Ken Wyatt (Hasluck, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, I present the committee's report entitled Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples interim report.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I rise today on behalf of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples to present our interim report. This is the next step in the journey to recognise this nation's first inhabitants in our founding document, the Constitution of the Commonwealth of Australia.

Australia is the venerable elder of the seven world continents and over time was known as Gondwanaland, Terra Australis, the Great South Land    and New Holland and was eventually called Australia. For at least 40,000 to 60,000 years Aboriginal people lived isolated in Australia, and over the last thousand years, people from China, India, Arabia, Malaysia and the Pacific Islands came to our lands as early explorers and traders—followed by others later. Through this, Aboriginal and Torres Strait Islander people have an enduring connection to country and this has remained since 1788. It has never diminished. It is time to recognise this bond.

In preparing for this speech, I have been revisiting some of the debates that occurred in this chamber in the lead-up to the 1967 referendum and some of the speeches of Sir Robert Menzies, one of my—and many in this Chamber's—ideological references. I must say that we have come a long way as a nation since those debates but it has been enlightening to revisit the words of Menzies, upon which the Liberal Party of Australia bases its political ideologue and modern-day discourse.

I want to refer to two quotes from Menzies towards the end of his times as Prime Minister. The first is from an address to the Liberal Party Federal Council in 1964. He said:

As the etymology of our name ‘Liberal’ indicates, we have stood for freedom. We have realised that men and women are not just ciphers in a calculation, but are individual human beings whose individual welfare and development must be the main concern of government.

The second quote is from a Young Liberals Rally in Melbourne in 1962. He said:

… our objective must be to build a balanced, strong, progressive and civilised nation in which advances are shared by all sections of the people.

After a few further remarks, Menzies went on to reinforce this:

So I repeat: we want a progressive nation.

To this end, recognition makes sense. Recognition means that Indigenous Australians within the Constitution will be recognised as peers of all Australians. Aboriginal recognition within the Constitution and contemporary Australian society and culture has been a long walk. From the 1967 referendum to the Redfern speech, Mabo, Wik and, of course, the Apology—all these moments have been critical to the continued journey of reconciliation. Recognition is no different.

I do not take my role as chair of this committee lightly. This is an important step in our shared national history, and I am led by the guiding principle that the Constitution is a document owned by all Australians—every single one of us. Equally, the changes must be technically and legally sound. I hope that we get to a stage where there is no 'NO' campaign and that all Australians get behind this balanced, progressive step for our nation.

One factor that is essential for this referendum's success is the simplicity of the question put to the Australian people and the understanding of all Australians about what recognition means. When I look back on the 1967 referendum, our most successful referendum in decades, what strikes me is the simplicity of the question put to the Australian people, although its breadth and meaning were far greater. I want to take a moment to read it out for the benefit of the House:

DO YOU APPROVE the proposed law for the alteration of the Constitution entitled 'An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population?

It is very simplistic in its wording, yet the most profound moment in the healing of our nation. With that in mind, I encourage and urge all parliamentarians, all leaders in our community and all Australians to come to the table, to have a chat, to work through these issues, to raise concerns or queries you may have on both sides of the debate. There is an immense amount of goodwill on all sides of the political spectrum with respect to this issue, and we should approach discussions with this spirit in mind. There is strong multiparty support and it should remain that way for the entire debate. Constitutional recognition should not be used as a political football. This issue should break down the political barriers that so often divide us. People can go to the committee website to find out more information and to find out how you can get involved and make a submission.

The committee is required to consider the recommendations of the Expert Panel on Constitutional Recognition of Indigenous Australians. Our reporting to parliament will consider their recommendations for change to the Constitution in light of the current parliamentary consensus on recognition. This interim report discusses draft forms of wording relating to constitutional recognition. It has been put to the committee that drafting questions still exist in relation to a number of existing constitutional provisions, as well as a number of possible new provisions. The expert panel's first recommendation was the repeal of section 25 of the Constitution. Section 25 is widely considered a racially discriminatory provision, and it was recommended the Australian people be given the opportunity to remove it. This committee has not been persuaded that the section has ongoing use, and this report considers that it can be removed without consequential effects to the Constitution.

