Indigenous Rights Protection in Australia: Case Law Review and Reform Suggestions, Slides of Law

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Castan Centre for Human Rights Law

Monash University

Melbourne

Submission to the Panel on Indigenous Constitutional

Recognition

September 2011

Prepared by Melissa Castan

Introduction

This submission examines some of the constitutional deficiencies in the protection of Indigenous peoples' rights, in order to demonstrate the real need to grasp the opportunity offered by the ‘constitutional moment’ and reform our foundational document. Then, it considers the problems with the races power (s 51(xxvi)), and the need to replace it with a clear federal power to make laws for the benefit of Aboriginal and Torres Strait Islander peoples. Suggestions for a ‘non- discrimination’ clause are then considered. Finally the option of an agreement- making power is discussed. This submission makes only passing mention of the issues of altering the preamble, achieving citizen engagement, and the modern referendum process. These are important issues but we are unable to address them fully in this submission.

Does the Constitution Protect Indigenous Rights?

Our Constitution currently fails to safeguard the basic human rights standards that we might (mistakenly) assume are recognised and enforced. The federal Constitution generally expresses protection for few fundamental rights and freedoms, and even those that are expressed provide fairly weak protection because of the limited scope given to the relevant sections by the High Court.^1 Aboriginal and Torres Strait Islander people have 'borne the brunt' of this neglect, and been 'marginalised by both the terms and effect of the Constitution'. 2 The consequences of the absence of express constitutional protection of human rights were highlighted when the Federal Parliament enacted the Northern Territory National Emergency Response Act 2007 (Cth). This Act was explicitly discriminatory against the Aboriginal people of the Northern Territory, contrary to International Human Rights standards (such as in the Convention on the Elimination of All Forms of Racial Discrimination )

(^1) Sarah Joseph and Melissa Castan, Australian Constitutional Law: A Contemporary View 2010. Chapter 12. Many aspects of this submission are drawn from the ideas expressed by the authors in that book, particularly chapter 14, and from Melissa Castan “Constitutional Deficiencies in the Protection of Indigenous Rights: Reforming the 'Races Power'” (2011) Indigenous Law Bulletin Special Edition (forthcoming). 2 Megan Davis and Dylan Lino "Constitutional Law and Indigenous People" (2010) 7 ILB 3.

strong suggestion that the Commonwealth has plenary power over the people of any race, so as to make laws for those people, whether those laws are entirely, or partially beneficial, or even detrimental. Limitations to the ‘race power’ may be construed from the requirement within the head of power that ‘special’ laws for ‘the people of any race’ be necessary ,^10 and from consideration of the underlying benevolent intentions of the electorate in 1967 (at least with regard to laws affecting Indigenous Australians). But the High Court in Kartinyeri v Commonwealth (1998)^11 resisted an interpretation of the race power as restricted, or permitting laws which only benefit the people of the particular race.

In Kartinyeri no majority emerged on that crucial beneficial/detrimental law issue.^12 Three Justices (Brennan CJ and McHugh J, with Gaudron J agreeing on this point) found the Bridge Act was a partial repeal of the Heritage Protection Act , as its effect was in part to reduce its scope. As the Heritage Protection Act was indisputably a law validly enacted under s51(xxvi), the same head of power could support its whole or partial repeal (thus illustrating the principle that what Parliament can enact, it can repeal, in whole or in part). 13 On this point, Brennan CJ and McHugh J stated (at356):

Once the true scope of the legislative powers conferred by s 51 are perceived, it is clear that the power which supports a valid Act supports an Act repealing it.

This decision meant that these three Justices did not need to consider the scope of s 51(xxvi); Gaudron J still did deliver some obiter views on that issue.^14

