The Expert Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander peoples (the Expert Panel) was appointed by the Prime Minster in December 2010 to lead a wide-ranging national public consultation and engagement program throughout 2011. The aim of this program was to advise the government on how Aboriginal and Torres Strait Islander peoples could be recognised in the Constitution.
The Expert Panel consists of 20 representatives from Australian society including Indigenous and community leaders, constitutional experts and parliamentary members. These members had been chosen after the public made nominations for the positions. Professor Patrick Dodson and Mr Mark Leibler AC co-chaired the Panel. The Australian Human Rights Commission and the National Congress of Australia’s First Peoples were also represented on the Panel.
The Expert Panel spoke with thousands of people from across the country, hosting over 200 public consultations across 84 communities in remote, regional and metropolitan Australia. At these consultations, over 4000 individuals and representatives of business, media, government and non-government organisations discussed their ideas and concerns about constitutional recognition with the Expert Panel. In addition, more than 3,600 submissions were sent to the Panel as part of a written public submission process.
After this period of consultation with Australians, the Expert Panel developed options for recognising Aboriginal and Torres Strait Islander peoples in the Constitution. These recommendations were compiled into a report that was presented to the Australian government in January 2012.
The Expert Panel’s Report recommends multiple changes to the Constitution:
- Remove the ‘Race Provisions’: s25 and s51(xxvi)
- Insert s 51A: A New Head of Power
- Insert Section 116A: A Prohibition of Racial Discrimination
- Insert Section 127A: A New Language Provision
The Expert Panel recommended the removal of two sections of the Constitution, s 25 and s 51(xxvi). These sections allow for racial discrimination against Aboriginal and Torres Strait Islander peoples.
Section 25 states:
Provision as to races disqualified from voting
For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.
Section 51(xxvi) states:
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 the people of any race for whom it is deemed necessary to make special laws.
The main reasons for the removal of section 25 and 51(xxvi) are:
Race is an out-dated category
Section 25 and 51(xxvi) allow for laws to be passed on the basis of race. Race is no longer considered an acceptable basis for laws. The Expert Panel argues that race is not an accurate, scientific concept because scientific research has shown that ‘visible variation among people from different places is due to adaptation to local conditions’ and has nothing to do with characteristics, ability or personality. This is consistent with understandings of race in international law. The Expert Panel states that the concept of race has impacted negatively upon Aboriginal and Torres Strait Islander peoples. As a first step, we need to remove the concept of race from our Constitution that allows adverse discrimination against groups on the basis of race, including Aboriginal and Torres Strait Islander peoples. Many countries have removed references to race from their Constitutions for similar reasons.
Section 25 and s51(xxvi) are racially discriminatory provisions
Section 25 allows for state laws to exclude Aboriginal and Torres Strait Islander peoples from voting in State elections, as well as other groups, on the basis of race. This is antithetical to modern Australia’s concept of equality between Indigenous and non-Indigenous Australians. Section 25 should also be removed because it is now a ‘dead letter’ provision that is redundant in light of other legislation. Even if a State did pass a law that prevented Aboriginal or Torres Strait Islanders from voting, this law would be invalidated under the Racial Discrimination Act 1975 (Cth).
Section 51(xxvi) gives the federal Parliament the power to make laws about ‘the people of any race for whom it is deemed necessary to make special laws.’ However, the law does not specify what types of racial laws can be made under s 51(xxvi). This ambiguity means that s 51(xxvi) can be used to make laws that benefit Aboriginal and Torres Strait Islander people, AND laws that negatively discriminate and disadvantage them on the basis of their race. s 51(xxvi) has a history of being used to make laws that adversely effect Aboriginal populations, such as laws that dispossess them of their land.
Because of s51(xxvi), the government can legally discriminate against Indigenous Australians.
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 Expert Panel recommended that a new section, section 51A, should be inserted into the Constitution. The proposed s51A is divided into two parts; the statement of recognition and the head of power to pass laws. The text of the statement recognises the status of Aboriginal and Torres Strait Islander peoples as Australia’s first peoples, their continuing relationship with land and waters, their continuing cultures, languages and heritage and the need to secure the advancement of Aboriginal and Torres Strait Islander peoples. The head of power states that the federal Parliament has power to pass laws ‘with respect to Aboriginal and Torres Strait Islanders.’
There are a number of reasons why the Expert Panel has made this recommendation:
- The need for a new head of power
- The federal Parliament needs, consistent with the aspirations of the Australian people in 1967, to be able to pass laws about Aboriginal and Torres Strait Islander peoples. The federal Parliament has used s51(xxvi) to pass posistive laws specifically applicable to Aboriginal and Torres Strait Islanders, such as the Native Title Act 1993 (Cth) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). If s51(xxvi) was removed without replacement, there is a risk that there would be no other constitutional head of power that could support these important and beneficial federal laws or support such laws in the future.
