The Dangers of Constitutional Recognition

The lives and values of Aboriginal and Torres Strait Islander (ATSI) people have extreme complexities which seem to defeat many well-willed actions and plans. Endlessly, initiatives and programs seem to produce less than was hoped for, or to produce nothing. The complexities of Aboriginal cultures and experiences mean that some appraisals and interpretations are easy and correct, but many more prove to be bafflingly unrelated to the people and behaviour they are brought to bear on, in the diversity of languages and societies. The huge extent of Australia means that many ATSI people have difficulty in understanding each other, and they have the same kind of cultural disadvantages in understanding what the immigrant population are thinking, wanting and doing, as the immigrant population have in understanding them. Many ATSI people no more value or want to live in the culture of the immigrant peoples than the immigrant peoples want to live in theirs. The cultures of the immigrant peoples are themselves diverse and distinct.

The Australian people face a long future, perhaps centuries, in which they are called on for patient beneficent policies of government towards ATSI people, without real understanding of what the outcomes will be and without undue concern for the cost. The Australian people include immigrants and their descendants and also ATSI people: there are no “them and us” in living this future.

Australia already has federal laws expressing recognition of ATSI people and invalidating legislative racial discrimination. The Recognition Act expresses recognition in section 3:

Recognition

(1) The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

(2) The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

(3) The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

This declaration of recognition is indisputable: no one could rationally say it is wrong, and the same would be true if these words had not been stated in a Commonwealth Act. The Recognition Act had a sunset clause after two years, now extended to five years: it does not need a sunset clause. Recognition as stated in the Recognition Act has meaning if recognition is generally felt in the minds of the whole population, and particularly those taking part in government. Recognition should be in the minds of everyone who takes part in Australian public life, including everyone who votes for parliamentary representatives: not as the dominant concern or as the first concern, but as a continuing concern. It would be wrong to give up on people, especially over problems arising from the limits of our own understanding. The question is whether and why our Constitution should say anything about it.

When limits are placed on the legislative power of parliament, consequences which we cannot foresee present themselves decades and even centuries in the future. We often cannot see consequences five years ahead. To impose a limit on legislative power is to express mistrust of legislators, and in a democracy also mistrust of voters: not only the legislators and voters of our time but also those of all future time. To employ so vague and malleable a word as discrimination while imposing such a limit is a folly for future ages as well as for our own. Better to let posterity manage its own affairs in its own circumstances: to let the Australians of the future make their own judgments and bring about their own successes. We should not make their mistakes for them.

These notes introduce the main recommendations of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in the JSC’s final report to the Commonwealth Parliament in June.

Consideration has focused on three main subjects on which the Constitution might be altered. The first is the inclusion of a preamble expressing recognition. The second is alteration of the terms in which the Constitution gives federal parliament power to legislate with respect to ATSI people. The third is the inclusion of some constitutional provision against racial discrimination: this has been tacked on to the original project in the course of years of reviews and committees on recognition. A fourth, which seems minor, is the removal of section 25.

There has been a series of statements from prime ministers and others in government of support for a project of recognising ATSI people in the Constitution. This idea was already abroad when Prime Minister Howard expressed support for it in 2007. The JSC’s final report quoted Prime Minister Abbott as having said in a public oration on November 28, 2014: “I … see Constitutional recognition of Aboriginal people in a form that would complete our Constitution rather than change it.” (Make of that what you can.) Recognition of ATSI people in the Constitution was part of the platform of the ALP in the election of 2010, and in November 2010 Prime Minister Gillard announced that an expert panel would be appointed; and it was on December 23.

The expert panel report in January 2012 said that the panel had conducted a broad national consultation and community engagement program to raise awareness about constitutional recognition of ATSI people. The program included public consultation meetings, individual discussions with high-level stakeholders, presentations at festivals and other events, a website, a formal public submissions process and a commission to Newspoll to undertake research. The expert panel placed emphasis on capturing the views of ATSI people and communities. Its work was about finding out what ATSI people wanted: and if necessary, getting them to want something.

The expert panel report was followed by enactment of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (the Recognition Act quoted earlier) in March 2013, and the Recognition Act provided for a review panel to review the work of the expert panel and of the body called Reconciliation Australia, and to address the readiness of the public to support a referendum, the proposal most likely to obtain support, and levels of support among various classes of people.

The review panel in its final report in September 2014 reported that there was a need to identify rapidly the final form of words and to draw debate to a conclusion, and recommended the appointment of a Referendum Council of trusted national figures to do so. In other words the review panel did not define the debate. There does not seem to have been a Referendum Council.

