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Wednesday, 28 March 2018
Page: 2376

Senator CAMERON (New South Wales) (12:21): Labor will support the amendment. In the legislation as originally presented, the definition of 'Indigenous person' was based on race and descent rather than the standard definition based on the three-part definition of descent, identification and acceptance in the community. According to the Australian Bureau of Statistics and the Australian Law Reform Commission, amongst others, the most widely adopted definition of 'Aboriginal or Torres Strait Islander', the Commonwealth working definition, is: 'An Aboriginal or Torres Strait Islander is a person of Aboriginal or Torres Strait Islander descent who identifies as being of Aboriginal or Torres Strait Islander origin and who is accepted as such by the community with which the person associates.' In fact, the descent-identification-acceptance definition is the very one used by Commonwealth departments in practice. It echoes Justice Gerard Brennan's words from the 1992 Mabo judgement, which noted indigeneity as being a combination of 'biological descent from Indigenous people and mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority amongst those people'. The three-part definition was also used by the former Aboriginal and Torres Strait Islander Commission, ATSIC, to determine eligibility to vote and stand in elections to ATSIC regional and national councils, and was tested a number of times in the courts when various elections were challenged.

Labor has argued in the Senate Select Committee on Strengthening Multiculturalism's report that it was necessary to move away from race-based terminology in legislation and in policy. Let me read from the Labor senators' additional comments to the Senate multiculturalism report:

1.1   The question of 'race' as a 'concept' and 'term' is used widely in parliamentary language, legislation and in the construction of entities with 'race' as part of their nomenclature. The issue of 'race' is a concern to Labor.

1.2   The use of the term 'race' has the capacity to reinforce negative perceptions of others from different cultures. This matter ought to be seriously considered by us and we ought to consider ways by which the leadership of the parliament could begin to change attitudes around the use of the term race in our multicultural society.

1.3 The Australian Labor Party notes that, in the 2012 Final Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, the Expert Panel proposed the removal of s. 51(26) and s. 25 of the Australian Constitution because of their reliance upon 'race' as an 18th Century concept, and the embedded racist thinking that governs their construction.

1.4 Race is used in other applications and has been the basis or cause of much discrimination in Australia as a consequence. The constitutional changes recommended by the previous Expert Panel … have not been proceeded with so the Australian Constitution remains racist.

It is true that governments of the past, both coalition and Labor, have used the definition as drafted in this legislation. It is part of the Commonwealth legislative drafting guidelines. But, as Labor senators have noted, it is not the 18th century. It's time to demonstrate leadership on how Australia can change attitudes around the use of the term 'race'. It's important for reconciliation, it's important for multiculturalism and it's important for egalitarianism.

I should note that the Treasurer's office engaged in good faith on this matter. Labor approached them shortly after the legislation was introduced. We explained our concerns and proposed an amendment, which was considered. The government, we understand, will now move an amendment to remove the race based definition of Indigeneity in the bill. We will support that amendment. I want to thank the Treasurer's office for engaging on the issue and coming to this workable compromise that will prevent the Productivity Commission measure from any further delay. Should the Senate agree to that amendment, we will not move the amendment circulated on behalf of Senator Dodson proposing to put the three-part definition into the legislation.

I do note that this could well have been resolved months ago had the Prime Minister's office returned Labor's calls. This was a point we made to The Australian a few weeks ago in an article that makes some interesting historical points. Firstly, it noted the words of Justice Brennan that I quoted earlier. Secondly, when detailing Senator Scullion's suggestion that Labor's amendment as circulated would require further consultation, the reporter, Stephen Fitzpatrick, wrote:

Asking an actual indigenous Australian for legislative advice? Well, there's a ruling on that, too. In a 1998 Federal Court case on indigenous identity, Justice Ron Merkel said it was a shame the matter had been "left by a parliament that is not representative of Aboriginal people to be determined by a court which is also not representative of Aboriginal people". Perhaps one day, he mused, such a ruling "might be made by independently constituted bodies or tribunals which are representative of Aboriginal people".

