Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel
The Expert Panel's terms of reference required it to report to the Government on 'possible options for constitutional change to give effect to Indigenous constitutional recognition'.
From its first meeting in February 2011, the Panel was aware that 'recognition' means different things to different Australians. For some, it means recognition of the distinct and unique cultures of Aboriginal and Torres Strait Islander peoples in a preamble to the Constitution. For others, it means removing the provisions in the Constitution that contemplate discrimination on the ground of race, namely sections 25 and 51(xxvi), and the replacement of those provisions by a power to make laws that advance or benefit Aboriginal and Torres Strait Islander peoples and a provision prohibiting legislative and government action that discriminates on the ground of race.
As discussed in Chapter 3, the Panel's discussion paper identified seven ideas for change. These ideas were not intended to limit the suggestions for recognition that might come forward through the consultation and submission process. However, understandably many of the submissions to the Panel were confined to the ideas identified by the Panel in its discussion paper. In particular, in the area of statements of recognition or values, the four ideas identified in the discussion paper influenced the structure of community consultations and public submissions.
In this chapter, the following issues, which emerged at consultations and in submissions in relation to statements of recognition or values, are addressed:
The Australian Constitution does not contain a preamble, although there is a preamble to the Imperial Commonwealth of Australia Constitution Act 1900, by which the Parliament at Westminster enacted the Constitution in 1900. The first eight clauses of the Act, referred to as the 'covering clauses', contain mainly introductory, explanatory and consequential provisions. The ninth clause contains the Australian Constitution. The preamble and the enacting clause provide:
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
The orthodox view is that section 128 of the Constitution cannot be used to amend the preamble to the Commonwealth of Australia Constitution Act.1 Numerous submissions to the Panel, including those from Associate Professor Anne Twomey, the Centre for Comparative Constitutional Studies, and the Law Council of Australia, cast doubt on the efficacy of the Commonwealth Parliament and Australian people acting under section 128 of the Constitution to alter the existing preamble to the Commonwealth of Australia Constitution Act 1900.
Two further proposals concerning recognition were for recognition in the body of the Australian Constitution:
'Idea 2' in the Panel's discussion paper was as follows:
Rather than place a Statement of Recognition acknowledging Australia's Aboriginal and Torres Strait Islander peoples' distinct cultural identities, prior ownership and custodianship of their lands and waters in a preamble, it could be inserted as a section in the body of the Constitution.
A number of submissions welcomed recognition of Aboriginal and Torres Strait Islander peoples in a new preamble in the body of the Constitution (either at the beginning or in a specific section). These included the submissions from Yarrabah Aboriginal Shire Council, Convent of the Sisters of Mercy Parramatta, and Matthew Baird.3 However, most submissions indicated no preference about the location of a statement of recognition.
A preamble usually appears at the beginning of a constitution or statute before the operative or substantive provisions.
A preamble has been described as:
One commentator has identified four elements that can be found in preambles:
A preamble can have both symbolic value and a justiciable aspect. The justiciable aspect arises from the fact that a preamble may be used to interpret the body of the document.7
Section 128 of the Constitution states that the Constitution can only be amended by a referendum, and sets out the referendum process.
Any proposed alteration to the Constitution must be approved by a double majority, that is:
During consultations, many people expressed concern about preambular recognition being a 'tokenistic'8 gesture or 'merely symbolic', and argued instead for substantive change to the Constitution.
We should be in the Constitution, not in the preamble. If we're not, it's tokenism.9
My view is that I don't want to be in a preamble. I want to be in the guts and the crux of the Constitution. A preamble is too much like shades of old when you couldn't talk about treaties and sovereignty, when we came up with the word 'Makarrata'.10
Just putting in the front of the Constitution that we 'recognise Aboriginal and Torres Strait people are the original inhabitants' isn't going to change much.11
We don't want it in the preamble; we want it in the body. You need the legal validity, there's no point in doing it otherwise. We have to go beyond symbolism. Symbolism is a good starting point (as was the apology) but it should be the starting point, not the finishing point.12
If we are only given the option to vote for a preambular change, I don't see that as having much value. I don't just want symbolic changes.13
If the preamble is not law what is the point of having a preamble—we want it in the body so it's law.14
The preamble is just the outside story—we want to put our story in the main part of the Constitution.15
To be properly respectful, recognition must be in the Constitution.16
On the other hand, some who made submissions to the Panel argued that the Panel should not dismiss the 'genuine importance of a symbolic preamble ... if agreement is elusive with regards to placing text in the body of the Constitution'.17 Others argued that 'the power of symbolism in relation to the reconciliation movement ought not to be dismissed'18 At consultations, there were also expressions of support for the idea of preambular recognition.
