PARLIAMENT HOUSE, Canberra: I rise in support of the Indigenous Recognition Bill before us today. It is appropriate that we debate this bill in the week of the annual Closing the Gap statement. In some regards it brings a symmetry to the debate. Yesterday’s statements by the Prime Minister and the Leader of the Opposition focused predominantly on practical outcomes, while this bill is more concerned with symbolism. Both are important.
The Bill acknowledges the unique and special place of Aboriginal and Torres Strait Islander peoples as the first inhabitants of Australia. This is an important symbolic act but it is meant as a temporary measure with a sunset clause. The purpose is to maintain momentum towards a national consensus for a successful change to recognise Indigenous Australians in our Constitution.
This is an idea that was initially proposed by John Howard in 2007, at the instigation of Noel Pearson. It was aagain proposed by Tony Abbott in the lead-up to the 2010 election. I am pleased to see that the concept also has strong support in the Labor Party.
I have been involved in Indigenous affairs for over a decade, including spending several years working as the deputy director of the Cape York Institute, under Noel Pearson, trying to tackle some of the problems in Far North Queensland.
But my focus has always been on the practical—perhaps because Prime Minister Howard was focused on that but also because Noel Pearson, my former boss and a person for whom I have tremendous regard, persuasively drew our attention to the restoration of social norms and education for remote Indigenous children.
I have been concerned that symbolic acts could potentially diminish the attention on the practical action required and, worse, could actually create a sense of victimhood among Aboriginal people.
In some regards, though, I am a convert to the need for symbolic reconciliation to sit alongside practical reconciliation. I am a convert largely because I was working in Cape York Peninsula during the national apology to Indigenous Australians in early 2008. At the time, I was unsure whether this was the right thing to be doing. I remember reading Noel Pearson’s essay on this, where he was equivocating and weighing up the pros and cons of it. But having seen the impact of the national apology on Aboriginal people in the Cape, I realised that it actually did have a profound impact on them.
It brought tears to many people’s eyes, people who I knew and was very good friends with; people who up until that point had never mentioned the Apology before and had never said that this was important to them. After the event, they said that it was tremendously powerful.
The Indigenous referendum in 1967 had tremendous symbolic importance. It also had practical consequences: the section that stipulated that Indigenous Australians should not be counted in any census was removed and Federal Parliament was given power to make laws for the people of all so-called ‘races’, including the Aboriginal race.
However, the current wording of the Constitution provides no positive guidance for how the Commonwealth of Australia should solve the problems caused by the fact that the Commonwealth (and the colonies that preceded Federation) was built on land that was previously owned by Indigenous peoples, who were dispossessed and who, in many cases, had been excluded from the national community. These amendments of 1967 changed the constitutional status of Indigenous Australians from a state of negative discrimination into constitutional silence.
I think it is right to formally recognise our history in our Constitution and the ancient history of this land is an Indigenous history.
I also believe that Australia probably belongs to the category of nations that are forced to deal with their history in the Constitution, because the effects of past wrongs are culturally and practically too significant to be ignored in the Constitution.
I believe that this is the reason why there is significant popular and political support for constitutional recognition. We know the history and we feel that something needs to be said in the most important document of our nation.
The obvious counterargument is that it is better not to cling to the past and that recognition will not improve the lives of Indigenous Australians; indeed, it could be counterproductive for a minority to define themselves as victims in need of recognition and compensation, with unbreakable ties to certain geographical locations.
However, the second reason why the Constitution must be amended is harder to refute. The Constitution currently includes the concept of race as a ground for differential treatment and this must be changed. The current section 25 contains a provision for disqualifying members of a certain race from voting. This section can be repealed without any replacement provision.
The current section 51(xxvi) must also be removed. It empowers the parliament to make laws for the people of any race. We should not have a power in the Constitution to make special laws for certain races, but there is a complication. Since native title legislation is probably supported by section 51(xxvi), some kind of replacement section that supports native title legislation needs to be inserted into the Constitution. There are other current and future laws relating to Indigenous Australian land and heritage that also require support in the Constitution.
I mention this because the Act of Recognition Bill states that a review must, within 12 months, consider proposals for constitutional change, taking into account the work of, among others, the Expert Panel of Constitutional Recognition.
Parliament is free to formulate a referendum question any way it wants, but Minister Macklin has indicated that the Expert Panel’s report carries special weight in the eyes of the government. The Expert Panel has indeed been grappling with the problem that I have identified—that is, the two sections that contemplate different treatment for different races must be removed, but one of these sections—section 51(xxvi)—plays a role in our legal system.
