Foundation for National Renewal     The "Model Constitution" Activity

Federal Election October 2004: Which Candidates Trust the People?

This seems to be a particularly appropriate time to look at the place of Australia’s indigenous people in the Constitution. It is a time of transition in the operations of the Aboriginal and Torres Strait Islander Commission (ATSIC) - the elected, taxpayer-funded indigenous organisation that has had prime responsibility for administering programs in this area. It is also a time when the entire thrust of government policy in this area for the last two or three decades is being seriously questioned.

We don’t need to be reminded of the terrible situation in which many Aboriginal Australians find themselves, particularly those living in remote communities, where the term “traditional” is often used quite incorrectly. The newspapers and TV are full of bad news stories about alcohol-fuelled violence, serious health problems, low life expectancy, chronic unemployment, apparent corruption and nepotism in publicly-funded Aboriginal organisations, and in general, the expenditure of large amounts of taxpayers’ money with little resultant benefit for most indigenous people.

Where do the solutions lie? In legislation, in policy change, in increasing or decreasing government funding, or changing the way funding is administered? In continuing the current policy of treating indigenous people differently, or in insisting that all Australians receive equal treatment? Or perhaps we could ask that Aborigines choose whether they want to live in a traditional way, or integrate into the wider society and share in its benefits, instead of trying to have it both ways. Most importantly for us, does constitutional change offer any hope?

In this Task, we will look at four issues and ask whether our Model Constitution should say anything about them:

• Native title
• Indigenous sovereignty
• Traditional law
• Racial discrimination

Symbolically, the decision of the High Court in 1992 in the Mabo case was a watershed in our history, though in terms of its actual effects on the lives of Aboriginal people, its importance has perhaps been over-rated. The High Court ruled that in a particular part of the Torres Strait, indigenous people enjoyed common-law rights over the land, amounting to a form of ownership. The principle has since been extended by legislation to all parts of Australia in which certain criteria are met.

Current native title law in Australia is a confusing mixture of the common law (on which the High Court decision rested) and the statute laws of the Commonwealth and the 8 states and territories. The National Native Title Tribunal seems to have done a reasonable job of coordinating the whole thing and commencing the long task of determining whether Native Title exists over some large areas of the country.

A few important points about Native Title, as currently recognised in Australian law:

• Native Title rights can have different forms in different situations, ranging from merely the right to enter land to perform traditional ceremonies, up to something approximating ownership of the land.
• Native Title only exists where indigenous people have had an unbroken association with the land, and where it has not been extinguished by incompatible uses following white settlement.
• Native Title can co-exist with some other uses of land, such as pastoral leases, but not with freehold. Our backyards seem to be safe, at least under the current system.
• Contrary to popular belief, Native Title is not the same as “land rights”, in which freehold or leasehold title over land is granted by governments to a particular group. Native Title is recognised, not granted.
• Compensation may be payable where Native Title has been lost, although courts are currently taking a conservative view of the circumstances in which compensation should be paid, and to whom. Governments are being found liable only for particular actions they have taken since 1975.

Detailed information on Native Title and the current status of the process can be found at the website of the National Native Title Tribunal, at www.nntt.gov.au. It is interesting to note that as at 30 June 2003, 609 claims had been submitted, 474 had been accepted for registration (that is, the Tribunal thought they might have some chance), but only 46 cases had actually been finalised. Of these, 31 were successful.

If the Constitution is to deal with Native Title, instead of leaving it to the High Court’s interpretation of the common law and to the political imperatives that drive parliament’s lawmaking, the options fall into 4 broad categories:

• Abolish Native Title: In spite of any expert opinions to the contrary, it seems clear that Native Title could be abolished by a constitutional amendment.
• Maintain and clearly define native title rights presently enjoyed by indigenous people, thus providing greater certainty for all.
• Restrict native title rights to less than presently enjoyed, for example by eliminating rights to compensation, or by demanding more stringent tests concerning association with the land.
• Expand native title rights to more than what is presently enjoyed, for example by increasing rights to compensation, or by allowing more categories of land to be claimed.

