Putting words to the tune of Indigenous constitutional recognition

The debate about Indigenous constitutional recognition has become more intense in recent weeks. It has taken an interesting turn with Noel Pearson and the Cape York Institute proposing an alternative approach that involves amending the Constitution to create an Indigenous representative body. Under the plan, the Indigenous representative body’s key role would be to consult and provide advice on proposed laws that affect Aboriginal and Torres Strait Islander peoples.

The Cape York Institute first outlined this proposal in two submissions to the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. To date the public debate on these submission has been lacking in clarity and accuracy.

There are varying interpretations of what is actually being proposed. The proposal has been misleadingly described as an “Indigenous House of Lords” or reserved seats.

Father Frank Brennan, while accepting that “an Indigenous council is needed to advise government”, argued that:

At least in the first instance it would be impossible to design a constitutional provision for a council that was technically and legally sound, ensuring the untrammelled sovereignty of parliament.

Taking up that challenge, below is a form of words that could be used to give effect to the Cape York Institute’s proposed constitutional amendment, without compromising parliamentary sovereignty or government efficiency.

As with all first drafts, it will need refinement and development as issues are debated and developed. But sometimes it helps to have a set of words to crystallise what is being proposed, so that those participating in the public debate are not arguing at cross-purposes. The debate can therefore be more focused and productive.

A new chapter 1A of the Constitution

The Cape York Institute proposes the insertion of a new chapter 1A in the Constitution after chapter 1, which deals with the legislature. This new chapter could contain a provision along the following lines:

60A(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.

(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].

(3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of the [body’s] advice to be tabled in each House of Parliament as soon as practicable after receiving it.

(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.

Below is a detailed discussion of each of the sub-sections and how they are intended to work.

Establishment and function of the body

Sub-section 60A(1) requires the establishment of a body and gives it a function. It does not itself establish the body, as legislation will be needed to set up the mechanism for how members of the body are chosen. That mechanism will then need to operate (e.g. by holding an election for members of the body) before it can exist.

Cynics will note that the same opening words are used in section 101 of the Constitution, requiring the establishment of an inter-state commission, which no longer exists. That body was established in good faith by the parliament but ceased to be relevant and functional after a court decision found that it could not fulfil its intended quasi-judicial role, as this would breach the doctrine of separation of powers.

The Indigenous body proposed here does not risk the same fate, as it is not proposed that it exercise any adjudicative functions that could breach the doctrine of separation of powers. The inter-state commission also never had a body of supporters clamouring for its existence, unlike the Indigenous body, which would have a clear constituency that would ensure its creation and survival. If the Australian people approved in a referendum the constitutional amendment for the creation of an Indigenous body, it would have an unassailable public mandate for its establishment and continuity.

Sub-section 60A(1) gives this body a broad function – the “function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples”. It is deliberately drafted in broader terms than sub-section 60A(4). It is intended to permit the Indigenous body not only to comment and provide advice in relation to bills before the parliament, but also to initiate advice on matters that it considers that the parliament or the executive government should address.

The advice provided by this body will be valuable in identifying problems and potential solutions, as well as aiding the parliament in ensuring that its bills are well-considered and most effective in their application to Aboriginal and Torres Strait Islander peoples.

The words “function of providing advice”, while cumbersome, have been used to distinguish the body’s role from one of “advising” the parliament. That is to ensure this is not associated or confused with the very different role of ministers “advising” the governor-general.

The advice of the Indigenous body is not intended to be constitutionally binding. Instead, the Indigenous body would provide advice in the form of wise counsel and representative views that should be given serious consideration, rather than an instruction or the imposition of an obligation. If it is considered necessary to make this even clearer, a different word such as “counsel” could be substituted.

Power to legislate about the body

Sub-section 60A(2) gives the Commonwealth the power to make laws with respect to the composition, roles, powers and procedures of the body. Like other legislative powers conferred upon parliament, it is made “subject to this Constitution”. This ensures that it is subject to other constitutional doctrines, such as the separation of powers.

It would therefore prevent the conferral of judicial functions on the body or roles or powers that would otherwise breach any constitutional implications or express constitutional prohibitions.

It is not appropriate to set out in the Constitution the detail of how such a body is to be chosen. Just as the Constitution leaves it substantially to legislation to determine how members of parliament are elected and the powers and procedures of the parliament, so too this amendment would leave such matters to the parliament to determine, in collaboration with Aboriginal and Torres Strait Islander people.

Tabling the advice

Any advice by the Indigenous body should be tabled for several reasons:

• it provides a permanent public record of that advice,

• it gives the advice the status of a privileged document,

• it provides certainty for the parliament as its members will know and have a formal record of the advice to which they should give consideration and

• it provides a direct channel from the Indigenous body into the parliament, providing a constitutional means for Aboriginal people and Torres Strait Islanders to have a voice in parliamentary proceedings concerning their affairs.