The Joint Select Committee on Constitutional Recognition was appointed by a resolution of December 2, 2013. The JSC was very active and published an interim report and a progress report. The JSC’s final report in June 2015 dealt (up to a point) with the things that it was contemplated the Referendum Council would deal with. The JSC put forward three options, forms for the proposed constitutional alteration to federal legislative power. The report represents a great deal of work in many sessions and with many submissions. Various people tried the jump on the bandwagon; for example there was an attempt to have a constitutional provision about discrimination refer expressly to discrimination against groups with no necessary connection with ATSI people, such as transgender persons.

There seems to have been no significant consideration in Parliament since the JSC’s final report was presented, although there have been several inconclusive discussions.

All this process has not produced a decision on exactly what constitutional alteration is to be put to a referendum. However, the JSC put forward several options and it seems likely that their first option will be adopted.

A central difficulty is to understand what a constitutional alteration recognising indigenous Australians would be expected to achieve. There are several ideas abroad. One is that there is a need to recognise ATSI people in the Constitution. This idea has been often expressed in terms which suggest very deep feeling. It has become an unchallengeable proposition in public debate. However, there has not been any real explanation for giving recognition by changing the Constitution. To do this would attempt to record or to confer dignity and respect and would operate in symbol and gesture. Dignity and respect are appropriate. The Constitution does not exist to recognise classes of people, and the entitlements of ATSI people and of many other groups to respect and dignity and proper treatment exist already despite the fact that they are not mentioned in the Constitution. The Constitution does not exist to state the facts of Australia’s history, to recognise groups of people or to make gestures. A provision expressing recognition of immigrants or the descendants of immigrants would serve no purpose and could only seem ridiculous. However, voting against a constitutional alteration would have the appearance of rejecting recognition—or would be claimed to have that appearance.

No provision should be placed in our Constitution to make people feel happy or to soothe their feelings. There is no such provision in the Constitution so far. That is not what constitutions do. Every word and every phrase in the Constitution is examined and carefully compared with passages where the word or phrase appears elsewhere in the document, and in documents and debates in the course of its preparation; and assertions of varying strength are made about implications for meaning. This happens every time the Constitution is construed in a lawsuit, many times and in contexts where a great deal of economic and other interests turn on the result. The Constitution is not the place for superfluous expression, and the only words which should be in it are words which are intended to state permanently the law about how Australia is governed. The Constitution is not the place to record the policy concern or the moral concern which is at the forefront of our minds at the moment. One hundred and fifteen years of such records would be rather cluttered.

Another idea abroad seems to be that ATSI people are the subject of adverse discrimination produced by federal and state legislation and by the actions of governments. Committees that have consulted the public report that this is the most prominent complaint and appears in practically every submission. However, they do not state in clear detail what the adverse discriminatory legislation has been. As there has been effective federal legislation against racial discrimination for forty years, it is not possible to know what it could be. The claim that there has been legislative racial discrimination and that it has been adverse seems to be an unavoidable ornament to every expression of dissatisfaction of any kind. This has greatly changed the subject under consideration and moved it far beyond recognition.

The Racial Discrimination Act 1975, a federal Act, has been in force for forty years. It is full of loose language and generalisations drawn from the International Convention on the Elimination of All Forms of Racial Discrimination, and it is largely directed to giving some provisions of the Convention effect in Australian law. Arguments and decisions about the operation of the Racial Discrimination Act are complex and obscure: see for example Maloney v The Queen (2013). Any abbreviation of its flood of words is inaccurate, but broadly it is directed at invalidating any provision of a state or territory law which in any way has the practical effect of producing racial discrimination, and so too for any Commonwealth law unless the Commonwealth Parliament expressly declares that it intends to override the Racial Discrimination Act. (This has only happened about three times.) As there has been a federal law invalidating legislation which brings about racial discrimination for forty years, it should be quite difficult to find any legislation which has that effect, because any provision which had that effect would be invalid. The Racial Discrimination Act would continue to be in force after a constitutional alteration took effect, it is very wide in its operation, and there is no prospect of the Racial Discrimination Act being repealed. It is difficult to know what more a constitutional alteration would do to counteract legislative discrimination.

It is important to know what are to be the terms of the proposed alteration. We are still in a stage so preliminary that we do not know this. Unless the terms of the proposed alteration are known, or at least the object in view is known, discussion has no real point. A possible constitutional alteration has now been publicly referred to for more than five years and many people in politics have expressed approval of the proposal, but the basic need for definition has not been met, and still has not been met by the JSC’s final report. The vagueness of the topic and its persistent discussion have disarmed appraisal of its merits. The body called Recognise has been using Commonwealth funds to agitate in favour of a constitutional alteration for some years in the absence of any definition of what it is advocating.