Re idea of preamble—I think today is a classic example, before we started we had a statement that's important—its rightful place is up front. (Welcome to Country.) A preamble would be telling people: before you read on, we want to say something. Custodianship is an important word to include in a preamble—ownership is one thing, but custodianship is a responsibility to look after it.19
From an Aboriginal perspective, it needs to tell a story at the front, in the preamble, but also have a link between the body as well as the preamble of the Constitution.20
Doesn't it set the tone for understanding? It's quite nice for us to have that as a beginning. A preamble influences the way we might see our future, our country.21
Thank you for your coming to talk with us today. Many Australians seem to be proud of the fact that the oldest continuing culture in the world resides in Australia. That culture is more than just art. I think that we are at a pivotal point, you need to tell Prime Minister to include Aboriginal people at the start of the Constitution, if we are going to make changes, we need to start at the top and right the wrongs.22
Maybe the preamble is a good idea—we need something strong at the beginning, from the start. We might be remiss to scrap the preamble idea—sure, changing the powers is needed, but maybe a preamble will set the scene.23
Certain facts need to be recognised in the preamble: people lived here for 40 to 60 thousand years and then Europeans came and dispossessed the land. Also that the Constitution was made to reconcile the competing interests of the states.24
Of those surveyed online, 61.5 per cent supported recognition in both the preamble and the body of the Constitution. Many submissions also supported such an approach. For example, the Australian Buddhist Community stated:
We support constitutional recognition for Indigenous Australians in the preamble and the body of the Australian Constitution. Recognition and acknowledgement of Indigenous Australian peoples' cultures—past and present—in our Constitution would show our valued place as part of our national identity. We believe these changes will bring our constitution into accord with the values of contemporary Australian society.25
The 1999 referendum on a preamble proposed the insertion of a provision that made it clear that the proposed preamble would have no legal force, and could not be used for the purpose of interpreting the Constitution or other laws.26
In recent years, the Queensland, Victorian and New South Wales parliaments have each adopted constitutional amendments to recognise Aboriginal and Torres Strait Islander peoples. All such amendments were enacted by State parliaments without referendums. The Victorian and New South Wales amendments are in the form of substantive provisions in the relevant Constitution Act.27 In Queensland, recognition is in the preamble to the Constitution of Queensland 2001. In all three cases, a provision was included to the effect that parliament did not intend (a) to create in any person any legal right or give rise to any civil cause of action; or (b) to affect in any way the interpretation of the Constitution or of any other law in force in the State.28 New South Wales also included any right to review an administrative action. The Victorian Constitution Act 1975, as amended in 2004, provides in section 1A:
1A. Recognition of Aboriginal people
(1) The Parliament acknowledges that the events described in the preamble to this Act occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria.
(2) The Parliament recognises that Victoria's Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established—
(a) have a unique status as the descendants of Australia's first people; and
(b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and
(c) have made a unique and irreplaceable contribution to the identity and well-being of Victoria.
(3) The Parliament does not intend by this section—
(a) to create in any person any legal right or give rise to any civil cause of action; or
(b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.
The NSW Constitution Act 1902, as amended in 2010, provides in section 2:
2 Recognition of Aboriginal people
(1) Parliament, on behalf of the people of New South Wales, acknowledges and honours the Aboriginal people as the State's first people and nations.
(2) Parliament, on behalf of the people of New South Wales, recognises that Aboriginal people, as the traditional custodians and occupants of the land in New South Wales:
(a) have a spiritual, social, cultural and economic relationship with their traditional lands and waters, and
(b) have made and continue to make a unique and lasting contribution to the identity of the State.
(3) Nothing in this section creates any legal right or liability, or gives rise to or affects any civil cause of action or right to review an administrative action, or affects the interpretation of any Act or law in force in New South Wales.
The preamble to the Constitution of Queensland 2001, as amended in 2009, provides:
The people of Queensland, free and equal citizens of Australia—
(c) honour the Aboriginal peoples and Torres Strait Islander peoples, the First Australians, whose lands, winds and waters we all now share; and pay tribute to their unique values, and their ancient and enduring cultures, which deepen and enrich the life of our community.
Section 3A of the Constitution of Queensland provides:
The Parliament does not in the preamble—
(a) create in any person any legal right or give rise to any civil cause of action; or
(b) affect in any way the interpretation of this Act or of any other law in force in Queensland.
There was no support at consultations and little if any support in submissions for a 'no legal effect' clause.29 Twomey cautioned that: 'The potential effect of a preamble may be even more damaging if the form of recognition is half-hearted or undermined by qualifications.' Senior lecturer in law Bede Harris argued that a statement in the Constitution simply 'recognising' the existence of indigenous people would be to state the obvious, and be of no practical benefit.30 The Centre for Comparative Constitutional Studies was:
strongly opposed to including a clause limiting the legal effect of a statement of recognition or values. Such a clause is inconsistent with the reason for the inclusion of a statement of recognition or values. To qualify the recognition in this way treats a statement of recognition or values as an exceptional part of the Constitution ...31
The Law Council of Australia also recommended against any form of disclaimer (or 'no legal effect' clause), such as those found in the New South Wales, Queensland and Victorian constitutions, arguing that 'such a clause would substantially detract from the symbolic value of recognition, and is likely to undermine support for the proposal from all sides'.32
The Panel has concluded that any statement of recognition should not be accompanied by a 'no legal effect' clause. The Panel does not consider that it would be appropriate to include some form of recognition of Aboriginal and Torres Strait Islander peoples in the Constitution, and simultaneously to state that such recognition has no legal effect. Such an approach would amount to a giving and taking at the same time, and suggest that the statement of recognition was 'an empty gesture' or even tokenistic. A 'no legal effect' clause would not satisfy at least one of the four principles that have guided the Panel's assessment of proposals, namely that a proposal must 'be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples'.
During the course of consultations and in submissions, a number of structural issues were raised, especially by lawyers, concerning the placement of a new preamble in the body of the Constitution.
