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It’s not often (read: never) that this blog is able to comment on breaking news before the giant media conglomerates that span the globe through a network of reporters and news sharing arrangements. But yesterday, a rather important thing happened which the newspapers and TV news gave very little space to.

Last year, Julia Gillard set up a panel to consider whether Australia should recognise Indigenous people in the Australian Constitution and how they should do so. It was announced with great fanfare and disappeared off the face of the Earth. I had simply assumed it had been quietly dumped, like most of the other Gillard Government initiatives. Nope; it turns out the panel has been travelling the country discussing views on the issue. Yesterday, it released its discussion paper on the issue.

There’s rather scant coverage on the issue:

The SMH has one article, which didn’t appear on their main page

The Australian has two articles, one and two, though neither appeared on their front page yesterday. To their credit, the Australian has far superior coverage on indigenous issues, here and reported on the Panel beginning its Australia-wide tour here (per the Adelaide Advertiser).

However, none of the papers commented on the fact that Shadow Attorney-General spoke against the Discussion Paper. It is an important foreshadowing of the Abbott Opposition’s likely response once the Final Report is released. This is despite the Australian reporting on the same event at which Senator Brandis spoke.

George Brandis and Bob Carr

The launch of the Discussion Paper co-incided with the launch of the Constitutional Reform Unit at the University of Sydney, attended by Bob Carr and the current Shadow Commonwealth Attorney-General, George Brandis of the Liberal Party.

Brandis spoke eloquently, with great intellectual rigour for a sitting politician. It probably helped that there were no cameras in the room. He spoke about generally about constitutional reform, and about the common intellectual fallacy that reform is always good. He said that any constitutional reform must have both legal rigour and political support.

With reference to the recognition of Aboriginal Australians, he said that he and the Liberal Party supported constitutional recognition in the preamble without granting substantive rights. It was one of the 6 issues that he would have focussed upon if he were heading the Reform Unit.

He spoke vigorously against the Discussion Paper, quoting one line on page 6:

. Many
Australians feel the need to address the gaps
in our Constitution, to bring it up to date to
reflect the reality of Australia in the 21st
century and to create a shared vision of the
kind of nation we aspire to become.
He said that this statement is bland political jargon that has no place in a serious Government report (and I agree). It assumes that people 'feel' that there are gaps in the Constitution, when many do not 'feel' that way and most Australians don't care. It assumes there are 'gaps' - he and I both strongly disagree that there are such gaps.
Most importantly, it assumes there is a 'shared vision' of all Australians. Clearly, no such shared vision exists. He made the very important point that in a pluralistic society, we should not be aiming for a 'shared vision' but for a multiplicity of perspectives informed by our different backgrounds and histories. Why should we privilege one 'vision' above all others? Good point.
In that vein, I shall dissect the Discussion Paper. I find the document disappointing because it puts forward views without justifying them, nor canvassing the pros/cons of different options. It doesn't explain the legal complexities behind these important and weighty issues.
The Discussion Paper
The Discussion Paper focusses mainly on Aboriginal recognition in the Constitution, but raises several other issues. The Australian focusses on the real substantive change, which is abolition of the race power.

Constitutional Recognition of Indigenous People

The Panel debates between a Statement of Recognition or a combined Statement of Recognition and Values in either the Preamble or the Constitution itself.

A Statement of Recognition would:

recognises Aboriginal and Torres Strait Islander peoples’ distinct cultural
identities, prior ownership and custodianship of their lands and waters

On the other hand, the Statement of Values would touch on issues wholly unrelated to Indigenous issues. It includes recognition of Indigenous people and:

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.

Politically speaking, the Statement of Values is presumably designed to offset the predictable counter-argument against Indigenous recognition which is “why should we grant equality to Aboriginals but not everyone else?”

Constitutionally speaking, it is terribly dangerous to place a short list of ‘values’ whilst excluding other values.

Firstly, the Panel is attempting to make this a list of values, not a list of constitutional rights. But if you read the list, these are ‘values’ which look suspiciously like those rights which are constitutionally protected everywhere else. If you want to entrench a Bill of Rights, sure let’s do it and discuss it properly. But to accidentally entrench a Bill of Rights would mean we wouldn’t give sufficient thought to which rights should be included and excluded; how these rights should be balanced; how these rights fit into our existing constitutional structures and institutions; how these rights should be worded. America and Canada each have their own rights to freedom of speech. America’s is one as wide as possible, protecting corporate speech from campaign finance laws and stopping laws that might possibly have a ‘chilling effect’ on speech. Canada’s freedom of speech is trampled all over by its other rights, particularly anti-discrimination. In fact, Canada probably has less free speech than Australia.

