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Neate, Graeme --- "Aborigines and Torres Strait Islanders and the Australian Constitution" [1989] AboriginalLawB 16; (1989) 1(37) Aboriginal Law Bulletin 12

Aborigines and Torres Strait Islanders and the Australian Constitution

by Graeme Neate

On 20 October 1988 the Final Report of the Constitutional Commission was tabled in the House of Representatives. The Report, dated 30 June 1988, follows the most comprehensive review of the Australian Constitution since Federation. It includes numerous recommendations for amendment to the Constitution as well as a detailed discussion of existing provisions and arguments in support of the retention of many sections in their present form.

Three of the matters considered by the Commission are of direct and immediate relevance to Aborigines and Torres Strait Islanders. These are the recommendations relating to:

The Race Power

Section 51 (xxvi) of the Constitution originally provided that the Federal Parliament had power 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". (emphasis added).

This power was included to give the Federal Parliament concurrent power with State Parliaments with respect to alien races within their territory. Its original purpose was to allow the Parliament to pass special and discriminating laws relating to such people. In recent years, a number of judges have observed that laws made under the section may validly discriminate against, as well as in favour of, the people of a particular race.

In 1967, following a referendum, the words emphasised were removed from section 51(xxvi), giving the Federal Parliament power to make laws with respect to members of the Aboriginal race.

When the Constitutional Commission was considering section 51(xxvi), three main issues emerged:

The Commission recommended the omission of section 51(xxvi) because "it is inappropriate and unnecessary to have such a provision in the Constitution". (Paragraph 10.371).

The Commission wrote:

It is inappropriate because the purposes for which, historically, it was inserted no longer apply in this country. Australia has joined the many nations which have rejected race as a legitimate criterion on which legislation can be based.... It is unnecessary to retain the section for the purposes of regulating such things as the entry and activities of aliens in Australia or the confinement of people who might reasonably be suspected of acting contrary to Australia's interests. Other legislative powers ... provide ample support for any laws directed at protecting Australians from any activities or groups which were not in the national interest. (Paragraphs 10.372, 10.373).

The Commission recommended that, in conjunction with the recommendation for the omission of section 51(xxvi), there be inserted a new paragraph which would give the Federal Parliament express power to make laws with respect to "those groups of people who are, or are descended from, the indigenous inhabitants of different parts of Australia." The recommendation is in the form:

(xxvi) Aborigines and Torres Strait Islanders.

The Commission wrote that the recommended alteration to the Constitution would:

give the Federal Parliament at least as much power as it currently has to make laws with respect to Aborigines and Torres Strait Islanders. Although the power would still be subject to constitutional limitations such as are contained in section 51(xxxi), it would be free of the possible limitations pertaining to 'special laws' which would apply if the approach taken by Stephen J in the Koowarta Case were to be adopted by the High Court. It would also exclude any express reference to 'race'. Although a court would no doubt see a biological element as essential in determining who are Aborigines or Torres Strait Islanders, it now appears that such things as 'spirit belief, knowledge, tradition and cultural and spiritual heritage' are included in 'all that goes to make up the personality and identity of the people of a race' and such indices could be considered by a court in determining the validity of laws made under the power and the people to whom those laws apply. (Paragraph 10.407, citing the Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1, 276 (Deane J), see also 244 (Brennan J)).

Possible Treaty Power

During the period in which the review of the Constitution was conducted, there was a revival of interest in the possibility of some sort of formal agreement being entered into between the Commonwealth of Australia and representatives of Aborigines and Torres Strait Islanders.

Putting this matter in historical perspective, the Commission noted that the possibility of agreements with the indigenous inhabitants of the land which became Australia can be traced back to the instructions given to Lieutenant James Cook. Other official documents of the time of early European settlement show an acceptance by British and Colonial officials that the indigenous inhabitants had some rights in respect of the land. (Paragraphs 10.412-10.414).

The Commission noted the various legal options for an agreement and the arguments in favour of it, particularly in light of the fact that Australia had been legally classified as terra nullius at the time of European colonisation. (Paragraphs 10.416-10.427).

There have been attempts in recent years to formally recognize the fact that Australia was occupied before European settlement and that that settlement had adverse effects on the indigenous inhabitants of the land. The Commission quoted the 1975 Senate resolution and referred to the discussions about a possible Makarrata, the work of the Aboriginal Treaty Committee, and the work done by the Senate Standing Committee on Constitutional and Legal Affairs in it's report Two Hundred Years Later..., completed in 1983. (Paragraphs 10.428-10.441).

The Commission recommended that, at this stage, the Constitution should not be altered to enable constitutional backing to be given to an agreement, or agreements, between the Commonwealth and representatives of Aborigines and Torres Strait Islanders. (Paragraph 10.353).

We are well aware that the issues raised by this matter are complex and that any proposal for a formal agreement may be surrounded by controversy, particularly if the agreement would impose substantial obligations on the Commonwealth and confer substantial benefits on Aborigines and Torres Strait Islanders .... There is no doubt that the Commonwealth has sufficient constitutional powers to take appropriate action to assist in the promotion of reconciliation with Aboriginal and Torres Strait Island citizens and to recognise their special place in the Commonwealth of Australia. Whether an agreement, or a number of agreements, is an appropriate way of working to that objective has yet to be determined...

[We] agree with the Powers Committee that a constitutional alteration to provide the framework for an agreement provides an 'an imaginative and creative approach to the immensely difficult situation which exists'. But any alteration should not be made until an agreement has been negotiated and constitutional alteration is thought necessary or desirable. (Paragraphs 10.455,10.457,10.459).