Twomey referred to the spectre of 'two preambles'. Her concern was that preambles are commonly placed before enacting clauses. This means that the preamble is not part of the substantive law, and has no binding legal effect. The preamble is explanatory and interpretive.33 Inserting a new preamble in the Constitution would mean that the preamble would not precede the words of enactment, and could not be 'truly preambular' because it would be placed after the table of contents and before Chapter I.34 Twomey argued:
This is an anomalous position for a preamble and adds uncertainty to its status, as it would be located within the substantive law. Moreover, this anomaly would be made worse if the existing Preamble remained intact, placed prior to the words of enactment while a separate preamble was then placed after the words of enactment. This might suggest a different status for the second preamble as it is located within the substantive part of the Act.35
The late Professor George Winterton considered that two preambles, as proposed in the 1999 referendum, would 'look bizarre', and 'present a very muddled and confused picture to the world'.36
Concern was also expressed in submissions and at consultations about the insertion of a new preamble without accompanying changes to the substantive text. The concern was that this would create a disconnection between the substantive text of the Constitution and the preamble. Twomey, in particular, argued that the use that a court might make of a preamble which did not explain or introduce anything in the text of the Constitution when interpreting the substantive provisions was unclear and unpredictable.37 Professor Cheryl Saunders has also argued that a preamble should match the substance of the Constitution.38 If it does, there is no need for concern about how the preamble might be interpreted. It is only where there is a disconnection between the preamble and the substance of the Constitution that issues of concern might arise as to how the preamble might be interpreted and that there might be a need to limit its application.39
Legal advice obtained by the Panel was that there could be no doubt about the capacity of an amendment under section 128 to insert into the Constitution itself an Australian preamble. However, the Panel was also referred to the legal and political risks of seeking to devise a general preamble text that would not be swamped by other topics urged by some as necessary and by others as contestable. As discussed below, the Panel has decided against recommending that any statement of recognition be accompanied by a statement of values. This is because of the failure of the 1999 referendum and the likelihood of a debate over which values should be included in a statement of values, and which should not.
Further, the legal advice to the Panel described the option of a preamble recognising Aboriginal and Torres Strait Islander peoples, while at the same time retaining the race power in section 51(xxvi), as 'a very bad fit'. The jarring of the new intent with the old but continued power would be an obvious source of considerable difficulty and thus uncertainty in future judicial interpretations.
One of the Panel's guiding principles has been that that any proposal 'must be technically and legally sound'. The Panel is conscious that some uncertainty may arise as a consequence of having two preambles, and a discontinuity between either of those two preambles and the substantive text of the Constitution. Even if the language of the new preamble were relatively uncontentious, there is uncertainty about the use that might be made of it in interpreting other provisions of the Constitution, including, but not limited to, interpreting section 51(xxvi). As one study of constitutional preambles concludes, 'the courts rely, more and more, on preambles as sources of law'.40
The High Court has so far mainly used the preamble to the Imperial Act as a statement of historical fact, but has also drawn on it to support implications that can be found elsewhere in the Constitution. Depending on the content of a new preamble, its possible use in interpreting other provisions remains a real possibility with uncertain consequences.41
To avoid such uncertainty, a number of submissions recommended that the statement of recognition be linked to particular operative provisions of the Constitution. In particular, the Centre for Comparative Constitutional Studies recommended that the 'race power' in section 51(xxvi) be repealed, and replaced with a new head of power accompanied by and explicitly linked to a statement of recognition.42
The Centre argued that the idea of a non-functional statement of recognition or values in the body of the Constitution would sit uneasily with the primary, functional role of constitutions in defining, structuring and limiting political power. The presence of a statement in the operative text of the Constitution would point towards it having some independent legal function or effect:
As such, we recommend that any statement of values in the body of the constitution should be accompanied by, and explicitly linked to, operative provisions. Combining a statement of recognition or values with functional provisions would create a strong implication that the effects of the statement were confined to those things stipulated in the accompanying operative clauses.43
To illustrate how a statement of values or recognition could be linked to an operative provision, the Centre proposed a new section, named 'section 51A', which would involve a new power to replace section 51(xxvi), together with preambular or introductory text. The proposal uses as a model the statement of recognition in section 1A of the Victorian Constitution Act:
(1) The people of Australia acknowledge that the enactment of this Constitution occurred without proper consultation, recognition or involvement of the Aboriginal and Torres Strait Islander people of Australia.
(2) The people of Australia recognise that Australia's Aboriginal and Torres Strait Islander people, as the original custodians of the land on which Australia was established—
(a) have a unique status as the descendants of Australia's first people; and
(b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters; and
(c) have made a unique and irreplaceable contribution to the identity and well-being of Australia.
