JURIST Guest Columnist Anne Twomey of the University of Sydney Law School says that there are considerable challenges to passing the proposed changes to the Australian Constitution, in large part because they raise the question of how much control over the legislative process ought to be granted to Australia’s High Court…

Recognizing Australia’s indigenous peoples in the Australian Constitution would seem to be a relatively straightforward task, but the challenge is a large one. This is in part due to the constitutional complexity of proposals to do so and the need to convince millions of Australian voters to approve them.

The Australian Constitution can only be amended by a bill passed first by the federal Parliament and then by a double majority in a referendum, comprising a majority of Australian voters overall and a majority of voters in four out of six states. Voting is compulsory, so it is not only the interested that need to be convinced, but also the apathetic and the skeptical. The failure rate of constitutional referendums is notoriously high, which has made governments reluctant to initiate them.

Background to the Current Proposals

The last federal election in Australia produced a hung Parliament. Prime Minister Julia Gillard’s minority government relies on the support of a number of independents. Part of the deal made with the independents to gain their support was an agreement to hold a referendum before or at the next federal election to recognize Aboriginal people and Torres Strait Islanders (hereafter Indigenous Australians) in the constitution.

In its generality, the constitutional recognition of Indigenous Australians is not terribly controversial. The idea has been supported by all of the main political parties and has a groundswell of public support. The difficulty lies in how it is done and the details of any proposal. Until Gillard’s hand was forced, no government had taken the steps necessary to initiate detailed proposals.

In December 2010, Gillard set up a “Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples.” The Panel was required to consult broadly and recommend a form of constitutional change that was likely to attract the support of the Australian people. It handed its report to the federal government in January 2012.

Symbolic Recognition in a Preamble?

There was an expectation that the panel might opt for a form of purely symbolic recognition, such as recognition in the preamble to the constitution of the prior occupation of Australia by Indigenous Australians, their continuing relationship with their traditional lands and waters and respect for their cultures and contributions to the nation. So far, this has been the more popular approach, as it appears low-risk while still providing a “feel-good” factor. The panel, however, opted for substantive change in the text of the constitution instead. Its report recommends the deletion of two sections of the constitution — Sections 25 and 51(xxvi) — and the insertion of three new sections — Sections 51A, 116A and 127A.

While recognition in the preamble is popular among those unfamiliar with the details of the constitution, it involves constitutional traps which the panel neatly avoided. The first problem is that there is no “Preamble to the Constitution.” Due to Australia’s colonial heritage, the Australian Constitution was enacted as Section 9 of an act of the UK Parliament — the Commonwealth of Australia Constitution Act 1900. This British act has a preamble, but there are problems with changing it. First, while a referendum may be used to amend the constitution itself, it is doubtful that it could be used to amend the preamble to the act.

Secondly, the preamble is a historic statement of what occurred in the past and what was intended at that time. That intent cannot be retrospectively amended by a change to the preamble. If the preamble is to be given current relevance by the insertion of recognition of Indigenous Australians, then this would open up the question of whether the rest of it should be updated, including references to the Crown, to God, to the indissoluble nature of the federation and even the recognition of the states (as Western Australia missed out on a mention in the preamble due to its tardy agreement to join the federation). Turning the preamble into a jumble of historic statements and modern sentiments would leave the High Court struggling with how it was to be interpreted and applied in constitutional interpretation in the future.

The alternative is to introduce a new preamble into the constitution itself. Currently, it does not have one. This leads to other questions. What would the status of the two preambles be and how would a court interpret them both, particularly if they clashed? Would a preamble that is included in the text of the constitution, after the enacting clause, be truly preambular in nature, or would it be regarded as having a different status by virtue of its position in the text? What use would the High Court make of a preamble that did not introduce, and was not connected to, the text of the rest of the constitution? What else should be included in the new preamble beyond the recognition of Indigenous Australians? This last question had the potential to open up a hornet’s nest, with various groups and bodies all seeking their own recognition in the constitution. In 1999, when a referendum was held on Australia becoming a republic, the then-prime minister also initiated a second referendum question on inserting a new preamble in the constitution. It included references to Indigenous Australians, migrants and those who defended the country in time of war, but proved highly contentious in terms of what was included and excluded and failed miserably at referendum, being defeated in all states and achieving less than 39 percent support overall. Understandably, the panel did not want a referendum on the recognition of Indigenous Australians to be side-tracked by a debate about who and what should be included in a new preamble.

The other concern of the panel was that a statement in a preamble by itself would not achieve anything substantial. It could be regarded as tokenistic and fail at a referendum simply because people could not see the point of it. If it promised things, by including rights or a statement of values, that were not given substance in the operative part of the constitution, then it would be regarded as either a false promise or a Trojan Horse. The panel therefore chose to recommend substantive change.

