Constitutional Recognition of Indigenous Australians Essay Example for Free

constitutive(a) acknowledgement of autochthonic Australians EssayIntroduction During the 2010 federal election, both major political parties campaigned on indigenous affairs. Following the ALPs victory, Prime Minister Gillard established an independent secure instrument panel to to investigate how to give effect to built-in recognition of cardinal and Torres liberty chit islander peoples. Two schools of thought guide dominated the solid groundal intercourse of how this should be striked. One interpret is that an amendment to the introduce of the constitution forget furnish safe and symbolical recognition. The substitute(a) view is that more real straighten is required to secure comparability before the law. On January 16 2012, the display board presented the Prime Minister their report and proposed cardinal amendments to the state of matter system. This paper will evaluate the five aims and the reasons offered by the Panel. Each amendment will be analy sed on its symbolic significance and potential levelheaded ramifications. at last this paper will conclude on how to best give autochthonous Australians recognition at bottom the constitution. original Recognition For the gameboard, native recognition of Indigenous Australians means removing provisions in the Constitution that contemplate racial discrimi kingdom.Whether intended or non, the five proposals address the broader studys of racial discrimination and equality before the law within the state of matter Constitution. Repealing subdivision 25 In its report, the Panel indicates that 97. 5% of all submissions approve of repealing region 25. class 25 reads For the purposes of the last character, if by the law of any(prenominal) State all persons of any race argon disqualified from voter turnout at elections for the more numerous House of the Parliament of the State, wherefore, in reckoning the issuing of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.On face value, department 25 appears racist as it contemplates States excluding voters on the grounds of race. This interpretation has been affirmed by Chief Justice Gibbs in McKinlayss subject bea (1975). class 25 must be read with section 24 to ascertain the real intention of the framers. Section 24 specifies that the number of lower house representatives is laid by dividing the total number of people of the Commonwealth by twice the number of senators and then dividing the cosmos of each state by that quota.Therefore, by racially excluding voters the numerical input of the States universe is reduced the States federal representation decreases and homophobic 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 group. For instance, N ew federation Wales denied certain classes of indigenous people the rectify to vote. The panel states that this proposal is technically and soundly sound.Many underlying commentators agree but there is a small minority who bring forth identified possible sub judice 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 consistent(predicate) to section 30. It is unclear whether the High Court would find legislation that disqualified people of certain races from voting invalid because of the section 7 words directly chosen by the people and section 24.Theoretically, it whitethorn be argued that section 25 should not be removed until the right to vote is constitutionally entrenched. However, this view is highly unorthodox and section 25 should be repealed. Repealing section 51 (XXIV) Section 51(xxvi) authorises the Commo nwealth to give rise laws with respect to the people of any race for whom it is deemed necessary to make special laws. The Panel recommends removing section 51(xxvi) as it contemplates discrimination against primal and Torres toss Islander peoples.In Koowarta v Bjelke-Petersen, the aboriginal Land Fund perpetration was denied purchasing Pastoral property from the Crown. The Queensland Minister for Lands reasoned that the government did not view favourable proposals to bewilder large argonas of land for development by natives in isolation. Koowarta argued that the Minister was in breach of sections 9 and 12 of the racial favoritism put to work 1975 (Cth). Joh Bjelke-Petersen challenged the constitutional validity of the Racial Discrimination lay out 1975 (Cth). The Premier argued that s51(xxvi) does not confer top executive to make laws which apply to all races.A majority of the High Court found that sections 9 and 12 of the Racial Discrimination Act 1975 were invalid purs uant to s 51 (xxvi). The Hindmarsh Island bridge call on case illustrates parliaments magnate to enact adversely discriminatory laws in relation to race. The case concerned whether the Hindmarsh Island link Act 1997 (Cth) could remove rights which the plaintiffs enjoyed downstairs the uncreated and Torres bye Islander hereditary pattern tribute Act 1986 (Cth). The Ngarrindjeri women argued that the races super force-out provided allowed parliament to pass laws that are for the benefit of a particular race.The Commonwealth argued that there were no limits to the power. The High Court found that as the heritage security system Act was validly enacted down the stairs s 51(xxvi), the same head of power could prevail a whole or incomplete repeal. The High Court was divided on whether S 51(xxvi) could only be use for the advancement or benefit of a racial group. In his judgement, Justice Kirby found that section 51 (xxvi) does not put out to the enactment of laws detriment al to or discriminatory against, the people of any race (including the uncreated race) by destination 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 