Marise Payne (NSW, Liberal Party, Shadow Minister for COAG) Share this | Link to this | Hansard source

We consistently maintained our commitment to this cause at both the 2007 election and the 2010 election, and we will strongly carry that commitment to the 2013 federal election. While within the coalition we would like to see genuine and multipartisan progress on the constitutional recognition of Aboriginal Australians, much more needs to be done to build the necessary base community consensus that will be the foundation of an effective constitutional reform process in this area. In some ways, it is fair to say that this has become difficult, at least in the short term—as senators on all sides know only too well—due to the marathon period that will be this election campaign of 2013.

However, this is an issue that is, and must be, above politics. It is most appropriate that the important step of any referendum is delayed until there is wide, long-lasting and multipartisan community support for constitutional recognition. In my view, in this instance it will be a case of better late, or later, than never. I understand that the Leader of the Opposition, Mr Tony Abbott, has written to the Prime Minister proposing that both leaders make statements to the House of Representatives affirming both our parties' support for recognition in the Constitution and the commitment of both parties to progress this matter in the next parliament. In a very positive development in this regard, we strongly commend the government's acceptance of Mr Abbott's offer to create a multipartisan joint parliamentary committee to ensure we progress even closer to achieving this goal.

From a personal perspective, I have seen the great value of such a broadly-based parliamentary joint committee. They have been formed on key issues over many years, and one which comes to mind—although perhaps its end result was not one I would like to point to in this regard—was the joint committee on the referendum in 1999. I learnt a lot from that process—I learnt a lot as a participant; I learnt a lot as a senator; and I learnt a great deal from the community about how valuable a tool a genuine joint parliamentary committee can be in its multipartisan approach—as I have said, with appropriate reference to the minor parties in this place and elsewhere—and with regard to its real ability to make sure it does hear from genuine grassroots Australians, particularly from the broad spectrum of Aboriginal Australians who want to have their say on this issue that we are discussing today.

We have constantly reassured both the government and the broader community of our strong support for the recognition of Australia's Aboriginal people in the Constitution. We want to play a part in ensuring that it occurs at the right time, when it has the best chance of being successful. Constitutional recognition of our first peoples is far too important to fail at the eleventh hour. Since an expert panel was appointed in December 2010 to consult and to advise the government on the best way to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, the coalition has enthusiastically participated in this process. We were proudly represented on the expert panel by the first Aboriginal member of the House of Representatives, my colleague Mr Ken Wyatt AM MP. That panel delivered its report on 19 January this year, and on 30 January the joint select committee released its report on the bill. We welcome that report. It does—as Senator Siewert has previously made reference to—actually make very interesting reading, which is not something that you can say of every parliamentary report. We will continue to consider it carefully before proceeding towards that goal of recognition.

The issue of constitutional recognition also draws attention to the position of many Aboriginal Australians in our society today, both in remote outback communities and in more urbanised areas, such as the one in which I work in Western Sydney. I think it would be remiss not to make an acknowledgement of that fact.

Improving the lives of those many Australians will not be solved through constitutional recognition alone, important though it is. For too long, predominantly well-meaning but ultimately misguided focuses on welfare have left many Aboriginal Australians in not the best place they may have been. That is something for which we all need to take some responsibility, and I think that by and large we do. I think by and large these are issues about which this parliament has the maturity, the capacity and the good sense to discuss maturely and sensibly—not all the time, as sometimes it is difficult to take the 'P' out of politics even on the most serious issues. We do need to provide a basic safety net to ensure children in remote communities are fed, clothed and educated in the way we would expect all Australian children to be fed, clothed and educated.

