Nettheim, Garth --- "Indigenous Australians and the Constitution" [1999] ALRCRefJl 6; (1999) 74 Australian Law Reform Commission Reform Journal 29

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Reform Issue 74 Autumn 1999

This article appeared on pages 29 - 34 of the original journal.

Indigenous Australians and the Constitution

By Emeritus Professor Garth Nettheim*

The Admiralty’s instructions to Lt. James Cook, issued in 1768, included the following:

“You are also with the consent of the natives to take possession of convenient situations in the country in the name of the King of Great Britain, or, if you find the country uninhabited take possession for His Majesty by setting up proper marks and inscriptions as first discoverers and possessors.”¹

Possession of the eastern half of what is now Australia was claimed on August 22, 1770 at Possession Island. The “consent of the natives” was neither sought nor obtained. Nor was it sought when British sovereignty was subsequently extended to other parts of Australia. Nor was it sought when the self-governing colonies federated under the Commonwealth of Australia Constitution Act 1900 (Imp).

As Michael Detmold has written “No entry has been made by Aborigines into the new legal order ... The Australian Commonwealth will not be a just commonwealth until the nature of the Aboriginal entry and its legal consequences are recognised.”²

Detmold considers the possibility that Indigenous peoples may have entered the Australian polity implicitly, if not explicitly:

“It is clear how in contract, difference comes together in lawful reconciliation. The coming together of Aboriginal and European on the continent of Australia in 1788 was not in any obvious sense contractual. Of course it might have been - there might have been a treaty - but political philosophy has long seen that the contractual basis of community is more often implicit than explicit ... [I]t is not that there was actually an implicit treaty establishing the relation between Aboriginal and European. It is simply that when a society becomes minded to lawfulness (the opposite of tyranny) it is able to look back at the coming-together and reconstruct it so as to treat the parties with that lawful equality of difference of which contract is a paradigm. That time of course for Australia arrived in Mabo (No 2).”³

But Detmold regarded the Mabo decision as inadequate “to constitute an Australian community in the matter”. While the High Court “recognised Aboriginal difference in the matter of a different conception of title, they imposed the European valuation of it in the matter of the conditions of its extinguishment”.⁴

But can we say that Aborigines and Torres Strait Islanders have accepted that they are members of the community of Australia? At least some Indigenous Australians continue to question this proposition, not only by express assertions of continuing Indigenous sovereignty or the advocacy of the Aboriginal Provisional Government, but by conduct such as refusal to provide census information, or to register as electors, or to vote.

A conference in Canberra in mid 1993, organised by the Constitutional Centenary Foundation and the Council for Aboriginal Reconciliation, was told that the issue remains a live issue and that any revision of the Constitution needed to make provision for Indigenous Australians to decide whether they choose to be part of Australia (as distinct from a colonised minority) and, if so, on what terms.

Some of those terms might include specific provisions to be added to the Constitution. Over recent years, considerable thought has been given to amending existing provisions or adding new provisions to the Commonwealth Constitution to accommodate Aboriginal peoples and Torres Strait Islanders.

Preamble

Considerable attention has been given to proposals for a revised preamble to the Commonwealth Constitution acknowledging such matters as the distinct place of Aboriginal peoples and Torres Strait Islanders and their prior ownership and occupation. The three major ‘social justice package’ proposals⁵ recommended the inclusion of such preambles. The Australian Reconciliation Convention in May 1997 supported a preamble which would recognise “the Aboriginal peoples and Torres Strait Islanders as its Indigenous peoples with continuing rights by virtue of that status”. The Constitutional Convention held in Canberra in February 1998 supported a preamble which would, among other things, acknowledge “the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders”. Stronger language has been used in a number of preambular paragraphs that have been drafted over the years.

The 1967 referendum

The one substantial change to the Australian Constitution in regard to Indigenous Australians occurred 30 years ago with the deletion of s. 127 and the amendment of s. 51 (xxvi), the race power (see below). Section 127 had provided: “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”

The race power

Section 51 (xxvi) had conferred power on the Commonwealth parliament to make laws with respect to “The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. The italicised words were deleted in 1967 so that the Commonwealth parliament gained a clear concurrent power to pass laws with respect to Indigenous Australians.

