1 INDIGENOUS CONSTITUTIONAL RECOGNITION THE CONSTITUTIONAL CHALLENGES UNDERLYING THE DEVELOPMENT OF REFERENDUM PROPOSALS By Anne Twomey There are two main aims driving Indigenous constitutional recognition. The first is to provide recognition in the Constitution of the status of Aboriginal and Torres Strait Islander peoples as Australia s Indigenous peoples. The second is to remove from the Constitution provisions based upon race. The two are closely related. Those who argue for Indigenous constitutional recognition generally seek something more substantive than the addition of symbolic words in a preamble or elsewhere in the Constitution. There is also a strong argument that the inclusion of preambular-type statements in the Constitution would only be meaningful if they give context to, and aid understanding of, the intent behind substantive constitutional changes. There are two provisions in the Constitution that refer to race. Section 25 was intended to discourage the States from excluding races of people from the franchise, by reducing their Commonwealth representation if they did so. 1 This provision is now no longer necessary. While there may be arguments about whether the provision is racist or not, the mere fact that it contemplates the possibility of a State disenfranchising people on the basis of race may be sufficient to warrant its repeal. Certainly there is no significant campaign for its preservation. The race power The more difficult provision is s 51(xxvi) of the Constitution. There is no question that this provision was intended to be racist. It currently grants the Commonwealth Parliament to make laws with respect to: the people of any race for whom it is deemed necessary to make special laws. The original intention was that it would be used in relation to Japanese, Chinese, Indian and South Sea Islander labourers, to restrict where they could live, to confine them to certain occupations, to give them special protection and to provide for their return home after a certain period. 2 The original form of s 51(xxvi) excluded its application to the aboriginal race in any State, but this exclusion was removed in the 1967 referendum, so that the race power could be used to make special laws for Aboriginal people and Torres Strait Islanders if it was deemed necessary to do so. The fundamental question that arises is whether it is appropriate to retain in the Constitution a power to make laws with respect to people of particular races. It has long been accepted that Professor of Constitutional Law, University of Sydney. Paper to the Australian Association of Constitutional Law, Sydney, 12 May 2015. This paper is largely drawn from: Anne Twomey, A Revised Proposal for Indigenous Constitutional Recognition (2014) 36 Sydney Law Review 381. 1 See further: A Twomey, An obituary for s 25 of the Constitution (2012) 23 PLR 125. 2 J Quick and R R Garran, The Annotated Constitution of the Australian Commonwealth (1901, Legal Books reprint) 622.
2 it is wrong to discriminate against people on the basis of their race. In more recent years, the scientific relevance of race as a form of biological or genetic distinction has been challenged. Discoveries made in relation to DNA suggest that differences derived from race are insignificant in comparison to other differences in the genetic make-up of human beings. 3 As Chief Justice French has observed: There is little dispute that as a scientific or biological term, race is a meaningless category. Genetic differences between so-called races are swamped by differences between individuals within races. Nevertheless, the idea of descent as a criterion of racial membership retains its cultural power in the construction of race. 4 One of the inherent difficulties with legislating in relation to the people of a particular race involves determining who is a member of that race and who is not, as this is critical to the application of the law. There has been, for example, a long history of bitter disputes in Tasmania about who is and who is not an Aboriginal person, resulting in litigation. Most recently in New South Wales, a change in laws concerning social housing and the methods by which people identify themselves as being Aboriginal has again led to controversy. 5 Above and beyond the identification and definitional issues when it comes to race, is the fundamental question of why the Constitution should confer any power on the Commonwealth Parliament to legislate with respect to a group of people by reference to their race? As a matter of principle, that should not be the criterion upon which legislative power is granted. As the Constitutional Commission concluded in 1988, Australia has joined the many nations which have rejected race as a legitimate criterion on which legislation can be based. 