- Laws for a beneficial purpose
- A statement of recognition preceding the head of power is need to enable the new of head of power provision to be interpreted in a way that prevents the federal Parliament from enacting laws that would discriminate adversely against Aboriginal and Torres Strait Islanders, which it can do under the current head of power in s51(xxvi).
- Recognising the unique status of Aboriginal and Torres Strait Islander peoples
- The proposed s51A is based not on race, but on the special place of Aboriginal and Torres Strait Islander peoples in Australia, as the descendants of the original owners and occupiers of Australia.
Section 116A Prohibition of racial discrimination
(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.
The Expert Panel recommended that s116A be inserted into the Constitution to expressly prohibit racial discrimination.
The Expert Panel consultations and public submissions demonstrated overwhelming support for a racial non-discrimination provision in line with principles of racial equality. There are two parts to section 116A. Section 116A (1) states that State, Territory and Federal governments ‘shall not discriminate based on race, colour, ethnic or national origin.’ Section 116A (2) states that subsection (1) does not limit ‘the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination or measures protecting cultures, languages or heritage of any group.’
s 116A would apply to all laws passed by Parliament, under every head of power – not just to laws about passed under the race power. This means that s 116A prevents the government from passing racially discriminatory laws about Indigenous Australians under other head of powers – such as the marriage power.
There are many reasons why the Expert Panel made this recommendation:
- The importance of an express prohibition of racial discrimination
- Section 116A(1) would prohibit the Commonwealth or State and Territory governments from using race, colour, ethnic or national origin as a basis for discriminating against people through law.
- On its own, the s 51A proposal only protects Indigenous Australians from racial discriminatory laws.
a 116A would prevent the Parliament from making laws discriminatory laws about any race of people – not just Indigenous Australians. For example, s 116A would prevent the Parliament from making a racially discriminatory law that disadvantages Asian Australians.
- Consolidating Australia’s commitment to racial non-discrimination
- Section 116A cements a commitment that Australia has made to the principle of racial non-discrimination. This principle is already captured in legislation and policies in all of the States and Territories in Australia, as well as at the federal level. For example, in the ACT there is the Discrimination Act 1991 (ACT) and at the federal level, there is the Racial Discrimination Act 1975 (Cth) (the ‘RDA’). However, despite such legislative safeguards against racial discrimination, the Commonwealth government can still pass racially discriminatory laws because the RDA is not constitutionally entrenched. This means that the Commonwealth can suspend the operation of the RDA, as it did to allow the Northern Territory Intervention, or even change the content of the RDA. The Constitution, as it currently stands, does not protect Australian citizens from discrimination of any kind, including racial discrimination.
- Section 116A allows ‘special measures’ to be taken for certain groups
- Section 116A(2) allows for laws designed ‘for the purpose of overcoming disadvantage’ and/or ‘ameliorating the effects of past discrimination.’ This section acknowledges that differential discriminatory treatment in the past justifies special measures directed at a specific group in order to allow them to ‘catch up’ to the same standards of life and opportunities as everybody else. The effect of s116A(2) is permitting laws that redress issues such as socio-economic disadvantage. It will allow laws that are ‘needs-based’ which yield material benefit to Aboriginal and Torres Strait Islander peoples or other groups who require special laws to help them overcome disadvantage.
- Section 116A (2) also allows for laws or measures for the purpose of ‘protecting the cultures, languages or heritage of any group.’
- s 116 does not impose any obligations on Parliament to pass racially ‘positive’ laws, but rather ensures that they would not be struck down as discriminatory should Parliament decide to do this.
Section 127A Recognition of languages
(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 Expert Panel recommended that section 127A is inserted into the Constitution to recognise Australian languages. Section 127A recognises English as the national language of Australia and section 127A(2) recognises that the Aboriginal and Torres Strait Islander languages are ‘the original Australian languages’ and ‘part of our national heritage.’
The purpose of section 127A is to provide symbolic recognition to Australia’s languages. The recognition of English as the national language ‘simply acknowledges the existing and undisputed position.’ The recognition of Aboriginal and Torres Strait Islander languages identifies the importance of these languages in Australian life and culture.
Section 127A will not give rise to implied rights for Aboriginal and Torres Strait Islander peoples nor any obligations for the Australian government.
Constitutional recognition is a diverse topic and many groups have submitted different ideas about how to best recognise Indigenous Australians. Read about alternatives to Constitutional Recognition here.