But successive Commonwealth governments have been wary about using this power to override State laws and policies. In the 1970s it was twice invoked in regard to Queensland, once by the Whitlam government and once by the Fraser government. On each occasion, the Bjelke-Petersen government of Queensland managed to ignore or sidestep the Commonwealth Acts. Brennan and Crawford have suggested a “hidden Constitution” under which the Commonwealth power has “continued to be limited and residual”.⁶ While the Keating government secured enactment of the Native Title Act 1993 (Cth) (the NTA) in the face of strong opposition, the electoral defeat of that government in 1996, and the 1998 amendments - which greatly weakened the NTA by placing significant aspects of native title at the mercy of State and Territory governments - may serve to reinforce the proposition that the power in s. 51(xxvi) is to be used sparingly.

The power has, however, been given a broad interpretation by the High Court, notably in Western Australia v Commonwealth.⁷

There have been suggestions that the power should be interpreted as a power to pass only laws which are for the benefit of Aborigines and Torres Strait Islanders, at least since 1967. The argument was rejected by a majority of the High Court in the Hindmarsh Island Bridge Case,⁸ at least to the extent that it might limit the power of parliament to repeal or amend prior legislation.

In 1988 the Constitutional Commission recommended that s. 51 (xxvi) be deleted as a generalised race power and replaced by a specific power to pass laws with respect to “Aborigines and Torres Strait Islanders”.⁹ This change, if accepted, might serve to underline the notion that the Commonwealth has not just a power but a responsibility, and should, at least, set national standards in matters such as native title and cultural heritage, even if it leaves administration and service delivery at State/Territory level.

Section 25

There have been proposals for the removal of s. 25. This section relates to s. 24 as to how House of Representatives seats are to be allocated among the States. The general rule in s. 24 is that the allocation shall be in proportion to the population of the respective States. Section 25 qualifies this by providing that if, by the law of any State all persons of any race are disqualified from voting at elections for the State lower house, then persons of that race resident in the State shall not be counted in reckoning the numbers of people for the purposes of s. 24.

This provision serves to penalise any State which does deny the vote on the basis of race by reducing its share of seats in the House of Representatives. But some have argued that a provision which contemplates the possibility of such discrimination should have no place in the Constitution.¹⁰

Prohibition of racial discrimination

This raises the question whether the Constitution itself should prohibit racial discrimination.¹¹

The Racial Discrimination Act 1975 (Cth) (the RDA) was enacted to implement Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. It has been critical in countering State attempts to derogate from Indigenous rights in such cases as Koowarta v Bjelke-Petersen,¹² Mabo v Queensland (Mabo No. 1),¹³ Western Australia v Commonwealth.¹⁴ But as a mere statute it may be displaced or even repealed by a subsequent Commonwealth Act.

The Constitutional Commission in 1988 recommended a general guarantee of freedom from discrimination on the basis of race, colour, ethnic or national origin, sex, marital status, or political, religious or ethical belief, with an exception for measures taken to overcome disadvantage.¹⁵

The Council for Aboriginal Reconciliation has proposed repeal of s. 25 and a constitutional prohibition of racial discrimination.¹⁶

Indigenous rights

The RDA is concerned with the principle of equality before the law and equal protection of the law. This would also be the function of a constitutional prohibition of discrimination.

Would such a provision be sufficient to provide constitutional accommodation for Indigenous Australians and the constitutional basis for reconciliation?

In its ‘social justice package’ proposals, the Council for Aboriginal Reconciliation distinguished between ‘citizenship rights’ and ‘Indigenous rights’. ‘Citizenship rights’ comprised those rights to which Indigenous Australians were entitled on a basis of equality with other Australians. ‘Indigenous rights’, by contrast, refer to the collective and distinctive rights of Indigenous peoples in relation to land and waters, culture and so on.¹⁷

Similarly, the ATSIC (Aboriginal and Torres Strait Islander Commission) proposals urged acceptance by the Commonwealth of the fundamental rights of Aboriginal people and Torres Strait Islanders to:

(a) recognition of Indigenous peoples as the original owners of this land, and of the particular rights that are associated with that status;
(b) the enjoyment of, and protection for, the unique rich and diverse Indigenous cultures;
(c) self-determination to decide within the broad context of Australian society the priorities and the directions of their own lives, and to freely determine their own affairs;
(d) social justice and full equality of treatment, free from racism; and
(e) exercise and enjoy the full benefits and protection of international covenants.¹⁸
Equality rights are those in (d) and (e); specific Indigenous rights are those in (a), (b) and (c).