Gummow and Hayne JJ, also in the majority, did not accept the ‘repeal’ argument, but did find the law validly enacted under s51(xxvi).^15 Kirby J did not agree that the

so there was no need to consider whether s 51(xxvi) authorised the enactment of detrimental laws. (^10) Koowarta v Bjelke-Petersen (1982) 153 CLR 168. (^11) Kartinyeri v Commonwealth (1998) 195 CLR 337. The background to this case is intricate, as explained in Joseph & Castan, above at n5, chapter 14. (^12) Only six Justices sat, as Callinan J excused himself, having previously given advice as legal counsel to the government on the validity of the Hindmarsh Island Bridge Bill 1997. Kirby J wrote a dissenting judgment. 13 See Peter Johnston and James Edelman, 'Beyond Kartinyeri: drawing the flame close to Wik' (1998) 14 1 Constitutional Law and Policy Review^ 41, 42. 15 (1998) 195 CLR 337 at 365-367. Gummow and Hayne JJ found that only laws that expressly repeal certain provisions of a prior Act can be presumed valid on the basis of the “repeal” argument. The Bridge Act did not show a

Bridge Act was a simple repeal of the Heritage Protection Act , and found it invalid. Thus, Gaudron, Gummow, Kirby, and Hayne JJ all considered the scope of s 51(xxvi), dividing on whether s 51(xxvi) only authorises laws for the benefit of the people of a race or, in the alternative, for the benefit of the people of the Aboriginal race. Gummow and Hayne JJ suggested that the power could be used to impose a disadvantage on Aboriginal people, while Gaudron and Kirby JJ disagreed with them.^16

The case illustrates the tendency of the High Court to adopt quite divergent interpretive approaches to constitutional issues, and how those various judicial interpretations can lead to a diminution of Indigenous rights. Notably Kirby J in dissent found the law to be beyond the scope of the race power because it was detrimental to Indigenous people by reference to their race. He said (at 417);

The purpose of the race power in the Australian Constitution, as I read it, is therefore quite different from that urged for the Commonwealth. It permits special laws for people on the grounds of their race. But not so as adversely and detrimentally to discriminate against such people on that ground. Kirby J also referred to the proper place of human rights standards drawn from comparative or international law in assisting the resolution of constitutional ambiguities.^17

In Kartinyeri, when the validity of a modern law having detrimental impact and clearly based on distinctions of race was raised, the High Court failed to interpret the races power in the Constitution so as to protect Indigenous people from overt racial discrimination.^18 This demonstrates the need to reform s 51 (xxiii) in order to redress the ‘detrimental’ interpretation of the Constitution.

Notably, in his final judgment prior to his retirement Kirby J expressed his palpable frustration at the position adopted by the High Court in Kartinyeri , and the

16 textual repeal, and therefore needed to be independently characterised under s 51(xxvi). The different perspectives of the Justices are examined in detailed in Joseph and Castan above n 5 chapter 14. 17 See Kirby J, in Newcrest Mining (WA) v Commonwealth (1997) 190 CLR 513, 657 ff, and for the contrary view, see McHugh J in 18 Al-Kateb v Godwin (2004) 219 CLR 562, 578. See also the discussion in Jennifer Clarke, Patrick Keyzer and James Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary (8th ed, 2009), 271-279.

decision regarding the constitutional validity of either Act has emerged.^22 This uncertainty regarding the scope and stability of s 51(xxvi) has led to considerable uncertainty as to the validity of these Acts and others, for both lawmakers and the parties regulated by such laws.

Just Terms

Another head of power that is particularly relevant to the consideration of Indigenous people in the Australian Constitution is the ‘just terms’ requirement for Commonwealth acquisitions of property, found in s 51 (xxxi). This section has two aspects: it confers power on the Commonwealth to acquire property for certain purposes, and it limits the Commonwealth’s acquisition power by requiring that such property can only be acquired on ‘just terms’.^23

The jurisprudence on this area of constitutional law is complex, and somewhat unstable, in that predicting the outcome of disputes that come before the High Court is difficult.^24 Indigenous claimants have invoked this section to resist Commonwealth dealings with traditional country, asserting that there has been an ‘acquisition’ and thus a requirement for ‘just terms’.^25 This aspect of the so-called ‘Northern Territory Intervention’ came under constitutional challenge in the Wurridjal case, in particular whether the Northern Territory National Emergency Response Act 2007 satisfied the 'just terms' part of s 51 (xxxi) of the Constitution.^26 The Emergency Response Act granted a five year statutory lease to the Commonwealth over property previously granted in fee simple to Aboriginal Land Trusts under the Land Rights Act , and also abolished a system of access by permit operating on Aboriginal Land Trust land.