(3) Accordingly, the Federal Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to the Aboriginal and Torres Strait Islander people of Australia.44
The Law Council of Australia likewise supported the insertion of new preambular paragraphs as part of a new head of power to make laws with respect to Aboriginal and Torres Strait Islander peoples. The Law Council commended this option as having the advantage of avoiding the obvious political difficulties of seeking to insert a new preamble to the entire Constitution which addresses only the historical experiences and aspirations of Aboriginal and Torres Strait lslander peoples. The Law Council recalled the failure of the proposal at the 1999 referendum to insert a new preamble, and contended that such an option would promote consistency between the preambular text and the new substantive conferral of power: 'it would be a strange result if there were to be a powerful Preambular statement of recognition and there remained a substantive conferral of power in section 51(xxvi) intended—and held by the High Court—to discriminate and exclude'.45
Legal advice obtained
by the Panel also considered the removal of section 51(xxvi) and the
conferral of legislative power by a new section
in Chapter V of the Constitution with its own introductory and explanatory preamble. The main advantages of this approach, referred to as 'section 51A', are that the preambular element would apply specifically and peculiarly to the new 'section 51A' legislative power. 'Section 51A', with its own embedded preamble, should prevent future interpreters of the Constitution from deploying the preamble to alter what would otherwise have been the meaning of other provisions in the Constitution. Advice to the Panel is that the risks in a 'section 51A' approach are certainly fewer than some of the alternatives such as purporting to amend the preamble to the Commonwealth of Australia Constitution Act 1900, a preamble within section 51, or a preamble at the head of the Constitution.
In the Panel's legal roundtable consultations there was considerable support for a statement of recognition together with a new grant of legislative power. Constitutional lawyers consulted by the Panel commented that, on such an approach, the interpretive relevance of a statement of recognition would be confined to the substantive power. Hence, the consequences would be identifiable and limited, and less unforeseen than if the statement of recognition were located elsewhere in the body of the Constitution.
Another advantage of this approach is that it would ensure that a statement of recognition is directly associated with substantive change to the Constitution. At consultations and in submissions, many were concerned to avoid a statement of recognition that had no substantive legal consequences. A statement of recognition in a preamble without any change to the operative text of the Constitution would be likely to be viewed by, in particular, Aboriginal and Torres Strait Islander peoples as an inadequate form of recognition.
One of the ideas raised in the Panel's discussion paper was that a statement of recognition be accompanied by a statement of values:
This idea would include a Statement of Values in a preamble to the Constitution which incorporates recognition of Aboriginal and Torres Strait Islander peoples alongside a description of the Australian people's fundamental values, such as a commitment to democratic beliefs, the rule of law, gender equality and acknowledgement of freedoms, rights and responsibilities. The content could be similar to the pledge that new citizens are required to make when they become naturalised Australians. This approach has been adopted by Queensland (2010) in its State Constitution.46
At the referendum on an Australian republic held on 6 November 1999, one of the questions was whether Australia should alter the Constitution to insert the following preamble:
With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of government to serve the common good.
We the Australian people commit ourselves to this Constitution:
proud that our national unity has been forged by Australians from many ancestries;
never forgetting the sacrifices of all who defended our country and our liberty in time of war;
upholding freedom, tolerance, individual dignity and the rule of law;
honouring Aborigines and Torres Strait Islanders, the nation's first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country;
recognising the nation-building contribution of generations of immigrants;
mindful of our responsibility to protect our unique natural environment;
supportive of achievement as well as equality of opportunity for all;
and valuing independence as dearly as the national spirit which binds us together in both adversity and success.
Nationally, 60.66 per cent voted 'No' to the proposed preamble.47
During consultations, some spoke in support of a statement of values:
I think that whatever we end up with needs to link back to values, because this talks about us as Australians no matter what race we are. That's very important; that's why it should be in the Constitution itself. We are moving to be one people and walk together one walk.48
Bob Ellicott QC argued that it was important to have both recognition of Aboriginal and Torres Strait Islander peoples and a statement of values in a preamble:
It does not seem to me to be consistent with the notion of a preamble to amend the Constitution solely for the purpose of inserting a statement in a preamble which only deals with indigenous recognition.49
Australians for Native Title and Reconciliation Qld supported a statement of recognition accompanied by a statement describing the Australian people's fundamental values, such as a commitment to democratic beliefs, the rule of law, gender equality, and acknowledgement of freedoms, rights and responsibilities.50 David Thompson argued that 'the next fundamental and necessary inclusion in the constitution should be the definition of the values of equality, justice and democracy in our society and specified human rights to education, access, participation and freedom of conscience'.51 The Executive Council of Australian Jewry Inc. suggested that 'it would be important to include in any such statement a commitment to the following values (in no particular order of priority): democracy, personal freedom, the rule of law, human rights, racial and gender equality, social egalitarianism, mateship, [and] the fair go ethic'.52 The Anglican Diocese of Brisbane also supported a statement of values and recognition as 'a unifying statement which recognises Aboriginal and Torres Strait Islander peoples alongside other peoples'.53
A participant at the Horsham consultation (June 2011) suggested that a statement of values might be a 'statement of what Australia should be'.
However, there was also significant caution expressed about the risks of recommending a statement of values. Uncle Harry Boyd argued that defining values is 'likely to be so contentious as to fail to obtain the required majorities'.54 Another submission counselled that 'defining our “core” values and not understanding the relevance these values may have in the future (say in 200 years' time) puts an unnecessary limit on the ability of Australia to progress and develop its identity as a nation'.55 The Aboriginal Islander Christian Congress and the Assembly of the Uniting Church in Australia opposed the notion that a preamble should include 'all other people and groups who have contributed to this nation's life':
We would not support such a move for a number of reasons. First, it would be very difficult to gain agreement on who and which events should be included. Second, and more importantly, this is about honouring a group of people excluded from the Constitution who are First Peoples, and part of the founding history of this land.56
Twomey pointed to the difficulty 'in finding a form of words that is supported by the vast majority of Indigenous Australians as well as a majority of Australian voters across the country and in a majority of states'.57 Twomey argued that a preamble, at best, 'could only set out values shared by a majority, excluding the strongly held views of others, so that rather than being a unifying force, a preamble may be a means of excluding or rejecting the values of minorities'. Twomey also referred to the concepts of the 'rule of law' and 'equality', and the potential for the Constitution to be reinterpreted in accordance with those newly included 'and relatively innocuous statements'.