confirm that laws enacted under section 51 (xxvi) must be beneficial. Since then, it has generally been authoritative 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 significant symbolic gesture to Indigenous Australians as they are 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 Conservation Act 1983 (Cth) were held to be constitutionally valid pursuant to s 51 (xxvi). As a result, the Franklin River Hy droelectric Dam could not be constructed 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 external affairs power in s51 (xxix), would stick out this legislation under the principle of dual characterisation. Other beneficial legislation may not be withstanded under the same principle. In Western Australia v The Commonwealth, the court found The Native Title 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 Indigenous People may provide scope to patronise the Native Title Act 1993 (Cth) under the external affairs power.However, it seems reckless to gamble with legislation that establishes a framework for the protection and recognition of native title. Repealing section 51 (xxvi) will also limit the Commonwealths ability to pass new laws for the advancement of Indigenous 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 Indigenous Australians. Inserting section 51A The preamble to S51A is the first recommendation which actually addresses the important contributions of Indigenous Australians.Section 51A also allows the Commonwealth to makes laws with respect to Aboriginal and Torres Strait Islanders. Similar to section 51(xxvi), the power contained within section 51A is not subject to any conditions. This is pretty 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 adversely discriminatory.The Panel states that the preamble which acknowledges the need to secure the advancement of Aboriginal and Torres Strait Islander peoples will mitigate this risk. However, a preamble is only used to resolve an equivocalness within a text. The power to make laws with respect to Aboriginal and Torres Strait Islander peoples is not oddly 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 differently to benefit.Furthermore, the High Court is not always ready to cut across a value judgement such as one based benefit. Credit should be given to the Panel for this proposal. The preamble to Section 51A constitutionally recognises the history, subtlety and contributions of Indigenous Australians. The new head of power will likely ensure that current legislation pursuant to section 51 (xxvi) will glide by to operate. Section 51A als o 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 readiness in interpreting the importee of advancement. To overcome these issues, the panel 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. Je wish people are acknowledge 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 natural Jewish?The second legal issue is how Section 116A will affect existing state and land 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 courts will have sig nificant discretion in determining what is for the purpose of overcoming disadvantage. An important issue for the Indigenous community is the Northern territory 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 Territory topic Emergency answer 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 equality 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 linguistic communications as the original language of Australia. A separate language provision is necessary to capture the importance of traditional 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 liberty 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 leave way of constitutionally recognising Indigenous Australians. Summary of analysis This analysis concludes that the five proposals put forward by the panel appropriately balance substa ntive reform 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 perceive 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 change or substantive reform. It is simply a question of which proposals will gain bipartisan support. mop up The panels proposals could succeed at referendum. Firstly, Australians are more likely to support something substantive th an 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 touch a referendum. It can be a useful way of generating a negative public answer 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 discord on where and how it should be done.Both parties are committed to recognising Indigenous Australians within the con stitution. 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 incentive 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 appointed 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 Native Title 1. * Winckel, Anne, Recognising Indigenous Peoples in the precede Implicat ions, 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 * Leak 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 Discriminati on 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 page 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 . ibidem 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 page 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 Institute for Social search page 1 at 2 5 April 2012. 11 . Attorney-General (Cth) Ex Rel Mckinlay v Commonwealth (1975) 135 CLR 1, 36, 44. 12 . B Costa, Odious and Outmoded? Race and Section 25 of the Constitution (2011) The Swinburne Institute for Social look page 1 at 25 April 2012. 13 . Commonwealth of Australia Constitution Act (Cth) s 24. 14 . Ibid. 15 .Convention Debates, Melbourne, 1898, pages 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 Commonwealth (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.