(a) Territorial Rights. Proposals for a preamble to the Constitution would provide recognition of Indigenous peoples as the original owners of the land. It would not, of itself, provide constitutional protection for the continuing territorial rights of Aborigines and Torres Strait Islanders. Some protection is provided, as against the Commonwealth, by the requirement in s. 51 (xxxi) for ‘just terms’ compensation for any acquisition of property.

Indigenous peoples in Australia and elsewhere insist that stronger protections are justified for the Indigenous relationship to land, particularly in relation to commercial development on the land. Such protection has been accorded in some land rights legislation and under the Native Title Act 1993 (Cth), notably by giving Indigenous land owners some say as to whether mining should proceed on their lands, and if so, on what conditions, even in terms of the limited ‘right to negotiate’ under the NTA. (The ‘right to negotiate’ was significantly eroded by the 1998 amendments to the NTA.)

The need for protections has been recognised in the International Labor Organisation’s 1989 Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries and in the UN Draft Declaration on the Rights of Indigenous Peoples.

(b) Cultural Rights. Some protection is provided for cultural rights of minorities under Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which Australia has ratified. Cultural rights are also incorporated in ILO Convention 169 and the UN Draft Declaration on the Rights of Indigenous Peoples. Some such provision could easily be incorporated in the Constitution, including some recognition of Indigenous law.

(c) Political Rights. The right of peoples to self-determination and to participate in decisions affecting them can be found in the ICCPR, the International Covenant on Economic, Social and Cultural Rights, and the UN Draft Declaration on the Rights of Indigenous Peoples.

New Zealand provides for specific Maori seats in the national parliament. Norway legislated in 1987 for the Sami language and also to establish a Sami Assembly for the Indigenous people of the north. Denmark in 1978 legislated for home rule for Greenland with its Inuit majority.

The United States of America has long recognised a residual Indigenous sovereignty under the doctrine of ‘domestic dependent nations’. In 1982, Canada provided constitutional protection for ‘existing Aboriginal and treaty rights’ and agreement has been achieved on a formula for recognition of an inherent right to self-government.

Some elements of self-government have already been developed for some Aboriginal and Torres Strait Islander communities. ATSIC has been described as an exercise of self-determination. The current federal government’s references to self-empowerment are consistent with such developments, so are moves by the Queensland government.

To sum up: the Indigenous peoples of Australia, in common with Indigenous peoples elsewhere, have justifiable claims which are not confined to equality and non-discrimination but which extend to specific rights, as the First Peoples, to recognition and protection of their cultures, their territorial rights and their political rights.

Such provisions could be part of an overall Bill of Rights. Or, as in the Canadian Constitution, they could constitute a separate part of the Constitution.

Documents of reconciliation

The question of a National Document of Reconciliation is to be a primary focus in the final report of the Council for Aboriginal Reconciliation in the year 2000. Acceptance of the idea would raise the possibility of linking any such document to the Australian Constitution.

One method of doing so received some support in the context of the 1983 Makarrata proposal.¹⁹ The Senate Standing Committee on Constitutional and Legal Affairs was rightly sceptical about the prospects of incorporating a fully-developed document within the Constitution, but did accept the possibility of incorporation by reference, modelled on existing s. 105A, added in 1929, to provide constitutional backing for the financial agreement with the States to meet the exigencies of the Great Depression.

Five years later the Constitutional Commission was not persuaded that such an amendment should be proposed in advance of the completion of such a document.²⁰

On the assumption that such a document is agreed upon, then an amendment to give it constitutional support seems to be feasible and appropriate, just as Canada’s Constitution, s. 35, provides constitutional support for land claim settlements.

States and Territories

Constitutional protection and recognition need not be confined to the national level of government. There is absolutely no reason why States and Territories should not, also, make provision in their Constitutions for Indigenous Australians. Indeed, it seemed quite possible that the Northern Territory will set the pace in this regard.

