25—some of those things can start to be peeled away and put aside, and you can start identifying areas where you are starting to focus. I go back to my earlier point: state governments, for example, will be crucial in a referendum. So what is the process for them—

Senator BRANDIS: Can I answer? I think state governments will be crucial, but the Queensland and Western Australian governments will be the most crucial of the lot. I think the way to deal with state governments is for the committee, and perhaps yourselves, to seek a meeting with either the premiers or the Aboriginal affairs ministers—not a hearing but a private discussion with the premiers.

I think we need at least one more roundtable because in terms of the optics of this I think it would be a very, very bad look if as this debate progresses it appears that the only roundtable consultation we had was in the inner suburbs of Sydney. I would be very keen, if only for that reason but also because it is better to hear other voices, to have at least one more such day in regional Australia proximate to large Aboriginal communities, somewhere like Cairns or Alice Springs—somewhere like that. But I think that getting away from the inner city is important for our credibility.

CHAIR: We have concluded an hour earlier than we anticipated, but could people crystallise their thoughts about what we have talked about today, and send us anything additional, or if you have thought of new points or ideas. That would be terrific.

Committee adjourned at 15 : 05