The Repeal of Section 25

The panel’s least controversial recommendation was the repeal of Section 25. The constitution provides in Section 24 for a House of Representatives that is directly chosen by the people. It distributes the electorates among the states “in proportion to the respective numbers of their people.” It is followed by Section 25, which provides:

For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

American readers will recognize this provision as being derived from Section 2 of the Fourteenth Amendment to the US Constitution. The framers of the Australian Constitution were well acquainted with the US Constitution and drew upon it. Section 25 was first introduced into the draft constitution in 1891 at the same time as a companion clause which would have provided for “equal protection of the law” drawing from Section 1 of the Fourteenth Amendment. Both clauses were included in the final draft constitution in 1891, but when it was revised in 1897, the equal protection clause was struck out due, in part, to confusion and uncertainty about how it might be applied by courts in the future. Section 25 is therefore the only remnant of the Fourteenth Amendment left in the Australian Constitution. Its intention was to penalize those states that have racially discriminatory voting laws by reducing their representation in the federal Parliament. It was therefore an anti-racism provision, yet it is now regarded as “racist” merely because it contemplates that a state might enact laws that discriminate on racial grounds. Hence the recommendation for its repeal.

The Repeal of the “Race Power”

More controversial is the repeal of Section 51(xxvi) of the constitution. Section 51 sets out the various heads of power of the federal Parliament. Section 51(xxvi) originally provided that the Parliament could 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.” The original intention behind it was to permit the Parliament to make laws that discriminated against Chinese and Japanese workers entering Australia and laws that controlled their working conditions within Australia. The power to make laws with respect to Aboriginal people was left to the states as it did not have the same “international” aspect. In 1967, a referendum was passed to amend this provision by removing the words “other than the aboriginal race in any State.” The general intention was to allow the Commonwealth to enact laws with respect to Aboriginal people to improve their living conditions and provide them with other special assistance.

There has been a debate within Australia as to whether this benevolent intention in any way conditions the scope of the power. Can Section 51(xxvi) only be used to enact laws for the benefit of Indigenous Australians, or could it be used to enact laws that discriminate against them to their detriment? On its face, the words would permit any type of legislation for the “people of any race … for whom it is deemed necessary to make special laws.” The original intent behind the provision in the 1890s was clearly to permit laws that discriminated against the people of particular races. All that the 1967 referendum did was delete an exclusion — it did not otherwise alter the terms of the grant of power. Can the feelings of those who voted in favor of a referendum amending a provision dictate its application and if so, how are they to be ascertained?

The notion that the Parliament could only make laws for the “benefit” of a particular group of people leads to all sorts of constitutional and interpretative difficulties. How is benefit to be assessed and to whom must it be beneficial? For example, a law permitting traditional “pay-back,” such as leg-spearing, might be regarded as beneficial by those Indigenous Australians who practice traditional customs and as detrimental by those who do not. Must a majority of the group regard it as beneficial or must a court make that assessment? If a law can only be passed if it is beneficial, does each provision have to be beneficial, or can some be detrimental with other parts being beneficial so long as it is regarded overall as beneficial? If it is the latter, would an amendment which altered a beneficial part of the law result in the entire law becoming invalid if it tipped the balance from overall benefit to detriment? Would a law repealing a beneficial law be invalid, because the repeal was not to the benefit of the group? If so, the effect would be to constitutionally entrench all beneficial laws so that they could not be repealed without amending the constitution. This last issue was raised in Kartinyeri v Commonwealth, where the High Court held that if the Parliament had the power to enact a law, it also had the power to repeal it. The Court did not finally resolve, however, the arguments about whether laws under Section 51(xxvi) must be beneficial and if so, what this means in practice.

It is this debate which underlies the panel’s recommendation to repeal Section 51(xxvi) and insert a new Section 51A. Ideally, there should be no provisions in the constitution that permit laws to be enacted by reference to race. The simple repeal of Section 51(xxvi) would therefore be acceptable to most people. The problem, however, is that this provision also supports existing federal legislation that is regarded as important by Indigenous Australians, such as statutes that protect and enhance common law native title rights to land and the heritage protection of sacred sites. The repeal of Section 51(xxvi) would potentially render these laws invalid, leaving it to the states to legislate to deal with these matters. Indigenous Australians remain concerned, however, that perhaps not all states would provide the same level of protection to them and would therefore prefer to maintain Commonwealth legislation.

The Insertion of a New Power to Make Laws with Respect to Indigenous Australians

The panel accordingly recommended the insertion of Section 51A in the constitution in the following terms:

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.

