Lin Thorp (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

One of the first referendums was the 1967 referendum, where the Australian people were asked whether Aboriginal people should be counted in the national census and be subject to Commonwealth laws rather than just state laws. This referendum was a landslide, winning close to 91 per cent of all votes cast. No referendum before or since has been so heartily endorsed by the Australian people. The overwhelming result gave the government at the time a clear mandate to enact policies that would benefit Aboriginal people.

Another nation-defining event was the historic 1992 Mabo decision. Here the High Court ruled that the Meriam people of the Murray Islands in the Torres Strait were 'entitled as against the whole world to possession, occupation, use and enjoyment of most of the lands of the Murray Islands'. In doing so, they rejected the longstanding, but patently false, concept of terra nullius—land belonging to no-one. That was a big step, indeed, and one which led to the drafting of the 1993 Native Title Act by the Keating government.

Keating reinforced the need to admit the truth of our history in the now famous Redfern speech of 1992. This watershed speech was the first time that an Australian Prime Minister had acknowledged the impacts of government policies since Federation on Aboriginal and Torres Strait Islander people. It clearly placed reconciliation on the national agenda and has since been referred to as one of the most powerful and important speeches of all time. But, more than that, it reflected a commitment to make the future better. In Keating's words:

This is a fundamental test of our social goals and our national will: our ability to say to ourselves and the rest of the world that Australia is a first rate social democracy, that we are what we should be—truly the land of the fair go and the better chance.

Sixteen years after Keating's message of acknowledgement and respect came another unforgettable speech and another milestone on the path to reconciliation. The 2008 National Apology to Aboriginal and Torres Strait Islander Peoples by then Prime Minister Kevin Rudd was one of those very rare speeches that united the House and the nation. I daresay there are many Australians who will remember exactly where they were that day and how moved they were. In Mr Rudd's words, the apology was a recognition that:

The time has now come for the nation to turn a new page in Australia's history by righting the wrongs of the past and so moving forward with confidence to the future.

This was a truly defining moment in our national history, of which I am immensely proud. The speech went to the very heart of the Labor values that are so close to my heart: fairness, equality, inclusiveness, opportunity and respect. Since Kevin Rudd's watershed apology, this government has been working very hard, in partnership with the states, to achieve better outcomes for Indigenous Australians. In 2008 the Council of Australian Governments agreed to six ambitious targets to address the disadvantage faced by Indigenous Australians in life expectancy, child mortality, education and employment.

But despite all the hard work and commitment towards rectifying inequality and creating opportunity for all, we still have one major hurdle to leap. That is, the formal recognition of Aboriginal and Torres Strait Islander people within our Constitution. To this end, the bill enshrines some very important elements. It recognises that the continent and its islands, now known as Australia, were first occupied by Aboriginal and Torres Strait Islander peoples and acknowledges the continuing relationship of Indigenous people with their traditional lands and waters. It also formalises respect for the continuing cultures, languages and heritage and acknowledges the need to secure the advancement of Aboriginal and Torres Strait Islander peoples. It also recognises that Aboriginal and Torres Strait Islander languages are the original Australian languages and are part of our national heritage.

The will for this recognition is clearly there in the community. We only need to look at the groundswell of public support across the nation. Political representatives on both sides of this chamber also agree. But we must face the reality that constitutional amendments are notoriously difficult to achieve. Of 44 referendums held since Federation, only eight have passed. And we know that failed referendums can lead to important decisions being discarded for decades—one springs to mind, Mr Deputy President. If we were to rush into this, we would risk condemning this important acknowledgement to just another footnote in history.

(Quorum formed)

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I rise today to add my thoughts to the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. The purpose of this bill is to give expression to the parliament's recognition of Aboriginal and Torres Strait Islanders as the original inhabitants of Australia and also their ongoing connection with their traditional land and waters, cultures, languages and heritage. It establishes a mechanism to review the preparedness of the Australian community to support a referendum giving constitutional recognition to Aboriginal and Torres Strait Islander peoples and the preferred form of these proposed constitutional changes.

My own party's record regarding Aboriginal and Torres Strait Islander issues and representation is a proud one, most notably the election of the first Aboriginal Australian to sit in federal parliament and the election of the first Aboriginal Australian to sit in the House of Representatives. There are of course many other achievements and milestones that have been characterised by strong bipartisanship. I begin by echoing the comments of the shadow Attorney-General, my colleague Senator the Hon. George Brandis, in regard to the care and caution that must be shown in this debate as we move towards the finer detail of a proposition. He has said in this debate that it is 'just as important to persuade people with conservative views as people who consider themselves to be progressive. If this is to happen, the proposal must be modest and the tone of the debate must be respectful.'