For some years the Sessional Committee on Constitutional Development of the NT Legislative Assembly worked at developing proposals for a new Constitution for the Territory. In 1996, its final draft Constitution proposed constitutional protection for Aboriginal land rights and sacred sites, a preamble which acknowledged prior Aboriginal ownership, and recognition of Aboriginal law as a source of law in the Territory.²¹ A discussion paper had also proposed a separate, general Bill of Rights.²²

However, most of these proposals were deleted from the revised draft Constitution that emerged from the NT Statehood Convention held in March-April 1998.²³ A referendum of NT voters was held on October 3, 1998 on the sole question whether people favoured a move to Statehood, and a majority of 51.31% voted No, apparently because of dissatisfaction with the draft Constitution.

Conclusion

The principal focus for constitutional change at present is the proposed referendum on the question of replacing the Queen by an Australian as Head of State. At the time of going to print, proposals for a preamble are also generating debate.

But under the Council for Aboriginal Reconciliation Act 1991 (Cth), the target date for legislating the basis for reconciliation stands as 2001, the centenary of Federation. The Council, in its final report, may well recommend amendments to the Constitution, among other things. Any such amendment proposals may well touch on some or all of the matters mentioned in this paper.

* Garth Nettheim is Emeritus Professor, Faculty of Law, University of NSW. An earlier version of this paper was presented at the Australian Reconciliation Convention in May 1997.

Endnotes

1. JM Bennett & AC Castles, A Source Book of Australian Legal History LBC Sydney 1982. Emphasis supplied.

2. MJ Detmold, The Australian Commonwealth. A Fundamental Analysis of its Constitution LBC Sydney 1985, at 62-66.

3. MJ Detmold, ‘Law and difference: Reflections on Mabo’s Case’ [1993] SydLawRw 12; (1983) 15 Syd LR 159 at 165; republished in Essays on the Mabo Decision LBC Sydney 1993, at 45.

4. Ibid, at 166; 46.

5. Council for Aboriginal Reconciliation Going Forward: Social Justice for the First Australians AGPS Canberra 1995, at 35-37; ATSIC, Native Title Social Justice Advisory Committee, Recognition, Rights and Reform, AGPS Canberra 1995, at 43-48; Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Social Justice. Volume One - Strategies and Recommendations Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner Sydney 1995, at 9-18.

6. F Brennan and J Crawford, ‘Aboriginality, Recognition and Australian Law: Where To From Here?’ (1990) 1 Public Law Review 53.

7. [1995] HCA 47; (1995) 183 CLR 373, at 460-462.

8. Kartinyeri v Commonwealth [1998] HCA 22; (1998) 72 ALJR 722; 152 ALR 540.

9. Constitutional Commission, Final Report, AGPS Canberra 1988.

10. Ibid at 156; F Brennan, Securing a Bountiful Place for Aborigines and Torres Strait Islanders in a Modern, Free and Tolerant Australia Constitutional Centenary Foundation Inc 1994, at 22.

11. In Leeth v Commonwealth [(1992) 174 CLR 455] a majority of those members of the High Court who considered the question rejected the proposition that the Constitution contains an implied guarantee of equality and non-discrimination.

12. [1982] HCA 27; (1982) 153 CLR 168.

13. (1988) 166 CLR 186.

14. [1995] HCA 47; (1995) 183 CLR 373.

15. Constitutional Commission, Final Report, AGPS Canberra 1988.

16. Council for Aboriginal Reconciliation, Going Forward. Social Justice for the First Australians, AGPS Canberra 1995, at 38.

17. Ibid, at 22, 26-27.

18. ATSIC, Native Title Social Justice Advisory Committee, Recognition, Rights and Reform, Report to Government on Native Title Social Justice Measures, AGPS Canberra 1995, at 10.

19. Senate Standing Committee on Constitutional and Legal Affairs, Two Hundred Years Later - A Report on the Feasibility of a Compact or ‘Makarrata’ between the Commonwealth and Aboriginal People, AGPS Canberra 1983.

20. Constitutional Commission, Final Report, AGPS Canberra 1988.

21. Foundations for a Common Future 1996. See also Sessional Committee on Constitutional Development, Exposure Draft - parts 1 to 7: A new Constitution for the Northern Territory and Tabling Statement, Legislative Assembly of the Northern Territory 1995; also Aboriginal Rights and Issues - Options for Entrenchment, Discussion Paper No 6.

22. Sessional Committee on Constitutional Development, A Northern Territory Bill of Rights? Discussion Paper No 8, Legislative Territory of the Northern Territory 1995.

23. A Heatley and P McNab, ‘The Northern Territory Statehood Convention 1998’ (1998) 9 Public Law Review 155.