Two basic terms in the discussion are so vague and indefinite that they defeat discussion. One is race. An attempt to assign a person to a particular race is often vague and debatable, although there are many instances where the answer seems clear. Attempts to define what a race is or to state clear reasons why an individual can be fitted within a definition of a race, or excluded, seem always to fail. Resort to self-identification instead of definition is usual, but this has no real effect unless it is established what exactly people are identifying themselves as. In a legal system a term like that is better avoided.

The other is discrimination. This word has been pressed into service for meanings beyond what it means in ordinary English usage, with an overtone that discrimination is always adverse. In this application the meaning in ordinary usage is inverted and whatever is thought to be adverse is called discrimination. A word which started as a reference to good choices in artwork and brandy has been pressed into service which it can hardly bear, because it does not really identify what kind of adverse application it refers to, and is to be brought out in support of any contention that something in some government action or Act of Parliament is adverse.

The concept of discrimination is often deployed to give apparent support to grievances, without any real definition of the discrimination complained of. Racial discrimination is a vague concept vaguely expressed. The word discrimination is not used in a clear way. Laws about sentences for crime are often assailed with the observation that a far higher proportion of ATSI people are in prison under sentence than other people. This criticism is almost always offered without reference to the incidence of criminal behaviour, and it is sometimes offered with the suggestion that the sentences imposed on ATSI people are more severe than the sentences imposed on other persons who commit similar offences. All legal rules discriminate: they operate differently on different people according to circumstances. Much use of the word discrimination seems to assume that it refers to discrimination adverse to a person; this appears to be its established sense when used in international conventions, but it is not its ordinary meaning in the English language.

A prohibition of legislative discrimination may invalidate legislative provisions which according to their own terms enact different rules for different classes of people or make adverse rules for some class of persons. On the other hand it may operate on and invalidate legislative provisions which according to their terms apply indifferently on all persons who fall within them but have an adverse practical effect on some class, because when looked at in the light of circumstances their incidence is different and (it may be) more adverse for persons of one class. One of these could be constitutional discrimination; both could be; time and judicial wisdom will tell.

Invalidation of legislation for discrimination would often be excessive to any need for protection. There would be no consideration of proportionality of the solution to the problem, no assessment of the importance or unimportance of the disadvantages, and no assessment of any benefits concomitant with adverse effects. Well-considered proposals allow room for considerations like these.

In the earlier stages attention seems to have been concentrated most on whether constitutional recognition should take the form of a preamble. A preamble anywhere is a potential nuisance because it could be called in aid of arguments about construction of the words which were intended to have operative effect. The Constitution does not have a preamble, although the Imperial Act which gave effect to the Constitution does have a preamble, and there is nothing in it about recognising anybody. Adding a preamble to the whole Constitution would carry the obvious consequence of recasting consideration of everything in the Constitution to see whether perhaps its meaning is affected by some implication from the preamble.

A preamble to the whole Constitution no longer seems to have support, and what is now under consideration is a preamble to a provision introduced by the alteration which would affect the legislative power of the Commonwealth Parliament. The final report contains a lot of discussion about the terms of the preamble on the model of the Recognition Act. Part of an earlier draft preamble which recognised the need for Aboriginal advancement was dropped out, apparently because of concern over the suggestion that ATSI people were not advanced. If recognition in the Constitution were a good idea it might as well take place in a preamble to some particular provision in the Constitution; but as this would not achieve anything useful, it should not be in the Constitution.

The main subject under consideration is the alteration of the Commonwealth power to legislate for Aboriginal people, the “race power” in section 51 (xxvi) as altered in 1967. Before 1967, section 51 (xxvi) said:

51 Legislative powers of the Parliament

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:

……

(xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws …

The words shown in bold are the words left out by the alteration in 1967, so (xxvi) now says:

(xxvi) the people of any race for whom it is deemed necessary to make special laws …

Now the words of the race power do not expressly mention Aboriginal people or Torrens Strait Islanders, but the purpose and effect of the alteration in 1967 were to enable the Commonwealth to legislate with respect to them. The race power still suffers from turning on the all-but-incoherent concept of race, but it has been a sufficient constitutional base for federal laws relating to ATSI people.

There seems to be a wish to express the Commonwealth legislative power in a more positive way. This sounds like a nice thing to do, but it involves huge trouble and expense and there is no need for it. The difficulties relate to what in detail the alteration would say, and to what else it would say.