We on the coalition have over many years taken some direction and some great support from Indigenous leaders like Noel Pearson, and his Cape York Institute, and Alison Anderson, who has recently taken office in the Northern Territory parliament. These are people who have spoken about a focus on self-reliance and on building partnerships between Indigenous and non-Indigenous Australians. They are also very valuable examples of community leadership. For example, in Mr Pearson's case, his philosophy is reflected in the work of the coalition towards the development of our policies concerning Aboriginal Australians: we absolutely support programs that lead to real jobs being created—not make-work schemes, not more training for the sake of training and not more courses that just lead to more courses. As the shadow minister for Indigenous development and employment, I am greatly encouraged by those participants in the public policy debate who force us to think more broadly, who force us to think across the spectrum and, for that matter, across Australia.

We as the coalition will continue to work with the government to ensure that all the efforts in this regard in relation to this bill and to a prospective referendum are effective and that we are able to experience again the unity of 1967 by recognising Aboriginal Australians in the Constitution of this great country of ours.

One does not always take the opportunity when speaking in the chamber to pick up the piece of legislation that one is referring to and recommend it for public reading. But in this case, this is a bill that is absolutely worth reading. This is a bill that embodies some of the most important principles that we will engage on in our constitutional future, in the short term. It is a bill that every Australian would benefit from reading, paragraph by paragraph. The sunset clause which is contained within this bill is, if you like, the action point. It is the point to which we must all address our attention to make sure that the time frame which is provided for the processes set up here is adhered to, and that this is not something that does not come back to this parliament in an appropriately timely manner.

In a spirit of my much-quoted multipartisanship in this reach, I make reference to the words of two members on either side in the other place. I acknowledge in quoting my friend and colleague the member for Wentworth Mr Turnbull that he and I have been on the same team in a previous referendum. I know we are on the same team now and we intend to make this very successful. On that side, Mr Turnbull said:

While there is an acknowledgment of Her Gracious Majesty, Queen Victoria, in our Constitution there is no acknowledgment of the original inhabitants of this country. So let's make our Constitution better. Let's make it, in that sense, even more Australian.

On the side of the government, former Prime Minister Kevin Rudd, who led the apology to the Stolen Generations in 2008, captured the sentiments of many Australians when he said in his remarks:

The apology was about getting things right for the past. Constitutional recognition is about getting it right for the future.

My commitment in this debate is to make sure that we get this right the first time.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

It seems a little peculiar to be talking about making a good start on the recognition of Aboriginal Australians, given that it is more than 225 years since the colonisation of Australia began, but what we have in front of us here is a good start. The Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 gives us the chance to move to a system that will allow us to get a referendum happening. I would like to acknowledge the work of the expert panel which worked so hard to bring us to the point where we have consensus on the sorts of objects that should be put into the Constitution regarding the recognition of Aboriginal and Torres Strait Islander people. I acknowledge our Greens colleague, Senator Rachel Siewert, but more especially Mr Ken Wyatt, the first Aboriginal member of the House of Representatives and a very strong Liberal representative of Western Australia.

I will speak briefly and acknowledge the comments made by others. I was pleased to hear Mr Abbott's speech in the House of Representatives when he said:

We have to acknowledge that pre-1788, this land was as Aboriginal then as it is Australian now and until we have acknowledged that we will continue to be an incomplete nation and a torn people. We only have to look across the Tasman to see how it can be done so much better.

Mr Abbott also said that we have never fully made peace with the First Australians. I must agree with him there. He said:

This is a stain on our soul that Prime Minister Keating so movingly evoked in Redfern 21 years ago.

I note that many people talked about the history of the work to get the Australian people and the Constitution to the stage where we have outright, direct and respectful recognition of Aboriginal and Torres Strait Islander people in the Constitution. Mr Abbott makes the point when he says we are equal to the task of completing our Constitution rather than changing it and that the work must be done by the next parliament, given that we have now got a good start. The former Prime Minister, John Howard, outlined the coalition's views on recognising and putting the Aboriginal and Torres Strait Islander peoples into our Constitution. He said in 2007:

There is a window to convert this moment of opportunity into something real and lasting in a way that gets the balance right.

…   …   …

Some will, no doubt, want to portray my remarks as a form of Damascus-road conversion. In reality, they are little more than an affirmation of well-worn Liberal conservative ideas.