The Panel's terms of reference provided that the Government has committed to pursue recognition of Aboriginal and Torres Strait Islander peoples in the Constitution. The Panel has concluded that recommending a statement of recognition accompanied by a statement of values is likely to jeopardise the prospects for recognition of Aboriginal and Torres Strait Islander peoples. The Panel considers that any proposal for a statement of recognition together with a broader statement of values would lead to an unhelpful debate over the values that should be included in the statement of values. The failure of the 1999 referendum suggests that there is considerable risk in taking to referendum a proposal to amend the Constitution by inserting a preamble that seeks to define the 'values' of the Australian community. There are potential unintended legal consequences of a broad statement of values, which the Panel considers it unhelpful to explore at the present time. Such a proposal would be unlikely to meet any of the four principles identified by the Panel for its assessment of proposals for constitutional recognition.
Many submissions to the Panel contained ideas for the content of a statement of recognition. The Queensland Aboriginal and Torres Strait Islander Advisory Council argued that:
The long awaited recognition of Aboriginal and Torres Strait Islander peoples in our Nation's Constitution should acknowledge Indigenous Australians as Sovereign First Nations Peoples who have an unparalleled enduring physical and spiritual connection to this country ...
and suggested a form of wording that would:
recognise Aboriginal and Torres Strait Islander peoples as Sovereign First Peoples with a statement of values which includes respect of their cultures and diversity of those cultures, and respect for the role of Elders, Aboriginal and Torres Strait Islander peoples' connection to country, connection to family, customary laws and traditions, stories and an acknowledgement that, despite extraordinary disadvantage, Aboriginal and Torres Islander people remain the world's oldest living cultures.58
Australians for Native Title and Reconciliation National identified six principles that should be included in a statement of recognition:
Numerous submissions called for recognition of the prior occupation of Australia by sovereign Aboriginal and Torres Strait Islander nations and peoples, the non-consensual settlement of Australia, the history of dispossession, exclusion and discrimination, and the unique cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples. Numerous submissions also called for recognition of the unceded sovereignty of Aboriginal and Torres Strait Islander peoples. Matters of sovereignty are further addressed in Chapter 9.
The Sisters of St Joseph South Australia Reconciliation Circle argued that:
changes to the Constitution must include a statement which reflects proper recognition of Australia's history and includes recognition of the colonisation of the First Peoples and their subsequent dispossession. We believe it is vitally important that Aboriginal and Torres Strait Islander peoples are recognised as the prior owners of Australia who had sovereign rights which have never been ceded by Aboriginal peoples.60
Irene Doutney contended that:
A Preamble that does not recognise the violent nature of First Settlement for the original inhabitants of this land is worthless. ... There can be no true reconciliation with Aboriginal people unless we acknowledge why we need to be reconciled.61
Bryce Hobbs called for 'an acknowledgment that Australia so called at the time of settlement by European peoples was an occupied land of territories of Australian Indigenous Nations with diverse languages, customs and culture'.62
Another suggestion was that any statement of recognition should reflect the widespread 'Welcome to Country' that is now given in many different contexts to acknowledge the traditional owners and to pay respect to the elders past and present.
Many submissions called for acknowledgment of the relationship of Aboriginal and Torres Strait Islander peoples with their lands and waters. At the same time, a number of submissions were concerned not to compromise existing rights and entitlements to land and waters that are recognised through native title law and otherwise:
I would not support a change which speaks in terms of Aboriginal and Torres Strait Islander Peoples' prior ownership of the lands and waters. This may undermine what has been achieved since the High Court's decision in Mabo and Wik.63
Similarly, one participant at a public consultation said: 'All Aboriginal and Torres Strait Islanders will agree that land is the most important thing to them. The way we deal with native title, mining and government—what we put in the Constitution has to make this process stronger or better.'64
Many submissions to the Panel contained suggestions for a statement of recognition. For example:
The First People of this nation are our Traditional owners connected by language and culture to their ancient country.65
We the Australian people, mindful of past injustices and conflict with the Aboriginal people of this land, open our hearts and extend our hands to the first Australians, in friendship accepting them as equals, brothers and sisters, valuing them and their cultural heritage as an integral part of the rich tapestry of this new Australian democracy of peoples.66
[I]n the face of this history which has separated us, Indigenous and non-Indigenous Australians commit to a relationship for reconciliation, respect and dialogue, recognising that the health and strength of our nation will be forged in partnership.67
We the people of Australia declare in the year 2013: that the Commonwealth of Australia, having come together in the year 1901, is a sovereign indivisible democracy; and a union of our Indigenous Australian cultures, our British and Irish heritage, and the gifts of Australians drawn from many nations, under this Constitution. God bless Australia.68
The Federation of Ethnic Communities' Councils of Australia proposed the following language for inclusion in a preamble:
We the people of Australia recognise the primacy of the Aboriginal and Torres Strait Islander cultures and languages in Australia. We recognise their distinct cultural identities and prior ownership and custodianship of the land and waters.
