Before writing my assignment I had never really thought about the Constitution or what it represents for Australians. Moreover, I had always thought that constitutionally recognising the Indigenous Peoples of Australia would be any easy task - just add another provision to the Constituion. Unfortunately, what I have discovered from my research, is that is it not that easy. I would love you all to read my assignment regarding this issue, so please have a read!
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Below is my assignment:
Constitutional Recognition of Indigenous Australia
The Australian Constitution came
into being on the 1st of January 1901, however Federation did not stop
the debate on its contents.[1]
One perennial issue has been the recognition of Indigenous Australia in the
Constitution, with the goal of ‘secur[ing] better governmental treatment of
Indigenous people and stronger protection of their rights and interests through
constitutional amendment.”[2] Recently,
the Expert Panel on Indigenous Recognition, appointed by the Gillard
Government, presented government and the wider Australian community with a
report,[3] summarising
their advice on such an issue. The Panel’s Report has encouraged debate on the
topic of constitutional recognition of Indigenous Australia and generated considerable
media attention. This essay draws on the commentary of Marcia Langton and Megan
Davis, and Stuart Rintoul and examines the main concepts of constitutionalism
in light of this reform debate so as to explore the relationship between constitutionalism
and law reform.[4]
Proposed Reforms
How Indigenous Australia can be
adequately recognised within the Australian Constitution has preoccupied
academics and the media. In his speech titled Constitutional Law and Indigenous Australia: Challenge for a parched
continent, former High Court Justice Michael Kirby outlines the four
principal reforms suggested: Deletion of section 25, inclusion of a
non-discrimination provision, amendment or deletion of ‘the races power’ (s 51(xxvi))
and a preamble which explicitly recognises Indigenous Australians.[5] This
essay will focus on these reforms, as their respective merits and weaknesses
will be analysed through the lens of constitutionalism.
The Rule of Law
The Rule of Law is a frequently
employed phrase in the debate regarding the constitutional recognition of
Indigenous Australians. In media coverage and academic writing on this issue,
the rule of law recurrently citied as the reasoning that underpins the reforms
proposed. There exist two analytical approaches to the rule of law.[6] While some constitutionalists adopt a thinner, procedurally-focused conception
of the rule of law, others utilise a thicker,
morally-infused understanding. Hayek defines the former as meaning that ‘government
… is bound by rules fixed and announced beforehand.’[7] A
law is consistent with the rule of law, under Hayek’s definition, when it
applies generally, prospectively, and equally. Most commonly, however, the media
utilise a thicker conception of the rule of law. Under this understanding, a
rule, which may be procedurally satisfactory, can be so morally pregnant as to
be inconsistent with what the rule of law is seen to stand for. This conception emphasises the idea that everyone, ‘be
they citizens, visitors, residents or officials’ should be equal in the eyes of
the law.[8]
Under a thin approach, the current
state of the Constitution can be seen to open to challenge certain
discriminatory provisions, which though applying retrospectively, do not apply
generally or equally. Further, such discriminatory provisions (ss 25 and
51(xxvi)) can be seen to conflict with a thick conception of the rule of law.
Many constitutionalists argue for
affirmative action in the form of deletion of the discriminatory provisions,
sections 25 and 51(xxvi), from the Constitution. Section 25, simply expressed,
gives Parliament the power to exclude Indigenous Australians from voting in
Federal Elections.[9]
Section 51(xxvi), 'the races power’ invests the Federal Parliament with the
power to make laws regarding ‘people of any race whom it is deemed necessary to
make laws.’[10]
The aim of this provision, amended previously at the 1967 referendum, arguably was
to afford the power to the Federal Parliament to enact laws beneficial to Indigenous Australians,
yet such power has been held to include the formulation and amendment of
racially-discriminatory laws.[11]
As Kirby notes, in the High Court decision Kartinyeri,
‘[t]he races power was revealed … to be … a provision capable of regulating
and restricting minority races.’ [12]
Arguably, the deletion of section
25 would have little impact on the Constitution, as it is currently not
utilised.[13] Yet, as Kirby stresses, any racist provisions
within the Australian Constitution pose the threat of future employment.[14]
On its own, deletion of section 25 is merely ‘an empty gesture, devoid of any
present practical utility.’[15] Accordingly,
deletion of section 51(xxvi) would affect the Constitution, resulting in the
abolition of the Federal Parliament’s powers regarding Indigenous Australians.