On its face, the actual power given is one to make laws with respect to Aboriginal and Torres Strait Islander peoples. The power is not made subject to any conditions regarding “benefit” or the like. Potentially, just like Section 51(xxvi), it could be used to make laws that discriminate against Indigenous Australians to their detriment. However, the complicating aspect is the fourth recital in the preamble to this provision which acknowledges the need to “secure the advancement of Aboriginal and Torres Strait Islander peoples.” Under the ordinary canons of statutory interpretation, a recital in a preamble can only be resorted to in order to resolve an ambiguity in the text. There would appear to be no ambiguity in granting a power to make laws “with respect to Aboriginal and Torres Strait Islander peoples.”

Yet the panel’s report makes it clear that it sees this recital as imposing a condition on the power.

The Panel proposes use of the word ‘advancement’ in the preambular or introductory words to the new substantive power in ‘section 51A’ rather than in the power itself. This approach should ensure that the purpose of the power is apparent and would, as a matter of interpretation, be relevant to the scope given to the substantive power. The Panel considers that this approach would achieve a satisfactory balance between making the purpose of a law justiciable, and at the same time allowing a court to defer to legislative judgment. It should not enable individual provisions in a broad scheme to be attacked as not beneficial if the law as a whole were able to be judged beneficial.

The panel also said:

Based on the Panel’s legal advice, the preambular language proposed by the Panel for ‘section 51A’ would make it clear that a law passed pursuant to that power would be assessed according to whether, taken as a whole, it would operate broadly for the benefit of the group of people concerned, rather than whether each and every provision was beneficial or whether each and every member of the group benefited. The Panel does not believe that this would create any particular difficulty or uncertainty for Parliament, or create any real risk of excessive court challenges.

This disjunct between the panel’s intention and the wording is likely to give rise to uncertainty and controversy. It is all very well for the panel to assert that the word “advancement” will qualify the power in this way, but that is a matter for the courts to decide. They might take quite a different approach, given the wording of the provision. First, it is not obvious that there is any ambiguity in the grant of power in Section 51A which would permit the Court to qualify the grant by reference to the word “advancement” in its preamble. Secondly, the panel’s interpretative assumptions appear to be focused upon the notion of “benefit,” whereas the word actually used — “advancement” — is quite different and might give rise to a completely different interpretation. Thirdly, the panel’s view that individual provisions could not be challenged and that a court would instead assess whether the law would operate broadly for the benefit (or more accurately the advancement) of the group may not necessarily be followed by a court. Finally, the greatest controversy will hang on the fact that it would be a matter for a court to decide what was, or was not, for the advancement of Indigenous Australians. On the whole, Australians have proved most reluctant to shift such assessments from the Parliament to the courts, as has been seen by the failure to introduce a constitutional bill of rights. Already, a prominent Aboriginal leader, Warren Mundine, has objected to this aspect of the panel’s proposal, arguing that it will open a Pandora’s Box of litigation and dispute.

A Constitutional Prohibition of Racial Discrimination

The other controversial proposal is the introduction into the constitution of a prohibition of racial discrimination. Proposed Section 116A provides:

(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

This gives rise to both policy and legal issues. On the policy side a question arises as to whether such a provision should be constitutionalized. There has been federal and state legislation prohibiting racial discrimination for decades. However, once placed in the constitution, such a provision can be interpreted by the courts in ways that were not intended and there is no option of reversing such an interpretation by legislation. The only option is to amend the constitution, which is expensive and extremely difficult. The level of discretion left to the courts in determining what amounts to discrimination, who is protected and whether a law or executive act is for the purpose of overcoming disadvantage, and so on, is immense. As noted above, Australians are particularly wary of handing over what is essentially political power to the courts. American examples of creative constitutional interpretation and high levels of litigiousness have only entrenched Australian antipathy towards such an approach. For example, Professor Greg Craven has argued that the provision is so broadly cast, especially regarding ethnic and national origin, that it could be used in unexpected ways.

Some are likely to argue that if an anti-discrimination provision is to be included in the constitution, then it should not just be directed at race but also at discrimination against women and other groups. Back in the 1890s when Section 25 of the constitution was drafted, it penalized states that enacted racially discriminatory voting laws, but did not penalize states that excluded women from voting, despite the far greater disparity in voting numbers that this caused. To perpetuate the privileging of anti-racial discrimination measures over anti-sex discrimination measures in the twenty-first century would seem inappropriate to some.

Others may also be concerned that some groups may be interpreted as falling within the category of “race, colour or ethnic or national origins” while other groups are not. For example, Jewish people would be constitutionally protected because they are recognised as an “ethnic group,” as seen in Miller v. Wertheim and R (on the application of E) v. Governing Body of JFS, while, so far, Muslims have not received the same protection. The mere uncertainty as to who would be covered by the provision and who would not, is likely to give rise to controversy and concern.