I come to this issue with a great deal of caution, indeed some apprehension. I am very cautious about the merit of recognition in our constitutional document. That said, I believe there to be tremendous merit and popular support for two of the proposals contained in the expert panel report, Recognising Aboriginal and Torres Strait Islander peoples in the Constitution; namely, those proposals that seek to remove reference to race. I also recognise that others have started from a similar position to my own and have been able to reconcile their concerns and are now prepared, while remaining cautious, to modest proposals.

The difficulty in finding an appropriate form for securing recognition in our Constitution and the legal uncertainty it introduces should not come as a surprise to anyone who has taken the time to properly understand the report of the expert panel. I have been drawn to the more conservative and cautionary analysis and scrutiny given to this issue by accomplished constitutional experts. I think it is a shame and an ominous sign that their views have not been given more coverage.

It is worth reminding ourselves how we got to the debate on the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. As a preface, I would add that I do not believe we are close to a point where there is a clear, concise and popular proposition. The expert panel reported to the Prime Minister on 19 January 2012, recommending a referendum on five constitutional changes. The first would remove section 25, which contemplates the possibility of state laws disqualifying people from voting at state elections on the basis of their race. The second would remove section 51(xvi), which can be used by the Commonwealth to enact legislation to discriminate for or against people on the basis of race. The third involves the insertion of a new section 51(a) that would recognise Aboriginal and Torres Strait Islander peoples and preserve the Australian government's ability to pass laws for the advancement of Aboriginal and Torres Strait Islander peoples. The fourth would insert a new section 16(a), banning racial discrimination by the Commonwealth. Finally, the fifth would insert a new section 127(a), recognising that Aboriginal and Torres Strait Islander languages were the country's first tongues while confirming that English is Australia's national language.

Recognising that there was not yet enough community awareness or support for change and wanting to maintain momentum for change, this bill was prepared to assist Australians to become familiar with formal recognition of Aboriginal and Torres Strait Islander peoples ahead of constitutional change. I note that this approach has a parallel in our history and was used in the 1890s to build and maintain momentum amongst the colonies for Federation. The comments of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in its interim report in January this year makes a salient point that is worth emphasising. The committee cautions that if the proposal is the victim of overreach it will fail. While the committee does not seek to limit the scope of public discussion, it nevertheless considers that only a relatively modest proposal is capable of engendering the bipartisan consensus which is a prerequisite to success.

My caution has two root causes. Firstly, in my mind the link between constitutional recognition of Indigenous peoples and better outcomes for them, their families and communities has not yet been established. I think constitutional recognition is unfounded if there is not an expectation of some tangible, practical improvement in the lives of Aboriginal and Torres Strait Islander peoples. As we embark upon this public discussion on the merits of any constitutional amendments, I believe Australians have a clear view of what their Constitution has been designed to do, or more accurately what it has not been designed to do. In the simplest terms, I believe they see their Australian Constitution as a rule book, established as a set of guidelines for how a newly created Federation was to govern itself and conduct its activities. I accept that for a smaller group of Australians, the Australian Constitution may be seen not so much as a rule book but as a mission statement, a catalogue of intent, ideals and statements about where we want to be heading as a nation. I am not opposed to any of those things; aspiration is a virtue. No nation can be secure for long without a clear notion of its identity or purpose. For me, as a self-confessed constitutional conservative, I am not persuaded that the ideal place to be giving expression to these aspirations for reconciliation and recognition should be in the text of the Australian Constitution.

Secondly and more substantively are the serious but conveniently ignored legal considerations. Of all the commentary and analysis, I am most inclined to trust the work of Professor Anne Twomey, Director of the Constitutional Reform Unit at the University of Sydney, who has given careful and dispassionate accounts of the possible legal pitfalls and shortcomings of various forms of recognition canvassed to date. I particularly agree with her comment that a lack of clarity about the purpose of Indigenous recognition will always leave the issue open to accusations of it being a 'false promise or a Trojan Horse'. For this reason, I am particularly pleased the bill has been silent on what form recognition should take. It is a wise course that this bill lacks a form of words for agreement and is silent on whether recognition should be incorporated in a preamble or in the substantive provisions of the Constitution.

