Constitutional Recognition of Indigenous Australians Essay

Introduction During the 2010 estateal preference, twain major(ip) political parties campaigned on natal affairs. Following the ALPs victory, Prime politics minister Gillard established an independent Expert board to to investigate how to natural spring act to radical recognition of Aboriginal and Torres liberty chit Is reduceer spates. Two schools of apprehension welcome dominated the national conversation of how this should be achieved. One as veritable is that an amendment to the preamble of the constitution leave alone abide safe and symbolic recognition. The selection judgment is that more than strong crystallise is required to secure comparison before the law.On January 16 2012, the Panel presented the Prime Minister their musical theme and charge forwardd five amendments to the estate fundamental law. This paper result evaluate the five proposals and the reasons offered by the Panel. Each amendment lead be analysed on its symbolic significance an d latent legal ramifications. Fin whollyy this paper pull up stakes conclude on how to topper give endemic Australians recognition within the constitution. fundamental Recognition For the decorate, natural recognition of autochthonous Australians means removing provisions in the governing body that chew over racial disparity.Whether intended or not, the five proposals address the broader anaesthetises of racial divergence and equivalence before the law within the state of matter penning. Repealing member 25 In its report, the Panel indicates that 97. 5% of all submissions approve of hooking portion 25. region 25 reads For the purposes of the last section, if by the law of all plead all someones of any lam argon disqualified from voting at elections for the more numerous House of the sevens of the State, thus, in reckoning the number of the populate of the State or of the nation, somebodys of that race resident in that State shall not be counted.On face valu e, section 25 appears racist as it contemplates States excluding voters on the cubic yard of race. This interpretation has been affirmed by Chief referee Gibbs in McKinlayss theatrical role (1975). incision 25 must be read with section 24 to as trusted the real intention of the framers. plane section 24 specifies that the number of lower house representatives is determined by dividing the bestow number of great deal of the terra firma by twice the number of senators and then dividing the population of each state by that quota.Therefore, by racially excluding voters the numerical input of the States population is reduced the States federal representation decreases and discriminatory states forgo greater federal representation. Although section 25 was intended to penalise racially discriminatory states, a State was able to enact discriminatory legislation by drafting laws that did not disenfranchise all members of a racial meeting. For instance, New South Wales denied certai n classes of indigenous people the right to vote. The decorate states that this proposal is technically and legally sound.Many constitutional commentators assure but in that location is a small minority who have identified possible legal consequences. In 1980, justice Dean included section 25 as a provision guaranteeing the right to vote. The right to vote is not constitutionally entrenched. Parliament has authority to determine the electoral process pursuant(predicate) to section 30. It is unreadable whether the High hook would find legislation that disqualified people of certain races from voting handicap because of the section 7 words directly elect by the people and section 24.Theoretically, it may be argued that section 25 should not be removed until the right to vote is constitutionally entrenched. However, this discover is highly unorthodox and section 25 should be repealed. Repealing section 51 (XXIV) partitioning 51(xxvi) sack ups the Commonwealth to make laws wit h abide by to the people of any race for whom it is deemed infallible to make special laws. The Panel recommends removing section 51(xxvi) as it contemplates discrimination a get intost Aboriginal and Torres audio island-dweller peoples.In Koowarta v Bjelke-Petersen, the Aboriginal down Fund Commission was denied purchasing Pastoral property from the Crown. The Queensland Minister for Lands intelligent that the regime did not view favourable proposals to acquire large beas of land for development by Aborigines in isolation. Koowarta argued that the Minister was in better of sections 9 and 12 of the Racial Discrimination run 1975 (Cth). Joh Bjelke-Petersen challenged the constitutional hardihood of the Racial Discrimination strike 1975 (Cth). The Premier argued that s51(xxvi) does not confer force play to make laws which apply to all races.A majority of the High solicit set that sections 9 and 12 of the Racial Discrimination venture 1975 were invalid pursuant to s 51 ( xxvi). The Hindmarsh Island Bridge case illustrates fantans ability to enact adversely discriminatory laws in relation to race. The case concerned whether the Hindmarsh Island Bridge cause 1997 (Cth) could remove rights which the plaintiffs enjoyed beneath