It is issues like this one that underscore the imperative for the government to listen to and embrace the Uluru Statement from the Heart. As opposition leader Bill Shorten said in response to the Closing the Gap report, we have to:

… include a meaningful say for the First Australians in the decisions that affect their lives—a Voice to parliament.

Labor will legislate one should we win government. The Prime Minister has ruled the voice out.

It appears the Prime Minister is also reluctant to accept Labor's amendments to move away from race based definitions in legislation. We have consulted on this issue. Labor's Aboriginal and Torres Strait Islander caucus was attuned to the issue and sought expert opinion. The use of Labor's proposed definition is not unprecedented. Although Commonwealth legislation has used the standard definition, the New South Wales Aboriginal Land Rights Act 1983 defines 'Aboriginal person' as such—and I quote:

Aboriginal person means a person who:

(a) is a member of the Aboriginal race of Australia, and

(b) identifies as an Aboriginal person, and

(c) is accepted by the Aboriginal community as an Aboriginal person.

The government claims the three-part definition will cause constitutional issues. Those we have consulted said this is a shaky claim. The three-part definition was upheld by the High Court as giving meaning to the expression 'Aboriginal race' within section 51(xxvi) of the Constitution by Justice Deane in the Commonwealth of Australia v Tasmania (1983) 158 CLR 1.

If a constitutional concern was present, it surely would have been tested by now. Constitutional lawyer Professor Megan Davis has been commenting on this matter publicly over the last week, in particular in response to the story in The Australian. Professor Davis's concerns are about the use of the two-part race based definition in this legislation and how such race based definitions deny Indigenous communities sovereignty of their own identity, not about a constitutional challenge. Nonetheless, the amendment put forward by the government is a workable compromise that presents the race based definition being used in this piece of legislation.

We will support this amendment, but what we want to indicate clearly is that the Aboriginal community have indicated that they want a voice. We should be listening to that position. We should be providing a voice to Aboriginal communities around this country. The Uluru statement is extremely important. The Uluru statement is something that was subject to detailed consideration by Indigenous Australians over a period of time. Many points of view were put, and they've come to the view that their voice should be in parliament. As I've indicated, we—I think belatedly, as has been the want of parliaments over generations in this country—now need to deal with this issue.

To have a commissioner for Indigenous issues in the Productivity Commission is an important step forward. I'm not a great fan of the Productivity Commission. The Productivity Commission gets many things wrong, but it gets some things right. What it needs is an Indigenous voice to instruct the Productivity Commission about what the challenges are that Indigenous communities face in this country. As shadow minister for housing and homelessness, I talk to many Australians about housing and homelessness issues. I've talked to Australians in regional Australia and I've talked to them in the cities. There are huge problems of housing and homelessness in this country, but when you look at the problems faced by Indigenous Australians in remote and regional Australia, they are massively greater than the problems faced by other Australians. These are issues that the Productivity Commission—who are there to advise government on productivity issues, but do also, from time to time, dip their toe into social issues—needs to be aware of. Having an Indigenous commissioner with knowledge and understanding of Indigenous issues is the right thing to do.

I completely reject what Senator Leyonhjelm has put, that this is an unwarranted burden. That is white fella talk of the worst kind. Why would an Indigenous person in the Productivity Commission be, as Senator Leyonhjelm has argued, an unwarranted burden and unwarranted red tape? This goes back to the worst aspects of issues in this country that treated Aboriginal people as second-class citizens. They are entitled to have a voice in all areas of the Australian community. They are the original inhabitants of this country and they are entitled to have their voice heard. I completely reject the nonsense that we heard from Senator Leyonhjelm about this being unwarranted red tape and a burden on the Productivity Commission. I think the Productivity Commission has been a burden on progress in this country for a period of time—that might be the problem—but you don't solve that by rejecting an Indigenous commissioner in the Productivity Commission.

And Senator Leyonhjelm argued that to keep the banks honest is outrageous—that to demand, through legislation and regulation, that the banks do the right thing by Australians is outrageous. That demonstrates how out of touch Senator Leyonhjelm is about the issues that concern Australians in this country. He talked about ensuring that the banks do the right thing as being 'Soviet-style intervention'. That shows you how out of touch Senator Leyonhjelm is. (Time expired)