One legal issue is how Section 116A connects with the rest of the constitution. It should be noted that its potential scope is very wide. It covers not only legislation but also the exercise of executive power by governments, and it applies not only to the Commonwealth, but also to the states and territories. It presumably, therefore, operates as a limitation upon Section 51A. It is arguable that any law under Section 51A with respect to Indigenous Australians is one that discriminates on the grounds of race, because it applies only to a racial or ethnic group. Such laws would therefore be prohibited unless the requirements of Section 116A(2) were met — namely, that the law is “for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.” Section 116A might, therefore, be regarded as a “back-stop” against the risk that “advancement” in the preamble to Section 51A would not be accepted by a court as qualifying the power granted in that section. The question then arises as to whether all existing laws made under Section 51(xxvi) would avoid being struck down under Section 116A(1) because they fall under the exception in Section 116A(2). Would, for example, a law that preserves and regulates existing native title rights to land be held to be one “for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group”? Perhaps it would be, but this would again be up to a court to decide.

The other legal issue is how this blanket prohibition on racial discrimination will affect existing exemptions under anti-discrimination laws. For example, Section 8 of the Racial Discrimination Act 1975 excludes from the application of anti-discrimination provisions any provision of a deed or will that confers charitable benefits on persons of a particular race, color or national or ethnic origin. Not all such charitable gifts would meet the requirements of Section 116A(2). Sections 12 and 15 of the same act also exclude the application of anti-discrimination measures to people who seek someone to share their home or be employed in their home. Other exemptions exist in state anti-discrimination laws. It is likely that Section 116A would wipe out such exemptions unless they could be accommodated under Section 116A(2). Again, this will depend upon interpretation by the courts.

Recognition of Indigenous Languages

The panel proposed introducing a new Section 127A which recognizes that the “national language” of Australia is English, but also that “Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.” The panel rejected a proposal to include a provision that “all Australian citizens shall be provided the opportunity to learn, speak and write English” as it might give rise to legal challenges to the adequacy of literacy programs. It also rejected a proposal that “all Australian citizens shall have the freedom to speak, maintain and transmit the languages of their choice” as this might give rise to arguments about the right to deal with government in languages other than English.

It is not clear what Section 127A is intended to achieve in practice. Disputes arise from time to time as to whether Aboriginal children in outback schools should be taught in English or in their local Aboriginal language. It is unclear how a provision such as Section 127A would affect such a debate. Alternatively it might be directed at supporting claims for funding to preserve Indigenous languages on the basis that they are part of our “national heritage.” The panel contended at page 132 of its report that the insertion of Section 127A in the constitution “would not give rise to implied rights or obligations that could lead to unintended consequences.” It appears that the provision is intended to be declaratory and symbolic in nature.

Conclusion

The panel’s proposals go beyond the recognition of Indigenous Australians in the constitution. They include substantive provisions that both grant and limit legislative power. They potentially affect the validity of Commonwealth, state and territory laws. They include a broad guarantee against racial discrimination which will not only protect Indigenous Australians but also people of other races, colors, and ethnic and national origins. If enacted, they would leave to the courts the important role of interpreting the scope of the federal Parliament’s power to make laws with respect to Indigenous Australians and applying a constitutional prohibition on racial discrimination that affects both legislation and executive acts of all Parliaments and government across the nation.

The proposals are substantive and important and deserve an informed debate and rigorous analysis. There is a substantial risk, however, that their complexity and extensive reach will result in their failure if put to a referendum. Two members of the panel recently wrote that if the referendum was lost, this would “brand Australians to the world as racists, and self-consciously and deliberately so.” This appears to be going too far — there are many reasons why such a referendum could fail other than racism. The vast majority of previous referendums have failed, without racism entering the equation.

The government has not yet formally responded to the panel’s report, although it has indicated that it wishes to hold a referendum on the issue. The opposition has not yet determined its position, although it remains broadly in favour of the constitutional recognition of Indigenous Australians. Bipartisan support is regarded as essential for a referendum to pass. It is therefore likely that there will be much political negotiation before any proposals are put to a referendum.

Anne Twomey is Professor of Constitutional Law at the University of Sydney Law School. She has previously served as a Senior Research Officer for the High Court of Australia, as Secretary to the Senate Legal and Constitutional Committee, and as a researcher in the Law and Government Group of the Commonwealth Parliamentary Research Service. Twomey’s scholarly work focuses on constitutional history, constitutional law, parliamentary procedure, federalism and election law.

Suggested citation: Anne Twomey, Indigenous Recognition in the Australian Constitution, JURIST – Forum, Jan. 30, 2012, http://jurist.org/forum/2012/01/anne-twomey-australian-constitution.php.