6 If we reject discrimination based upon assumptions and generalisations drawn from a person s race, then why should we not reject the notion that Parliament should legislate with respect to races, drawing on other assumptions and generalisations with respect to people of particular races? The underlying assumption is that somehow racial characteristics cause all members of a race to have the same needs or interests or problems, but this reasoning today seems flawed. A new power to legislate with respect to Aboriginal and Torres Strait Islander peoples Many people would like to see the race power expunged from the Constitution and this is what the Expert Panel proposed. 7 However, there is a problem with this, as s 51(xxvi) is the 3 See further: Loretta de Plevitz and Larry Croft, Aboriginality Under the Microscope: The Biological Descent Test in Australian Law (2003) 3(1) QUTLJJ 104, 113-117; Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (Report No 196, 2003) [36.41]; and Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (Canberra, 2012) 139-42. 4 Robert French, Aboriginal Identity The Legal Dimension (2011) 15(1) Australian Indigenous Law Review 18, 19. 5 Nicole Hasham, Crackdown on Aboriginality claims divides Indigenous leaders Sydney Morning Herald, 8 April 2015: http://www.smh.com.au/nsw/crackdown-on-aboriginality-claims-divides-indigenous-leaders- 20150407-1mfs7n.html. 6 Constitutional Commission, Final Report of the Constitutional Commission (AGPS, 1988) Vol 2, p 711. 7 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (Canberra, 2012) xviii. The Joint Select Committee, however, noted that a policy question remains about whether there is popular support for Parliament having the power to make laws in order to benefit the people of any race, other than Aboriginal and Torres Strait Islander peoples. It also contemplated the amendment of s 51(xxvi), rather than its repeal. See: Joint Select Committee on
3 power that has been used to support laws concerning the protection of native title and Aboriginal sacred sites. 8 While such matters could be left to the States, there is an understandable concern about differential standards and potentially decreased protection for such matters. Hence, proposals for Indigenous constitutional recognition that include the removal of the race power include the insertion of a new, or modified, power to legislate with respect to: Aboriginal and Torres Strait Islander peoples. 9 This is where the issue becomes more complex and problems arise. First, there is the question of how such a power is justified. Secondly, there is an issue about the scope of the power. Thirdly, there is the question of how it can be framed or limited so that it cannot be used in an intrusive or oppressive manner. All three issues are related. The justification for separate head of power regarding Indigenous peoples The justification issue, while not a legal issue, is essential to the success of any referendum campaign. If it is argued as part of the campaign that we need to remove race from the Constitution and that the race power in s 51(xxvi) is being removed because it is wrong to legislate with respect to a group of people identified solely by their race, then it is difficult to argue that we should insert in the Constitution a new power allowing the Commonwealth Parliament to legislate with respect to Aboriginal and Torres Strait Islander peoples, who are identified solely by their race. As part of the public debate, we need to discuss why it is appropriate to have a power to legislate with respect to Aboriginal and Torres Strait Islander peoples when it is not appropriate to have a power to legislate with respect to other races. What makes Aboriginal people and Torres Strait Islanders different and what justifies such a special power which does not apply to any other racial group? The answer is, in part, obvious. Aboriginal and Torres Strait Islander people are descended from those peoples who lived in Australia prior to British settlement and have continuing legal rights concerning their relationship to their traditional lands and waters as a consequence. Their history is an essential part of Australia s history and their languages and cultures are indigenous to Australia. There are therefore strong and justifiable reasons why the Commonwealth Parliament should have the power to protect, support and preserve those ongoing rights, relationships, cultures and languages. It is arguable that such matters would fall within the Commonwealth s nationhood power, as they are essential to Australia s identity as a nation, but it is preferable that they be dealt with directly by the Constitution given the precarious and somewhat dubious nature of the nationhood power. Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Interim Report, July 2014, paras 2.24 and 2.41-2.42. 8 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (Canberra, 2012) 147-9. 9 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (Canberra, 2012) 153. See also the similar proposal of the Constitutional Commission: Final Report of the Constitutional Commission (AGPS, 1988) Vol 2, p 707. See also: Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Interim Report, July 2014, paras [2.28] to [2.43].
