Obstacles in way of recognition

Opinion Article

2015 October, 24

Last week, law professor Frank Brennan delivered an oration on the “prospects and contours” of indigenous constitutional recognition. He said Malcolm Turnbull would not support a constitutional amendment to ensure indigenous people had a voice in laws and policies made about their affairs.

Indigenous conferences have not yet started. Political discussions between indigenous people and the new PM have not yet begun. Yet Brennan has already decided what the Prime Minister’s, and indeed Australia’s, view on the matter will be, and therefore what indigenous views should be.Brennan has a tendency to make political predictions as though they are inevitabilities, ignoring the role his own public prophesying plays in cultivating his predicted outcome.

Despite Brennan’s insistence he is not fearmongering, many of his statements are just that.

On one hand, he says: “Noel Pearson is right to insist that indigenous leaders need a place at the table when new policies are being formulated. An indigenous council is needed to advise government.”

But he argues any council should not be part of the proposal for constitutional recognition. He says it will be “impossible to design a constitutional provision” that is legally and technically sound, and that will ensure “the untrammelled sovereignty of parliament”.

But it is possible to draft a constitutional amendment to ensure indigenous people have a voice in their affairs while preserving parliamentary supremacy: by ensuring the body’s advice is non-binding and drafting the amendment to be non-justiciable. Anne Twomey, one of the nation’s most respected black-letter constitutional experts, has drafted just such an amendment that would not attract judicial intervention or risk laws being struck down.

Melbourne Law School emeritus professor Cheryl Saunders agrees with Twomey: the proposal can be drafted to be non-justiciable, “at least as far as the giving and taking of advice are concerned, on the basis that this occurs within the law-making process”.

Australian Catholic University vice-chancellor and public law expert Greg Craven also supports this kind of modest constitutional amendment.

University of NSW law lecturer Fergal Davis agrees that Twomey’s draft “would not derogate from parliamentary sovereignty in any way’’.

The opinions of these experts contradict Brennan’s claim that the proposal cannot be drafted to respect parliamentary supremacy. In fact, the opposite is true. The proposal respects parliamentary supremacy in a way that no other proposal on the table does, including Brennan’s own suggestions for constitutional change.

Brennan argues for a new preamble to the Constitution, recognising indigenous people’s prior occupation, the “continuing relationship with their traditional lands and waters” and their “continuing cultures, languages and heritage”, plus a new indigenous legislative power framed in similar words.

Unlike Twomey’s proposal, Brennan’s preamble contains imprecise words that would likely be justiciable and could be used by the High Court to interpret the whole Constitution. His proposed power also would entail unpredictable legal consequences. What does “traditional lands” mean? Would parliament lose its power to legislate for non-traditional lands? How would the High Court interpret “continuing relationships”? Would parliament lose its power to legislate for land relationships that have been interrupted? He addresses none of these.

Brennan’s second suggestion is that an indigenous advisory mechanism should be road-tested before being given constitutional status. He cites the Productivity Commission: it has a long-proven track record, he says, but Australians still wouldn’t recognise it in the Constitution. So why would we vote to give indigenous people a constitutional voice in their affairs through an untested indigenous advisory body?

The two bodies are not comparable. Which constituency does the Productivity Commission give voice to? Economists?

The point is to give a constitutional voice to a constituency that was omitted as a legitimate party to the constitutional compact of 1901. A constituency that was denied their sovereignty, denied their property rights, who were sometimes prevented from voting, who were uniquely discriminated against under constitutional arrangements and denied equal citizenship in the new nation, and who for decades have been subject to top-down government policies, often discriminatory, without any constitutional protections of their rights and interests, or any guaranteed say in decisions made about them.

Indigenous people have already waited 114 years for fair inclusion in our constitutional compact. Does a constitutional solution to this problem really need to be road-tested? More to the point, how can you legislatively road-test a proposed constitutional guarantee?

Indigenous people should have a constitutionally guaranteed say when parliament makes decisions about their affairs — not just a legislated one that can be abolished at political whim like the many unsuccessfully road-tested bodies of the past, all of which lacked constitutional status.

Brennan’s injunction that indigenous people should settle for mere symbolism in 2017 in the hopes of another recognition referendum down the track to achieve something better is intellectually dishonest. Once a successful referendum takes off the table the political imperative for indigenous recognition, it will likely be gone forever.

Brennan’s fourth point is who will decide who is indigenous for the purposes of this indigenous voice. How will Australia figure out the difference between a genuine indigenous person and a pretend one? What will happen if there is litigation about this? As Brennan might say: “This shows that the Twomey proposal is justiciable. I’m not scaremongering, you understand. I’m just telling you, it’s all going to be really bad.’’

It is an obfuscating argument.

The Twomey draft amendment would be constitutionally non-justiciable. It deals with parliament’s internal law-making procedures. Courts do not intervene in these. Twomey’s draft retains parliament as its master. Its provisions would be interpreted and applied by parliament, not the courts. No laws could be struck down. It respects parliamentary supremacy.

Brennan, however, says there may be justiciable controversy about indigenous identity in constituting the advisory body. But under Twomey’s drafting, this would happen in legislation, over which parliament would still remain master. Parliament could adjust the legislation to deal with such issues as needed. Twomey’s draft retains legislative flexibility.

Brennan’s argument is undermined by the following observations. The identity issues that would be dealt with in legislation under Twomey’s proposal equally apply in relation to the legislated advisory body Brennan urges we road-test. Yet he does not mention this in relation to his own proposal. Those identity issues also would arise under his indigenous constitutional power, and under any indigenous-specific head of power. Those issues already exist. Indigenous identity must be ascertained for every existing indigenous-specific law or policy. A three-part definition requiring self-identification, descent and community acceptance has operated for decades with little controversy.

Obstacles in way of recognition