The Expert Panel has suggested a specific solution to this problem: (1) a general provision against so-called racial discrimination that would apply to all laws, at all levels of government, and perhaps to all actions at all levels of government; and (2) provisions that would directly support Indigenous specific legislation. The Expert Panel suggests that a new provision in section 51A that empowers parliament to make laws for the advancement of Aboriginal and Torres Strait Islander people.
Such a change would reintroduce the power to make laws for groups of people defined by common descent.
It also proposes a new section 116A, which would allow ‘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’.
This seems like a contradiction: removing the power to make laws for certain peoples, only to reintroduce it immediately. I believe that the Expert Panel’s view can be summarised as follows: if a power to make laws with respect to Aboriginal and Torres Strait Islander peoples is created, there will be a need to make sure that this power cannot be used to the detriment of Indigenous Australians of any other person.
I believe that the wording of the Expert Panel’s proposed changes are also influenced by separate currents in Australian political debate, which is not directly concerned with Indigenous affairs. There are some people who advocate an Australian bill of rights.
The expert panel had no intention to open up this debate. The panel stated in its final report that ‘it is clear from the outset that any discussion of a bill or statement of rights was well outside the panel’s remit’. Accordingly, the Expert Panel views its proposed new sections only as a necessary part of recognition of Indigenous Australians. The political reality, however, is that the provisions proposed will in effect become a small bill of rights. The provisions are too broad, in my view, and would empower the courts over the parliament.
What does constitute a policy for the “advancement” of Aboriginal people? Indigenous policy can be strongly contested by very well-meaning people, with one’s views being determined largely by which values or rights get prioritised.
For example, I strongly support measures to restrict the free flow of alcohol into remote communities, because I have seen that it is the poison that flows through these communities. It destroys the lives of the alcoholics and their families, and even unborn children are now being impacted through foetal alcohol syndrome.
I realise that my view in this regard infringes on a general right to individual liberty, and I realise that it is actually a view that is not popular in many remote communities where a majority of people are addicted to alcohol.
A friend of mine, however, who is a former very senior judge of an Australian court, with deep experience in Indigenous affairs, vigorously disagrees with me, arguing that such limitations in remote communities would be discriminatory. For him, this triumphs over all other considerations. We have a clash of values in this regard. I prioritise the value of child protection and reducing violence above all else. He also deeply cares about this but believes that there are other, more fundamental, rights at play that have higher priority.
The question is who should decide on this clash of values: a judge, or the elected representatives of the people? If a law is put through the parliaments to restrict alcohol, should a judge be able to knock such a law down because he or she determines that it is not for the “advancement of Aboriginal people”?
In my view, they should not have that power, because it is not a legal matter to determine whether alcohol restrictions in remote communities are for the advancement of Aboriginal people or for their detriment; it is one based on the prioritisation of values, and it is up to the parliaments, not the courts, to prioritise those values.
And this is the fundamental reason I do not support all of the Expert Panel’s recommendations, despite my deep respect for the panel members, including Ken Wyatt, who is sitting here beside me, and Mark Leibler and Pat Dodson, the co-chairs. The interpretation of what is for the advancement of Aboriginal people should be up to the parliament, not the judges.
So how do we get around this problem of wanting to prohibit race based laws but still needing a head of power to deal with native title and possibly other matters that, by definition, are related to indigeneity?
My solution—at least at this stage in my thinking—is that there should be a clause that has a prohibition against any laws based on race but that has an exclusion for laws dealing with land, which by definition are related to indigeneity. And possibly there are one or two other specific exclusions that need to apply where there definitely needs to be a head of power. But otherwise there should be an overall prohibition against laws based on race.
This would be challenging for many of our laws. Some of the education funding which goes towards Aboriginal people would need to be reconstructed and put forward under a different head of power and executed on the basis of disadvantage rather than on indigeneity. In some respects, I think that would be a positive measure in itself.
These are difficult and complex matters, and it is a good thing that we have this bill going through the parliament today which then gives time for both sides of politics to be able to address them, think about them carefully and come forward with bipartisan agreement on them. That is what is most important. If we do not have bipartisan support for a constitutional change, it will not get up.
In the last minute or so which I have remaining, I would like to pay tribute to a friend of mine who passed away yesterday. I do so in the context of this debate, because he was one of Noel Pearson’s most trusted advisers for the last 20 years—a person by the name of Lew Griffiths. Many people who are connected with Indigenous policy would know him very well, and he tragically died at a very young age yesterday in his hotel room in Cairns.
Although not Indigenous, Lew made a tremendous contribution over the last couple of decades in the thinking and executing of ideas and supporting the work of Noel Pearson and other Cape York leaders. I think his passing is a deep loss to Australia.