Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for External Territories) Share this | Link to this | Hansard source

I thank the very insightful Parliamentary Secretary to the Minister for Defence for moving that motion to allow us to conclude this discussion about constitutional reform. This document, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples final report of June 2015, is indeed very timely, but it is also a very important report. I commend my colleague Mr Stephen Jones, who was a member of that committee, for the work of the committee in following, as they did, the expert panel in making a series of recommendations which I think have been broadly supported across the country.

Over the last weekend, I had the privilege of attending a state funeral at Yirrkala. This service was for one of Australia's most significant Aboriginal leaders over recent years, Mr Wunungmurra. Mr Wunungmurra had a life of leadership. He was the youngest signatory to the bark petition in 1963, which now, of course, has pride of place in the parliament. He was a Yolngu leader of high degree. One of his attributes was his continuing involvement in giving service to his community across a range of areas from health to education to outstations and, significantly, to the Northern Land Council as its chairman for six years. In that role, he had a strong view about the importance of constitutional reform and the need for us to address the Constitution to give proper recognition to Aboriginal and Torres Strait Islander peoples. So it is, I think, fitting that, in so short a time after his commemorative ceremony, we are having this discussion here.

A lot has been said about this matter for some time. Indeed, it was first postulated by John Howard when he was Prime Minister. I have to say that the time has come. It is time for us to actually sit down and deal with the issues. This committee report fulsomely addresses the issues and makes a series of quite strong recommendations, which I think bear our support. But there is a process. You will recall, Mr Deputy Speaker Hawke, that there was a gathering at Kirribilli at which Aboriginal and Torres Strait Islander leaders from across the country as well as the Prime Minister and the Leader of the Opposition and, among others, the Minister for Indigenous Affairs, the shadow minister and I were in attendance. It was a very uplifting experience because it gave me, at least, the impression that there was a strong bipartisan support for the idea that there should be constitutional change.

I attempted to point out, in referring to Mr Wunungmurra, that the Northern Territory is actually pretty significant in all of this. In my seat of Lingiari, around 40 per cent of the population are Aboriginal people. They have a significant interest in these outcomes. They are in a unique position in that context because of the depth of the population in terms of their thoughts about this constitutional change. I have to say that, as I travel around, it is very clear that there is broad support for the proposals, particularly those from, initially, the expert panel, which was co-chaired, as we know, by Pat Dodson and Mark Leibler. It is very important that we see the seriousness of their work and of the work through this report and, following that, the discussions that took place at Kirribilli, which, as I say, were quite uplifting in the context that they involved bipartisanship and they involved a contribution from significant Aboriginal and Torres Strait Islander leaders, all wishing for a similar outcome.

But I have to say that there is a level of frustration now creeping in because, as a result of that meeting, there was to be set up an organisation, a committee, a referendum council, which is yet to be finalised. There were proposals from Aboriginal people to set up a series of conferences around the country involving Aboriginal and Torres Strait Islander people. That is for the very good reason that the people who will be subject to this change, who will have the most impact from these changes, will be Aboriginal and Torres Strait Islander Australians, the first Australians, who were not contemplated in the original Constitution. They have a significant interest—and, one would argue, the most important interest—in what is involved in the proposed changes, so it is important that they are allowed to have this series of discussions around the country.

But, sadly, it appears that the Prime Minister is not so enthusiastic about them, at least not in the sense that they should be separate or different from other meetings around the country. I would encourage the Prime Minister to understand that, whilst he might think, as he has expressed recently, that it might involve a log of claims, the fact is that it is absolutely imperative and that, if Aboriginal people across the country are not comfortable with the propositions which are being put, there is no point in putting them. I am certain, as a result of what we know about the 1967 referendum, that, if we allow this discussion to take place in a fulsome way and we fund the opportunities for people to meet, that in itself will be a positive step.