We the people of Australia recognise the culturally diverse character of this country. We affirm our commitment to the equality of all who live in this country irrespective of culture, gender or religion. We recognise the rule of law, the principles of democracy and the rights and responsibilities of all Australians.69
The Panel's initial analysis of consultations and submissions highlighted a number of themes that could form part of a statement of recognition (see Chapter 3). These were:
The Panel developed some initial language in relation to each of these themes, and received feedback from surveys conducted by Newspoll, focus groups with Aboriginal and Torres Strait Islander leaders, and legal roundtable consultations.
There was wide support at consultations for the expressions 'first peoples' and 'first Australians'. In relation to 'first Australians':
For it to say, in the Constitution, that Aboriginal people are the first Australians, that would seem to say, in itself that terra nullius, is discredited.70
That terminology 'first Australians' does not mean anything unless it is in the Constitution. This would give us that recognition and respect and give us a way forward as a vehicle.71
Recognising Aboriginal people as the first Australians is paramount and this should be in the body of the Constitution, it should be the first thing in the Constitution.72
There was also wide support for the expression 'first Australians' in submissions.73
Some suggested, however, that the expression was inadequate to capture the fact that Aboriginal and Torres Strait Islander peoples were in Australia at the time of European settlement, and a very long time before that. Others thought the expression suggested a special status, and for that reason did not support it. A survey of the membership of the National Congress of Australia's First Peoples indicated that 'first Australians' was not popular among Aboriginal and Torres Strait Islander peoples.74 Nor was it popular among non-indigenous Australians, according to Newspoll focus groups. On the other hand, there was wide support for the expression at consultations.
As for language to describe the relationship of Aboriginal and Torres Strait Islander peoples with their lands and waters, there was a variety of opinion about the appropriateness of terms such as 'ownership', 'traditional ownership' or 'custodianship'. John Arneaud felt that the relationship is better described as 'custodianship' rather than 'ownership',75 but the Panel did not consider the concept of 'custodianship' to be adequate to describe the relationship. Margie Webb argued that the Constitution:
should recognise the Kinship system as the law framework for Aboriginal people that connects every Aboriginal person in Australia to a family protocol or behaviour that dictates how Indigenous people are connected to the animals, the plants and all living things in our land.76
The Victorian Traditional Owner Land Justice Group stated: 'Acknowledgement of traditional ownership does not set one group of Australians over or against other groups, it simply states some key features of the first chapter of the Australian story.'77
There were very high levels of support for including reference to the cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples in any statement of recognition. In consultations, many participants agreed that 'Aboriginal cultures need to receive greater constitutional protection' and that 'recognition must ensure that protection of culture is strengthened'.78
During the live chats conducted by Newspoll between 22 and 30 November 2011, participants generally found the first part of the proposed preamble to be clear and concise and to reflect sentiments with which they agreed. This included use of the words 'acknowledge' and 'spiritual and cultural relationship with the land'. 'Respect' was a highly positive word for participants. There was some concern that the addition of a preamble would be tokenistic. Some participants queried inclusion of the word 'economic' when referring to Aboriginal and Torres Strait Islander peoples' relationship with lands and waters. While the Panel did not agree with the concern about the use of this term, it chose not to use it in its recommendations for changing the Constitution.
As noted above, the most frequent suggestions of content for inclusion in a statement of recognition included recognition of the unique cultures and languages of Aboriginal and Torres Strait Islander peoples.79 During consultations, participants argued that 'recognition of different languages and cultures is very important because that's your identity'.80 One participant told the Panel:
I'm representing people from the desert. It's hard for the Australian Constitution to have any relevance for people in the desert, it's not relevant to their everyday needs. But the land and culture is in everyone's mind all the time. Language is a given part of that culture.81
A participant at the Bunbury consultation (May 2011) told the Panel:
We have a responsibility to our Aboriginal children and all children to share our culture, our language. This particularly for people from abroad who know nothing about Aboriginal people at all. There are negative generalisations made about Aboriginal people. Australians need to feel as though there is a unified bond and this will allow us to step forward as one.
Numerous submissions suggested that recognition of culture and languages would be a unifying experience for the nation. A number of submissions referred, in particular, to evidence that Aboriginal and Torres Strait Islander languages are disappearing at an unacceptable rate.82 The Cape York Institute said:83
[I]n achieving Indigenous total wellbeing, cultural prosperity is as important as socio-economic prosperity. Maintenance and enjoyment of culture is important for Indigenous happiness and health outcomes. Language is often described as being the key to culture. Languages provide concrete, tangible banks of traditional knowledge that government policies can help promote, protect and develop.