…   …   …

In the end, my appeal to the broader Australian community on this is simpler and far less eloquent. It goes to love of country and a fair go. It is about understanding the destiny that we share as Australians, that we are all in this together. It is about recognising that while ever our Indigenous citizens are left out, or marginalised, or feel their identity is challenged, we are all diminished. It is about appreciating that their long struggle for a fair place in this country is our struggle too.

I was delighted when that policy of Mr Howard's was accepted by the then Leader of the Opposition, Mr Rudd. We do, though, still have a lot of work to do. I note in the Library brief on this bill, they have spoken of the operational provisions of the bill being 'quite simple but unusually framed'. We have in proposed section 4 a requirement that the minister 'cause a review to commence' within 12 months of the act's commencement. This is a rather strange way of trying to go about ensuring that when a referendum to amend the Constitution is put, then it will be accepted and understood.

It has sunset provisions in it which are designed to force an outcome—to force the review to happen, to force a constitutional referendum. But the bill does not set out who will undertake the review, how it will be funded, whether it will have a secretariat, who will be on it or how it will go about collecting information when it is asked to undertake the task of doing a giant opinion poll prior to a referendum.

One suggestion from the coalition would be that the National Congress of Australia's First Peoples should have a strong role in the informing, reviewing and educating that needs to go on before we can go to this referendum. I must admit I was very disappointed to hear and see a lot of the commentary when this bill went through the House of Representatives some weeks ago. There were tweets going along the bottom of the screen, saying things like, 'Why do we have to have a referendum? Just put it in the Constitution now.' 'Why have we got to have this bill? Can't we just put it in the Constitution?' We are presumably talking about a reasonably literate group of the community—in that they were watching a political news program; presumably they are a reasonably savvy group of the community in that they are tweeting, and yet they have no idea that the only way we can change the Constitution is by referendum. Clearly not all of them would understand either what the constraints have meant that have seen so many referendums fail in this country—the fact that you need a majority of voters in a majority of states. The hurdles for a referendum are very high, and if people do not realise that without the referendum we cannot change the Constitution, I think we are in trouble.

I have no idea how we might go about fixing the problem, because clearly if people do not understand what they are being asked to vote on—not just the substance but also the process—the likelihood of a negative vote increases. So I would urge this government and the next government to consider how we might educate people somewhat better about what has to happen, so that we can change our Constitution and finally, hopefully, stop making starts and come to a conclusion that respects and atones for the omissions of the past.

Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Link to this | Hansard source

I rise today to address the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 and to explain my own journey on this issue. I begin by acknowledging the comments of Senator Brandis and my other coalition colleagues, who have outlined in great detail the great Liberal record with respect to Indigenous issues and representation in recent years. From Neville Bonner to Ken Wyatt, from the Aboriginal Land Rights Act to the intervention, the Liberal Party has been at the forefront of addressing historical injustices faced by Australia's Indigenous people. These details must be outlined again due to the tendency of some on the other side who seem determined to paint only their preferred colour of the pallet of our history.

I will admit that I began as a strong sceptic of this proposal. I did not vote for the preamble in 1999. I do not believe in the politics of identity that has infected so much of our liberal democracy over the past four decades. Identity has replaced class as the dominant oppressive force to the left and the new means of disregarding the individual. To the advocates of identity politics, the individual disappears into a group based on a characteristic they have no control over and determined by self-appointed representatives to take precedence over their individuality. Whether it be race, gender, sexuality or another concept, identity politics is the new tool of the forces of illiberalism—those who devalue the individual in terms of their power to determine their own fate or who deride their freedom and ability to choose for themselves, and where so-called 'group rights' are used to trump our status, dignity and freedom as individuals. So I initially found very troubling the acknowledgement of one group of people in our founding political and legal document, particularly when it is based on race.