4 But these arguments do not justify a power to make any law with respect to Aboriginal and Torres Strait Islander peoples. They do not justify the making of a law about what Aboriginal people eat for breakfast or what cars they may drive, yet the making of such a law could validly fall within a power to make laws with respect to Aboriginal and Torres Strait Islander peoples. A subject-matter power rather than a persons power This brings us to the issue of the scope of the power. The power proposed by the Expert Panel and the power being considered by the Joint Select Committee is the very broad power to make laws with respect to Aboriginal and Torres Strait Islander peoples. Its breadth is notable in two respects. First, this proposed provision grants a much wider legislative power than the existing race power, at least in its application to Aboriginal and Torres Strait Islander peoples. This is because the existing race power places constraints upon Parliament. The power is only one to make special laws and those laws must be deemed necessary. 10 Although the jurisprudence in relation to these conditions is developing, 11 rather than settled, it appears that these words provide substantive restrictions on Parliament s powers. These restrictions, however, have been stripped away in the broad power to make laws with respect to Aboriginal and Torres Strait Islander peoples. It would therefore create a power more vulnerable to abuse than the existing race power. Secondly, the nature of this head of power is a persons power rather than a subject-matter power. Most powers in the Commonwealth Constitution relate to subject-matters, such as currency, weights and measures and pensions, or transactions such as trade and commerce or banking. Powers directed at natural or legal persons are few in number, but currently include the power to make laws with respect to aliens, corporations and the people of any race for whom it is deemed necessary to make special laws. The problem with these powers is that they are interpreted incredibly widely. The High Court s judgment in the Work Choices case, for example, showed that a power to make laws with respect to legal persons that are trading and financial corporations includes the power to legislate to control what they may or may not do, as well as the power to regulate their relationships with others and how others may act to affect them. 12 Person powers leave open the possibility that the Parliament might enact a law along the lines that Every alien shall 13 or All people of the following races shall not They are therefore dangerous and should be avoided. In my view, and I recognise that this is a minority view, it would be much better to include instead a subject-matter power which relates back to the first question of why the 10 See the recognition that s 51(xxvi) is not as broad as other person-powers, like the aliens power or the corporations power, because it is limited in its application to special laws that are deemed necessary: Western Australia v Commonwealth (1995) 183 CLR 373, 460-2 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); and Kartinyeri v Commonwealth (1998) 195 CLR 337, 378 [81] (Gummow and Hayne JJ); and 411 [153] (Kirby J). 11 See, eg, Kartinyeri v Commonwealth (1998) 195 CLR 337, 365-6 [39]-[40] (Gaudron J). 12 New South Wales v Commonwealth (2006) 229 CLR 1, [178] (Gleeson CJ, Gummow, Hayne, Heydon, and Crennan JJ). 13 This example was used in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, 508 (Menzies J).
5 Commonwealth should have a power to make laws with respect to Aboriginal and Torres Strait Islander peoples what are the reasons that justify such a power and how do we confine the power to those subjects, rather than making it a power to make any law with respect to people identified solely by reference to their race? Such a provision could grant the Commonwealth Parliament power to make laws with respect to: Aboriginal and Torres Strait Islander heritage, cultures and languages and the relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters. 14 There are two advantages to this provision. First, it is justifiable. It doesn t provide a head of power to the Commonwealth to legislate with respect to people by reference to their race. Instead, it deals with subjects integral to Australia s history and identity, such as Indigenous heritage and culture, the protection of which is of value to all Australians. The second advantage is that it cuts down the scope for the power to be used oppressively. It removes the prospect of the enactment of laws enacted solely for Aboriginal and Torres Strait Islander peoples that have no relevance to their indigeneity. It narrows the scope of the power to those things that are truly relevant to Aboriginal and Torres Strait Islander peoples, rather than treating them as an anomalous group about which laws of any nature can be made. Would a subject-matter power be too narrow? Why is it, then, that such an approach has been so strongly opposed during the negotiation phase of the terms of the proposed referendum? It is the fear of missing something out. There is a concern that the subject-matter approach is either a subterfuge to cut out programs that benefit Aboriginal people or that it will prevent the enactment of beneficial laws in the future that a wider power would accommodate. Is that really the case? I don t believe it is. The Commonwealth already has power under s 