SThe Commission noted that among the matters that would need to be determined in relation to any such agreement are:

Acquisition of Property on Just Terms

Section 51(xxxi) of the Constitution gives the Federal Parliament power to make laws with respect to "The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". The power is subject to two express constraints. First, the Commonwealth can only legislate for the acquisition of property for particular purposes. Secondly, where property is acquired in or from a State, the Commonwealth must provide compensation amounting to "just terms". The Constitution does not, however, require States to provide "just terms" when acquiring property nor does it require the Commonwealth to provide "just terms" when acquiring property in a Territory or from a person in a Territory.

The Commission recommended that the Constitution be altered to ensure that:

In considering this constitutional provision, the Commission also considered whether to recommend an exception to the "just terms" requirement where property is acquired by the Commonwealth for Aborigines. Two of the Commission's Advisory Committees had recommended such an exception. (Summarised at paragraphs 9.769-9.773, see also paragraphs 9.777-9.780).

The Commission decided not to recommend such an alteration. It considered that an exception to section 51(xxxi) "would be wrong in principle" because the principle in that section "is important and should be extended to the benefit of all people who own property in each State and Territory. It is a protection against the arbitrary and unjust acquisition of property by Government at any level and should not be diminished". (Paragraph 9.789).

In any event, the Commission argued, there may be no need for such an alteration. Concern was expressed in submissions that the Commonwealth is reluctant to legislate to acquire land in the States for Aborigines, in part, at least, because it fears that the cost of providing just terms would be prohibitive.

There has been no judicial decision on this matter. But, in the view of the Commission, a court would be likely to decide that relatively little compensation would be payable to the State if the Commonwealth were to acquire land which is reserved for and occupied by Aborigines or Torres Strait Islanders and if the purpose of the acquisition were to ensure that they should use, occupy and even own that land. Similarly, given that what is "just" between the Commonwealth and a State may depend on special considerations not applicable to an individual, an acquisition of some vacant crown land in a State may not be subject to substantial compensation requirements. (Paragraph 9.790).

On the other hand, the Commission did not think it reasonable to suggest that, where land is now in private ownership or has had substantial improvements made to it by a State, the Commonwealth should be able to avoid paying what is "just" in all the circumstances only because the purpose of the acquisition is meritorious. (Paragraph 9.791).

The Commission concluded that this recommendation and the reasons for it "should not be taken to suggest that we oppose a fair and equitable program of land rights for Aborigines. Rather, we consider that such a program can be developed within the existing constitutional framework". (Paragraph 9.792).

Preamble to the Constitution

The Commission was also asked to consider whether the existing preamble to the Commonwealth of Australia Constitution Act 1900 should be altered or repealed and whether a new preamble should be added to the Constitution proper. The Commission's Advisory Committee on Individual and Democratic Rights suggested the addition of a preamble. That suggestion attracted numerous submissions critical of various aspects of what was proposed and critical of the omission of other principles or sentiments from the proposal.

The Commission recommended against altering or repealing the existing preamble to the Commonwealth of Australia Constitution Act 1900 and against the inclusion of a preamble to the Constitution proper.

In the Commission's view "it is undesirable to attempt to graft a preamble on the Constitution nearly ninety years after Federation" although, had the Commission been writing a new Constitution, it may have been concerned to prepare such an opening statement. (Paragraph 3.45). However, "there are real problems in knowing what to say and how to say it" and it seemed to the Commission that a preamble (which would almost certainly have to be approved as a separate question at a referendum) "could be a source of passionate debate which would be a significant distraction from other substantive and more important proposals submitted to the electors". (Paragraph 3.43, 3.44).

In considering this general question the Commission paid particular attention to the Advisory Committee's suggestion that the preamble include the following statement:

Whereas Australia is an ancient land previously owned and occupied by Aboriginal peoples who never ceded ownership

This part of the Committee's proposal attracted the most comment in submissions to the Constitutional Commission.

As the Commission noted, the argument in favour of a provision in that form "can be supported by contrasting history with the legal doctrine that, at the time of European colonisation, the land now known as Australia was terra nullius". (Paragraph 3.26, see also paragraphs 3.27, 3.30).

The Commission noted that the Federal Parliament and at least two State Parliaments have considered some formal acknowledgement of the prior ownership of land by Aborigines. A resolution was passed by the Senate on 20 February 1975 and another was introduced in, but not voted on, by the House of Representatives on 8 December 1983. A preamble to the Aboriginal and Torres Strait Islander Commission Bill 1988 is currently before the Federal Parliament.

Although not recommending any preamble, the Commission noted that "there are real difficulties in preparing an appropriate recital and that words such as 'own' and 'ceded' need to be carefully considered in this context". (Paragraph 3.37, citing Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, especially 268-73 (Blackburn J) and Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 149-50 (Deane J)).


The Final Report of the Constitutional Commission is in two volumes (1,195 pages) and includes draft Bills for proposed alterations. It contains not only a discussion of these recommendations and the reasons for them but an up-to-date statement on many important areas of constitutional law. It is a valuable research resource as well as the basis for possible constitutional change in the years ahead.

The Report can be purchased from the Commonwealth Government Bookshops.

Graeme Neate is a solicitor with Freehill, Hollingdale & Page, Sydney. He was for two years the Principal Legal Officer with the Constitutional Commission.

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