For everyone The legal path to voice, treaty, truth

With a Constitution that allows the passing of racist legislation, Aboriginal and Torres Strait Islander people need a voice on the laws that affect them, writes AEU industrial officer MICHAEL McIVER.

In 1942, Attorney-General Herbert Vere (‘Doc’) Evatt evocatively described the Australian Constitution as belonging to a “horse-and-buggy age of social organisation”. While Doc Evatt was speaking in a different context – regarding reforms to achieve economic and social justice post-World War II – his observation is even more true in relation to the Constitution’s position on Aboriginal and Torres Strait Islander people.

Australia’s Indigenous people are not recognised in the Constitution; there are no provisions guaranteeing equal protection before the law or banning racial discrimination; there are no provisions recognising Indigenous languages; and the Constitution still includes section 25, which preserved laws of States that disqualified persons from voting on the basis of race at the time of Federation.

One of the most shocking features of the Constitution is that it leaves open the question as to whether the Commonwealth can pass racist laws. In the successful 1967 referendum, Australians voted to change the Constitution so that Aboriginal and Torres Strait Islander peoples would be counted as part of the population. This amended section 51 (xxvi) – or “races power” – so the Commonwealth had the power to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”. An exception – “other than the aboriginal race in any State” – was deleted.

Indeed, section 122 of the Constitution has been used to pass racially discriminatory laws.

However, in the 1988 ‘Hindmarsh Island Bridge case’, the High Court considered whether the Commonwealth could pass laws to the detriment of a particular race. In response to Justice Kirby’s statement that: …it seems unthinkable that Nazi race laws could be enacted under the race power and that this Court could do nothing about it, Griffith QC, for the Commonwealth, concluded that: …if there was a reason why the Court could do something about … a Nazi law, it would, in our submission, be for a reason external to the races power. 

Indeed, section 122 of the Constitution, which gives the Commonwealth power to make laws with respect to the Territories (known as the ‘Territories power’), has been used to pass racially discriminatory laws. For example, the Northern Territory ‘Emergency Response’ intervention laws, as the Australian Human Rights Commission consistently noted, contained measures that intentionally discriminated against Indigenous people. 

And, of course, Aboriginal and Torres Strait Islander people do not have a Voice to Parliament under the Constitution.

The Uluru Statement from the Heart was the product of years of careful consideration by Aboriginal and Torres Strait Islander people. In a single page, it makes a compelling and ineluctable case for the establishment of a Voice to Parliament and for a Makarrata Commission to oversee treaty-making processes and truth-telling.

Critics don’t appear to have picked up a copy of the Constitution, which does not provide for the level of detail being demanded.

In its final report, the Referendum Council noted that for participants in the regional Dialogues, a key function of the Voice would be to monitor the Parliament’s use of any powers under the races power and the Territories power.

Following its election in 2022, the Albanese government lost no time in fulfilling its election promise to fully implement the Uluru Statement. About two months after taking office, Albanese announced a referendum would be held to pass an amendment to the Constitution to create a Voice to Parliament. Through the Voice, Aboriginal and Torres Strait Islander people will have the ability to make representations to Parliament and the Executive on proposed laws. The Parliament would have power to make laws in relation to the composition, functions, powers and procedures of the Voice.

Critics have raised questions about the level of detail that has been provided. Such critics don’t appear to have picked up a copy of the Constitution, which does not provide for the level of detail being demanded. Brevity is a key feature of the Constitution, which sets out the broad parameters for the legislature, the Executive and the judiciary. The details are invariably provided by the legislature.

Critics have also raised concerns about the extent to which the Executive is required to consider the Voice in administrative decision-making. However, the text of the provision makes clear that the Voice is on “proposed laws”. Further, the Voice would be considered as an internal parliamentary matter and, therefore, not subject to judicial scrutiny.

In saying “yes” to the Voice to Parliament, we would still have a horse-and-buggy Constitution. However, it would at least have a modern navigation device for legislation affecting Aboriginal and Torres Strait Islander people who would finally have a direct say on proposed laws that would impact on their lives.

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