Although native title to some extent stands outside the existing system of British-derived law, in that it is the only form of title that is not derived ultimately from possession of this country by the British Crown, land held under native title is still subject to State laws. In this country, in spite of the growing power of the Commonwealth vs the States, sovereignty is still vested fundamentally in the States, and “Crown land” means land under the control of the State governments.

Over the last quarter-century, there have been some strident calls for “sovereignty” by many indigenous people, though there is rarely much clarity or consistency about what the word actually means, except for its ability to provoke a negative response from most non-indigenous Australians. It is obvious that “sovereignty” could not mean independence in any meaningful sense. In any case, few Aborigines would want full independence from mainstream Australia, its economy and its welfare system.

Now the issue of sovereignty is being revisited by key members of the Howard Government, according to a report in the Weekend Australian of July 5-6, 2003. The inspiration is the American situation in which Indian tribes enjoy a limited form of self-government, with immunity from many State laws. One of the best-known examples, though probably not relevant to Australia, is the existence of casinos on some Indian lands, in states where they are otherwise illegal. Further information is available at the website of the Harvard University’s Project on American Indian Economic Development, a key driver of the debate: http://www.ksg.harvard.edu/hpaied/index. Information on the importance of sovereignty and “nation-building” in Indian communities is of particular interest.

There are actually two separate but related issues here: control of Aboriginal land, and governance of Aboriginal communities. At present, most collective indigenous ownership of land operates under “inalienable freehold” or similar systems in which the owners can use the land but not sell it or lease it out. One possibility being promoted is to unlock the value of Aboriginal land by allowing it to be leased to individuals or companies, thereby providing a double benefit to communities: the lease payments, and hopefully also the employment opportunities that could arise from resulting economic activity by those leasing the land.

Two existing Australian examples may shed some light on the possibilities for a measure of Aboriginal self-government. Firstly, all land owned by the Commonwealth is immune from State laws, under Section 52 of the Constitution. In 1970, Federal Parliament passed legislation to allow State laws to apply on Commonwealth land, but the Commonwealth retains the right to pass its own laws which would override the laws of the States on any Commonwealth-owned land. This is looking a bit like the legal situation on American Indian lands.

Secondly, Australia already contains several micro-territories with populations of less than 2,000, including Norfolk Island, Christmas Island and Cocos Island. The self-governing territory of Norfolk Island in particular could provide a model for the creation of indigenous mini-governments, which would be more like local councils with a measure of legislative ability. The Torres Strait Islands and some of the larger desert communities would obviously be more suited to this, than would smaller Aboriginal communities on the fringes of towns and cities.

The application of traditional law to indigenous people instead of, or in addition to, Australian law is a difficult and multi-faceted problem. Here we can only scratch the surface and consider a couple of basic constitutional issues. The issues of racial discrimination and equality before the law are central to the argument and will be considered in the next section in a wider context. Here we will ask whether traditional law should have a constitutionally-recognised place alongside our British-derived law.

In the Northern Territory, traditional law is sometimes being taken into account by courts in their sentencing of Aboriginal offenders, particularly when:

• behaviour regarded as a crime under Australian law is acceptable under traditional law.
• punishment has already been meted out under traditional law, so a reduced punishment may be imposed by the court in recognition of this.

A central question is whether traditional law should be taken into account in ascertaining guilt or innocence, or limited to consideration of what is an appropriate sentence. If it is to be the first as well as the second, then indigenous people are effectively being permitted to live under a different set of laws.

A vitally important problem is that traditional laws of many indigenous communities are incompatible with many of the basic human rights that we would seek to have enshrined in the Constitution, and which are guaranteed by international treaties to which Australia is a party. This is particularly the case with regard to the rights of women and children. It has been said that in contrast to mainstream common law and statute law, Aboriginal law seeks to impose a pattern of beliefs, as part of a total, rigid code of being. Is it possible to allow the imposition of Aboriginal law where it would seem to be productive in a particular social context, while ensuring that the basic human rights of Australian citizens are protected?