One Aboriginal woman from Cherbourg, who was removed from her family in the 1940s, recalled:
My mother and brother could speak our language and my father could speak his. I can't speak my language. Aboriginal people weren't allowed to speak their language while white people were around. They had to go out into the bush or talk their lingoes on their own. Aboriginal customs like initiation were not allowed. We could not leave Cherbourg to go to Aboriginal traditional festivals. We could have a corroboree if the Protector issued a permit. It was completely up to him. I never had a chance to learn about my traditional and customary way of life when I was on the reserves.84
In an article translated into Gumbaynggir, Aden Ridgeway, the former Australian Democrat Senator, has written that language:
goes to the heart and soul of one's identity and gives connection to family, country and community. It instils a sense of enormous pride and provides the strength from which to see the world beyond the fences of your own community—then everything seems possible.85
The report of the 2005 National Indigenous Languages Survey recognised that: 'Language, land and culture are as one. Languages are storehouses of cultural knowledge and tradition'.86 These storehouses of Aboriginal and Torres Strait Islander cultural knowledge and tradition are under threat. Before 1788, Australia was home to more than 250 Aboriginal and Torres Strait Islander languages.87 The report found that only about 145 indigenous languages are still spoken, and that the vast majority of these, about 110, are in the severely and critically endangered categories.88 The report concluded that more than a hundred Australian indigenous languages are currently 'in a far-advanced stage of endangerment', and will cease being spoken in the next 10 to 30 years if no decisive action is taken.89 In his 2010 Social Justice Report, Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda said:
In terms of cultural heritage, the loss of Indigenous languages in Australia is a loss for all Australians. For the Indigenous peoples whose languages are affected, the loss has wide ranging impacts on culture, identity and health. Cultural knowledge and concepts are carried through languages. Where languages are eroded and lost, so too is the cultural knowledge. This in turn has potential to impact on the health and well-being of Indigenous peoples.90
The Leader of the Opposition, Tony Abbott, has acknowledged the unique nature of Aboriginal and Torres Strait Islander cultures, arguing that 'because it is unique to our country, support for Aboriginal culture is a responsibility of Australian government in a way that support for other minority cultures clearly is not'.91 In the February 2008 Apology to Australia's Indigenous Peoples, Prime Minister Kevin Rudd said:
We embrace with pride, admiration and awe these great and ancient cultures we are truly blessed to have among us—cultures that provide a unique, uninterrupted human thread linking our Australian continent to the most ancient prehistory of our planet.92
In its submission to the Panel, the Cape York Institute argued that both English and indigenous Australian languages should be recognised in the Constitution, and supported by legislative reform to protect and revitalise indigenous languages and promote English literacy.93 The Cape York Institute proposed a constitutional amendment, named 'section 127B', as follows:
The national language of the Commonwealth of Australia is English. All Australian citizens shall be provided the opportunity to learn, speak and write English.
The Aboriginal and Torres Strait Islander languages shall be honoured as the original Australian languages, a treasured part of our national heritage.
All Australian citizens shall have the freedom to speak, maintain and transmit the languages of their choice.
A proposal for a new languages provision is considered in 4.8.
The first and third of the Panel's principles for assessing proposals for constitutional recognition are that they must 'contribute to a more unified and reconciled nation' and 'be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums'. After considering the results of the Newspoll surveys, and the overwhelming support in submissions, the Panel has concluded that a statement of recognition of Aboriginal and Torres Strait Islander peoples in the Constitution would be consistent with both these principles.
A large majority (83 per cent) of the submissions analysed for the Panel by Urbis expressed support for recognition of Aboriginal and Torres Strait Islander peoples in the Constitution (with some 10 per cent not stating a clear view).94 A total of 97 per cent of submissions received from organisations explicitly supported constitutional recognition, and 82 per cent of submissions received from individuals explicitly support constitutional recognition.
This is not to say that every submission to the Panel was supportive of constitutional recognition of Aboriginal and Torres Strait Islander peoples. As noted in 3.1, a number were not. For example, Rex Hesline could not see 'how changing the Constitution will bring us any closer together? In fact I can see people using it as a further reason to separate us'.95
The latest Newspoll survey conducted for the Panel in October 2011 confirmed that 81 per cent of respondents supported recognition, with 73 per cent supporting a statement that recognises the relationship with traditional lands and waters, and rights and entitlements.
Ninety-two per cent of Aboriginal and Torres Strait Islander respondents and 87 per cent of all respondents to questionnaires distributed at public consultations and in information packs indicated that they 'strongly agreed' with constitutional recognition. Some 85 per cent of all respondents 'strongly agreed' with the statement that recognising Aboriginal and Torres Strait Islander peoples would mean that the Constitution better reflected who we are as a nation. Ninety-three per cent of Aboriginal and Torres Strait Islander respondents and 78 per cent of non-indigenous respondents strongly agreed that constitutional recognition of Aboriginal and Torres Strait Islander peoples was important to them.
The second principle is that a proposal 'must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples'. The Panel has concluded that a majority of Aboriginal and Torres Strait Islander people would support a proposal for constitutional recognition. Such support, however, would depend upon the form of recognition and whether such recognition was also accompanied by a change to the body of the Constitution.
A survey conducted by the National Congress of Australia's First Peoples during its inaugural meeting (7 to 9 June 2011) found that delegates unanimously supported constitutional recognition. At that time, 68 per cent of delegates felt strongly about recognition in the preamble, 72 per cent strongly supported amending or deleting the 'race power' in section 51(xxvi), and 91 per cent strongly supported the insertion of a prohibition against racial discrimination.96 A survey of members of Congress conducted between in May and June 2011 concluded that 88.6 per cent of members surveyed considered it 'very important' that Aboriginal and Torres Strait Islander peoples be recognised in the Constitution, with a further 6.7 per cent saying that recognition was 'somewhat important'.97 In a statement to the Panel dated 7 September 2011, Congress articulated the position of Congress in relation to constitutional recognition as follows:
Congress members and delegates were not specifically asked about recognition in the body of the Constitution, or about the inclusion of values in a preamble. However, in general terms there was support for the insertion of a preamble 'recognising ownership or custodianship of lands and waters and the spiritual, social, cultural and economic relationship between those lands and waters and the First Nations Peoples, and the unique rights of First Nations Peoples to maintain culture, language and heritage, consistent with the United Nations Declaration on the Rights of Indigenous Peoples'. Further, inclusion of a new clause prohibiting discrimination and guaranteeing equality was a critical element of any constitutional reform recognising Aboriginal and Torres Strait Islander peoples, but further consultation and consideration needed to be given to whether this was limited to race only, or covered other forms of discrimination. According to the Congress statement:
The fact that these options garnered such high support from Delegates and Members indicates once again that there is a strong preference to substantive rights and protections rather than only recognition.
