Submission to the

Joint Select Committee on

Constitutional Recognition of Aboriginal
and Torres Strait Islander Peoples
31 January 2015

Submitted by
Amnesty International Australia

Contact: Stephanie Cousins

Title: Government Relations Manager
Email: Stephanie.Cousins@amnesty.org.au
Phone: +61 434 672 242

About Amnesty International

Amnesty International is the worlds largest independent human rights organisation, comprising
more than seven million supporters in more than 160 countries and over 459,000 supporters in
Australia.
Amnesty International is a worldwide movement to promote and defend all human rights enshrined
in the Universal Declaration of Human Rights (UDHR) and other international human rights
instruments. Amnesty International undertakes research focused on preventing and ending abuses
of these rights.
Amnesty International is impartial and independent of any government, political persuasion or
religious belief. Amnesty International Australia does not receive funding from governments or
political parties.

1. Summary
1.1

Amnesty International welcomes the opportunity to provide this submission on a referendum

to recognise Aboriginal and Torres Strait Islanders Peoples in the Australian Constitution.

1.2

We recognise the considerable consultation and research that has already been undertaken
on this issue by the Expert Panel on Constitutional Recognition of Indigenous Australians
(Expert Panel) and the Joint Select Committee on Constitutional Recognition of Aboriginal
Torres Strait Islander Peoples (Joint Select Committee). This submission responds to key
proposals put forward in the Expert Panels 2012 report, Recognising Aboriginal and Torres
Strait Islander Peoples in the Constitution, 1 and the Joint Select Committees interim and
progress reports in 2014.2

1.3

The Australian Constitution in its current form retains discriminatory clauses which are
sources of concern to Australian people and inconsistent with international human rights
principles. The Australian Constitution must enshrine the rights of all Australian citizens and
utilise language to this effect, including the removal of phrases and sections which run
counter to this principle. The repeal of problematic race provisions from the Constitution
and the inclusion of a new section expressly prohibiting discrimination on the basis of race
would ensure the universal human right to be free from racial discrimination is enshrined in
the Australian Constitution.

1.4

The constitutional reform process represents a critical moment for Australia. Recognition of
Aboriginal and Torres Strait Islander Peoples as the first peoples of Australia, alongside
acknowledgement of continuing Indigenous cultures, languages and connections to land,
may represent an opportunity to bring the Australian Constitution into greater alignment with
the United Nations Declaration on the Rights of Indigenous Peoples.

1.5

Amnesty International notes that a successful referendum on constitutional recognition

depends not only on multi-partisan political support but the approval of the majority of the
Australian population, and in particular Aboriginal and Torres Strait Islander Peoples. In
accordance with the right of Indigenous Peoples to free prior and informed consent, a
necessary precursor to a question being put to the Australian population is a high level of
support for recognition and for the proposed wording among Aboriginal and Torres Strait
Islander people.

Recommendations
1.6

Amnesty International recommends that Australia:

(1) Repeals sections 25 and 51(xxvi) of the Australian Constitution.
(2) Inserts a new section 116A with prohibits discrimination of the basis of race, colour or
ethnic or national origin.
(3) Maintains a peace, order and good governance power to make laws with respect to
Aboriginal and Torres Strait Islander Peoples by inserting a new section 51A into the
Constitution which adequately reflects the aspirations of Aboriginal and Torres Strait
Islander Peoples and is developed in consultation with them.

Recognise, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel,
http://www.recognise.org.au/wpcontent/uploads/shared/uploads/assets/3446_FaHCSIA_ICR_report_text_Bookmarked_PDF_12_Jan_v4.pdf (accessed
3 October 2014).
2
Parliament of Australia, Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander
Peoples: Interim Report, July 2014,
http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_of_Aboriginal_and_Torres
_Strait_Islander_Peoples/Interim_Report/~/media/Committees/Senate/committee/jscatsi_ctte/interim_report/report.pdf
(accessed 3 October 2014); Parliament of Australia, Joint Select Committee on Constitutional Recognition of Aboriginal
and Torres Strait Islander Peoples: Progress Report, October 2014,
http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_of_Aboriginal_and_Torres
_Strait_Islander_Peoples/~/media/Committees/jscatsi_ctte/progress_report/report.pdf (accessed 29 October 2014).

(4) Does not proceed with the proposals contained in section 127A which would codify
English as the national language of Australia.
(5) Adequately support and fund diverse public awareness and education efforts in order to
ensure a successful referendum outcome is achieved.