51(xxiiiA) of the Constitution to enact laws concerning welfare and benefits, such as unemployment benefits, benefits to students and family allowances. Current programs directed specifically at the health, education, housing and welfare of Aboriginal people and Torres Strait Islanders are achieved through agreements with the States under s 96 of the Constitution, not under the current race power, and would not be affected by such a change. Examples include the National Partnership Agreement on Indigenous Early Childhood Development, the National Partnership Agreement for Indigenous Economic Participation and the National Partnership Agreement on Remote Indigenous Housing. None of these are reliant upon the race power. Whatever issues arise in the future, the Commonwealth will always be able to deal with them through agreements with the States. When I raised this at a symposium run by the Commonwealth Attorney-General s Department, I was told that the Commonwealth also has some Aboriginal programs that it runs itself outside of the s 96 grant agreements. The example given was a program concerning Aboriginal truancy from schools. This raises the question of why on earth the Commonwealth, which does not run or administer any schools, has its own separate program on truancy in relation to Aboriginal children only? Any sensible and rational governmental 14 For a similarly worded version, see: Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Interim Report, July 2014: para [2.39] (Box 3).
6 approach would be to co-operate with the States in relation to truancy programs to ensure that they work effectively and efficiently. Clearly such programs could and should be run in cooperation with the States under s 96 of the Constitution and this is not a good reason for rejecting sensible reforms to the races power. The Commonwealth would continue to have power to legislate for land rights in its territories and in Commonwealth places and would continue to have the power to legislate on human rights matters relevant to Indigenous Australians through its external affairs power and the implementation of treaties to which Australia has become a party 15 or which it may ratify in the future. 16 The proposed subject-matter power would cover all existing laws that currently rely upon the race power, such as those concerning native title and the protection of cultural heritage. The only law about which doubt has been raised is the Corporations (Aboriginal and Torres Strait Islander) Act 2006. Such a law would be covered by the proposed subject-matter power to the extent that it provides for the establishment of Registered Native Title Bodies Corporate or other bodies to represent native title holders or bodies that support the maintenance of Aboriginal culture and heritage. In any case, if there was any doubt and there was a perceived need for a separate law, 17 this could again be achieved by State and Commonwealth cooperation through a reference under s 51(xxxvii) of the Constitution, just as was done for the establishment of ordinary corporations. Indeed, it could be done before any referendum was held, to eliminate any doubt. It has also been argued that the possibility should be left open for the Commonwealth to legislate in the future in relation to matters such as customary law and treaties or agreements with Aboriginal and Torres Straits Islander peoples. However, a subject-matter power that included culture and heritage would cover customary law matters and the Commonwealth s existing powers under s 61 and 51(xxxix) include the power to enter into agreements. Finally, if a subject-matter power that is confined to relationships with land and water, cultures, languages and heritage is deemed too narrow, it could be added to or it could be replaced by a broader subject-matter power, such as one to make laws with respect to Aboriginal and Torres Strait Islander affairs, which would mirror the breadth of the external affairs power, but still at least require relevance to indigeneity and would not be a power directed at persons identified by their race. In my analysis, however, a subject-matter power, in conjunction with other existing Commonwealth powers, is more than wide enough to cover the matters about which the Commonwealth could justifiably seek to legislate with respect to Aboriginal and Torres Strait Islander peoples. The argument is essentially between those concerned that a subject-matter power may prove too narrow, cutting out possible future beneficial laws, and those who see a 15 See, eg, the International Covenant on Civil and Political Rights, the special measures provisions under the Convention on the Elimination of All forms of Racial Discrimination, and art 30 of the Convention on the Rights of the Child which requires that indigenous children not be denied the right, in community with other members of [their] group, to enjoy their own culture, to profess their religion or to use their own language. 16 See, for example, ILO Convention No 169 on Indigenous and Tribal Peoples. Note also the Declaration on the Rights of Indigenous Peoples, which may in the future be transformed into a treaty. 17 Note that existing bodies such as the National Congress of Australia s First Peoples are established under the existing Corporations Act 2001 (Cth). Representative bodies, such as the former ATSIC, may also be established as Commonwealth statutory bodies under s 64 and s 51(xxxix) of the Constitution.