Clearly, whilst the Prime Minister may be a little reticent, he did agree to provide financial support for these proposals, yet at the moment, as I understand it, no funding has been made available, and there is still a view by some that the Department of the Prime Minister and Cabinet should be responsible for these meetings. I do not think that is the case. I think what the Prime Minister should do is support a secretariat which is run and controlled by Aboriginal and Torres Strait Islander people and provide them the funds to have these meetings around Australia with Aboriginal and Torres Strait Islander people. That does not mean that there cannot be concurrent meetings of other people, but it is really very important that we understand the imperative of having these discussions in this way. If we do not do this, then whatever is being proposed will find it very difficult to get the support in the community, where it is most needed. I understand that there will be differences of opinion across this country, but I am sure that people of goodwill who really appreciate the significance of these matters to Aboriginal and Torres Strait Islander people can come to agreement about what the proposed question should be.

There are recommendations in this report which lead to a discussion about what the question might look like, and I think we should be supporting those propositions. I know that the Prime Minister, for one, is more reticent. I suggest to the Prime Minister that he leave his reticence aside and allow a discussion to take place across the Australian community and that he provide enthusiastic leadership instead of having an impact which is seen to be potentially eroding the possibility of these discussions taking place free of the imposition of his views. It is very important that he rather more abstractly look at this to allow the discussions to take place and to see then what emerges. Of course, we know that it will now not happen through the course of this parliament—that is the question being put—but it is very important that we allow this process to go on. We need to realise that the delays which appear to be happening are causing some frustration amongst Aboriginal and Torres Strait Islander people across the country. It appears that somehow this issue may have been dropped down the agenda somewhat. We need to elevate it again. The Prime Minister is in the best position to do that, in concert with the Leader of the Opposition—because bipartisanship is absolutely fundamental. I urge both the Prime Minister and the Leader of the Opposition to make sure that they operate in a truly bipartisan manner. I know the Prime Minister thinks he is, but he needs to do a lot more.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

I was interested that the member for Lingiari said that, if Aboriginal and Torres Strait Islander people are not comfortable with the process or the wording of the constitutional amendment, forget it. I can understand that. I can understand that the Aboriginal and Torres Strait Islander people are going to have to be more than comfortable; they are going to have to be supportive. I come to this not quite as a newbie, because I have an issue in my own electorate. I think this issue of recognition of Aboriginal and Torres Strait Islander people is significant not for just electorates like mine but for the nation. I believe that we cannot move on as a nation until we resolve these differences with our Indigenous communities.

Furthermore, I often speak about communities having hope, being in some control of their lives and belonging somewhere. We are part of the tribe that we are—whichever tribe that we belong to, we belong somewhere. Where people fall by the wayside is when they have no hope, they have no control of their lives and they do not belong anywhere. The massive movement we are seeing at the moment of people across Europe—and even in our own region across South-East Asia—are people without hope and without control who cannot stay where they belong. Sadly, I look at the Australian nation and say that there are a group of us, a part of us, about whom you could truly say that many of them do not have hope, they have lost control and they do not feel like they belong. Therefore, we have the inspiration for the recognition of the Indigenous communities in our Constitution.

I was extremely interested when the House was debating the final report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. The chair of the committee, the member for Hasluck, Ken Wyatt, said a couple of things in his address to this House when he was tabling the report. He said:

This is a time to walk together, towards a common goal of an inclusive, vibrant, culturally-rich Australia.

He said:

That is the challenge we all now face.

I am confident that there is enough goodwill between the various interests in this issue that we can find common ground.

He said, 'The journey has been a long one.' I believe that this is more than a long journey; it is a journey that has been in continuum. It is a journey without an end because it is part of our nature—our DNA—and who we are as Australians. It is a part of our future because, unless we resolve these matters, however they are perceived, I do not believe our spirit can move on. We need to resolve some matters.

In fact, a matter of contention in my electorate for some years now has been the name of the electorate: McMillan. What can we do at a local level that recognises the anguish, concern, pain, tragedy and massacres that have occurred in my area? A number of books have clearly pointed out that there were massacres and chaos. In the book Blood on the Wattle by Bruce Elder, on page 121 he writes that, as early as 1840, Angus McMillan, a 30-year-old Scot in the employ of Captain Lachlan Macalister, decided to teach the Curnow a lesson in frontier law. McMillan had moved cattle into the area and was convinced of the huge pastoral potential of the Gippsland region but Curnow, probably aware of the damage wrought by cattle upon the native ecology, attacked this stock and dispersed them into bush. McMillan's response was to immediately form a posse from the stockmen and for the next few days marauded across the countryside, killing many Aboriginal people, men, women and children. He kept no records of the killings et cetera.