2. International Legal Frameworks

2.1

International instruments such as the UDHR, the United Nations Declaration on the Rights of
Indigenous Peoples, the International Covenant on Civil and Political Rights (ICCPR) the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and the
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),
provide the international legal basis for Australias domestic policy on Indigenous rights.

2.2

In the context of constitutional recognition of Indigenous Peoples in Canada and certain

European states, the principles contained in these and other conventions have been
extensively incorporated into domestic legislation, forming the basis of recognition of
Indigenous rights.3

2.3

In progressing towards constitutional recognition in Australia, Amnesty International calls on

the Australian government to draw upon the principles encoded in these international
instruments to ensure the Australian Constitution reflects a language of rights.

2.4

Amnesty International holds that amendments to the Australian Constitution must reflect
Article 7 of the UDHR, which states:
All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination.4

2.5

Constitutional amendments must also be consistent with Australias obligations to eliminate

racial discrimination, as enshrined in ICERD, which states:
States Parties undertake to prohibit and to eliminate racial discrimination in all its
forms and to guarantee the right of everyone, without distinction as to race, colour, or
national or ethnic origin, to equality before the law. 5

2.6

With specific reference to Indigenous rights, Amnesty International calls on the Australian
government to ensure that Article 2 of the Declaration on the Rights of Indigenous Peoples is
fully realised in any amendments made to the Australian Constitution:
Indigenous peoples and individuals are free and equal to all other peoples and
individuals and have the right to be free from any kind of discrimination, in the exercise
of their rights, in particular that based on their indigenous origin or identity.6

2.7

The principle of freedom from discrimination prescribed by these articles must underpin the
referendum on constitutional reform. Amnesty International calls on the Australian
government to enshrine a language of rights in the Australian Constitution which protects all
Australians from race discrimination.

Barbara Ann Hocking and Barbara Joyce Hocking, Colonialism, Constitutionalism, Costs and Compensation: A
Contemporary Comparison of the Legal Rights and Obligations of and towards the Scandinavian Sami and Indigenous
Australians, Nordic Journal of International Law 68 (1999): 45, accessed January 6, 2015.
4
rd
Universal Declaration of Human Rights, United Nations General Assembly, 3 sess, UN Doc. A/RES/217(III) A
(adopted 10 December 1948), art 7[72].
5
International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, UN Doc. A/RES/6014
(1966), entered into force 4 January 1969, art 5[3].
6
st
United Nations Declaration on the Rights of Indigenous Peoples, United Nations General Assembly, 61 sess, UN Doc.
A/RES/61/295 (adopted 13 September 2007), art 2[3].

3. Enshrining Non-Discrimination
3.1

Consistent with the international instruments outlined above in 2.4, 2.5 and 2.6, Amnesty
International recommends that the proposed referendum repeals sections 25 and 51(xxvi) of
the Constitution, the so-called race provisions. This is a necessary measure to ensure that
the constitutional amendment process is not undermined by provisions which are
discriminatory and a source of concern to Aboriginal and Torres Strait Islander Peoples.

Repeal of section 25
3.2

Section 25 of the Australian Constitution pertains to any State law which permits the
disqualification of all persons of any race from voting in elections. Historically, section 25
was applied to States which disenfranchised individuals on the basis of race, and was
intended to act as a punitive measure by lowering representative quotas in Federal
parliament.

3.3

While section 25 has not been invoked in recent times, an outdated provision that
contemplates such a discriminatory exclusion should have no place in the Australian
Constitution. The Australian Constitution should not contain provisions which may be
invoked to have a detrimental, discriminatory impact on any community.

3.4

Amnesty International recommends the repeal of section 25 in its entirety.

Repeal of section 51(xxvi)

3.5

Section 51(xxvi) enables the Commonwealth to make laws with respect to the people of any
race, for whom it is deemed necessary to make special laws. The provision is premised on
the outdated notion of race and the discriminatory nature of the language contained in
section 51(xxvi) runs counter to the values of modern Australia. Repeal of section 51(xxvi)
would reform the Australian Constitution to reflect the principle of freedom from
discrimination, providing legislative protection for all Australians.

3.6

In supporting the repeal of section 51(xxvi), Amnesty International calls on the Australian
government to preserve the peace, order and good governance power encoded in section
51, for the purposes of the advancement of Aboriginal and Torres Strait Islander Peoples.
Amnesty International recommends the peace, order and good governance power be
incorporated into a proposed new section 51A (see 4.10 below).

