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

JACKSON, Mr David AM QC, Private capacity

Committee met at 08:58

CHAIR ( Senator Dodson ): Welcome. We might get underway. One of our members is coming by plane, we hope, from Canberra. I want to firstly acknowledge the traditional owners on whose land we gather and pay my respects to their elders past and present, and to all their emerging leaders in this part of the world. Some of our committee members are tied up in some other committee somewhere else in Australia or doing something of value for the parliament, I presume, somewhere.

I want to acknowledge and thank you, Mr Jackson, for your attendance this morning. I want to also say a few words about this committee before we get underway. The committee was established by the Australian parliament to progress a national recognition of Aboriginal and Torres Strait Islander peoples. Our work is informed by the regional dialogues undertaken by the Referendum Council last year which culminated in the Uluru statement from the heart. As you would know, the Uluru statement recommended a First Nations voice to advise the Australian parliament.

Our work is also to be informed by the earlier work undertaken by the 2015 parliamentary committee, which looked at the report from the expert panel in 2012 on constitutional recognition. We are also, as you would be aware of from our terms of reference, looking at how effectively government consults with First Nations organisations and whether that is leading to greater levels of autonomy, self-determination and economic independence. So we have a wide-ranging brief. Whilst there is focus on the voice, it doesn't mean other matters like the Makarrata Commission proposed from Uluru for truth-telling and agreement making, isn't part of our obligations. We're basically trying to find details that can assist around the nature of any proposition that may go towards a question for referenda or look at legislative proposals that may assist in crafting a voice, ultimately. But the submissions obviously deal with the matters that you wish to speak to us about.

I now formally welcome Mr David Jackson QC to give evidence today. Do you have any additional comments on the capacity in which you are appearing?

Mr Jackson : I am appearing before the committee because I was asked to in light of two advices I gave to Mr Yunupingu last year and which have been, I understand, given to the joint select committee.

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

Mr Jackson : The only point I wish to make is that my involvement has been solely to give advice, as you would have seen in the two documents that you have. I haven't been involved in any of the political aspects of it. I don't think I've ever actually met Mr Yunupingu or spoken to him on the telephone. My dealings have been through his solicitor, Sean Bowden. I think Mr Yunupingu was actually unable to attend the great conference last year because he was ill. My understanding of it was that, at the conclusion of it, because he hadn't been there, he asked for an opinion. I was given no direction or anything in relation to it. The views that I expressed were my own.

CHAIR: I note the letter from Bowden McCormack basically advises this committee—and I am quoting from the first page, bottom paragraph:

… to establish the framework for the Voice in legislation which can then stand behind an intelligible, simple and clear proposal to go to a referendum.

It further urges that:

… the current Committee provide the Prime Minister and the Leader of the Opposition with appropriate draft legislation along with proposals for amendment—

I presume that's a constitutional amendment—

… that can be put for further consideration, without further unnecessary delay, first to the Parliament and then to the Australian people.

The sense is that there is a degree of frustration in this.

Mr Jackson : Maybe, but that seems really to reflect the terms of reference 1(c) and 1(e).

CHAIR: In your further submission to us, I would be interested if you wouldn't mind speaking not so much to the advice that you gave to Mr Yunupingu—which was about whether you proceed by way of entrenching the legislation and entrenching a voice or whether you proceed by way of legislation—but to the latter part, where you seem to take a different view, where you say two proposals, for whatever reason, are not necessarily the best ways to go forward at the moment. I'd be interested to know what your thinking is about the best way to go forward and the best way this committee, really, can utilise its opportunity to report to the parliament with something constructive to do to then go forward with on these challenging issues.

Mr Jackson : I think the starting point is inevitably to work out what you want the body to do. It is easy enough to identify some of the possibilities. There have been examples given. One of them I quoted in that opinion section. An example was given of the type of basic provision there could be, and that is to have a body which is concerned with—and this is where you start to get into problems—knowing what it is to do in relation to, to put it briefly, Indigenous affairs. I have assumed it is to be an advisory body, meaning that what it says cannot bind the parliament and a law passed in conflict with it would not be invalid because of that.