As before the 1967 referendum, their care would be left to State Parliaments. Deletion
of section 51(xxvi) is impractical if it is not replaced by another clause or
Act to provide that the Commonwealth is still able to make laws regarding
Indigenous Australians.[16]
Critics of the ‘deletion’ proposal,
argue it would be more advantageous to alter ‘the races power’ (s 51(xxvi)) so
that it is only capable of affecting Indigenous Australians in “beneficial”
ways.[17]
Such an argument is based on the premise that, at times, discrimination, in the
sense of laws relating only to certain groups of people, is required.
Hypothetically, a Marriage Act may discriminate against people, in a reasonable
manner, based on age. Applying this same thinking to the reform debate, the
current social state of Indigenous Australians could make benevolent discrimination,
on the grounds of race, reasonably necessary. Indigenous Activist, Noel
Pearson, opposes this idea, however, arguing that Indigenous well-being is in
fact inhibited by the constitutional framework.[18]
A rigid, written Constitution
The Australian Constitution was
designed to be permanent and lasting.[19] It
is a written Constitution, meaning that it is a ‘single solemn document.’ [20]
This characteristic of the Australian Constitution renders the document
inflexible. Its status as supreme law dictates that it should not be
susceptible to amendment in the same way as ordinary laws.[21] To
alter the Constitution, the legislature must satisfy a special procedure,
outlined in section 128 of the Australian Constitution.[22] The
rigidity of the Australian Constitution, being wholly entrenched by such manner
and form requirements, makes it almost impossible to formally amend. Historically,
only 8 of the 44 referendums in Australia have proven successful.[23]
Conversely, the Constitutional
documents of the states can be amended and altered with ‘comparative ease,’ ‘as
parliamentary sovereignty allows the political majority of the day to alter
even the most basic rules.’ [24] For
the purpose of this section, parliamentary sovereignty can be understood as
Parliament’s right, which cannot be overridden by any person or body, to make,
or unmake, any law it sees fit.[25] The
State constitutional documents function as Constitutions, yet hold the status of
ordinary legislation and thus can be changed by Parliament following its normal
procedures for amending Acts.[26]
The states have already recognised Indigenous peoples in their Constitutions.
Victoria, Queensland and New South Wales have all respectively brought about
such amendment by way of an ordinary act.[27]
If the recognition of Indigenous
Australia already exits at a state level, and Commonwealth laws regarding
non-discrimination have been implemented, then is recognition of Indigenous
Australians in the Constitution necessary? Arguably yes, as both State and Commonwealth
laws can be overridden.[28]
Moreover, having such provisions in the Commonwealth Constitution can have
far-reaching effects. For example, the use of the term “court” in Chapter III
of the Australian Constitution has been held to preserve the existence of the
State courts and their ability to review executive decisions that are infected
by jurisdictional error.[29]
The inflexible nature of the
Australian Constitution as supreme law in Australia, however, weakens the argument
for altering ‘the races power’ to benefit
Indigenous Australians (outlined above) as it leaves the interpretation of “beneficial”
up to the courts – the ‘Guardians of the Constitution’ or as Allan conversely opines,
the ‘judicial overlords.’[30]
Can we afford to impliedly invest such a significant chunk of power in the
Judiciary?[31] Allan
persuasively questions why ‘the views of judges should be made the
presumptively correct ones.’[32]
Arguably it would be more appropriate to outline this investment of power in an
ordinary Act of Parliament, thus, leaving such decisions to an elected
parliament, representative of the views of the people of that time. This
approach treats citizens as autonomous agents who can participate more meaningfully
than if such issues were left exclusively to be decided by the unelected
Judges.[33]
Locking-in provisions
The rigidity of the Australian
Constitution means that many provisions remain eternally entrenched.[34]
Indeed, it has been this inflexibility that has preserved the Constitution’s
racist undertones identified in the reform debate. Finer notes, ‘constitutions
contain elements that are autobiographical … Different historical contexts have
generated different preoccupations: different preoccupations have generated
different emphases.’[35]
Langton, argues that the need to “lock-in” Indigenous Recognition within the
Constitution is necessary so as to protect Indigenous Australians from the
mercy of the swings of the Australian political fulcrum.[36]
The question arises, however, of what are we, the Australian voters,
effectively locking-in? And further, ‘why should one Parliament as
representative of a particular constituency at a particular time, have the
power to bind a future Parliament, which is representative of the people at the
later time?’[37] Though
inspired by altruistic motivations, what the Australian voters locked in, in
1967 with ‘the races power,’ was a provision, which unreasonably discriminated
against Indigenous Australians on the grounds of their race.