I believe progress can easily be made in two areas proposed by the expert panel while others, with sound reason, are more contentious and should be treated with great suspicion. The propositions to remove section 25 and section 51(xvi) should be agreed to. Section 25 has been regularly recommended for repeal by many constitutional review bodies since 1959. In the words of Professor Twomey:

It is therefore appropriate to repeal it – not as a racist provision, but one whose work is now done.

Section 51(xvi) should be repealed on the basis that there should be no provisions in our Constitution that permit laws to be enacted by reference to race. A repeal of this section would also be acceptable to many. A difficulty arises here because this particular section underpins the Native Title Act 1993 and the heritage protection of sacred sites. I do remain confident that there is an answer to this dilemma. It may be that a refined and carefully worded new power could be substituted. However, the remedy proposed by the expert panel is most definitely unacceptable. It has proposed, firstly, that a new section 51A to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian government's ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples should be treated with great caution; and, secondly, a new section 116A that would introduce into the Constitution a prohibition of racial discrimination. This suggested remedy has been construed by some as giving effect to a small bill of rights, the essence of which will be to give a greater role to the courts than to parliament in determining the meaning of 'advancement' and 'discrimination'. On these points I encourage the reading of analysis by Professor Twomey again, who has suggested:

The greatest controversy will hang on the fact that it would ultimately be a matter for a court to decide what was, or was not, for the advancement of Indigenous Australians

In regards to the new section 16A, she has commented:

… 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.

And further:

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 etc, is significant.

On this point, I am confident Australians will treat with great reluctance the shift of these judgements from parliament to the courts. If we stay on this course of approach to constitutional recognition the proposal will fail, not because people do not endorse the principles inherent but because they object to a shift of power on matters of definition from parliament to the courts. This is a concern shared by even Aboriginal commentators who have correctly identified that this could open a Pandora's box of litigation and dispute.

Above all else, I am curious that in a modern era like this with all the high hopes for a brighter reconciled future between Aboriginal and Torres Strait Islander peoples and other Australians, our constitutional remedy still involves at its core the acknowledgement of one group of Australians to the exclusion of others. I believe the only acceptable constitutional reform for a modern, progressive nation such as ours is one that seeks to remove all reference to race.

My final comment goes to the purpose of the review and its role in assessing the readiness of the community to support a referendum and the identification of proposals most likely to be supported. I agree with the sentiments of some others that there is a more important question than one of success or popularity. I think again the comments by Professor Twomey deserve greater appreciation by many. She says:

The more important question is what form of amendment is right, appropriate and consistent with the operation of the rest of the Constitution. There should be scope for the making of some kind of judgement as to what the best form of amendment would be, as well as would attract the most popular support.

She adds:

It may be inappropriate for example to make an amendment that is popular if it causes unresolved conflicts with other constitutional provisions potentially giving rise to unanticipated and unwanted consequences. More thought needs to be given to the long-term operation of any constitutional amendment and how it will operate consistently with the rest of the Constitution.

To end, I agree that popularity can only be part of the measure of a proposal's suitability.

Lisa Singh (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise also to speak to the Aboriginal and Torres Strait Islander Peoples Recognition Bill and to commend it to the Senate. This bill delivers our nation a very clear path towards amending the Australia Constitution to ensure we rightfully recognise Aboriginal and Torres Strait Islander peoples. I can say with certainty that the Gillard Labor government is committed to respectfully recognising Aboriginal and Torres Strait Islander peoples in our Constitution.

I believe that constitutional change is a necessary and important act that all members of parliament should be committed to delivering. It is through this change that we can create a better future, a future of recognition, respect and acknowledgement of the inhabitants of Australia and their ongoing connection with their traditional land, waters, cultures, languages and heritage. It is my belief that our nation should be proud to embrace and acknowledge the longstanding heritage of Aboriginal and Torres Strait Islander peoples within the Constitution, as it is only by recognising our country's first people that we as a nation can build a strong future together.

This is an issue that I have been passionate about since before I became a senator in this place. Australia has always prided itself on being a multicultural nation, one that welcomes people from faraway shores, one that appreciates diversity and respects the influence and beauty each culture delivers to our social fabric. Yet our Constitution does not reflect our heritage. It does not reflect or recognise the powerful role our first Australians played in our future. I believe that it is time we moved to right those wrongs of our past and move towards a Constitution that reflects the dignity of all Australians, especially Aboriginal and Torres Strait Islander peoples.