This interim report discusses the view of the expert panel that race, as a concept, is outmoded and outdated. As well as in section 25, race is referred to in section 51(xxvi) of the Constitution, the Commonwealth's power to make laws with respect to the people of any race. The expert panel recommended that the Australian people be given the opportunity to remove both sections, and they reported a large amount of public support for those recommendations. This interim report considers the social and legal history of section 51(xxvi) of the Constitution—the section that in 1967 the Australian people voted to amend at referendum so that the Commonwealth could make laws with respect to Indigenous Australians. After the referendum, section 51(xxvi) allowed the Commonwealth to pass various legislation that enabled native title and the creation of ORIC, to name just two. In this interim report, the committee considers that the Commonwealth should continue to be able to make laws with respect to Indigenous Australians because of—and I quote the expert panel:

… their unique place in the history of the country and their prior and continuing existence.

This means that any referendum that would propose to remove section 51(xxvi) should also propose to replace it with a section that allows the Commonwealth to make laws for the benefit of Indigenous Australians. To that end, this interim report discusses forms of wording that could be used to continue to allow the Commonwealth to make laws with respect to Indigenous Australians.

There are five forms of wording set out in the text of the interim report, which reflects that at least five different proposals have been put to the committee in its work so far. The committee view put forward in this interim report is that, in making laws under such a power, a successful referendum proposal must prevent the Commonwealth from discriminating against Indigenous Australians. Discrimination is a strong theme in the expert panel's report, and a common thread in the conversation this committee is having about recognition.

In tabling this interim report, the committee reaches the view that a successful referendum proposal must recognise Indigenous Australians as the first peoples of Australia. The report discusses a number of forms of wording that would give effect to this recognition. One such form of wording is the expert panel's proposed new section 51A, which would incorporate a four-line statement of recognition into the legislative power.

This interim report also discusses other ways that preambular language of recognition could be incorporated into the Constitution, including in an introductory statement and a further act of recognition. At the first public hearing of the committee in Brisbane on 30 June, Mr Gschwind, the CEO of the Queensland Tourism Industry Council, articulated the reasoning behind constitutional recognition quite poignantly. He said:

... we have a unique cultural heritage and a population of first people, part of the modern Australian social fabric and with ancient roots in this continent.

He went on to say that constitutional recognition:

… is not ultimately about Australians in Australia. This is about human history, where we have a line of sight, if you like, to a distant part of history that is not available in many other places.

On behalf of the committee, I would like to thank the people and organisations that have already so generously provided their time and views to the committee. I would also like to place on record my thanks to the secretariat staff who have put countless hours into compiling this interim report.

Finally, I want to end with words from our Prime-Minister:

Yet for two centuries—with fragrant exceptions, of course—Australians had collectively failed to show to Aboriginal people the personal generosity and warmth of welcome that we have habitually extended to the stranger in our midst.

…    …    …

The first Aboriginal member of this parliament, Senator Neville Bonner, once warned his colleagues that history would judge us all. We shouldn't have to wait for the judgment of history …

A fair go for Aboriginal people is far too important to be put off to the judgment of history.

I commend the interim report to the House.

Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Indigenous Affairs) Share this | Link to this | Hansard source

by leave—The Leader of the Opposition, the Hon. Bill Shorten, in his Closing the Gap speech in February this year said that Aboriginal and Torres Strait Islander peoples deserve a 'place of honour in the Constitution'. Former Prime Minister Julia Gillard called constitutional recognition 'a great piece of unfinished national business'. When Labor was in power we provided $10 million to Reconciliation Australia to fund a national awareness campaign.

For tens of thousands of years Aboriginal and Torres Strait Islander peoples have lived on this continent and the islands surrounding it, with stewardship, ownership and a complex society created of nations. Australia's history did not start in 1770, in 1788 or with Federation at the beginning of the 20th century; Australia's history and the achievements, operation, culture, land and languages of Aboriginal people have existed for tens of thousands of years.

Labor believes that constitutional change should be guided by the recommendations of the Expert Panel on Constitutional Recognition of Indigenous Australians. The first of the panel's recommendations is the removal of section 25 of the Constitution. Section 25 allows states to ban people from voting on the basis of their race. I think Australians, whether in Pitt Street in Sydney or in Oxford Street in Bulimba in Brisbane, would be offended if they knew that that provision was in the Constitution. Not only is it otiose it is racially discriminatory, and it should go. The report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples committee's report recommends, on an interim basis, that there is no need for section 25 to remain in the Constitution.