the Aboriginal and Torres offer island-dweller heritage security measures Act 1986 (Cth). The Ngarrindjeri women argued that the races business leader further allowed parliament to pass laws that be for the benefit of a particular race.The Commonwealth argued that there were no designates to the place. The High Court found that as the Heritage Protection Act was validly enacted under s 51(xxvi), the identical head of power could sustentation a whole or partial repeal. The High Court was divided on whether S 51(xxvi) could only be use for the overture or benefit of a racial group. In his judgement, Justice Kirby found that section 51 (xxvi) does not extend to the enactment of laws detrimental to or discriminatory agai nst, the people of any race (including the Aboriginal race) by commendation to their race.Justices Gummow and Hayne said that there was no basis for reading s51(xxvi) as not permitting adverse discrimination. In summary, Kartinyeri v The Commonwealth did not avow that laws enacted under section 51 (xxvi) must be right. Since then, it has generally been recognised that s 51 (xxvi) gives the Commonwealth power to discriminate either in favour or against members of a particular race. The removal of S51 (xxvi) would be a probatory symbolic gesture to natural Australians as they atomic number 18 the only group to whom section 51(xxvi) laws have been enacted.Not all laws passed under s 51 (xxvi) have been adversely discriminatory. In Commonwealth v Tasmania (The Tasmanian Dam Case), sections 8 and 11 of The World Heritage Properties saving Act 1983 (Cth) were held to be constitutionally valid pursuant to s 51 (xxvi). As a result, the Franklin River Hydroelectric Dam could not be co nstructed in a place considered spiritually significant by Aboriginal people. A repeal of section 51 (xxvi) might not invalidate the World Heritage Properties Conservation Act.Other powers, specifically the a representation affairs power in s51 (xxix), would support this legislation under the article of belief of dual characterisation. Other beneficial legislation may not be support under the same principle. In Western Australia v The Commonwealth, the beg found The indigenous denomination Act 1993 (Cth) constitutionally valid pursuant to section 51 (xxvi). The court did not find it necessary to consider any other heads of power. Australias endorsement of the UN Deceleration on the Rights of original People may provide scope to support the infixed Title Act 1993 (Cth) under the external affairs power.However, it seems reckless to gamble with legislation that establishes a framework for the tribute and recognition of native title. Repealing section 51 (xxvi) will also limit t he Commonwealths ability to pass refreshing laws for the advancement of autochthonous Australians. For these reasons, the Panel proposes that the repeal of section 51 (xxvi) must be accompanied by a new head of power with respect to autochthonous Australians. Inserting section 51A The preamble to S51A is the first recommendation which actually addresses the important contributions of Indigenous Australians. prick 51A also allows the Commonwealth to makes laws with respect to Aboriginal and Torres pass Islanders. equivalent to section 51(xxvi), the power contained within section 51A is not subject to any conditions. This is somewhat of a double edged sword. All laws currently passed under section 51 (xxvi) have only been enacted with respect to Indigenous Australians. As the power is not subject to any restriction, all legislation pursuant to section 51 (xxvi) would most likely be supported by section 51A. Alternatively, section 51A could be used to enact legislation that is ad versely discriminatory.The Panel states that the preamble which acknowledges the need to secure the advancement of Aboriginal and Torres liberty chit Islander peoples will mitigate this risk. However, a preamble is only used to resolve an ambiguity within a text. The power to make laws with respect to Aboriginal and Torres passport Islander peoples is not particularly ambiguous. The Panels predicts laws passed pursuant to s 51A would be assessed on whether they broadly benefit the group concerned. The actual word used is advancement which would be interpreted other than to benefit.Furthermore, the High Court is not always ready to squelch a value judgement such as one found benefit. Credit should be given to the Panel for this proposal. The preamble to divide 51A constitutionally recognises the history, culture and contributions of Indigenous Australians. The new head of power will likely ensure that current legislation pursuant to section 51 (xxvi) will continue to operate. Se ction 51A also removes parliaments power to enact laws with regards to a persons race. This proposal addresses the apartheid nature of our constitution.However, Section 51A is not the white knight which was hoped for. It will be the courts who decide whether this new power is ambiguous. If Section 51A is found to be ambiguous, the courts will have significant discretion in reading the meaning of advancement. To overcome these issues, the control board has recommended that a racial non-discrimination provision (S116A) be added to the constitution. Inserting section 116A There are both policy and legal issues concerning section 116A. Firstly, Australia has a history of avoiding constitutional entrenchments of rights.The proposed anti-discrimination provision only protects racial groups. Section 116A may be viewed as privileging anti-racial discrimination over anti-sex discrimination or anti-homophobic discrimination. The first legal consideration is which groups will be protected by section 116A. Jewish people are recognized as an ethnic group but Muslims are not. It is uncertain whether Muslims would receive the same protection as Jews. Furthermore, would a person who converted to Judaism receive identical protection as a person who was born Jewish?The second legal issue is how Section 116A will affect existing state and commonwealth anti-discrimination legislation. For example, Anti-discrimination state law authorise discrimination in the employment of actors for reasons of authenticity. In addition, sections 12 and 15 of the Racial Discrimination Act 1975 (Cth) permits people to discriminate when they are searching for someone to share or work with in their home. Once again, it will be for the court to decide if these provisions are constitutionally invalid.The panel has affirmed that S116A (2) will support laws enacted under s 51 (xxvi) and section 51A. Like section 51A, section 116A could be interpreted by the courts in ways that were not intended. The co urts will have significant discretion in determining what is for the purpose of overcoming disadvantage. An important issue for the Indigenous companionship is the blue grease Intervention. In Wurridjal v Commonwealth, the high court upheld the governments partial repeal of the Racial Discrimination Act under the race powers.The court also upheld the Northern filth National unavoidableness Response Act pursuant to section 51 (xxix). Due to the principle of dual characterisation, it is unlikely that S116A will provide an avenue for Indigenous people to contest the intervention. S116A is probably the most controversial recommendation as it concerns stirity before the law. This issue is probably better dealt with by an expert panel assessing a Bill of Rights. To achieve a similar result, the panel could propose that section 51A has an accompanying provision similar to 116A(2). Insert section 127A.Section 127A is a provision which recognises Indigenous nomenclatures as the origin al language of Australia. A separate language provision is necessary to capture the importance of handed-down languages within Indigenous culture. Section 127A also acknowledges that English is the national language of Australia. The Panel rejected a submission suggesting all Australian citizens shall have the freedom to speak, maintain and transmit the language of their choice. The Panel did not want to give rise to legal challenges regarding the right to deal with government in languages other than English.It is unclear what practical consequence would flow from s127A. Section 127A could be used to secure funding for Indigenous languages on the grounds of national heritage. Nonetheless, the Panel does not intend for this provision to give rise to new legal rights. S127A is symbolically important and is an appropriate way of constitutionally recognising Indigenous Australians. Summary of analysis This analysis concludes that the five proposals put forward by the panel appropriatel y balance substantive clear up and symbolic significance. As a result, the Panel should be congratulated.If the Panels goal was to remove overtly racist tones within the Australian Constitution then they have succeeded. If the panels objective was to definitively correct the wrongs of Kartinyeri v Commonwealth and the Northern Territory Intervention then they have failed. The amendments proposed do not sufficiently address racial discriminatory acts passed under other heads of power. Section 116A(2) has been comprehend as a tasteful reformulation of the races power. Furthermore, the proposals provides the courts substantial discretion in interpreting terms such as overcoming disadvantage, advancement and group.In essence, the most important issue does not concern symbolic wobble or substantive reform. It is simply a question of which proposals will gain bipartite support. Conclusion The panels proposals could succeed at referendum. Firstly, Australians are more likely to support something substantive than purely symbolic. Secondly, this is not an issue which would be perceived as a politicians proposal. Australians are hesitant to support proposals perceived as self-serving. Thirdly, the Panel indicates that its proposals are capable of being supported by an overwhelming majority of Australians.Nonetheless, to succeed at referendum, the support from the Federal opposition government and all State governments is essential. It is very easy, and sometimes attractive, for the federal Opposition to oppose a referendum. It can be a effective way of generating a negative public reaction to the government and its agenda. Since 2010, the coalition has fought the government on nearly every political issue. Even when the parties agree