I would like to acknowledge the substantial work that has been done to prepare for this change. In 2010 Labor established the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. This panel was co-chaired by Professor Patrick Dodson and Mr Mark Leibler AC, as well as Indigenous leaders, parliamentary members and constitutional experts, including a member from my home state of Tasmania, Bill Lawson, with whom I have met to discuss the significance of these reforms.

The panel was given the task of leading wide-ranging public consultation and through this consultation the panel was able to deliver a report to the Prime Minister. This report provides a clear proposal on how best to proceed in recognising Aboriginal and Torres Strait Islander peoples. The expert panel's recommendation is that the best way forward is to achieve constitutional change. On 20 September 2012, in response to the expert panel's report, the government committed to constitutional change. That includes: a statement of recognition of Aboriginal and Torres Strait Islander peoples and their unique history, culture and connection to this land; removal of references to race, reflecting the nation's fundamental belief in the importance of equality and nondiscrimination; and acknowledgement that additional effort is needed to help close the gap in Aboriginal and Torres Strait Islander people's disadvantage.

Cross-party support, though, is required to achieve this result, and with that in mind the government made a commitment to establish a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. The joint select committee takes on the role of engaging with the broader community and discussing referendum proposals for constitutional change.

Among the Tasmanian Aboriginal leaders from my home state I know that my friend and stalwart advocate of human rights with Amnesty International, Rodney Dillon, has been awaiting the day that this recognition could take place. Speaking with Rodney about this bill, there is no doubt that he and many other Tasmanian Indigenous people believe that constitutional recognition is an essential part of a prosperous future for Australia. Like me, he believes that it is important that when Australians stand up for our nation and our country we all stand up for the same reasons. It is time that the patriotic songs Australians sing and the nation for which we all come together are carried on through the voices of Aboriginal and non-Aboriginal Australians. And while we cannot and should not attempt to bury the past, we can certainly go ahead as a new and united Australia.

This bill sends an important signal to the broader Australian community. Not only does it begin the parliamentary and electoral process towards a referendum, a very important process as part of any reform to our Constitution, but it also marks the beginning of a campaign to build community support in earnest. That is a very significant step because without community support, as we know through various referenda in the past in our nation, we simply do not receive a change to our Constitution. The history of Australian referenda shows that broad and bipartisan community support is necessary to make any Constitutional amendments. A Constitution is only a document unless its spirit is reflected in our actions. Recognition is something that we must do as a community as much as a polity and, if we are to achieve this change, we will need to have that support of the community.

This bill is also an important act of recognition, an act that begins a process here that will be concluded by the next parliament and then by Australian voters and citizens. It will be the most significant of a number of landmark acts of reconciliation in recent decades. I am sure that many senators in this place will recall that some 10 years ago 300,000 people walked proudly across Sydney Harbour Bridge in recognition and support of Indigenous Australians. This walk was soon replicated in other capital cities across Australia and it generated a strong awareness of the need for reconciliation. Indeed, I remember in my home state of Tasmania walking across the Tasman Bridge with thousands of local Tasmanians all in support of reconciliation.

Of course, further back than that one only has to remember that in 1992 our nation witnessed Paul Keating speak so strongly on the need for healing in his watershed Redfern speech. Keating's speech put reconciliation on our nation's agenda. Then in 2009 Kevin Rudd made a national apology to the forgotten Australians, the half a million children who were raised in institutions. This bill will move Australia even closer to repairing the bonds between Australians with a formal recognition of our Indigenous peoples. The Gillard Labor government has invested some $10 million to help educate people about this change and build the momentum for that change. Over the next two years, Reconciliation Australia will be helping to promote awareness about this issue as well as play a role in educating Australians of its importance. I commend the work of Reconciliation Australia. I know they are already undertaking that role right across our nation. They have quite a task ahead of them and need all of our support as they go about our nation educating Australia.

I believe that as parliamentarians and senators in this place we are all tasked with the responsibility to lead this change. By supporting the passage of this bill through the Senate we are ensuring that constitutional recognition for all Australians is placed firmly on our nation's agenda—somewhere it certainly should be placed.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I make it clear that I support the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012, but I also think we should be going much further much more quickly. I believe our laws and our Constitution, the supreme law under which our government operates, should apply equally to all.