A question arises as to who should be required to table the advice in parliament. One option is to oblige the prime minister to cause it to be tabled in each house. This could be done by a minister representing the prime minister in each house (as is standard legislative practice).

The use of the prime minister would reinforce the status and gravity of the process. It would also have the effect of “recognising” the prime minister in the Constitution for the first time. That would be a timely step in making the Constitution more relevant.

An alternative would be to oblige the Speaker of the House of Representatives and the President of the Senate to table the advice. This would be consistent with existing references to those offices in the Constitution and would distance the advice from the government of the day. Either approach would be appropriate.

Consideration of the advice by parliament

The critical provision in the chapter is sub-section 60A(4). It imposes the obligation on the two houses of parliament of giving “consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples”.

The two main issues are: the scope of the obligation; and the extent to which it imposes an enforceable legal burden on the parliament and therefore has an impact upon its power to make laws.

First, the scope of the obligation is more limited than the function given to the Indigenous body by sub-section 60A(1). While the body can advise broadly on any matters relating to Aboriginal and Torres Strait Islander peoples, and the parliament and executive government can and should take that advice into consideration, the obligation in sub-section 60A(4) is confined to considering tabled advice when “debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples”.

If the parliament is to have a specific power to make laws “with respect to Aboriginal and Torres Strait Islander peoples”, then it is appropriate and justifiable that those peoples are able to express their views to parliament about how such a power is to be exercised.

In practice, this could operate by a minister, in the second reading speech on a relevant bill, drawing the attention of the house to any relevant advice tabled by the Indigenous body and noting the government’s response. Other members and senators would then be free to debate the advice and take it into consideration when voting.

The second question is how to ensure that this provision is not interpreted as a legally enforceable limit on the parliament’s power to enact laws. It would be inappropriate for the Indigenous body to delay or prevent the enactment of laws simply by declining to provide advice.

The key is two-fold. First, the houses are only obliged to consider advice that has been tabled. If no advice has been provided and tabled, then there is nothing the house is obliged to consider.

Hence, the responsibility is on the Indigenous body to provide advice if it wants it considered. Failure to provide advice cannot hold up the process.

Second, the words “debating”, “consideration” and “proposed laws” are deliberately employed to indicate that this is an internal parliamentary process that cannot be interfered with or enforced by the courts. The High Court has, for example, regarded constitutional provisions concerning money bills that refer to “proposed laws” as not being enforceable by the courts as this would interfere with internal parliamentary procedures.

Concerns about the sovereignty of parliament, raised by Frank Brennan among others, can be resolved.AAP/Alan Porritt

The intention is therefore that the issues of whether advice has been considered, the nature of that consideration and the extent of it would be a matter for each house to determine without outside judicial involvement. There would be a political and moral obligation upon members of parliament to fulfil their constitutional role in giving consideration to such advice, but it would be for the houses, not the courts, to ensure that this obligation is met. Contrary to Brennan’s concerns, such an approach would support parliamentary sovereignty, rather than limit it.

This intention could also be made clear in the parliamentary debate on the referendum bills and the official material sent to voters before the referendum, so that it would be apparent on the face of the extrinsic materials that a court may draw upon in interpreting a constitutional amendment.

Why should Indigenous people get special treatment?

The type of constitutional amendment outlined above could not be characterised as creating an Indigenous House of Lords or reserved seats. It is about consulting Aboriginal and Torres Strait Islander peoples about laws that affect them and letting their views be heard in parliament.

This opens up the prospect that laws and policies that have a significant impact upon Aboriginal and Torres Strait Islander peoples will be better targeted and more effective in resolving the problems that they face in daily life. It is therefore an active form of recognition, rather than a passive and merely symbolic one. It is also an ongoing form of recognition, not just words on a page of a document rarely read and soon forgotten.

The question is sometimes asked: “Why should Aboriginal and Torres Strait Islander peoples get special treatment by the creation of such a body, while nobody else does?”

The answer is that it is proposed that the Commonwealth Parliament would have the power to make laws with respect to Aboriginal and Torres Strait Islander peoples, and not any other specially identified groups. Aboriginal and Torres Straits Islander peoples have a distinct constitutional position as Australia’s Indigenous peoples. They have pre-colonial rights to their lands and waters, and cultures, languages and heritage that have endured for millennia.

No other group is in the same position in Australia. The distinct position of Indigenous people cannot be denied and nor can the need for the Commonwealth Parliament to be able to legislate with respect to matters such as native title and heritage. As legislation is directed specifically at matters concerning Aboriginal and Torres Strait Islander peoples, in a way that doesn’t apply to everyone else, it is only fair that they should be consulted and have their voices heard in parliament when those laws are being made.

Anne Twomey receives funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.