The fourth of the Panel's principles is that a proposal must be 'technically and legally sound'. Consistent with its legal advice, and the submissions of the Centre for Comparative Constitutional Studies and the Law Council of Australia, the Panel has concluded that the option which would best conform with that principle would be a new grant of legislative power with its own introductory and explanatory preamble to replace section 51(xxvi). The Panel's recommendation that the race power be repealed and replaced with a new 'section 51A' is discussed in Chapter 5.
The Panel considers that a statement of recognition embedded in a new 'section 51A' would be the best option in order to retain a Commonwealth power to legislate in respect of Aboriginal and Torres Strait Islander peoples while eliminating the 'race power' in its current form, and would be the most likely to avoid unintended consequences. Such an approach would incorporate the statement in the body of the Constitution, and ensure that the purpose of the new power was clear. Any current or future High Court would use the language in the adopted preambular or introductory part of 'section 51A' to interpret the new legislative power. This would avoid the risk of a statement of recognition being used to interpret other sections of the Constitution, and avoid a discontinuity between the preamble to and body of the Constitution.
This option would also avoid debate about a 'no legal effect' clause. A preamble with a 'no legal effect' clause is unlikely to attract the support of Aboriginal and Torres Strait Islander peoples, or indeed many other Australians, and is not supported by the Panel. The Panel's conclusion is that the legal risks of a new 'section 51A' with its own preamble are certainly fewer than the risks associated with some of the obvious alternatives, such as a preamble in section 51, a preamble at the head of the Constitution, or any attempt to amend the preamble to the Imperial Commonwealth of Australia Constitution Act.
As to the content of the proposed statement of recognition, the Panel has concluded that the statement should address each of the following matters:
The Panel has sought to reflect these three matters in language suitable for inclusion as part of introductory words to a new head of legislative power. In relation to the second of these matters (the relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters), it is important to emphasise that the Panel is not using the adjective 'traditional' in the strict, technical sense which has developed in connection with proof of 'traditional laws and customs' in native title doctrine (that is, cultural continuity). Rather, 'traditional' is used as a synonym for 'long-held' or 'ancestral' or 'historical' or 'pre-existing'.98
A fourth matter, discussed in Chapter 5, is whether 'section 51A' ought be textually confined to laws 'for the benefit of' or 'for the advancement of' Aboriginal and Torres Strait Islander peoples, or the like. It is clear to the Panel from its consultations and the submissions received that there is strong support for qualifying any new power to make laws for Aboriginal and Torres Strait Islander peoples so that its beneficial purpose is clear. Consistent with its legal advice, the Panel proposes use of the word 'advancement' in the preambular words to the new substantive power in 'section 51A', rather than in the power itself. This approach should ensure that the purpose is apparent, and would, as a matter of interpretation, be relevant to the scope given to the substantive power.
The fourth of the Panel's principles is that a proposal must be 'technically and legally sound'. The Panel has carefully considered the Cape York Institute proposal for a 'section 127B'. The Panel considered some elements of the proposal worthy of support. Specifically, the Panel has concluded that recognition of Aboriginal and Torres Strait Islander languages as part of our national heritage gives appropriate recognition to the significance of those languages, especially for Aboriginal and Torres Strait Islander Australians, but for all other Australians as well. The Panel has also concluded that the recognition of English as the national language simply acknowledges the existing and undisputed position.
To a considerable extent, constitutional recognition of Aboriginal and Torres Strait Islander languages overlaps with the question of the content of a statement of recognition (see 4.7), and the conferral of a head of power to make laws with respect to Aboriginal and Torres Strait Islander peoples (see 5.4). However, a separate languages provision would provide an important declaratory statement in relation to the importance of Aboriginal and Torres Strait Islander languages. The Panel understands that a declaratory provision would be 'technically and legally sound', and would not give rise to implied rights or obligations that could lead to unintended consequences. On this basis, the Panel recommends such a provision to the Government.
In relation to the second sentence of the first paragraph of the proposed 'section 127B', consultations with lawyers and State government officials indicated that an 'opportunity' to learn, speak and write English could give rise to legal proceedings challenging the adequacy of literacy learning. Similarly, the last paragraph in the proposal about recognising a 'freedom' to speak, maintain and transmit languages of choice could lead to argument about the right to deal with government in languages other than English. Such expressions would raise potentially contentious issues for all levels of government. The Panel has concluded that the potential unpredictable legal risks associated with these two sentences are such that they would not be appropriate for inclusion as part of a proposed constitutional amendment.
The Panel has concluded that a languages provision affirming that English is the national language of the Commonwealth of Australia, and declaring that Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage, would also satisfy the first and third of its four principles, namely 'contribute to a more unified and reconciled nation' and 'be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums'.