To avoid future examples of such
discrimination, it is proposed that a non-discriminatory clause, that forbids racial
discrimination, be added to the Constitution. Effectively, such a provision
would turn ‘constitutional power into … constitutional recognition.’[38] However,
the reform is weakened by the argument that such an implementation would be
unfair and impractical as the limits to which this constitutional-guarantee would
extend are hard to define. Surely it is unfair to have a non-discrimination
clause that is, by its nature, discriminatory.[39]
Kirby writes, “why forbid discrimination on the grounds only of race? Why not
also sex or gender? Why not culture or religion? Why not physical or mental
disability?”[40]
Further, a non-discrimination
clause in the Constitution would result in the Racial Discrimination Act[41]
becoming entrenched and therefore, thanks to the Constitution’s inflexibility,
almost impossible to suspend.[42] This
begs the question of how an act of Parliament can be legitimately and
effectively replaced by ‘one line in the Constitution?’[43]
Father Frank Brennan, argues that such a replacement is inadequate as he
queries how a ‘60-page’ Act can be successfully condensed into one provision
(particularly without the ‘buffering provisions’ associated with a Charter or
Bill of Rights).[44]
The idea of “locking-in” provisions
regarding the recognition of Indigenous Australians is, for many, both
symbolically and practically important. The entrenching of a non-discrimination
provision and/or the possible alteration of section 51(xvii) will pragmatically
mean the exclusion of any racist undertones within the Constitution but, for
some, such amendments symbolise reconciliation – an acknowledgment that all who
reside in Australia are, before the eyes of the law at least, equals.[45] A
possible method for constitutional recognition would be to explicitly mention
Indigenous Australians in the preamble to the Constitution – an entirely symbolic
act, as a preamble has no legal or political weight.[46] The
issues that arise due to practicalities, however, fatally weaken this proposal.[47]
Concluding remarks
This essay highlighted the issues
presented by the proposed reforms regarding the recognition of Indigenous
Australians in the Constitution, and, in doing so, illustrated the complex relationship
between constitutionalism and law reform. The media largely simplifies this
issue, presenting the debate in exaggerated and emotive terms. Unfortunately,
the Federal Government is unable to spend money advocating referendum proposals
and therefore is unable to put money into educational schemes that present a
more balanced account of constitutional change than the media.[48] This
essay submits that the State Governments could use their money, not limited
like the Federal Parliament’s, to objectively inform the public of the constitutional
issues presently pertinent.[49]
[1] Tony Blackshield & George Williams, Australian Constitutional Law and Theory
(The Federation Press, 5th ed, 2010) 1.
[2] Megan Davis & Dylan Lino, 'Constitutional Reform
and Indigenous Peoples’ (2010) 7(19) Indigenous
Law Bulletin 3, 3.
[3] Expert Panel on Constitutional Recognition of
Indigenous Australians, Parliament of Australia, Recognising Aboriginal and Torres Strait Islander Peoples in the
Constitution: Report of the Expert Panel (2012).
[4] Stuart Rintoul, ‘Langton “goes to far – voting no foes
not indicate racism” ’ The Australian (online),
31 January 2012 <http://global.factiva.com.ezproxy.library.uq.edu.au/ha/default.aspx>; Marcia Langton & Megan Davis, ‘An
answer to the race question,’ The
Australian (online), 21 January 2012
<http://global.factiva.com.ezproxy.library.uq.edu.au/ha/default.aspx>.