The Majority in Wurridjal found these measures amounted to ‘acquisitions of property’ under s 51 (xxxi), and also found that ‘just terms’ were provided for those

22 The scope of s51 (xxvi) did not arise in Wurridjal v Commonwealth (2009) 237 CLR 309, which

23 dealt with the scope of s51(xxxi) and s122. 24 See Joseph and Castan above at n 5 at 384 ff. 25 Ibid, 384-406. 26 See for instance^ Nelungaloo Pty Ltd v Commonwealth^ (1948) 75 CLR 495. The details of this case are explored by Joseph and Castan, above n 5 at 386, 405, and in greater detail by Sean Brennan ‘Wurridjal v Commonwealth The Northern Territory Intervention And Just Terms For The Acquisition Of Property’ (2010) 33 Melbourne University Law Review 957.

acquisitions. The Court also overturned the old case of Teori Tau v Commonwealth^27 and found that the just terms requirement of s51 (xxxi) does apply to s 122 of the Constitution. However, the judicial interpretation in that case of ‘just terms’ has not adequately explained what might be ‘just’ for Indigenous traditional owners, or how a requirement to meet the Commonwealth in court to argue about reasonable compensation could be considered fair terms.^28 In addition, the 'just terms' requirement of the Constitution does not control the States in their acquisition of property; since most extinguishment of Indigenous native title comes about by State governments making grants inconsistent with the Native Title holder's interests, the constitutional requirement of 'just terms' is a frail shield.^29

Necessary Changes

When former Prime Minister Kevin Rudd made a formal apology to the stolen generations his actions were widely acclaimed as an acknowledgement that was long past due, and of significant value.^30 Although the Apology did not seek to directly address any of the constitutional or legislative deficiencies residual in our legal system, it did hold great symbolic and therapeutic meaning, not only for those to whom the Apology was directed, but for many in the broader Australian community. We suggest that the time is well overdue to modernise and reform our Constitution to reflect the reality of prior Indigenous ownership, custodianship and sovereignty of Australia, as well as recognition of rights of equality, non–discrimination and difference.^31 It is important to find the right balance between identifying appropriate constitutional reform, and communicating the importance of the reform message to the wider Australian community. To remedy the injustices and omissions of the past, the

(^27) (1969) 119 CLR 564. (^28) See further Sean Brennan ibid. (^29) Sean Brennan "Native Title and the Acquisition of Property under the Australian Constitution" 28 Melb University Law Review 30 28 (2004). See ‘Australia, House of Representatives, Parliamentary Debates (Hansard), 13 February 2008, 167-173 (the Hon K M Rudd MP, Prime Minister). We note that Kirby J considered the Apology not to be 'legally irrelevant'; see Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 at 70. 31 Further matters of substantive economic and social inequality, such as standards of health, education, housing and employment still must be addressed, and programs to meet these needs are still of course critical. See Melissa Castan, “Reconciliation, Law, and the Constitution”, in Michelle Grattan (ed), Reconciliation (Bookman Press, Melbourne, 2000), pp 202, 206.

balance, rather than the federal or provincial parliaments.^36

The inclusion of specific Indigenous rights in the Australian Constitution would be appropriate and would strengthen the validity and integrity of our constitutional system. They would also be consistent with our approval in 2009 of the United Nations General Assembly Declaration on the Rights of Indigenous Peoples. 37 However, we recognise that such clauses will not easily attract the requisite multi-party backing or popular support needed to generate the ‘double majority’ demanded by s 128 of the Commonwealth Constitution.

Substantive Reform

There are some aspects of constitutional recognition of Indigenous Australians that are more than merely symbolic, long overdue and very achievable. To make the Commonwealth legislative powers work effectively for Aboriginal and Torres Strait Islanders, a change to Section 51 is needed. Section 51(xxvi) could be altered to authorise the Commonwealth to make special laws only for the benefit of any race, but then we would still be reliant on the High Court’s interpretation of ‘benefit’, a value judgment that the High Court is not always ready to embrace.^38 It would be preferable to amend that section to explicitly grant the Commonwealth the power to make laws “with respect to Aboriginal and Torres Strait Islander people” (it seems it has only ever used the races power regarding Aboriginal and Torres Strait Islander people so far) so as to avoid the possibilities of discriminatory laws ‘for’ Indigenous people.