7 person power as potentially too broad, unjustifiably and unnecessarily permitting intrusive and oppressive laws. Measures to prevent detrimental laws Those who argue for a broad persons power then propose to limit it so that it cannot be used in a matter that discriminates adversely against Aboriginal and Torres Strait Islander peoples. This concern can be traced back to the 1967 referendum when the race power was amended to remove the exclusion of its application to Aboriginal people. While it was well recognised that historically the provision had been intended to permit laws that restricted and oppressed as well as laws that protected the relevant racial groups, the aim or those who sought coverage of Aboriginal people under the race power was to allow the Commonwealth Parliament to make laws to their benefit. However, the change in the words in the Constitution did not confine the power to beneficial laws. This was recognised in the Cabinet minute on the referendum Bill, which deliberately sought the retention of the capacity to make laws that were disadvantageous to the race concerned. 18 That was why the constitutional amendment was framed as it was by merely opening up the power to include Aboriginal people, but not changing its capacity to be used in a beneficial or detrimental way. In the Kartinyeri case, it was argued that the race power could now only be used to the benefit of Aboriginal people and therefore could not be used to amend a law to take away cultural heritage protection of the area in which the Hindmarsh Island Bridge was to be built. 19 Only one judge, Kirby J, accepted this argument. 20 Three judges expressly rejected it 21 and the other two did not need to decide. 22 If the intention is that any law-making power by the Commonwealth only be used beneficially in relation to Aboriginal and Torres Strait Islander peoples, then why not expressly so provide, instead of the 1967 amendment where no such change was made to the words of the Constitution? The reason is that it would raise a range of difficult legal problems. If a law can only be enacted for the benefit of a group, does this mean it could not be repealed, because repeal would be non-beneficial as it removed a benefit? If so, this would mean that one Parliament could effectively entrench a law that could not then be repealed by another Parliament unless it enacted an even more beneficial law. 23 As Gummow and Hayne JJ noted in Kartinyeri, difficult questions about the meaning of beneficial would also arise. In whose judgement must the law be beneficial? A law giving legal effect to customary law might be regarded as beneficial by an Aboriginal person living in a remote community but detrimental by an Aboriginal person living an urban lifestyle. 18 Nigel Bowen, Attorney-General, Commonwealth Cabinet Submission, January 1967, para 12: National Archives of Australia: A5842 46. 19 Kartinyeri v Commonwealth (1998) 195 CLR 337. 20 Kartinyeri v Commonwealth (1998) 195 CLR 337, [145] and [157] (Kirby J). 21 Kartinyeri v Commonwealth (1998) 195 CLR 337, 381-3 [90]-[94] (Gummow and Hayne JJ); 361 [29] (Gaudron J). 22 Brennan CJ and McHugh J did not need to decide because they held that regardless of any such limitation, the power to enact a law included a power to repeal (or partially repeal) the law. Callinan J did not deliver a judgment. 23 Note that in Kartinyeri v Commonwealth (1998) 195 CLR 337 a majority of the Court resolved this problem by holding that the power to enact the law entailed the power to repeal it but this was not in the face of an express constitutional requirement that the power be limited to the enactment of beneficial laws.