in principle, they have different ways of solving the issue. For example, both parties are for off-shore processing of illegal immigrants but disagree on where and how it should be done. two parties are committed to recognising Indige nous Australians within the constitution. So far, the LNP has said it will consider substantive reform but has only committed to preambular recognition. The Panel not only recommends substantive reform but also addresses racial equality before the law. It is very uncertain whether the LNP will support a policy so different to their 2010 election promise. The next federal election is only 18 months away. If the referendum and election are held concurrently, there is more inducement for the Coalition to oppose the Panels recommendation.It would be disastrous for the nation if the referendum fails. The gap will swell and the international community will view Australia as a nation of racists. It could be argued that the Government should have decreed a bipartisan panel rather than an independent panel. A bipartisan panel may not have produced better recommendations to those of the Panel. They would, however, have generated proposals that both parties would stand behind. 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(2011) 7 Indigenous Law Review 25. * Watson, Nicole, The Northern Territory Emergency Response Has It Really Improved the Lives of Aboriginal Women and Children? (2011) 35 Australian Feminist Law Journal 147. * Williams, George, Recognising Indigenous peoples in the Australian Constitution what the Constitution should say and how the referendum can be won (2011) 5 Land, Rights, Laws Issues of natural Title 1. * Winckel, Anne, Recognising Indigenous Peoples in the Preamble Implications, Issues and Interpretation (2011) 7 Indigenous Law Bulletin 22.Case List * Attorney-General (Cth) Ex Rel Mckinlay v Commonwealth (1975) 135 CLR 1 * Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1 * Jones v Toben 2002 FCA 1150 69. * Kartinyeri v Commonwealth (1988) 195 CLR 337 * Koowarta v Bjelke-Petersen (1982) 153 CLR 168 * Kruger v Commonwealth (1997) 190 CLR 1 * esca pe valve v Commonwealth (1997) 187 CLR 579. * Miller v Wertheim 2002 FCAFC 156 14 * Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 * Wurridjal v The Cth (2009) 237 CLR 309 Legislation List.* Aboriginal and Torres Strait Islander Heritage Protection Act 1986 (Cth) * Australian Constitution Act 1975 (Cth) * Constitution Act 1867 (Qld) * Heritage Properties Conservation Act 1983 (Cth) * Hindmarsh Island Bridge Act 1997 (Cth) * Native Title Act 1993 (Cth) * Native Title (Queensland) Act 1993 (Qld) * Northern Territory National Emergency Response Act 2007 (Cth) * Racial Discrimination Act 1975 (Cth) * Anti-Discrimination Act 1977 (Nsw) 1 . Law Council of Australia, Constitutional Recognition of Indigenous Australians Discussion Paper March 2011 part 1.1 at 23 April 2012. 2 . Australia, Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution s ummon 1 at 23 April 2012. 3 . Alexander Ward, At the Risk of Rights Does True Recognition Require Substantive Reform (2011) 7 Indigenous Law Bulletin 3, 3. 4 . Ibid. 5 . Ibid. 6 . Australia, Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution paginate 1 at 23 April 2012. 7 . Ibid 4. 8 . Ibid 5. 3. 9 . Commonwealth of Australia Constitution Act (Cth) s 25. 10 . B Costa, Odious and alter? Race and Section 25 of the Constitution (2011) The Swinburne appoint for Social seek summon 1 at 25 April 2012. 11 . Attorney-General (Cth) Ex Rel Mckinlay v Commonwealth (1975) 135 CLR 1, 36, 44. 12 . B Costa, Odious and outmode? Race and Section 25 of the Constitution (2011) The Swinburne Institute for Social interrogation paginate 1 at 25 April 2012. 13 . Commonwealth of Australia Constitution Act (Cth) s 24. 14 . Ibid. 15 .Convention Debates, Melbourne, 1898, v arlets 665-714. 16 . B Costa, Odious and Outmoded? Race and Section 25 of the Constitution (2011) The Swinburne Institute for Social Research page 4 at 25 April 2012. 17 . Australia, Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution page 5. 3 at 23 April 2012. 18 . B Costa, Odious and Outmoded? Race and Section 25 of the Constitution (2011) The Swinburne Institute for Social Research page 6 at 25 April 2012. 19 . Ibid 5. 20 . Ibid 6. 21 . Ibid 5. 22 . Commonwealth of Australia Constitution Act (Cth) s 51 (xxvi). 23 . Australia, Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution page 5. 4 at 23 April 2012. 24 . Koowarta v Bjelke-Petersen (1982) 153 CLR 168. 25 . Ibid 169-170. 26 . Ibid. 27 . Ibid. 28 . Ibid 174. 29 . Kartinyeri v Comm onwealth (the Hindmarsh Island Bridge case) (1998) 195 CLR 337. 30 .Hindmarsh Island Bridge Act 1997 (Cth). 31 . Aboriginal and Torres Strait Islander Heritage Protection Act 1986 (Cth). 32 . Ibid. 33 . Ibid 416-7. 34 . Ibid 379-381. 35 . Thomson Reuters Legal Online, Halsburys Laws of Australia (at 15 January 1998) 19 Government, 19. 5 Federal Constitutional System 19. 5 157. 1 36 . Heritage Properties Conservation Act 1983 (Cth). 37 . (1983) 158 CLR 1. 38 . Ibid. 39 . Ibid 5 8. 40 . Native Title Act 1993 (Cth) 41 . Western Australia v The Commonwealth (1995) 183 CLR 373. 42 . Ibid.