In making those assumptions, inevitably you have to have broadly expressed objectives. One objective would be to deal with matters in relation to—or with respect to, perhaps, which slightly narrower—Indigenous affairs, to put it shortly. It is really about finding the right connecting words to determine what the fundamental role is to be. I really don't think deciding what that role should be is particularly difficult. Some of the examples that have been given are clear enough. But you need then to work out what it is really to do. You don't want to have a group of 30 people sitting in Canberra, meeting from time to time, with something like today where you get delayed and this, that and the other. What you want to have is a body that has functions, but what are the functions to be? It should be advising about proposed identify legislation, obviously enough. It should be advising about unintended effects on Indigenous people because of the terms of generally expressed legislation.

You then move on to say, 'Is it to be a body that also is to, for example, conduct investigations into things on its own motion?' If so, what types of things? Are they to be limited in any way?

I could interpolate that you don't want it to end up like the former ATSIC, which had far too many people and in my experience leaked like a sieve. I recall giving some written advice to ATSIC one point. Two days later, I happened to meet the then Minister Philip Ruddock at the airport. He said, 'It was very interesting advice you gave.' Those things are the areas that need to be decided. They can all be expressed very shortly. At the same time, in dealing with them, you need to be careful to ensure that you don't end up with—to use this expression again—a body that is too big.

I've mentioned some of these things through these opinions, but you have to work out what the relationship should be between the department, if there remains one, of Aboriginal and Torres Strait Islander affairs—whatever its name might be—and the body that's being set up. You probably have to have a minister responsible for the body. There are a number of other considerations. Some of them are minor and some are major. They need to be thought up without necessarily being completely thought through. You've got until, what, the end of November to finally report?

CHAIR: Yes. We've got to deliver a report by the end of this month. The other tension point I might raise is at the regional and local level. We've had people come along and give submissions about how it's all fine to have a big body in Canberra with people swanning around and doing what they want to do, but what happens on the ground with the people who've been kicked out of homes or been picked up by the police for some reason or the other? There is the tension between this esoteric kind of existence and a real existence of advising government on policy and legislation. Then on the real, practical levels, how does this body or the voice have some real interplay with the service deliverers and the community dynamics that have to change if we're going to get some closing the gap traction, if we're going to get some real shift in the dependency attitudes or if we're going to get some real turnaround to the out-of-home care situation for kids? We have conflicting sorts of views put to us.

Mr Jackson : I can understand that, because everyone who looks at the issues sees them from their own point of view. It seems to me that whilst there was a great deal of emphasis—perhaps far too much emphasis—on consultation in the report that was made, in the end it seemed to be talking about a body that was to be at a higher level than the day-to-day matters of which you were speaking. There is the question, isn't there, of: if you set up a body, then you have to have an interface between it on the one hand, the departments of the Commonwealth government on the other hand and you have the state and territory bodies that are dealing with in dealing with Indigenous affairs on the third hand.

Many of the activities that give rise to problems are ones dealt with by both state bodies. For example, there is the enthusiasm of state police to look after, in their own way, Indigenous people who have had a bit too much to drink and this kind of thing. When you then come to the more serious questions of housing and health, to a great extent they are matters dealt with by the states, aren't they? That's where it does become necessary to work out what role the body is to play. I have to add one thing to that: the term 'voice to parliament' sounds fine, but you have to work out what it carries with it. There are real questions on which the committee needs to express a view. As for what the view should be, I am not sure.

Mr LEESER: Do you think it's possible to design a body that can be used by the Commonwealth, the states and territories, and local the government? When we've done some consultations, people are saying, as you've said, that a lot of the day-to-day issues are not affected by Commonwealth legislation; however, it seems silly to set up local and regional bodies and not use them.

Mr Jackson : It's always possible to have complementary legislation, but complementary legislation means that there is the need for agreement and regular reconsideration of agreement. As you get different parliaments in in the states and in the Commonwealth, views differ on the appropriate way of dealing with issues of this kind.

Mr LEESER: Would you need to have complementary legislation? Could the Commonwealth just enact the national regional local voices, as it were, and say to the states and territories: 'Here are some bodies. If you'd like to use them, go for your life.'?

Mr Jackson : No doubt, say, under section 51(xxvi) of the Constitution, you're going to have laws with respect to the people of a race. They're Commonwealth laws. They operate throughout the country, and the extent to which they are available to be utilised in relation to state things depends on their terms on the one hand but, if the Commonwealth is enthusiastic about doing it, you may start to get into areas involving section 109 where it's covered the fields or dealt with an area to the exclusion of state law.