I think today we are still dealing with this grief that would have been expressed into the land. So when people came to me and said, 'We would like to change the name of your electorate,' I said 'Actually, I do not get a say. I have a view but I do not get a say.' The say is had by the Australian people through the Australian Electoral Commission. Because of the McMillan influence across Gippsland, I am quite happy that the name of the electorate be changed on redistribution to one that is acceptable to the community at large.

I have just read a press release that comes from the Prime Minister of the day and the Leader of the Opposition, standing together, working as part of this journey in their endeavours to resolve the issues so the nation—together—can come to a place where we can recognise Aboriginal and Torres Strait Islanders in our Constitution, and other parts that are unacceptable to our Constitution, today, can be taken out. There were those who believed it would be short work and would be dealt with in this parliament. As the member for Hasluck has found out, as we go through the processes, beginning with the former government and now with this government—and it looks to be the next parliament—I do not think, after all these years, that we have to rush into or put pressure upon any people on any sides of the argument.

I understand there are many people with differing views on this issue. I would like to put my name to a desire for recognition of the Aboriginal and Torres Strait Islander peoples in our Constitution, that they would be absolutely and totally drawn back in unison with the rest of our society, that we can walk down the street as one and a man will be judged for his or her character not his or her colour, that the differences and the fears that are held between the two nations are disarmed and the past years are melted away and we become one people with equal opportunities for all our children throughout the nation.

Having said that, there is a process of the Prime Minister of this country and the leader of Her Majesty's opposition of working together so that there will be further community consultation and a council to work towards this recognition. We can only hope and I am sure, in this, that there will be a continuance and in continuum bipartisan approach that we do not force anybody, we do not intervene in the discussions, we do not take sides, but we are determined to overcome the problems that are presented by all peoples—as the member for Lingiari said, 'People of goodwill working in the best interests of this nation.' I can only plead on behalf of my constituents that at least in this generation, my generation, the matter will be resolved and the nation can move on in a very strong and multicultural way.

Stephen Jones (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Regional Development and Infrastructure) Share this | Link to this | Hansard source

It is my great pleasure to speak in relation to this the third and final report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. It has been my great honour to serve as a member of that committee in this the 44th Parliament. The debate has a long history. For almost five years we have been to repeating this matter, within the Commonwealth parliament, in its current form. It has been a long time but nowhere near as long as the Aboriginal and Torres Strait Islanders have occupied this land, the land of Australia, and that goes to the heart of what we are talking about here.

In January 2012 the expert panel handed down its final report after exhaustive consultation. Over 250 consultations were conducted by the expert panel. They handed down a very good report, which has been the touchstone for us who travelled the country and dealt with the joint select committee's deliberations on this matter. The committee had its origins in the resolution of this parliament in December 2013. The remit of the committee was to come up with a proposition that would meet the needs of constitutional recognition of the first Australians, be capable of gaining widespread support throughout the nation, across all sides of politics, and be successful at a subsequent constitutional referendum.

We have troubled on these things for quite some time. Through our consultations it has become quite clear to us that there are three things that are embraced by the concept of constitutional recognition. The first is, by and large, not controversial. It is: how do we craft a set of words that can be inserted in the Constitution, at the appropriate place, which recognise 40,000 years of continuous occupation, a continuous culture, of the Aboriginal and Torres Strait Islander people of this country. And I think we have come pretty close to crafting a form of words—they are included in the report—which meet that requirement.