I know there are debates regarding the terms 'people' versus 'race', but those arguments are a distraction, avoiding the substantive issue in this case. To many classical liberals, and I proudly describe myself as such, the notion of making a group of people exceptional and defining them in law is a troubling one. And, due to its history as a basis of discrimination and persecution, race is particularly problematic. Indeed, this is a wrong we are seeking to address in our Constitution in this debate. After all, it is due to the great success of liberalism over two centuries that racism has been purged from civilised society and debate. So my heart and mind are dedicated to opposing any form of racism. I find it obnoxious.

I do not wish to imply or accuse anyone in this debate of racism; I am merely explaining the liberal sensitivity to it, which I share. So, given my initial scepticism, I was asked by people whose judgement and motivation I trust to reconsider my position and open my mind to the unique experience of our Indigenous people. I recall in my studies at the University of Melbourne coming across this Indigenous challenge to liberalism. David Tucker, one of my lecturers, knew more about liberalism than most, and he outlined this challenge in great detail, saying it remained unfinished business—a problem for which liberalism had not yet developed a response. For the truth is that, in our past, the law did define Indigenous people and the lives they could lead by their race. As Indigenous people were treated as a group rather than as individuals, their racial identity did define them, regardless of their own choices. Their experience of the Australian body politic was defined as much by legal discrimination and identity as it was by their individuality.

It was explained to me that the recognition of this common experience and the historical facts prior to modern Australian settlement would add a great deal to the meaning of citizenship for many of our Indigenous people, for whom opportunity was denied and legal status was pre-determined for no reason other than the colour of their skin or the race of one or more of their forebears. So, like many others who began as sceptics, I have tried to open my mind, attempting to understand how this might add to our common citizenship without dividing the Australian people nor instituting group rights at the expense of the individual. I hasten to add that, in the words of my colleague Senator Brandis, to achieve this we must be respectful. We also must be cautious.

This bill is a significant step; but the key step, the crucial step which cannot be avoided by any sentiments expressed in this place are the very words we eventually choose to put before the Australian people in a referendum and in the course of the public debate.

This bill empowers that discussion. This mechanism has not been used previously to generate community consensus, so I support this bill. But we do need to show, to all participants, respect and caution about how we go about this process, not only because there are many people who remain to be convinced, who fall into the category of those sceptical or hostile to the notion of law recognising or institutionalising race—although I believe there are many such people—but because of the key reason outlined before many speakers before me: that to propose and fail at this referendum would be a profound step backwards.

So, the tone of the debate—the discussion of our history and our nation—needs to respect the achievements as well as the failings, the elements of which we should be proud as well as those we wish we could change. This is necessary to ensure that those who may start with a slightly different view do not feel that those elements of our history that they cherish will be devalued through this debate.

There are always things we wish we could change about our past, as a nation and likely as individuals. We may wish there were no blots on our past, but history is not like that. One will not find perfection by looking back. To seek it is to guarantee disappointment. But there is a lot to be proud of, even when discussing this bill and its promised referendum. For there are many like me who do not share the dim view of Federation expressed by some. This bill—and, if it is to be successful, this debate and future proposals—cannot be used to denigrate the formation of the Commonwealth of Australia, one of the great achievements of liberal democracy.

Federation was the result of the thrust of 19th century democratic Australian liberalism. Liberals of all strains supported it, while the labour movement opposed it. Was the formation of our federation perfect? No, it was not. But those of us who heed the words of Edmund Burke do not expect or hope for perfection in our politicians or leaders; indeed, we are wary of those who promise it. Yet it was an extraordinary democratic exercise, especially at that time. No nation with a democratic tradition as long as Australia's can claim such a democratic heritage. In many ways it is republican in the truest meaning of that term. Our constitution was drafted by representatives of the people, elected by them. It was then approved by the people in referenda. Only then was it sent to London, along with the elected representatives of the people, for political ratification and formal legal implementation via the parliament at Westminster.