Proposed new section 116A

3.7

Amnesty International recommends that a new section prohibiting discrimination on the

grounds of race, colour or ethnic or national origin be inserted into the Australian Constitution
as part of the constitutional recognition process. Amnesty International supports a new
section 116A as recommended by the Expert Panel and the progress report of the Joint
Select Committee.

3.8

The inclusion of a section which prohibits discrimination would further strengthen Australias
commitment to realising the principles of the UDHR, international human rights treaties and
the Declaration on the Rights of Indigenous Peoples. The inclusion of new section 116A
would not only represent a demonstrated commitment to Indigenous Peoples rights in
Australia, but would increase broader human rights protections for all Australian citizens in
line with Australias international human rights commitments.

4. Recognition of Aboriginal and Torres Strait Islander Peoples

4.1

The discussion surrounding constitutional recognition of Aboriginal and Torres Strait Islander
Peoples occurs in the broader international context of growing awareness and recognition of
Indigenous rights.

4.2

The recognition of Indigenous Peoples status and rights through the mechanism of
constitutional reform has occurred in countries as diverse as the United States, Canada,
Bolivia, Finland and Sweden. While significant variations exist in the legal, political and
historical contexts of each country, as well as in the nature and extent of the constitutional
recognition processes undertaken, there is undeniably an international trend towards formal
legislative recognition of Indigenous Peoples rights.

Insertion of new section 51A

4.3

Amnesty International supports the constitutional recognition of Aboriginal and Torres Strait
Islander Peoples as the first peoples of Australia.

4.4

Amnesty International does not support the proposal that constitutional recognition take the
form of recognition in the preamble of the Australian Constitution. Rather, Amnesty
International recommends that substantive changes be made to the body of the Constitution
through the insertion of a new section.

4.5

Amnesty International supports the proposal that a new section 51A be inserted into the
Australian Constitution. It is imperative that the new section reflect international human rights
principles and the aspirations of Aboriginal and Torres Strait Islander communities.

Content and wording of new section 51A

4.6

Amnesty International identifies two fundamental criteria for the content and wording of
proposed new section 51A. They are:
i.

The use of language which guarantees fundamental protections for Indigenous rights;
and,

ii.

The use of language which has widespread support and acceptance among Aboriginal
and Torres Strait Islander Peoples.

4.7

Amnesty International recommends that new section 51A recognises Aboriginal and Torres
Strait Islander Peoples as the first peoples of Australia; acknowledges the connection of
Aboriginal and Torres Strait Islander Peoples to their land and waters; and recognises the
cultures, languages and heritage of Aboriginal and Torres Islander Peoples. The inclusion of
these tenets will form a constitutional basis for the practical implementation of the
Declaration on the Rights of Indigenous Peoples.

4.8

Fundamental rights identified in the Declaration are implicit in the inclusion of the above
mentioned content of new section 51A. These include rights to distinct political, legal,
economic, social and cultural institutions;7 cultural traditions and customs;8 spiritual and
religious traditions;9 language and education;10 as well as land and natural resources.11

4.9

In turn, the constitutional recognition of these rights contributes to realisation of Article 15 of

the Declaration which states:

United Nations Declaration on the Rights of Indigenous Peoples, art 5[4].

Ibid, art 11[5].
9
Ibid, art 12[5].
10
Ibid, art 1314[56].
11
Ibid, art 2529[78].
8

Indigenous peoples have the right to the dignity and diversity of their cultures,
traditions, histories and aspirations which shall be appropriately reflected in education
and public information.12

Peace, Order and Good Governance provisions

4.10 Section 51 of the Australian Constitution allows the Australian Parliament to legislate for the
peace, order and good governance of the Commonwealth with respect to identified matters.
Amnesty International recommends that in repealing section 51(xxvi), the power to make
laws for the peace, order and good governance of Aboriginal and Torres Strait Islander
Peoples is reinstated under a new section 51A. This would ensure that discriminatory
references to race are removed from the Constitution while the ability of the Parliament to
legislate for the peace, order and good governance of Aboriginal and Torres Strait Islander
people is preserved.
4.11 Amnesty International recommends that the proposed peace, order and good governance
provisions under section 51A must be consistent with the principle of non-discrimination.
4.12 In the event that the proposed new section 116A on non-discrimination is not added by
constitutional amendment (see 3.7 above), Amnesty International recommends the proposed
section 51Abe accompanied by a caveat that these powers may not be employed to
discriminate against or adversely impact Aboriginal and Torres Strait Islander People.
4.13 An existing international precedent for this measure can be seen in section 25 of the
Canadian Charter of Rights and Freedoms which is embedded in the Canadian Constitution.
Section 25 was inserted into the Charter to explicitly ensure that
The guarantee in this Charter of certain rights and freedoms shall not be construed so
as to abrogate or derogate from any aboriginal, treaty or other rights and freedoms that
pertain to the aboriginal peoples of Canada.13
4.14 In taking a similar approach, Australia would be demonstrating a commitment to the rights of
Aboriginal and Torres Strait Islander Peoples as being inextricably linked to the principle of
non-discrimination.