We will consider two questions: whether the constitution should allow the application of traditional law in any shape or form, and if so, to whom should this provision apply? Should any indigenous person in Australia have the right to opt to be punished under traditional law, or should this right be limited to those living in designated indigenous communities, or should all persons in such communities be assumed to have opted for a traditional lifestyle with traditional laws, and therefore lose the protection afforded by Australian law?

The current situation in Australia is that racial discrimination comes into the Constitution, rather obliquely, in two places:

Section 25: This disgraceful and long-expended section dictates that in using population statistics to allocate federal electorates to States, the people of any race disqualified by State law from voting will not be counted. The fact that it still exists bears eloquent testimony to the failure of the existing system to keep our Constitution up to date.

More importantly, Section 51 (xxvi.) empowers the Federal Parliament to make laws with respect to:

Until it was altered in 1967, the provision gave the Federal Parliament power to make laws with respect to:

Therefore the 1967 referendum, rather indirectly, gave the Commonwealth the “race power” to legislate for the benefit of Aboriginal people (that is, to discriminate in favour of indigenous people), as well as removing Section 127 which had specified that Aborigines were not to be counted in reckoning the population. Contrary to popular belief, it did not guarantee Aborigines the right to vote; in fact the current Constitution does not explicitly give anyone the right to vote.

Proposals for a Bill of Rights to be incorporated in the Constitution have usually included the prohibition of racial discrimination. The most recent such proposal, by the Constitutional Commission in 1988, suggested the following:

Note the proviso in sub-section (2), which would allow “positive discrimination” of the type that has occurred for several decades, to the tune of many billions of dollars.

In Task 4 of our Model Constitution project, members unanimously supported the concept of equality before the law, and by a large majority supported the prohibition of racial discrimination. Do we support this concept absolutely, or do we wish to include a reservation, along the lines of the previous paragraph, that would allow discrimination in favour of indigenous people? Without such a reservation, the situation with regard to indigenous affairs in Australia would change dramatically - for the better or the worse, depending on one’s point of view. One possible compromise could involve a “sunset clause” that would allow favourable treatment of indigenous people for a fixed period, perhaps 20 years, before all racial discrimination became unconstitutional. Perhaps the existence of a deadline would improve the stewardship of funds allocated to indigenous people - or perhaps it would merely cause people to “get in while the getting’s good”.

Should the wishes of the Australian people with regard to Native Title be spelt out in the Constitution?
O YES
O NO

If so, should Native Title
O be abolished
O be maintained in a more restricted form
O be maintained generally in its existing form
O be maintained in an expanded form

If Native Title is to be maintained, should it be incorporated in a system of Aboriginal Sovereignty as in the next section?
O YES
O NO

Control of land: Should the Constitution set out specific rights for indigenous owners to use their land beyond what is currently allowed - for example, to lease out portions of land to individuals or companies?
O YES
O NO

Governance: Should the Constitution make provision for a limited form of sovereignty in which indigenous groups with viable landholdings could, with the approval of the Commonwealth Parliament, turn them into self-governing Australian territories?
O YES
O NO

Should the Constitution allow the application of traditional Aboriginal law in some form to
O nobody
O any indigenous persons who seek to have it applied to them
O all indigenous persons living in designated indigenous communities
O any indigenous persons living in designated indigenous communities who seek to have it applied to them

If the Constitution is to allow the application of traditional Aboriginal law, this should or should not allow
- exemption from some or all Australian laws: YES NO
- differing ways of administering the law, eg use of a Council of Elders instead of a normal court YES NO
- the use of traditional punishments instead of or as well as conventional sentencing YES NO

Should the Constitution prohibit racial discrimination?
O YES
O NO

If the Constitution prohibits racial discrimination, should it include a reservation allowing “positive discrimination” in favour of indigenous people?
O YES
O NO
O YES, BUT WITH A SUNSET CLAUSE OF ….. YEARS

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This is a large, difficult and complex field in which there will be differing and strongly-held opinions. If you have additional comments or suggestions, please write them out and attach a separate sheet.

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Last updated: 3 May 2006