This is a story of which all Australians should rightly be proud, but that does not mean uncritical. I stated earlier that it was not perfect, but no political process ever will be, and neither will the people involved in it be any more perfect than we are. In that sense I am referring to the words of Edmund Barton quoted earlier in the debate by Senator Siewert. I find them offensive. But it is the very success of our liberal democratic polity that has made such attitudes no longer acceptable. Political debate always partially reflects community views, and it is regrettable but true that those views were predominant at the time. I do not seek to justify them, merely to outline that fact.

The truth is that any power over Indigenous affairs in our Constitution at Federation would likely have led to similar policies to those that occurred under state governments. A different clause in our Constitution would not have changed attitudes in 1901. But nowhere else in the world did as many people have the right and the opportunity to participate in forming their nation. No body politic has a halo.

I know this bill is bipartisan, and I do not wish to provoke rancour, but I feel I must also correct the record when it comes to this remarkably democratic process that formed Australia. In the Prime Minister's speech in the other place, she stated:

Indigenous people did not ordain our Constitution, nor contribute to its drafting. They had no opportunity to vote for it, and yet all were affected by what it said and failed to say.

It is simply not true that Aboriginal people were universally denied the opportunity to participate in the elections and the Federation referenda. Indeed, in 1901 there was no statutory bar on Aboriginal voting in Victoria, New South Wales, South Australia, the Northern Territory or Tasmania. There were legal bars in Queensland and Western Australia. This is not to say that there were not other restrictions, but there was no specific legal prohibition on the right of Aborigines to vote across the colonies. The truth about the ban on Aboriginal voting needs to be told. The Constitution did not do this. The ban came later, and it was not the drafters of the Constitution or the people who instituted it by a referendum. The responsibility can be sheeted home to this place, the parliament.

Every Australian child is taught that we were the second nation to grant women the vote after New Zealand, and this is true. But the full story needs to be told whenever we teach this. Section 3 of the Commonwealth Franchise Act 1902 granted the vote to women. Section 4 took it away from all Aboriginal people. So, an act of this parliament about which we are so rightly proud for one reason also contains what we would all regard now as a profound moral error. I say again: no body politic has a halo. This ban was removed in 1962 by parliament, five full years before the 1967 referendum which reflected the significant change in community attitudes by amending our Constitution with a record majority. I note that both these initiatives occurred under Liberal prime ministers.

I want to turn to Section 25 of the Constitution now. It is often quoted as an obnoxious section due to the link between the franchise and race. My personal preference would have been to remove the race power altogether in 1967, but I was not born for another six years. As I stated earlier, we cannot amend history. As I outlined above, I find legalised racial notions obnoxious. I would personally remove section 25. But the background to Section 25 needs to be explained—again, to defend our Federation and our Constitution. Section 25 does not represent a power to prevent people voting on the basis of race. That power was not explicit in the Constitution as it did not need to be. The states had the power to determine their own franchise. Section 25 is a penalty provision for those states that implement a racial restriction on the franchise in those states. It represents the lessons our founding fathers learnt from the US Constitution. It applies a penalty to any state that restricts the franchise by removing those people from the census and consequently for the purpose of assigning seats in the House of Representatives.

So a state that banned people of one race from voting would see itself penalised by likely having fewer seats in parliament. It represents a repudiation of the infamous three-fifths clause of the US Constitution, outlined in article 1, section 2, clause 3. This gave the slave states greater political power by counting slaves as three-fifths of a person for the purposes of assigning members of the US House of Representatives and, consequently, the presidential Electoral College. That original clause in the US Constitution empowered state based racism. It was removed by section 2 of the 14th amendment following the Civil War. But Section 25 of our Constitution is the opposite: it punishes such measures and it repudiates that infamous philosophy.

In conclusion, there have been many contributions to this debate. Some have outlined preferred words and clauses or concepts for a future referendum. I rise in support of this bill, but I also offer a warning, made with my best intentions. Any referendum proposal needs to address those who share a concern, scepticism or even an initial hostility to the legal recognition of race. The debate must not disparage those who have yet to be convinced. It must persuade, not hector. And it must not overreach. I differ from those who propose far-reaching change to our Constitution, although I respect their views. I implore them not to seek to achieve other objectives through this process.