Of course, if we are going to the trouble of visiting the matter of the place of our first people in our Constitution then it behoves us to look at the provisions within it which offend the very thing which we are attempting to remedy—that is, those provisions within the Constitution which on their very face are discriminatory. When we turn our minds to that, clearly section 25 of the Constitution must go. I think it would surprise most Australians, even constitutional conservatives, to know that our Constitution specifically contemplates a circumstance where the states, on their electoral rolls, could deny certain people the right to vote based on nothing other than their race. Indeed, if states were to deny persons the right to vote based on their race, it would follow that those people would be excluded from a vote at a Commonwealth election as well. I think it would not only offend but also surprise most Australians to know that there is a provision such as this in our Constitution. So when we are setting ourselves to the task of inserting the recognition of Aboriginal and Torres Strait Islander people within our Constitution to address past discrimination, we must also extend ourselves to the task of removing those offensive provisions.

I think there is agreement on all sides of the House, and broadly within the Australian community, to those two propositions—that is, inserting a statement of recognition and removing the offensive provisions within the Constitution. But there is a third task that needs to be attended to as well, and that is: how do we ensure that the crimes of the past are not repeated by future generations? How do we ensure that we are able to put within our Constitution a remedy for the sins of the past? We do not have to go that far back into our nation's short history to see some of the sins of the past. I listened very carefully to the member for McMillan, who gave a thoughtful contribution—as he normally does—in this debate. He talked about the man after whom his seat is named, who was involved in what we would today describe as an act of genocide. But you do not have to go back that far. We have had instances of generations of children being removed from their families for no reason other than their race. We have had instances that have been brought to the highest courts in this land where people have been denied the right to purchase land for no reason other than their race. In my own area, I speak to some of the elders. They tell stories of their parents—or even themselves in their young days—being denied the right to shop in certain shops. And in the movie theatres there was a roped off area they had to sit in because blacks were not allowed to mix with white Australians when they went to the movies.

In a whole range of areas of Australian life, from education to employment, Aboriginal Australians were discriminated against. Of course, up until 1967 they were denied the right to vote. We had been a democratic nation for a full 67 years, but we had overlooked the democratic rights of the first Australians. But these were not only acts of a sovereign government, for the most part; these acts were not only permitted but contemplated by our Constitution. We know that from the decision of the High Court in the Kartinyeri case, otherwise known as the Hindmarsh Bridge case. In that decision, the majority of the High Court determined that the Constitution contemplated the sorts of discrimination against Aboriginal and Torres Strait Islander people that the plaintiffs were there complaining about.

So the third and final issue that we have grappled with, and which we have not yet found a landing on, is whether the Constitution should provide a restraint on the capacity of parliament to discriminate against people on the basis of race. This is something that people on this side of the House think we should do. And we argue that those who oppose such a proposition should make the case about why a sovereign government should have the right to discriminate against a group of people for no reason other than their race. We think, for the most part, that this offends our basic human rights. There are not a lot of rights that are recognised within the Constitution. It is prohibited for the Commonwealth to remove property without just compensation, but in our Constitution as it currently stands it is perfectly lawful for you to discriminate against somebody on the basis of their race. I argue that this should be the third limb of a proposition to alter our Constitution. And we need to find within ourselves something that we can all agree upon—a way that we properly restrain parliament from discriminating in a way that I think most Australians would agree was offensive.

In the time I have left, I want to focus on this one point. It is, across the chamber, widely agreed that we need to do this. I take the Prime Minister at his word when he says he is truly committed to constitutional recognition. But it is unfair of us as a parliament to ask the people of Australia to focus on something if we as a parliament have not focused upon it. That is why the committee recommends that both houses of parliament set aside a full day to debate the issue of constitutional recognition. And I think we would find that that would be one of the finest debates we have ever enjoyed within this house. We welcome the fact that the Prime Minister has finally agreed to conferences about our first people. I think this is an important step too.

But I finish on this point: it is simply unrealistic—nay, it is unfair—for us to ask the people of Australia to focus on something if the Prime Minister himself has not focused on it. For that reason, we ask that the Prime Minister shift this issue—this critical issue—to the top of his interests.

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

Our Prime Minister has said:

… modern Australia has an Indigenous heritage, a British foundation and a multicultural character.

Our Prime Minister is right, and we should be proud of each of those three concepts. Our Constitution should be something that unites us. But if we are looking at reform of our Constitution we cannot impute false motives into the current provisions. With this, I have an objection to and disagreement with some of the comments made by the member for Throsby.