[5] Michael Kirby, ‘Constitutional Law and Indigenous
Australians: Challenge for a Parched Continent’ (Paper presented at
Constitutional Change: Recognition or Substantive Rights?, Canberra, 22 July 2011) 1-25.
[6] Alexander Reilly, Gabrielle Appleby, Laura Grenfell and
Wendy Lacey, Australian Public Law (Oxford
University Press, 2011) 18.
[7] Ibid.
[8] David Clark Principles
of Australian Public Law (LexisNexis Butterworths, 3rd ed, 2010)
18.
[9] Australian Constitution s 51 (xxvi) .
[10] Ibid.
[11] Kirby, above n 5, 5; Kartinyeri v The Commonwealth (1998) 195 CLR 337, 414-419
[159]-9167]; Wurridjal v The Commonwealth
(2009) 237 CLR 309, 394-5 [214].
[12] Kirby, above n 5, 5.
[13] Ibid 16.
[14] Ibid.
[15] Ibid 17.
[16] Melissa Castan, ‘Constitutional Deficiencies in the
Protection of Indigenous Australians’ (2011) 7 (25) Indigenous Law Bulletin 12, 15.
[17] Kirby, above n 5, 19.
[18] Noel Pearson, ‘Constitutional reform crucial to
indigenous wellbeing’ The Australian (online),
24 December 2011
<http://global.factiva.com.ezproxy.library.uq.edu.au/ha/default.aspx>.
[19] P H Lane, An Introduction to the Australian
Constitutions (The Law Book Company Ltd, 6th ed, 1994) 3.
[20] Blackshield and Williams, above n 1, 2.
[21] Neil Parpworth, Constitutional
Law: Text and Materials (Oxford University Press, 4th ed, 2006)
3, 5.
[22] Australian
Constitution s 128.
[23] Graeme Orr, The
Law of Politics: Elections, Parties and Money in Australia (Federation
Press, 2010) 266.
[24] Parpworth, above n 22, 7.
[25]
Reilly,
Appleby, Grenfell and Lacey, above n 6, 83.
[26] Cheryl Saunders, The
Constitution of Australia (Hart Publishing, 2011) ch 2.
[27]George Williams,
‘Recognising Indigenous Peoples in the Australian Constitution: What the
Constitution Should say and how the Referendum can be won’ (2011) Native Title Research Unit 2, 2.
[28] ABC Radio National, ‘Where to now for Constitutional
Recognition of Indigenous Australians?,’ Big
Ideas, 9 July 2012 (Paul Barclay, James Spielgman, Megan Davis, Alison
Page, Frank Brennan, & Mick Dodson) < http://www.abc.net.au/radionational/programs/bigideas/big-ideas-09-july-2012/4107550>.
[29] Kirk v Industrial Relations Commission of NSW v Work
Cover NSW [2010] HCA 1.
[30] James
Allan, ‘A Defence of the Status Quo’ in Tom Campbell at al (eds), Protection Human Rights (Oxford University Press, 2003) 175, 182.
[31] Rintoul, above n 4.
[32] James Allan, ‘Human Rights – Can we Afford to Leave
them to the Judges?’ (2005) 16 Commonwealth
Judicial Journal 1, 3.
[33] Ibid.
[34] Lane, above n 19, 3.
[35] Parpworth, above n 21, 8.
[36] Shireen Morris, ‘Indigenous Constitution Recognition,
Non-discrimination and Equality before the Law: Why Reform is Necessary’ (2011)
7 (26) Indigenous Law Bulletin 7, 9.
[37] Blackshield and Williams, above n 1, 3.
[38] Kirby, above n 5, 18.
[39] Ibid.
[40] Ibid.
[41] Racial
Discrimination Act 1975 (Cth).
[42] ‘Where to now for Constitutional Recognition of
Indigenous Australians?,’ above n 28.
[43] Ibid.
[44] Ibid.
[45] Langton & Davis, above n 4.
[46] Ibid.
[47] The impracticalities render this proposal unachievable
and therefore, for the purposes of this essay, not worthy of significant
attention. Rintoul, above n 4.
[48] Orr, above n 23, 269.
[49] Ibid.
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