08 October 2011

Indigenous Disadvantage

With Anne Twomey's comments about a possible change to the Australian Constitution in mind, it's interesting to read 'Constitutional deficiencies in the protection of Indigenous rights: Reforming the races power' by Melissa Castan in 7(25) Indigenous Law Bulletin (2011) 12-17.

She comments that -
When former Prime Minister Kevin Rudd made a formal apology to the stolen generations his actions were widely acclaimed as an acknowledgement that was long past due, and of significant value. Although the Apology did not seek to directly address any of the constitutional or legislative deficiencies residual in our legal system, it did hold great symbolic and therapeutic meaning, not only for those to whom the Apology was directed, but for many in the broader Australian community. Now, by virtue of an unusual constellation of political and parliamentary forces, the usually slow orbit for constitutional reform has presented the opportunity for a long overdue referendum on meaningful constitutional recognition of Indigenous Australians.

This paper examines some of the constitutional deficiencies in the protection of Indigenous peoples rights, in order to demonstrate the real need to grasp the ‘constitutional moment’ and reform our foundational document. Then, it considers the problems with the races power (s 51(xxvi)), and the need to replace it with a clear federal power to make laws for the benefit of Aboriginal and Torres Strait Islander peoples. Suggestions for a ‘non-discrimination’ clause are then considered. Finally the option of an agreement making power is discussed.
She argues that -
there are some aspects of recognition that are more than symbolic, long overdue and achievable. To affect Commonwealth legislative powers, a change to s 51 is needed. Section 51(xxvi) could be altered to authorise the Commonwealth to make special laws only for the benefit of any race, but then we will still be reliant on the High Court’s interpretation of ‘benefit’, a value judgment that the High Court is not always ready to embrace. It would be preferable to amend that section to explicitly grant the Commonwealth the power to make laws “with respect to Aboriginal and Torres Strait Islander people” (it seems it has only ever used the races power regarding Aboriginal and Torres Strait Islander people so far) so as to avoid the possibilities of discriminatory laws ‘for’ Indigenous people. Would it be sufficient to simply delete s 51(xxvi)? If the section were repealed and no positive grant of power to make laws for Aboriginal and Torres Strait Islander people replaced it, the very issue the 1967 referendum sought to redress would arise again. The Commonwealth would face a deficit of legislative power. It is not likely to be able to rely on other heads of power, such as the External Affairs power, to compensate for that deficit. Could we leave s 51(xxvi) as it is, but add a clause prohibiting discrimination on the basis of race or ethnic origin? This would also be unsatisfactory, for we would be left with a ‘Races’ power and a prohibition on making racially discriminatory laws, a seemingly inconsistent and incoherent use of the concept of ‘race’. Thus the removal of s 51(xxvi) must be accompanied by a positive grant of power to make laws for Aboriginal and Torres Strait Islander people.
In particular, Castan argues that to ensure the Commonwealth makes only ‘beneficial’ laws, there must be a constitutional prohibition on racial discrimination, perhaps sitting in place of the now deleted s 127.
As Mick Gooda rightly said "... if Australians were aware that their Constitution did not protect its citizens from discrimination, the nation would take collective action to bring about reform to enshrine the principles of non-discrimination and equality."

Many Constitutions contain such guarantees against racial discrimination, and this would be consistent with Australia’s international commitments under the Convention on the Elimination of Racial Discrimination, and other human rights treaties. A general ‘equality clause’ is a desirable inclusion in a Constitution that seriously lacks human rights standards. Such a clause would guarantee ‘equal treatment before and under the law, and equal protection and benefit of the law without discrimination’ as found in many comparable nations’ constitutions. However this would present considerable political challenges in terms of achieving approval at referendum, and it goes further than recognising Indigenous people of Australia. A more focused ‘anti- discrimination’ clause, specifically one that prohibits racial discrimination in the terms Australia has already adopted in the Racial Discrimination Act 1975 (Cth) or the Convention on Elimination of Racial Discrimination should be adopted. Such an ‘non-racial discrimination’ clause also should provide that the Commonwealth and the states are still able to make laws that redress disadvantage, or are protective of Indigenous culture, language and identity. This provision is important to allow laws that address strategies that promote substantive (as opposed to formal) measures of equality, and that promote the special place of Australian Indigenous culture. It also would be consistent with Australia’s obligation to protect Indigenous culture under Article 27 of the International Covenant on Civil and Political Rights (Australia signed onto this in 1980) and the UN Declaration on the Rights of Indigenous People (we endorsed this in 2009).