The Joint Select Committee put forward in its Recommendation 5 three options as ways of altering the Commonwealth power. Their first and preferred option has a preamble in words which follow section 3 of the Recognition Act. This is a preamble only to one proposed Commonwealth power. No other Commonwealth power has a preamble. It can be supposed that the preamble would influence construction by a court only for anything it shows about that particular power, not for wider implications for other provisions of the Constitution; but this limit is not completely certain.

In the first option, section 51(xxvi) and the race power are replaced by a new section 51A. Not repeating the preamble which follows the word Recognising, it would say:

51A Recognition of Aboriginal and Torres Strait Islander Peoples

Recognising …

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.

Section 51A would restate what was earlier the race power but confer the power only “with respect to Aboriginal and Torrens Strait Islander peoples”. There would no longer be power to legislate for any other race and there would be no reference to the need for special laws.

As part of the first option a new section 116A would forbid the Commonwealth and states or territories to discriminate, with a proviso:

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 …

Section 116A is unsatisfactory in that it employs the unsatisfactory word discriminate, but the context seems to show that this refers only to adverse discrimination. If that is intended it would be well to say so expressly. More importantly, section 116A would not relate only to Commonwealth legislation: it would relate to all actions of the Commonwealth, states or territories, legislative or not. There is no limit to the actions of governments to which this would apply. It might apply to a decision to end a subsidy for a bus to a remote community inhabited only or largely by Aboriginal people, or to reduce the number of teaching staff at a school in a remote community attended only or largely by ATSI children. If one of those things happened we could expect to see a constitutional challenge. Section 116A could generate a constitutional lawsuit over any state or territory action for which it could be contended that it operated adversely on ATSI people, or operated differently in its incidence on ATSI people from its incidence on people generally.

The second option would leave section 51 (xxvi) in place but add a new section 80A conferring power to legislate with respect to ATSI people but so as not to discriminate against them; the sole power to make special laws for ATSI people. Omitting the (slightly longer) preamble:

Recognising …

the Parliament shall, subject to this Constitution, have power to make laws with respect to Aboriginal and Torres Strait Islander peoples, but so as not to discriminate against them.

This section provides the sole power for the Commonwealth to make special laws for Aboriginal and Torres Strait Islander people.

Section 80A would contain express reference to adverse discrimination, and would contain a preamble, again a preamble only to this conferral of Commonwealth legislative power. If there is to be an alteration this seems to be the best of the three because it is limited to Commonwealth legislative power and is limited to adverse discrimination.

The third option is generally similar to the second option but it has a much more strongly expressed prohibition on adverse discrimination; I cannot see any need for greater emphasis. General similarities between the second and the third options suggest that they were both included to sow discord among those who do not support the first option.

In other words the Joint Select Committee has recommended the option which makes the widest available intervention in the actions of all governments, with the greatest potential for generating future litigation. The first option would operate far more widely than would be required for dealing with the original topic of recognising ATSI people in the Constitution, and introduces a very extensive new limitation on all legislative and all executive action of all governments, extending as widely as ingenuity extends in suggesting that some legislative or executive action has a discriminatory operation. This would be a short-form Bill of Rights: not of any stated rights but of whatever rights ingenuity could breathe into the concept of discrimination.

The Joint Select Committee had several real choices before it and made a choice which goes well beyond concern for ATSI people and their protection from adverse discrimination. The first option would set a huge bandwagon rolling, and it would roll for as long as the Constitution lasts. If the Commonwealth deported Afghans who had served sentences for crime but did not deport New Zealanders who had done so there would be a breach of section 116A, as they have different national origins.

The principle appears to be that if you are going to make trouble you may as well make a lot of it. A very striking aspect is the record of repeated, indeed endless complaints that Aboriginal people were the subject of adverse legislative discrimination, without exemplification of what this discrimination consists of. This suggests that a lot of contention would arise out of section 116A.

Another recommended alteration is the repeal of section 25. The effect of section 25 is that if a state withholds the voting franchise for its own parliamentary elections from all members of any race, the state is disadvantaged in enumerating its population for the purpose of federal representation. Much comment seems to assume that section 25 authorised withholding the vote from all members of any race, but it said nothing like that. Section 25 imposed a disadvantage on any state which withheld its voting franchise from all members of any race. In 1900 two or three colonies did that, but for many decades there has been no prospect that any state might do so. Section 25 is completely obsolete. There is nothing to be gained or lost by removing section 25. Its removal would be tidy, would do no harm and would achieve nothing.