8 Must a law benefit all members of the relevant people, or only some of them or a majority of them? What if it benefits Aboriginal women and children, but discriminates against Aboriginal men by restricting their rights? Must all provisions of the law be beneficial, or may the law include some detriment as well, as long as it can be judged as overall beneficial for the relevant people? If the latter is the case, could an amendment render the entire Act invalid if it added a sufficient detriment to swing the balance of the Act towards detriment, rather than benefit? These uncertainties would make it very difficult to sell such a proposal to the Australian people in a referendum. The Expert Panel chose a different approach. It sought to deal with the problem in two ways. First, by prefacing the grant of power by a preambular statement referring to the need to secure the advancement of Aboriginal and Torres Strait Islander peoples, in the hope that the High Court would use it to limit the scope of the power to matters of advancement. Whether or not the High Court would act in such a way and the consequences of such an interpretation remain another large imponderable in the referendum debate. 24 Its other, more concrete measure, was to propose the insertion of a general anti-racial discrimination provision as a new s 116A in the Constitution. This opens up a range of other issues, unrelated to Indigenous matters, such as why the provision protects some groups and not others or why one form of anti-discrimination should be constitutionalised and given an overriding status over other forms of discrimination. It opens up the range of potential opponents, by limiting State powers as well as Commonwealth powers. It also raises questions over the adequacy of the exceptions to permit affirmative action and the merits and risks of freezing rights in a Constitution. 25 For present purposes, however, it is enough to note that such a provision would not be passed by the House of Representatives in its current composition, so other alternatives need to be considered, at least while the present Government is in office. Power to make laws but not so as to discriminate adversely against Indigenous Australians The main compromise candidate is a power for the Commonwealth to make laws with respect to: Aboriginal and Torres Strait Islander peoples, but not so as to discriminate adversely against them. 26 This proposal has a number of advantages. It ties the issue of discrimination back to the power to legislate with respect to Aboriginal and Torres Strait Islander peoples, avoiding broader issues concerning the application of an anti-discrimination measure to others. It avoids the one line bill of rights argument and side-steps arguments about benefit or the definitional limits of positive discrimination by only prohibiting adverse discrimination. It 24 See further: Anne Twomey, The Race Power Its Replacement and Interpretation (2012) 40 Federal Law Review 413. 25 See further: Anne Twomey, A Revised Proposal for Indigenous Constitutional Recognition (2014) 36 Sydney Law Review 381, 405-8. 26 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Interim Report, July 2014: para 2.32 (Box 1); and Rosalind Dixon and George Williams, Drafting a Replacement for the Races Power in the Australian Constitution (2014) 25 Public Law Review 83, 87.
9 also only applies to Commonwealth laws, leaving the States unaffected and therefore less likely to oppose the amendment. There are two points, however, that require further thought. The first is that the qualification but not so as to discriminate adversely against them is likely to be regarded by the High Court as affecting other heads of Commonwealth legislative power, in the same way that the qualification other than State banking in s 51(xiii) affects heads of power other than the banking power. 27 This observation needs to be combined with the fact that the High Court has previously held that a law of general application, such as a law prohibiting the possession of alcohol on Palm Island, which applies to everyone, can still be characterised as a racially discriminatory law if it has a significantly greater impact upon Aboriginal people and Torres Strait Islanders. Such a law may be regarded as amounting to operational discrimination notwithstanding the race-neutral language of the provision. 28 Hence, laws of general application, enacted under existing heads of power in the Commonwealth Constitution, may become invalid if they are regarded as having a significantly greater impact upon Aboriginal and Torres Strait Islander peoples and if that discrimination is considered to be adverse in nature. This then raises the second point of how to assess whether something is adverse in nature. Similar arguments arise to those concerning what is beneficial. Is a law invalid because one aspect of it is adverse, or must it overall be adverse in its application? What if it is adverse in its application to some members of the affected group, but beneficial to others? Taking the Commonwealth s example of a law in relation to the truancy of Aboriginal children from schools, it would certainly appear to be discriminatory in nature if it did not apply to non- Aboriginal students or if it applied generally to all students but in a way that had a significantly greater impact upon Aboriginal students. It may also be regarded as adverse to the students concerned if it punished them or their parents, yet its overall purpose is intended to be beneficial in that it is seeking to ensure that Aboriginal students receive a better education and have better job-prospects by reducing truancy. It is not clear how a prohibition on adverse discrimination would be interpreted whether it would be a blanket prohibition or one tempered by the overall intention of a long-term beneficial outcome. Alternative 1 A purposive power What other alternatives might we consider to try to reduce the prospect of any legislative power being used oppressively or inappropriately? As I mentioned earlier, one way of cutting down the prospect of misuse is to have a subject-matter power, rather than a persons power, so that the Commonwealth could only legislate pursuant to that power on matters relevant to the indigeneity of Aboriginal and Torres Strait Islander peoples, rather than make laws of any kind directed at those peoples. This, however, does not prevent misuse of those powers within the narrower confines of relationships with land and water, cultures, languages and heritage. 27 Bourke v State Bank of New South Wales (1990) 170 CLR 276. 28 Maloney v The Queen [2013] HCA 28, [38] (French CJ). See also: [84] (Hayne J); [112] (Crennan J); [147] (Kiefel J); [202] (Bell J); and [360]-[363] (Gageler J).
