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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES
RECOGNITION BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minster for Families, Community Services and Indigenous Affairs,
Minister for Disability Reform, the Hon Jenny Macklin MP)
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES
RECOGNITION BILL 2012
OUTLINE
This Bill recognises the unique and special place of Aboriginal and Torres
Strait Islander peoples as the first peoples of our nation. It is an interim step
towards recognition of Aboriginal and Torres Strait Islander peoples in the
Constitution. It will assist in raising awareness and building a national
consensus for constitutional change.
In December 2010, the Government appointed an Expert Panel on
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
(the Expert Panel) to lead a broad national consultation and community
engagement program and report on possible options for constitutional change
likely to be supported at a referendum.
The Government received the unanimous report of the Expert Panel in
January 2012, and the report was immediately made available to the public.
In its report, the Expert Panel recommended a package of constitutional
amendments it considered that were capable of succeeding at a referendum,
namely that:
1. section 25 be repealed
2. section 51(xxvi) be repealed
3. a new `section 51A' be inserted, along the following lines:
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 Panel further recommends that the repeal of section 51(xxvi) and
the insertion of the new `section 51A' be proposed together.
4. a new `section 116A' be inserted, along the following lines:
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.
5. a new `section 127A' be inserted, along the following lines:
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 Government agrees with the Expert Panel that it is important for a
referendum to be held at a time when it has the most chance of success.
The Government recognises that there are currently relatively low levels of
awareness and support across the broad Australian community for the
recognition of Aboriginal and Torres Strait Islander peoples in the
Constitution.
It is important that the work begun by the Expert Panel towards constitutional
change is continued. This Bill acknowledges the important work of the Expert
Panel, and provides a mechanism for continuing the work of the Panel.
This Bill reflects an intention to pursue meaningful change to the Constitution
that echoes the hopes and aspirations of Aboriginal and Torres Strait Islander
peoples and unites the nation. It is one part of the ongoing conversation that
needs to happen in the lead up to constitutional change. In particular, the Bill
will enable all Australians to become familiar with formal recognition of
Aboriginal and Torres Strait Islander peoples ahead of constitutional change.
A review provision sets out a process for Parliament to consider next steps
towards constitutional recognition, while a sunset provision ensures that
legislative recognition does not become entrenched at the expense of
continued progress towards constitutional change.
The Bill is not intended to be a substitute for constitutional recognition.
The Bill does not reflect all the recommendations of the Expert Panel,
particularly recommendations which can only be implemented through
constitutional amendment. The Bill does not restrict the scope of future
issues for debate in regards to constitutional recognition of Aboriginal and
Torres Strait Islander peoples.
The Bill also does not reflect the Expert Panel's recommendation for a
constitutional prohibition of racial discrimination. The Government remains
firmly committed to the elimination of racial discrimination. The Racial
Discrimination Act 1975 already prohibits racial discrimination, which means
incorporating a legislative prohibition in this Bill is unnecessary.
The Government has established a Parliamentary Joint Select Committee to
progress constitutional recognition of Aboriginal and Torres Strait Islander
peoples. The Joint Select Committee will consider the Expert Panel
recommendations, including those which are not reflected in the Bill, in
progressing constitutional recognition of Aboriginal and Torres Strait Islander
peoples.
Financial impact statement
The Bill has no financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES
RECOGNITION BILL 2012
NOTES ON CLAUSES
Preamble
At the beginning of the Bill and before the substantive clauses, there is a
statement which sets out the reasons the Parliament is enacting this
legislation. This preamble states Parliament's commitment to building the
national consensus needed for the recognition of Aboriginal and Torres Strait
Islander peoples in our constitution and placing before the Australian people
at a referendum a proposal for constitutional recognition of Aboriginal and
Torres Strait Islander peoples. The preamble also acknowledges the
important work of the Expert Panel, but recognises that further consultation
and consensus is needed for a referendum to be successful.
This Preamble does not represent a proposal for a new Preamble to the
Constitution.
Clause 1: Short title
This clause provides for the new Act to be cited as the Aboriginal and Torres
Strait Islander Peoples Recognition Act 2012.
Clause 2: Commencement
This clause provides for the new Act to commence on the day after it receives
the Royal Assent.
Clause 3: Recognition
This clause provides for the recognition by the Parliament, on behalf of the
people of Australia, of Aboriginal and Torres Strait Islander peoples. It largely
reflects the preambular elements of Expert Panel recommendation 3. It does
not represent a proposal for a new Preamble to the Constitution.
Clause 4: Review of support for a referendum to amend the Constitution
Clause 4 legislates for a review of support for a referendum to recognise
Aboriginal and Torres Strait Islander peoples in the Constitution. This review
requirement sets out a process for progressing constitutional recognition of
Aboriginal and Torres Strait Islander peoples into the future.
Subclause 4(1) provides that the Minister must cause a review to commence
within 12 months of commencement of the Act.
1
Subclause 4(2) essentially prescribes the terms of reference for the review,
and requirements for the timing of the report of the review. Specifically:
· Paragraph 4(2)(a) ensures that the review considers the general
attitudes of Australians to constitutional recognition of Aboriginal and
Torres Strait Islander peoples.
· Paragraph 4(2)(b) ensures that the review continues and builds on
work that has already been done towards constitutional recognition of
Aboriginal and Torres Strait Islander peoples.
· Paragraph 4(2)(c) ensures the review considers and assesses
proposals for constitutional change to identify which proposal is most
likely to be successful.
· Paragraph 4(2)(d) recognises that the support of Aboriginal and Torres
Strait Islander peoples, the wider Australian public and state and
territory governments is critical to the success of a referendum to
amend the Constitution to recognise Aboriginal and Torres Strait
Islander peoples.
· Paragraph 4(2)(e) ensures that the Government and Parliament have
sufficient time to consider the report and decide how best to progress
the aim of recognising Aboriginal and Torres Strait Islander peoples in
the Constitution before the legislative recognition provided by the Act
ceases.
Subclause 4(3) ensures that there is appropriate Parliamentary scrutiny and
consideration of the report.
Clause 5: Sunset provision
This clause ensures that legislative recognition of Aboriginal and Torres Strait
Islander peoples does not become entrenched at the expense of progress
towards the recognition of Aboriginal and Torres Strait Islander peoples in the
Constitution. The note to this clause makes this objective clear in the text of
the Bill.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Overview of the legislative amendments
This Bill recognises the unique and special place of Aboriginal and Torres
Strait Islander peoples as the first peoples of our nation. The Bill is an interim
step towards a referendum on constitutional recognition of Aboriginal and
Torres Strait Islanders at some time in the future. This Bill is an effective
measure, taken by this Parliament, to promote understanding of and
support for constitutional recognition.
Human rights implications
Australia has a range of international human rights obligations in relation to
the recognition of Aboriginal and Torres Strait Islander peoples and their
culture, language, heritage and rights to self-determination - notably, under
the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights and the International
Convention on the Elimination of all forms of Racial Discrimination. This Bill
does not impact any of the applicable rights or freedoms.
Conclusion
This Bill is consistent with Australia's human rights obligations.
Minster for Families, Community Services and Indigenous Affairs,
Minister for Disability Reform, the Hon Jenny Macklin MP