If you have things that are capable of being utilised by Commonwealth and state, you tend to bring with it questions of funding and questions of this kind, which aren't really easy. Everyone knows that every year the division of the money that comes in from various taxes is a question of potential difficulty, and I think you need to be careful in suggesting something along those lines that could give rise to further difficulties.

Mr LEESER: May I go to the proposal that you've put to Mr Yunupingu in your advice. If I'm right in saying what you've landed on is the idea that we set up an interim voice, and that that interim voice consult on what the permanent voice might be like. Why did you adopt that particular approach?

Mr Jackson : Bear in mind the time at which this was first was written, which was in—

Mr LEESER: July-August of last year.

Mr Jackson : Yes, and, at that stage, there had been recommendation 1 in the Referendum Council's report, which you will have seen from the earlier opinion I gave I thought tended to be in effect—I don't mean this in any way offensively—more a slogan than a way of moving forward. I think they packed their bags a bit early. I thought, if they were going to do something and I was asked to say, 'How could this be moved forward?' that was what I suggested. You will have seen that I said I thought you could do it the fast way or the slow way, and that neither was terribly satisfactory. However, in view of the fact that no-one was, as far as I knew, doing the next stage, the next stage needed to be done in some way and that was a way that seemed to me to be a potentially satisfactory way to do it. As things have turned out: who got the job?

Mr LEESER: Yes, indeed. What you've essentially said, if I'm right in paraphrasing this, is that there are real problems if you go forward to a referendum with not enough detail about what the body would be like, but you can also have a position where you can have too much detail or you can take too much time to work out the full details of the body. I think Professor Dixon, who's appearing before us later today, gives the example of the High Court. It took some time after the Commonwealth was established to establish the High Court, although the idea of a supreme court is referred to in the Constitution. Where do you think the balance lies in relation to an adequate amount of detail? I ask you this as somebody who's been involved in either advising or being a member of bodies dealing with constitutional reform over a long period.

Mr Jackson : I think you need to have a proposal which says in effect: 'This is what we want; this is what we are proposing. The proposal is that there be a small body'—I would be inclined to use the word 'small'—'set up which is to provide advice to parliament on Indigenous matters or on matters concerning Indigenous people. It is to be established by government but independent of government.' I would be inclined to have its members have a relatively short term. I suggested, I think, five years. I don't think you want it to be a lifetime's work. It needs to be clear, I think, that the consequence of noncompliance with its recommendations is not invalidity of the law. At the same time, I don't know that you need too much more than that, really, provided that, if someone asks a question, a sensible answer can be given as to what is likely to happen. I think those things need to be worked out a bit in advance.

You people are far better on the political aspects than I am, but I think you need to have a political reason put up for having it. Why should we do it? I mentioned somewhere in one of those opinions that—I don't want to say there is a backlash—I think you'll find quite a few people saying, 'Well, everyone came to Australia at some point, and we shouldn't make provision especially for one race, even if anthropologically they were the first here and were here for many, many thousands of years.'

So there are a lot of things to get over in referenda, including the usual one I mentioned—'If it ain't broke, don't fix it.' I think someone quoted the words I'd used in one of these opinions before. I think you need simplicity, a reason for it and something that's intelligible. There does need to be a capturing of public imagination. Both sides of politics would have to support it, I think, and it needs to be something that can be presented without triumphalism as something that is being usefully done to amend the Constitution today. Sorry, that was a long answer to your question.

Mr LEESER: No, that is much appreciated. In order to establish this body or bodies, we don't actually need to change the Constitution.

Mr Jackson : No.

Mr LEESER: It has adequate power.

Mr Jackson : Under section 51(xxvi) you can do it legally, yes.

Mr LEESER: Can I ask you about section 51(xxvi) for a moment. The Institute of Public Affairs and other bodies from time to time have suggested you could abolish 51(xxvi) altogether. What would be the effect of just removing 51(xxvi) altogether? What effect would that have on legislation that had been previously made under that head of power, particularly if you wanted to amend that legislation?

Mr Jackson : At the moment, you have the Racial Discrimination Act. Aspects of that you can justify under the external affairs power.

Mr LEESER: Take the Native Title Act, the heritage protection legislation or the Hindmarsh Island Bridge Act. They're the ones that come to mind.

