Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution

Final Report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples

WHAT YOU NEED TO KNOW

• The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (the Committee) has released its third and final report (the Report) recommending options for the recognition of Australia's Indigenous population in the Constitution.
• The Committee has recommended that a referendum be held to amend the Constitution at a time when it has peak support and likelihood of success.
• The Committee has presented three options for amending the Constitution to remove references to race, while ensuring protection from adverse discrimination.
• The Report also recommends greater Parliamentary scrutiny of proposed legislation in accordance with Australia's obligations under the United Nations Declaration on the Rights of Indigenous Peoples.
• The Committee recommends engaging the broader community, particularly Aboriginal and Torres Strait Islander peoples to build the required level of social and political support and recommends holding Constitutional conventions and Parliamentary debate.

Background

The Committee was established in 2013 to inquire into and report on steps towards a successful referendum on Indigenous Constitutional recognition. This followed the 2012 report of an Expert Panel made up of Indigenous and community leaders, Constitutional experts and members of Parliament, which was presented to then Prime Minister, Julia Gillard.

During the inquiry the Committee held 15 public hearings, consulted legal and Constitutional advisors, and received submissions from 139 stakeholders.

The Report aims to identify the best option for "completing" the Constitution, by recognising Australia's Indigenous population and maintaining the outcomes of the 1967 referendum, which amended s 51(xxvi) to enable the Commonwealth to make laws with respect to "any race" including Aboriginal and Torres Strait Islander peoples.

Key recommendations of the Report

To hold a referendum at a time when it is most likely to succeed
The Committee considered the merit of scheduling a referendum to coincide with the 50th anniversary of the 1967 referendum, a proposal described by Prime Minister Tony Abbott to be "a richly symbolic time to complete our Constitution". The alternative proposal considered was to hold a referendum concurrently with the next Federal election – the most economic option.

Ultimately, the Committee highlighted public support and likelihood of success as the paramount considerations in determining the optimum timing for a referendum.

To repeal ss 25 and 51(xxvi) of the Constitution
Section 25 deals with the situation where a State law provides for disqualification from voting based on race, while s 51(xxvi) provides for the Commonwealth's "race power" to make special laws for people of a particular race.

The Committee considered that these sections make specific and outdated reference to race which is "at odds with a modern Australia", and that the continued existence of these sections is of no utility.

It was recommended that the Commonwealth's "persons power" to make non-discriminatory laws, particularly for Aboriginal and Torres Strait Islander peoples should be retained through one of the options set out below.

To consider and insert one of three proposed sections to maintain the "persons power" of s 51(xxvi) as per the 1967 referendum result

• The first option seeks to insert a new s 51A which recognises, acknowledges and respects historical and ongoing connection of Indigenous Australians to modern Australia through preambular language. Further, it would retain a narrow persons power with respect to Aboriginal and Torres Strait Islander peoples.

  A new s 116A would contain an explicit prohibition of racial discrimination by both the Commonwealth and the States, on the broad grounds of race, colour or ethnic or national origin. This prohibition would be caveated by an exception modelled on "special measures" principles.

• The second option proposes an entirely new Chapter IIIA. This option would combine all the proposed amendments in one place, presented to the public as a single, unified area of focus to be voted on.

  This option is narrower than the first in that the prohibition on discrimination is limited strictly to laws particular to Aboriginal and Torres Strait Islander peoples. It limits only the Commonwealth's law-making power, such that the States and Territories would be unaffected by the change. This option includes preambular language similar to the first option.

• The third option also combines amendments into a single new section, s 60A. This section would also contain preambular language similar to options one and two.

  This option, like option two, limits the persons power of the Commonwealth to Aboriginal and Torres Strait Islander peoples, though differs by prohibiting the capacity of the Commonwealth, States and Territories to "adversely discriminate".

To increase Parliamentary scrutiny of proposed legislation in accordance with Australia's international obligations
The Committee recommends that the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) be amended to explicitly list the United Nations Declaration on the Rights of Indigenous Peoples as an instrument to be examined when assessing compliance of new legislation with human rights.

What happens next?

This week, a bipartisan summit is being held in Sydney with key Indigenous leaders to further discuss the timing and options for Constitutional change. Both Prime Minister Tony Abbott and Opposition Leader Bill Shorten are attending the summit.

In addition, the Committee recommended that both Houses of Federal Parliament set aside a day to debate the Report. The rationale for this is to allow Parliament to show strong political leadership on the issue of Constitutional recognition.

The Committee also recommended holding State and national Constitutional conventions, with a particular focus on receiving input from Aboriginal and Torres Strait Islander peoples prior to a referendum.

Unresolved issues

The Committee considered a number of submissions that supported a constitutionally-established advisory board of Aboriginal and Torres Strait Islander peoples to give a non-binding but authoritative voice in Parliament to Australia's Indigenous population.

It was decided that this proposal required further evaluation due to the significant Constitutional change required and potential issues of such a body operating effectively in Australia's Westminster system.