BY AMY MCQUIRE, JANUARY 19, 2012
Originally published in Tracker Magazine.
The panel appointed to conduct consultations on constitutional recognition for Indigenous Australians handed its report to Prime Minister Julia Gillard today.
NATIONAL: The constitutional reform panel today handed the Prime Minister its final report, but a prominent Aboriginal lawyer has labeled it a squandered opportunity.
The Gillard government last year appointed a 19-member expert panel to hold consultations around recognizing Aboriginal and Torres Strait Islanders in the Constitution, part of an election promise first committed by former Prime Minister John Howard.
The panel travelled around the country conducting a series of public meetings in order to hand down its final report and recommendations this morning at the National Gallery of Australia in Canberra.
Its recommendations include repealing section 25 (which allows Parliament to disqualify any race of people from participating in an Australian election) and repealing section 51 (xxvi) (the ‘race power’ which gives Commonwealth the authority to make laws that discriminate against citizens purely on the basis of race).
The report proposes a new ‘section 51A’ be inserted which recognizes Aboriginal and Torres Strait Islander peoples (See break out below).
The Parliament would also be able to make laws for “the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples”.
It also recommends a new ‘section 116A’ be inserted which says “The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin”.
The report calls for a new section (127A), which would cement Australia’s national language as English, and while also recognising “Aboriginal and Torres Strait Islander languages are the original Australian languages”.
Prime Minister Julia Gillard today welcomed the report stating that it would recognize the “unique and special place of Aboriginal people and strengthen the identity of our nation”.
Opposition Leader Tony Abbott also said the Coalition would study the panel’s recommendations, stating that it “had a very proud history of support for Indigenous recognition in the constitution”.
The National Congress of Australia’s First Peoples was quick to back the report’s findings, with co-chair Jody Broun saying the “message… is clear, it’s time to eliminate racism from the Australian constitution and to prohibit racial discrimination”.
“If taken to Referendum and passed, these reforms will establish the Constitution as a pillar against racism.”
The Law Council of Australia called on both parties to support the report, and backed the panel’s focus on inserting a guarantee against racial discrimination.
“Australia is one of the only developed countries which does not prohibit the making of racially discriminatory laws under its Constitution,” President Catherine Gale said.
“In a society enriched by so many cultures, languages and racial groups, such protection is long overdue.”
But Tasmanian Aboriginal Centre Legal Director Michael Mansell today hit out at the panel’s report, labeling it disappointing and unlikely to pass at a referendum.
He believes that the focus should be instead on legislative reform of discriminatory laws like the NT intervention.
“The report recommends constitutional recognition for the sake of it, a position that will never wash at referendum and condemns the reform to certain failure,” Mr Mansell said today in a statement.
“… ‘Cleaning up’ out-of-date parts of the Constitution such as section 25… or mucking around with s51 (race powers) will not help a single Aboriginal.
“No state has ever used s25 and would not get away with it today.
Mr Mansell also raised concerns about removing the race powers stating it was “tantamount to heresy” and would “attract accusations of racism”.
“The proposal is to constitutionally delete Aborigines from the constitutional face of Australia. This promotes assimilation and effectively forces Aborigines to copy the behaviour of white people if Aborigines expect not to be discriminated against. It is a deplorable statement.”
He states substituting this section with a new s116A as an “embarrassment”.
Mr Mansell says that the proposal to make English the national language is based on notions of “white supremacy” and could have the effect of making Aboriginal languages “subservient” to English.
He said that the aim to ensure race powers can only be used for the benefit of Aboriginal people was good, but legally unworkable.
“An existing law passed under the race powers can be amended or dumped at any time by a parliament no matter what the race power says. And who decides what a positive law is?
“The High Court has consistently said whether a law is positive or negative is a matter for the parliament that made the law, not the courts.”
He says the focus has to be on national land rights legislation, ending the NT intervention, Aboriginal self-determination and Aboriginal representation in Parliament.
Meanwhile, Amnesty International says it is now up to the government and opposition to work together to educate Australians.
“It is now imperative for the Government to adequately educate all Australians about the importance of modernising our Constitution,” Amnesty’s Sarah Marland said.
“If the government is serious about advancing reconciliation and giving this referendum every opportunity to succeed then it must be properly resourced to build the public’s awareness and education.”
THE REPORT’S RECOMMENDATIONS:
• That section 25 be repealed (This part of the constitution allows the Parliament to disqualify any race of people from participating in an Australian election).
• That section 51 (xxvi) be repealed (this is often referred to as the ‘race power’ and gives the Commonwealth the authority to make laws that discriminate against citizens purely on the basis of race).
• That a new ‘section 51A’ be inserted: Section 51A Recognition of Aboriginal and Torres Strait Islander peoples;
Recognising that the continent and its islands now known as Australia were first
occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.
The Panel further recommends that the repeal of section 51(xxvi) and the insertion of the new ‘section 51A’ be proposed together.
• That a new ‘section 116A’ be inserted, along the following lines:
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.
• That a new ‘section 127A’ be inserted, along the following lines:
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.
• The government will consider the panel’s recommendations.
• Draft legislation proposing constitutional amendments will be prepared and released for public comment.
• Ms Gillard wants Opposition Leader Tony Abbott to support the changes because without bipartisanship the referendum is likely to fail. The opposition has committed to recognising Indigenous people only in a preamble.
• Legislation will then be put to parliament before a national referendum.
• In order to be successful the constitutional change will need a double majority – support from national majority of voters in states and territories as well as a majority of voters in a majority of states (at least four out of six states.)
• Referendum Facts:
• Since Federation, only eight out of 44 proposals to amend the Constitution have been approved.
• In 1967 a referendum passed with 90.8 percent support (the highest yes vote on record) to give the Commonwealth powers to legislate for Aboriginal people and include them in national censuses.
• The panel wants:
• The referendum question to comprise a single question only.
• A resourced education campaign.
• A referendum to only go ahead when it is likely to be supported by all major political parties, and a majority of state governments.
• The vote to be held at a different time as another referendum on constitutional recognition of local government.