Mr Jackson : Yes. I think there are potential difficulties once you take away the race power. The race power came in originally because of the thought of Asian migration in northern Australia when there was a terrific number of Chinese miners in north Queensland and so on. Because of that, if you looked at the mining acts of those days, you would see that they prohibited Asians from holding leases. But times change. I'm not speaking about the Chinese now. It is entirely possible that, if there were some influx of people that were a criminal group—I don't think that the race power is necessarily exhausted today. I think there is potential for its use—probably never used, but potential.

Mr LEESER: Would there be some significant uncertainty in the ability to deal with legislation that had been made under that act—particularly the Native Title Act—in the event that you abolished the race power altogether?

Mr Jackson : You'd think so. It wouldn't be a problem in the territories, of course—really the Northern Territory—but—

Mr LEESER: It would cause some problems in Western Australia or—

Mr Jackson : Yes.

Mr LEESER: You referred to Anne Twomey's drafting on page 9 of one of your submissions. Professor Twomey has tried to put forward something that wouldn't be justiciable. Would you agree with her that the provision that she's put forward there would not be justiciable?

Mr Jackson : I think I made a reservation about that. I'm not sure where I referred to that—

Mr LEESER: It's page 9, paragraph 31 of the first of your submissions.

Mr Jackson : Yes. I think you'll see the last two lines after I quoted what she said. I think I referred to that also in the second opinion, where I said in paragraph 15 that the issue would ultimately be one for the High Court to decide. You'll see the reference in paragraphs 14 and 15. If you say that the Prime Minister shall cause a copy of the advice to be tabled in each house of parliament, you're talking about the procedure of parliament. It then becomes a question of whether that is part of the structure leading to the enactment of legislation. If it is, there is a fair argument that non-compliance with it means that the legislative process hasn't been followed and what purports to be the legislation is not a valid law. So there is a doubt. Also, you could look at the proposed subsection 4. 'The House and the Senate shall give consideration to table the notes.' If the gag is applied and it's not considered at all, that is a noncompliance with that proposed provision, and again you get the same issue.

Mr LEESER: So these matters could actually end up in the High Court?

Mr Jackson : Yes.

Mr LEESER: Thanks.

CHAIR: I think you say somewhere that it's relatively simple to draft a set of words for embedding of the Indigenous voice in the Constitution. You just had some comment there in relation to what Professor Twomey proposed where obviously the wording, which people may have thought was simple enough and straightforward, had some serious questions raised over two subsections in terms of its justiciability. Have you got a set of words in mind that could be contemplated that aren't as complex as what Twomey's put forward?

Mr Jackson : I don't see a particular problem with what she's done. I think it just needs a provision saying that failure to comply with her subsections 3 or 4 would not invalidate the legislation. I also think that there is a slight difference between the phrase in her 60(a)(1) saying 'advice on matters relating to Aboriginal and Torres Strait Islander peoples' on the one hand and then, in paragraph 4, 'laws with respect to Aboriginal and Torres Strait Islander peoples'. There are many cases saying words like 'with respect to' in contexts like this are to be broadly interpreted and this kind of thing. I think, though, that the first usage—'matters relating to'—is slightly wider and would probably be the better. I think it would be better to alter her paragraph 4 slightly to accord with the earlier usage of 'matters relating to'. Expressions like 'with respect to' are ones that cover a number of things. The example that MacTiernan used to use donkey's years ago was to say: 'A law says no dogs in the park. Is that a law with respect to dogs or a law with respect to parks?' He would chuckle and say, 'The answer is it's a law with respect to each.' So you can have multiple characterisation.

Having said that, the use of the phrase 'with respect to' does involve some connection between the power and the subject matter. I think a slightly looser connection as in 60(a)(1) would be better. Something could easily be something that you could regard as a matter relating to Aboriginal and Torres Strait Islander peoples without the law really being a law with respect to those people. Take taxation law as one example. It is something with general application that could have a much more serious effect on some Indigenous people—or all Indigenous people, in theory—than would otherwise be the case.

CHAIR: Could I get some clarification on whether the need to go down the path of a referendum is preconditioned on setting up some kind of interim body or whether you set the interim body up first and then you look at trying to determine what the set of words might be for a referendum.