10 One way of dealing with this, which is familiar to lawyers, would be to make it a purposive power. The power would be to make laws for a particular purpose. It might be framed as a power to enact laws with respect to: the purpose of preserving, protecting, developing or sustaining Aboriginal and Torres Strait Islander heritage, cultures and languages and the relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters. The High Court, in deciding whether or not a law was supported by this head of power, would consider whether the law is reasonably capable of being regarded as appropriate and adapted to achieving the relevant purpose. This is a well-established test and could be used to weed out laws that were oppressive or intrusive or intended to achieve ends other than those proposed. The problem with this proposal is that it is a lawyers answer to the problem, but it would be extremely difficult to explain and sell this idea to voters in a referendum, as it requires a degree of prior understanding of the Constitution and its interpretation for it to make sense. Hence, while it appears to me to be a good solution from a technical point of view, it may not be the best solution from a practical point of view because of the difficulty involved in explaining it to a sceptical public. Alternative 2 Indigenous consultation An alternative solution has been proposed by the Cape York Institute. It addresses the issue from the Indigenous end, rather than the lawyers end. It assesses the fundamental problem as the lack of a voice of Aboriginal and Torres Strait Islander peoples in the formation of laws that directly affect them and the consequential lack of an ability to persuade and influence. While Aboriginal people have different views about the value of the Northern Territory intervention, one consistent complaint is that the rushed nature of the legislation meant that there was insufficient consultation, undermining the effectiveness of the relevant measures. The idea here is to provide in the Constitution for the establishment of a permanent body representing Aboriginal and Torres Strait Islander peoples which would provide advice to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples. Its advice would be tabled in the Parliament and the subject of debate and consideration in both Houses of Parliament. This would give Aboriginal people and Torres Strait Islanders a direct line of influence into the Parliament. All advice would be preserved and placed on the parliamentary record. The Parliament would not be legally constrained in its ability to enact laws with or without such advice. Rather, the intention is for this constitutionally mandated body to fulfil the role of wise counsel to Parliament which would have moral and political weight when the Parliament is debating laws that will affect Aboriginal and Torres Strait Islander peoples. One of the main merits of this proposal is the fact that it not only gives constitutional recognition to Aboriginal and Torres Strait Islander peoples, but it extends that recognition into the Parliament by giving them a formalised role in advising, persuading and influencing those who enact the laws that affect them. It is therefore not a one-off symbolic act, but one of ongoing and practical significance. It is a response to those who complain that
11 constitutional recognition will provide no practical outcomes to benefit Aboriginal and Torres Strait Islander peoples. It provides the mechanism to achieve those outcomes for decades to come. It does entail risks. There are no guarantees that the voice of this body will be influential and accorded respect. This will be up to the people who first form the body whether they can show the gravitas and integrity necessary to garner such respect. Reputation and influence will need to be earned. That will be a matter for the Indigenous community to achieve through those it chooses to represent them. But it has the advantage of not being a passive or legalistic response. It is not about laws and courts constraining legislators as the other proposals are. It is about Aboriginal and Torres Strait Islander peoples having their say and participating in shaping their own destiny. It is therefore a proposal worth considering, especially if it garners grass-roots Indigenous support.