The expert panel recommended the deletion of section 51(xxvi). The member for Hasluck, the chair of the committee, accurately and appropriately mentioned the fact that that section mentions race. Section 51(xxvi) was amended in 1967 by the referendum that passed overwhelmingly after a concerted campaign by Aboriginal and Torres Strait Islander people as well as other Australians to change the Constitution to give the Commonwealth the power to pass laws in relation to Australia's first peoples. But that provision can also be used to discriminate. Of course, it has formed the constitutional basis for native title and other legislation, so to get rid of section 51(xxvi) would have legislative consequence. We have heard evidence by constitutional experts and by Aboriginal and Torres Strait Islander people that we need a provision in the Constitution giving the Commonwealth power in relation to Australia's Aboriginal and Torres Strait Islander people. During the committee's deliberations and in the development of its report there were lots of discussion and public submissions about how that provision should operate, about whether it should be a subject power. We have seen in the case of Williams in the High Court the problem where there is a subject power. We could inadvertently, by omission, take away from the Commonwealth's power and by carelessness reverse the consequence of the referendum of 1967, unless a peoples power was put in any amendment. The report deals with these issues.

The expert panel recommended the insertion of a new section 51A with preamble recognition of land, language and culture and, of course, the inclusion of a peoples power. After 250 consultations around the country, with many people making submissions and giving evidence, the expert panel recommended the adoption of a new section 116A, to ban racial discrimination in this country. It would have consequence. Subsection (1) of section 116A, recommended by the expert panel and considered in this report, talks about the Commonwealth, a state or a territory not being able to discriminate on the grounds of race or colour or of ethnic or national origin. It recommended a subsection (2) that provides that there can be laws:

… for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

The chair of the committee correctly stated that we received evidence on the importance of real, substantive change. Section 116A is integral to that. The form of the prohibition on racial discrimination is included in various options in this report, but one thing that is absolutely critical is that Aboriginal and Torres Strait Islander people want there to be in the Constitution a prohibition on racial discrimination. Unequivocal and consistent evidence of that was given to the committee.

The expert panel proposed the insertion of a provision, section 127A, recognising Aboriginal and Torres Strait Islander languages as Australia's first tongues and confirming that English is Australia's national language. There has been no evidence given to the inquiry publicly to support that provision. The committee's report comments on that proposal.

Labor welcomes the interim report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. We remain committed to meaningful change in the Constitution, change that unites this country and reflects the hopes, dreams and aspirations of Aboriginal and Torres Strait Islander peoples.

The Australian Constitution is the foundation document for our federation, for our laws and for our government, but it is silent on the special place of Aboriginal and Torres Strait Islander peoples in this country, except to give tacit endorsement of discrimination in section 25 and the option that laws can be passed to discriminate against them under section 51(xxvi). Tragically, in this country Aboriginal and Torres Strait Islander people lost the right to vote and it took six decades before they could get the right to vote, in the sixties, across the country.

Time is of the essence in this particular issue. We have an opportunity, a window, to make meaningful and substantive change. Symbolic and preambular change will not be accepted by Aboriginal and Torres Strait Islander people. It will also not be accepted, in my view, by the Australian public—and in a referendum a majority of votes in a majority of states needs to be achieved. Preambular, formulaic and symbolic change will not be accepted by the Labor Party. We want meaningful change in the Constitution that reflects the hopes, dreams and aspirations of Aboriginal and Torres Strait Islander people. If we are to go down the road of a referendum, it must be successful. There is an opportunity for this government, in a bipartisan way and including the other parties in this parliament, to get there.

I thank the committee chair for his genuineness and his goodwill in this endeavour and for the way this committee has operated. There have been frank discussions, open discussions and honest discussions. I believe there are people of goodwill who want this carried through all corners of this parliament—the House of Representatives and the Senate. I believe we must do this for the sake of our country.

The Aboriginal and Torres Strait Islander people of this continent have been forgotten for too long. Constitutional recognition is critical. This report shows a way forward and provides options. Labor remains ready, willing and available to discuss this issue with the government. We remain committed to meaningful and substantive change. I commend the committee. We have been part of this committee and we have contributed constructively to this report. I welcome all those people who will now provide submissions to this inquiry and encourage them to tell us what they want, to tell us what they dream of, to tell us what they aspire to and to tell us what they really believe the Australian nation in the 21st century should look like. Constitutional recognition has for too long been forgotten, as our first peoples have. We need to change. Labor remains committed to it.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Does the member for Hasluck wish to move a motion in connection with the report to enable it to be debated on a future occasion?

Ken Wyatt (Hasluck, Liberal Party) Share this | Link to this | Hansard source

I move:

That the House take note of the report.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

In accordance with the standing orders, the debate is adjourned. The resumption of the debate will be made an order of the day for the next day of sitting.