Mr Jackson : The suggestion I made about the interim body was made in circumstances where I was asked what the next step forward was after the Referendum Council's view when nothing in particular seemed to be happening. I don't think there's an essential need for an interim body. I think it would be perfectly possible—provided that there are sufficiently specific, simple and intelligible proposals for what would happen if the referendum were successful—for there to be a referendum along the lines of, to take one example, Professor Twomey's section 60, or something like that. I'm not sure if that's an answer to what you're asking.

CHAIR: That's fine. The other matter was in, I think, your first advice, where you quote the Referendum Council's recommendation—recommendation 1, I think it is. I wouldn't mind your advice on the last sentence of that, which reads:

The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. Is that a matter of the body recognising the First Peoples, or is that a matter of the entrenchment of the Indigenous voice being, de facto, a recognition of the First Peoples of this country?

Mr Jackson : The latter, I thought. I thought it meant that the existence of such a body would be a recognition of that, in effect.

CHAIR: Okay. But it's open to interpretation that the body would be the entity that would recognise the First Peoples.

Mr Jackson : Yes, but, with that sentence, I doubt that's what was intended, particularly in the light of the recommendation's first sentence, which says 'a representative body that gives' et cetera.

CHAIR: Okay.

Mr LEESER: Mr Jackson, I wondered if you might be prepared to comment on a couple of proposals that had come through from earlier committees that had dealt with these matters, particularly the Expert Panel on Constitutional Recognition of Indigenous Australians and the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples. You may or may not be familiar with those proposals. I wondered if you might outline what issues there are with inserting words into the preamble to the Constitution to recognise Indigenous peoples, including any legal issues that there might be. Also, if we were to amend section 51(xxvi) to say that it could be used for the benefit of Aboriginal and Torres Strait Islander peoples, what might be some of the issues there?

Mr Jackson : As to the first of those things, I haven't given, really, any great consideration to it, because I rather understood that the amendment of the preamble to the Constitution to include a particular reference to Aboriginal and Torres Strait Islander people was thought to be a form of tokenism. I wouldn't see it as that myself. If what is being done is to insert, into the body of the Constitution, provisions, the only constitutional effect of which is to establish that there shall be a body of the voice to parliament kind, then that isn't doing a great deal more than making appropriate statements in the preamble. The preamble is pretty dated these days, of course; it was 1 January 1901. So I don't see a particular difficulty in amending the preamble. I think it's a political [inaudible].

Mr LEESER: But can the preamble be used for interpretive purposes?

Mr Jackson : Sure.

Mr LEESER: Yes. So it could have an effect on the way in which the rest of the Constitution is interpreted?

Mr Jackson : It could, yes. It's the preamble and also the Constitution Act. If you look at section 5 of the act, 'Operation of the Constitution and laws', it says, 'This act, and all laws made by the parliament under the Constitution, shall be binding' et cetera, and the act would include the amended preamble. And section 5 has had some operation. So you would take it into account, yes.

Mr LEESER: In relation to amending section 51(xxvi) to say that it can be only used for the benefit of Aboriginal and Torres Strait Islanders, to have a series of recitals in it, do you want to comment on the effect that might have?

Mr Jackson : I have a reservation about that. I think that issue was discussed at some length in the Hindmarsh Island case. I seem to remember Justice Gaudron's judgement in that. But I think there is the possibility that we might not always want to use the race power for the benefit of the race that's the subject of it. I'm not talking about Aboriginal and Torres Strait Islander people. That's my reservation about that. I know that seems an unfashionable view perhaps, but I think there are realities sometimes too.

Mr LEESER: Might one of the difficulties in putting such a clause in there be that questions about whether the law is for the benefit of or not will inevitably go to the High Court?

Mr Jackson : Well, yes, and that gives rise of course to the question: what body is the body to decide what is benefit in the circumstances? There are obvious cases where you can say benefit or no benefit, but there are many cases where you wouldn't be able to express that, where the view is really a political one—to be made by parliament I mean.

CHAIR: Thank you, Mr Jackson, for your contribution. Unless there's something else you want to advise us on, I thank you for your attendance and for your contribution. It's been most helpful and valuable. If there are any further matters that you wish to put to us, we would like them by 16 July if that's possible. We've got a reporting date of the end of July, for an interim report. Our final report is in November. You'll be sent a copy of the transcript of your evidence and, if there are any errors in that, we'd appreciate your advice on that as well. Thank you for your attendance this morning.

Mr Jackson : Thank you for your courtesy.