I quote him from a previous speech, where he said:

We need to remove the stain of racism from our Constitution.

He has claimed that our Constitution is discriminatory.

Far from being racist, I believe our Australian Constitution is the opposite. It does not contain racially discriminatory provisions but it puts all Australians on an equal footing, no matter who their ancestors are, no matter what country they come from or no matter what background they have. That is something that ultimately we must aim for.

The first provision that is often described as a racist provision in our Constitution is section 25, which I will read:

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 the race resident in that State shall not be counted.

At first blush, it is easy to consider—wrongly—that this is actually a racist provision. But when you look at the history of this provision you find that it is anything but. In fact, it is actually anti-racist.

If we go back into history, the real reason this section was originally included in our Constitution was because in the 1890s Queensland and Western Australia did not allow full-blood Aboriginals to vote in state elections. What the framers of the Constitution wanted to do was to ensure that this did not occur in federal elections and, in fact, to penalise those states that did so. In other words, rather than denying the franchise, the framers of our Constitution were giving support to Indigenous people from the very outset.

Professor Anne Twomey, the Professor of Constitutional Law at the University of Sydney said:

Much can be learned from the history of section 25. It was originally inserted in the draft Constitution at the initiative of politician, Andrew Inglis Clark during a drafting session on the Queensland Government’s yacht in 1891.

Clark was a big fan of the United States Constitution and the Bill of Rights. Despite influenza and sea-sickness, he managed to get modified versions of two sections of the US 14th Amendment into the draft Commonwealth Constitution. The first of these American provisions guaranteed “equal protection” before the law and “due process” of law to all persons within a State.

It has since become a major source of the protection of civil liberties in the United States. The second section reduced the federal representation of any State if it denied the right to vote to any male citizen over 21 years of age who had not participated in rebellion or a crime.

This is the US constitution—

Although it did not expressly refer to race, it was intended to protect the voting rights of emancipated slaves in the wake of the American Civil War.

Section 25 is all that we have left in our Constitution of the US 14th amendment. It was Andrew Clark's ambition to introduce the process of 'due process' and equal protection under law for all Australians, regardless of their birth or Indigenous culture—and to discourage racial discrimination.

Section 25 may well be redundant in our Constitution. Hopefully, it is something that we simply no longer need. But as Professor Twomey says:

… let us not treat it as a disgusting and shameful remnant of past attitudes.

We should treat section 25 as exactly what it was. We should see it as a small seed of civil rights planted by a noble man from a different age. We should not trash it unnecessarily and see racist motive where none exists.

The other section that is often referred to as discriminatory and racist is section 51 part (xxvi). This reads in full:

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:-

…   …   …

(xxvi.) The people of any race, for whom it is deemed necessary to make special laws:

Again, at first blush this may seem to be a discriminatory piece of legislation. But not once has this legislation ever been used to lend support to racial discrimination against the Aboriginal or Indigenous people of this country. Not once.

Again, if you go back to the history and intention of that law in our Constitution, it was not for a discriminatory provision. In fact, it was for the exact opposite. It was understood that sometimes we would need laws that gave special provisions to overcome disadvantage. So if we are to look at changing our Constitution—and there are some provisions in our Constitution that are redundant—let's not look back to the founders of this nation and unfairly and incorrectly criticise them and say that they had racist intent when they wrote our original Constitution, because the historical record shows that that is incorrect.

We in Australia are not perfect. But from my travels around the world I have learnt that we are, second to none, the most racially tolerant country anywhere in the world. It is something that we all should be very proud of. As this debate goes forward—and it is a debate that should go forward in a bipartisan manner, with both sides of the House working together—let us acknowledge the work of our forefathers. Let us acknowledge the work of the Constitution. Let us say, at the foremost, that it is not a racist document in any particular way. If we can do that, we can all move together forward. We simply want a Constitution that gives equal rights and equal opportunities to every citizen of this country, irrespective of where they are born, irrespective of the colour of their skin and irrespective of their nationality.

Debate adjourned.