Do not seek a constitutional rearrangement of the roles of the legislature and judiciary, especially with respect to determining discrimination. Such a path will only provoke resistance.

And while bipartisanship is a necessary condition for success in a referendum, it is no guarantee. Indeed, on the same day in 1967 that 90 per cent of people voted for the referendum deleting section 127 and amending the race power, a bipartisan-supported referendum proposing the removal of the constitutional nexus between the House and the Senate was comprehensively defeated, with only 40 per cent support. More than half of the people who voted yes on one ballot paper voted no on the next one, despite them both having bipartisan support.

The Australian people take the notion of a referendum very seriously. It is probably the greatest legacy of the drafters that they prevented politicians from changing the Constitution. As it can only be altered with the direct consent of the people, it remains their property, reflecting their sovereignty. This makes a referendum a uniquely potent tool, but it also puts a high bar before politicians, whose role it is to initiate the process. We must be judicious and remain conscious of the record of referenda. I look forward to participating in this process and debate during the period outlined in this bill, and I commend the House on supporting it.

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

I rise to support the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 and, in doing so, I acknowledge the traditional custodians of the land on which we meet, the Ngunnawal and Ngambri people. We know that the Ngunnawal and Ngambri ancestors lived in the area surrounding Canberra and beyond for at least 20,000 years—and very likely much, much longer than that. I am pleased that recognition of traditional owners has become an integral part of so many formal proceedings held in this place. It is a small but important symbolic acknowledgement that the Aboriginal people have a profound connection to the land where we gather and a history that stretches back tens of thousands of years before European arrival.

So it is with the Aboriginal and Torres Strait Islander Peoples Recognition Bill, which lays the foundations for recognition within Australia's highest legal document, our national Constitution. This bill is the first step. It asks Australians to legally recognise the Aboriginal and Torres Strait Islander peoples rightful place in the history of our nation. Despite extensive deliberation across the country, there is no record of any Aboriginal or Torres Strait Islander people taking part in the debate on the Constitution that would hold such great influence over the newly formed Federation. The final document which passed into law on 1 January 1901 contained no acknowledgement of the country's first people. This bill takes an important step in rectifying those omissions.

Unlike so many issues on the national agenda, support for the bill is widespread and growing. So far 133,000 people have registered their agreement for the move on the Recognise website. Across cultures, ages and political persuasions there is a deep current of support for recognising the truth of our history so that we can start to heal as a nation.

Implicit in the bill is not only a recognition of a proud and rich history that spans millennia but also a recognition of the discrimination, dispossession and abuse that have happened as a direct result of European colonisation. Since colonisation, Indigenous Australians have been denied their right to speak their own languages, had access to their spiritual lands taken away, been forcibly removed from their families and have been subjected to abuse—both emotional and physical.

As a Tasmanian, I am acutely aware that some of the greatest atrocities occurred to Indigenous Australians in my home state. Our history is marred by abhorrent injustices, including widespread kidnapping of Aboriginal children for labour, a government campaign where troops were used to drive out Aboriginal people from their homelands and, most shamefully, organised and sanctioned hunts resulting in mass deaths. Before we can move on from some of the darkest chapters in our past, we do need to be honest about what happened. And we need to acknowledge that this history has contributed to vast discrepancies in life expectancy, health outcomes, education and employment outcomes and incarceration rates, as well as alcohol and drug problems and the underrepresentation of Indigenous people in so many areas of society.

I do not suggest that this recognition should lead to guilt. This would only serve to prolong and reiterate a troubled past. Rather, I urge that we use this recognition to spur out commitment to a better future—a future that strives for unity and is built on mutual respect and trust and a future built on the understanding that, when we work together, we become significantly more powerful than the sum of our parts. And that is exactly what this bill is about. But, just as a journey of a thousand miles begins with a single step, there have been many very important milestones that have got us to this point.

Debate adjourned.