What’s more, these ‘values’ look suspiciously like the rights that are already protected by the Constitution. The ‘commitment to democratic beliefs’ looks suspiciously like the representative and responsible government which is set up by and protected by the Constitution. The rule of law looks suspiciously similar to separation of powers and various rights like those in R v Dietrich. Whilst preambles don’t create protected ‘rights’ like a Bill of Rights, they do act as interpretive guides. If we list these rights, we could potentially expand the existing Constitutional rights. The power to expand and define these new rights is not in the hands of the People, not their representatives in Parliament. It is vested wholly in judges and in obscure linguistic justifications rather than a serious weighing up of democratic interests.

The debate between inserting these clauses into the preamble, rather than the Constitution itself is more complex than it first appears. Our Constitution, as most intelligent Australians know, originated as a British law. What you might not know is that it originated as the Schedule to the Constitution of Australia Act. So when we “amend” the Constitution through the referendum procedure in s 128 of the Constitution, we only amend the Constitution and not the Constitution Act. There is no preamble to the Constitution, but there is a preamble to the Constitution Act.

If we want to use a referendum to add a Statement of Recognition or Values, then we can certainly add a new preamble to the Constitution. ie we will have two preambles (and that looks a tad silly).

It is possible to amend the original preamble. There are two methods to amend the Constitution based upon the Australia Acts. The Commonwealth argues that s 15(3) Australia Act alters the referendum power in s 128 to amend the Statute of Westminster (which preserves the Constitution Act) and therefore amend the Constitution Act. This seems a rather dubious argument, based upon the wording of the Australia Acts and its drafting history. Anne Twomey (who worked for the States, and tends to support them) believes it is not a valid argument.

The alternative is the clearly established power in s 15(1), where the Commonwealth Parliament may legislate “at the request or with the concurrence of the Parliaments of all the States” to amend the Australia Acts or the Statute of Westminster (and thus the Constitution Act). But it requires the States to agree.

The upshot is, that we can have a fake referendum (a plebiscite) on indigenous recognition, ask the States to ‘request and concur’ in the relevant legislation and have the Commonwealth Parliament amend the preamble accordingly. Another thing I would point out is that no referendum is required at all, though it would be quite improper to make such a significant change to the Constitution without a referendum.

That, I think, is why the Discussion Paper is keen to argue that it doesn’t matter whether you place the Statement of Recognition/Values in the preamble or the Constitution itself so long as it is properly worded. I disagree; preambles are almost always devoid of substantive effect. To amend the Constitution itself, inserting a clause with ‘values’ that look like substantive rights is a much bigger change. Unless you have an express clause saying “These are our values, but please please please don’t ever make them Constitutional Rights”, there is a danger we would accidentally create such rights. Any such referendum would fail.

Imagine this, you are a voter who is asked to vote for a constitutional amendment that says “we believe these things, but this amendment shall have no effect whatsoever”. Would you vote for a provision that has no effect? Why even bother adding it to the Constitution? Why say that we believe these things, but lack the courage of conviction to actually enforce them?

Amending the Race Power

The options are to:

  • Repeal the race power
  • Amend the race power so it can only be used for the ‘benefit’ of Aboriginal peoples
  • Insert a right of racial equality for all Australians
  • Create a new head of power for laws “with respect to the culture, historical disadvantage and unique place of” indigenous persons
I don’t see any problem with repealing the race power. All it does it remove the power from the Commonwealth, whilst allowing the States to retain powers to make laws related to race.
But I strongly disagree that the race power is fundamentally discriminatory. It merely permits laws to be made which turn on someone’s racial identity. Is a toilet discriminatory simply because it turns on gender? Is a gay adoption law discriminatory if it confers some special advantages on gay people as well as some extra procedural hurdles? Clearly some laws which turn on racial identity are necessary and may even be wholly unrelated to racial discrimination.
The stupidity of the ‘discrimination argument’ becomes most apparent when you look at the suggestion that the race power can only be used for the ‘benefit’ of Aboriginals. If I pass a law conferring money on Aboriginals, can I later repeal that law? The answer is no, because the later law confers no ‘benefit’ on them. Can I pass a law that gives welfare benefits to Aboriginal persons (e.g. in section 1 of the proposed law) that come with very strict conditions (contained in section 2)? Section 1 is valid, section 2 is invalid. So section 2 might be severed from the Act. Oops, we just conferred a benefit and we cannot ever repeal.
Also, what is a ‘benefit’? Are we asking courts to actually see if a law ‘benefits’ Aboriginal persons? That would involve courts making political decisions, like whether the Northern Territory Intervention is a “good” idea. Is it? John Howard thinks so, but Kevin Rudd doesn’t. It is for the ‘benefit’ of Aboriginals in the sense that it is intended to solve their alcohol abuse problems. It is not for the ‘benefit’ in the sense that you’re depriving them of self-government. Is it sufficient that there is any ‘benefit’ (even if there are huge anti-benefits) to a Act?
If we take a minimalist approach (what Americans call a ‘rational connection test’), then if the Government can show any evidence that a law will confer a ‘benefit’ to Aboriginals that a rational person might consider a benefit, we could see quite discriminatory Acts passed. The Stolen Generations Bill arguably confers a benefit, in the sense that children were being malnourished and needed to be taken into child protection.
If we entrench a right of equality without entrenching other rights that could cause all sorts of problems. There is no guarantee of free speech in the Constitution, so if we privilege equality rights above free speech rights then Anti-Discrimination laws might be unable to properly protect free speech rights. I haven’t studied the US or Canadian case law so I can’t give firm examples, but you can see the intuition behind the problems this could cause.
The last power is to create a new head of power for laws “with respect to the culture, historical disadvantage and unique place of” indigenous persons. I have no strong objections to this proposal, although I would prefer to leave these issues to the States and Territories. As a general rule, I would prefer to take powers away from the Commonwealth because the Commonwealth can pass a law covering the field and wiping out many worthwhile State laws. Let’s say a left-wing Labor State Government passes some native title Bill to which the Abbott Government objects. The Commonwealth can overrule it by a law “with respect to the unique position” of the Aboriginal people. Of course, if a Liberal State Government passed a law throwing all Aboriginal drunks into jail, then equally a Labor Government might overturn it. But that places more faith in the Labor Party than I actually have in them.
Constitutionally-protected Treaties with Indigenous Nations
The wording of my title (Aboriginal Treaties) might be controversial, because it evokes the ‘treaties’ that the US made with its native Indians. Those did not work out well for the Native Americans. But it did work out well for the Maoris, so who knows. I certainly don’t.
Indigenous Affairs is not a strong point of mine; in fact, I doubt many learned Australians are well acquainted with the nuances of Indigenous policy beyond the banner-waving tendencies of the far left. If Australia truly cares about equality of all peoples, it must address the vast disparity between Australians and Aboriginal Australians.
My limited understanding of the issues are that Aboriginal people have been deprived of their confidence by successive government policies. Perhaps giving them self-government may return that confidence to them. Many (conservative) commentators suggest that self-government in the Territory has utterly failed and made matters worse.
This will not be solved by sloganeering about giving self-government to all Aboriginal communities. Some Aboriginal communities might benefit from the boost in self-esteem. Some Aboriginal communities are so dysfunctional that it would be entirely inappropriate. This is not because of inherent intelligence differences between Indigenous and non-Indigenous persons; in the 1980s the great direct democracy experiment gave ordinary Californians self-government of a sort. In 1980, their State education system was the pride of the world; now it ranks 3rd last of all US States. Their Budget is a mess. Their Constitution actually limits the rights of minorities.
Perhaps, giving a kind-hearted Aboriginal affairs Minister might be able to make strong use of this power to encourage Aboriginal communities to be one of those communities worthy of having a Treaty with. Or, perhaps, they might use that constitutionally-protected treaty to enforce barbaric practices like eye-for-an-eye punishment (as recently occurred in South Australia) where a family feud surrounding a murder caused an exodus of half a town to Adelaide. Or, perhaps they might use the power to stop something like the Queensland Wild Rivers legislation which protects vital mangroves and river ecosystems from development. Those aboriginals want to develop their land and profit from it (as they should). But they should not be allowed to be sheltered from State laws, such as environmental laws, State taxes, State criminal codes etc whilst they do so.
And that is what I would emphasise about this power. The Commonwealth’s law officers will not always be aware of State issues in negotiating these treaties. If they are constitutionally-protected, such Treaties could give immunity from very important State laws.
In summary, I strongly object to any Statement of Values. I believe that a limited Statement of Recognition is appropriate, so long as it is placed in the preamble by the request and concurrence of the State Parliaments and the consent of the people through a plebiscite.
I support either maintaining the race power as is; or repealing it.
I am cautiously optimistic about the Aboriginal agreements power, but would caution that it must be carefully drafted. In particular, I think the States must have some say in those negotiations.

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