It is not sufficient to simply delete s 51(xxvi). If the section were repealed and no positive grant of power to make laws for Aboriginal and Torres Strait Islander people replaced it, the very issue the 1967 referendum sought to redress would arise again and the Commonwealth would face a deficit of legislative power. The

(^36) Sparrow v The Queen (1990) 1 SCR. 1075. Importantly the Canadians have also recognised the inherent Aboriginal rights to self-government, and thus negotiate with Canadian Aboriginal communities to achieve genuine self-determination. 37 United Nations General Assembly Declaration on the Rights of Indigenous Peoples, adopted in 38 2007, (A/RES/61/295). See Leask v Commonwealth (1997) 187 CLR 579 where the High Court explained the appropriate use of proportionality tests in the characterisation of Commonwealth laws.

Commonwealth is not likely to be able to rely on other heads of power, such as the External Affairs power, to compensate for that deficit. Nor can we leave s 51(xxvi) as it is, but add a clause prohibiting discrimination on the basis of race or ethnic origin. This would be unsatisfactory, for we would be left with a ‘race’ power and a prohibition on making racially discriminatory laws – this would be an inconsistent and incoherent use of the concept of ‘race’. Thus the removal of s 51(xxvi) must be accompanied by a positive grant of power to make laws for Aboriginal and Torres Strait Islander people.

A Prohibition on Racial Discrimination

To ensure the Commonwealth makes only ‘beneficial’ laws, there must be a constitutional prohibition on racial discrimination inserted, perhaps sitting in place of the deleted s 127. As Mick Gooda rightly said:

… if Australians were aware that their Constitution did not protect its citizens from discrimination, the nation would take collective action to bring about reform to enshrine the principles of non-discrimination and equality.^39 Many Constitutions contain such guarantees against racial discrimination,^40 and this would be consistent with Australia’s international commitments under the Convention on the Elimination of All Forms of Racial Discrimination , and other human rights treaties. A general ‘equality clause’ is a desirable inclusion in our Constitution that seriously lacks human rights standards. Such a clause would guarantee ‘equal treatment before and under the law, and equal protection and benefit of the law without discrimination’ as found in many comparable nations’ constitutions. However, we recognise that this would present considerable political challenges in terms of achieving approval at referendum, and it goes further than recognising the Indigenous people of Australia.

(^39) Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2010 , Australian Human Rights Commission (2011) 44. Available at: < 40 http://www.humanrights.gov.au/social_justice/sj_report/sjreport10/index.html >. In the Bill of Rights in the South African Constitution, “Everyone is equal before the law and has the right to equal protection and benefit of the law” and has protection from racial discrimination (clause 9). In the Canadian Charter of Rights and Freedoms, section 15 guarantees equal treatment before and under the law, and equal protection and benefit of the law without discrimination.

make such a comprehensive agreement without recourse to a second referendum.^44

Conclusion

The failed referendum on alteration of the Preamble to the Constitution in 1999, and the general difficulty in achieving reform through referenda generally, are often mentioned when constitutional amendment is discussed, and it is always important to consider how the political and social context impacts on any referendum’s success. We can also see that the referendum process itself can have wider, and sometimes unforeseen, impacts in Australia, much as the 1967 referendum result and the national Apology each generated a broad shift in national attitudes.^45 This may also be the time for other worthwhile amendments, such as to the Referendum (Machinery Provisions) Act 1984 (Cth).^46

We urge the Panel and the political leadership in Australia to embrace the opportunity to recognise the special place of Indigenous people in our constitutional and legal framework, and not to allow arguments about timing or political timidity to eclipse the ‘constitutional moment,’ Coherent and concrete changes to our governing legal instrument are now past overdue to properly and accurately meet our contemporary legal requirements, and to positively recognise and reflect our national identity.

(^44) Legal issues regarding a treaty are explored at length in the book by Sean Brennan, Larissa 45 Behrendt, Lisa Strelein, and George Williams,^ Treaty^ (2005). See Melissa Castan, above n 33, 206. See also Bain Attwood and Andrew Markus The 1967 46 Referendum, or when Aborigines didn’t get the Vote^ 1997 Aboriginal Studies Press. As suggested by George Williams in ‘Thawing the Frozen Continent’ 2008 (19) Griffith Review