A century ago, Aboriginal and Torres Strait Islander people were excluded from shaping our Constitution. Indigenous Australians were not even considered citizens until 1967. We cannot go back and right the wrongs that have occurred since European settlement but we can make a change today. Our Constitution currently excludes Aboriginal and Torres Strait Islander peoples and as a result our nation has failed to acknowledge their role and the fact that they are the first peoples of this nation. It is a basic fact, but a brutal flaw. I find it hard to believe that anyone could think that we need to take more time before we decide to take action. It is time to move on from the politics of this issue and take it to the Australian people. My preference is that this matter should go to the Australian people at a referendum. I think there is enough understanding in the community and enough compassion for a change of this sort.

There is no question we have come some way. In 1988, the landmark Mabo case gave recognition to native title in Australia for the first time. In 1992, then Prime Minister Paul Keating delivered his historic Redfern address—and I note that Senator Singh made reference to that. Keating poignantly argued:

We cannot imagine that the descendants of people whose genius and resilience maintained a culture here through 50,000 years or more, through cataclysmic changes to the climate and environment, and who then survived two centuries of dispossession and abuse, will be denied their place in the modern Australian nation.

In 2008, then Prime Minister Kevin Rudd delivered an apology to Indigenous Australians for the stolen generations—a significant, watershed moment. We have come some way, even in the last few years, but I think we ought to go further.

I understand there is a fear that if a referendum were held it would not succeed. My view is that with good will and bipartisanship such a referendum could succeed. Simply having a review at this time is not the brave course to take forward. We need to be brave; we need to take a step, to make a move, to hold a vote. I usually believe that when it comes to change you have to work on bringing people with you, but I think we have brought people with us over the years. We need to have a vote on constitutional recognition sooner rather than later. A review, whilst welcome, does not take the step we ought to be taking. I only hope that what this bill represents will be the beginning of change that is long overdue.

Don Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | Link to this | Hansard source

The Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 represents a clear step forward towards holding a successful referendum to change the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples. This bill will establish an act of recognition acknowledging the unique and special place of Aboriginal and Torres Strait Islander peoples as the first peoples of our nation. This government is committed to recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution. We believe that the Australian Constitution should, firstly, recognise Aboriginal and Torres Strait Islander peoples and their unique history, culture and connection to this land; secondly, reflect our country's fundamental belief in the importance of equality by removing all references to race; and, thirdly, acknowledge that additional efforts are needed to close the gap on Indigenous disadvantage in this country.

The government appointed an expert panel to consider, consult and advise on how best to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, and on possible options for change that would likely get the support of the majority of Australians at a referendum. The expert panel consisted of a range of respected and accomplished individuals, including Aboriginal and Torres Strait Islander and community leaders, constitutional law experts and parliamentary members. Following wide-ranging consultation in 2011 the government received the final report of the expert panel in January 2012. We publicly acknowledge the hard work and dedication of expert panel members which have led to us having, for the first time, a proposal for constitutional change.

We recognise that there is not yet enough community awareness or support for change to hold a successful referendum at or before the next federal election. The act of recognition that this bill establishes will continue to build the momentum we need for a successful constitutional change. To maintain momentum towards a referendum, a sunset provision in the bill limits the effects of the act to two years. The sunset date ensures that legislative recognition does not become entrenched at the expense of continued progress towards constitutional change. The sunset provision will provide an impetus for a future parliament to reassess how the campaign for change is travelling and the appropriate timing for a successful referendum. The bill also provides for a review to consider and advise a future parliament on proposals to submit a referendum, taking into account the valuable work done by the expert panel.

This bill is not a substitute for constitutional recognition; legislation is not the appropriate forum to address all of the recommendations of the Expert Panel for constitutional change. We are pleased there is strong commitment across the parliament to supporting this bill. We are also pleased that the new Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples considered this bill as its first order of business and recommended it be passed unamended.

The government is committed to building stronger relationships with Indigenous people based on mutual respect as well as a reconciled future where all Australians are equal partners with equal opportunities in shaping the future of our country. That is why the government funds Reconciliation Australia: to improve relationships between Indigenous and non-Indigenous Australians. And that is why the government delivered the national apology to Indigenous Australians, which helped build a bridge of respect between Indigenous and non-Indigenous peoples.

Meaningful constitutional recognition of the nation's first peoples is another step—a crucial step—in Australia's journey toward reconciliation. The Australian Constitution is the foundation document for our law and for our government, but it is silent in respect of the special place for our first Australians. This bill in an important step toward a meaningful recognition in our Constitution of Aboriginal and Torres Strait Islander peoples.

Question agreed to.

Bill read a second a time.