Proposed new section 127A

4.15 Amnesty International does not support the recommendation of the Expert Panel to insert a
new section 127A. New section 127A proposes to formally codify English as the national
language of Australia, accompanied by recognition of Aboriginal and Torres Strait Islander
languages as the original languages of Australia.
4.16 Amnesty International holds that the constitutional changes proposed by section 127A fall
well outside the objectives of the constitutional recognition process. The codification of
English as the national language of Australia is unrelated to constitutional recognition and
runs counter to the rights of Indigenous Peoples to their languages ... and their own names
for places and people, as set out in the Declaration on the Rights of Indigenous Peoples.14
4.17 The insertion of new section 127A would detract from the core issue of the Indigenous rights
and protection from discrimination.

12

Ibid, art 15[6].

Government of Canada, Constitution Act, 1982: Part 1, Section 25, Replaces part of Class 1 of section 91 of the
Constitution Act, 1867, which was repealed as set out in subitem 1(3) of the schedule to the Constitution Act, 1982.
14
United Nations Declaration on the Rights of Indigenous Peoples, art 13[5].
13

5. Towards a Successful Referendum

5.1

Amnesty International recognises that there are a range of perspectives in Australia on the
most effective mechanism through which to recognise the rights of Aboriginal and Torres
Strait Islander Peoples. Constitutional recognition represents an important initial step towards
implementation of Article 38 of the Declaration on the Rights of Indigenous Peoples, which
requires that:
States, in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.15

5.2

Amnesty International notes that a successful referendum on constitutional reform depends

not only on multi-partisan political support but the approval and consent of the majority of the
Australian population, and in particular Aboriginal and Torres Strait Islander people
themselves. In accordance with the right of Indigenous Peoples to free prior and informed
consent,16 a necessary precursor to a question being put to the Australian population is a
high level of support for recognition and for the proposed wording among Aboriginal and
Torres Strait Islander people.

5.3

Provided that a sufficient level of support exists among Aboriginal and Torres Strait Islander
people, public awareness and education will then be crucial to ensuring the multi-partisan
objective of constitutional recognition is achieved.

5.4

A successful referendum outcome will require adequate funding for well-resourced public
awareness campaigns and community education programs which inform and educate
citizens about the nature of the referendum, the high level of support that exists among
Aboriginal and Torres Strait Islander people and the importance of constitutional recognition
for all Australians.

5.5

Amnesty International notes there are a spectrum of views within the Aboriginal and Torres
Strait Islander community about the campaign for constitutional recognition ranging from
strong support and engagement to suspicion and even opposition. For this reason, Amnesty
International recommends that the Australian Government ensure support and funding for
education and awareness raising is provided in an inclusive manner through a variety of
initiatives and partners. This is vital in order to enable diverse groups with an interest in
constitutional recognition to have a voice.

6. Conclusion
6.1

Constitutional recognition is an opportunity for Australia to make tangible progress towards

implementation of the Declaration on the Rights of Indigenous Peoples, and to ensure that
the Constitution guarantees protection against racial discrimination for all Australians.

6.2

Amnesty International supports measures which reflect substantive constitutional change,

recognising the aspirations of Aboriginal and Torres Strait Islander Peoples and
strengthening Australias legislative frameworks to reflect the principles of international
human rights law.

6.3

Constitutional amendments which reflect a language of rights and which safeguard against
discrimination will serve to codify international principles in Australian domestic legislation
and promote a culture of human rights for all Australians.

15

United Nations Declaration on the Rights of Indigenous Peoples, art 38[10].

United Nations Declaration on the Rights of Indigenous Peoples, art 19, UN Committee on the Elimination of Racial
Discrimination, General Recommendation XXIII: Indigenous Peoples (18 August 1997) A/52/18, annex V, Para 5.
16