Constitutional Recognition of Aboriginal and Torres Strait Islander peoples

Mr STEPHEN JONES (Throsby) (17:57): It is my great pleasure to speak in relation to this the third and final report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. It has been my great honour to serve as a member of that committee in this the 44th Parliament. The debate has a long history. For almost five years we have been to repeating this matter, within the Commonwealth parliament, in its current form. It has been a long time but nowhere near as long as the Aboriginal and Torres Strait Islanders have occupied this land, the land of Australia, and that goes to the heart of what we are talking about here.

In January 2012 the expert panel handed down its final report after exhaustive consultation. Over 250 consultations were conducted by the expert panel. They handed down a very good report, which has been the touchstone for us who travelled the country and dealt with the joint select committee's deliberations on this matter. The committee had its origins in the resolution of this parliament in December 2013. The remit of the committee was to come up with a proposition that would meet the needs of constitutional recognition of the first Australians, be capable of gaining widespread support throughout the nation, across all sides of politics, and be successful at a subsequent constitutional referendum.

We have troubled on these things for quite some time. Through our consultations it has become quite clear to us that there are three things that are embraced by the concept of constitutional recognition. The first is, by and large, not controversial. It is: how do we craft a set of words that can be inserted in the Constitution, at the appropriate place, which recognise 40,000 years of continuous occupation, a continuous culture, of the Aboriginal and Torres Strait Islander people of this country. And I think we have come pretty close to crafting a form of words—they are included in the report—which meet that requirement.

Of course, if we are going to the trouble of visiting the matter of the place of our first people in our Constitution then it behoves us to look at the provisions within it which offend the very thing which we are attempting to remedy—that is, those provisions within the Constitution which on their very face are discriminatory. When we turn our minds to that, clearly section 25 of the Constitution must go. I think it would surprise most Australians, even constitutional conservatives, to know that our Constitution specifically contemplates a circumstance where the states, on their electoral rolls, could deny certain people the right to vote based on nothing other than their race. Indeed, if states were to deny persons the right to vote based on their race, it would follow that those people would be excluded from a vote at a Commonwealth election as well. I think it would not only offend but also surprise most Australians to know that there is a provision such as this in our Constitution. So when we are setting ourselves to the task of inserting the recognition of Aboriginal and Torres Strait Islander people within our Constitution to address past discrimination, we must also extend ourselves to the task of removing those offensive provisions.

I think there is agreement on all sides of the House, and broadly within the Australian community, to those two propositions—that is, inserting a statement of recognition and removing the offensive provisions within the Constitution. But there is a third task that needs to be attended to as well, and that is: how do we ensure that the crimes of the past are not repeated by future generations? How do we ensure that we are able to put within our Constitution a remedy for the sins of the past? We do not have to go that far back into our nation's short history to see some of the sins of the past. I listened very carefully to the member for McMillan, who gave a thoughtful contribution—as he normally does—in this debate. He talked about the man after whom his seat is named, who was involved in what we would today describe as an act of genocide. But you do not have to go back that far. We have had instances of generations of children being removed from their families for no reason other than their race. We have had instances that have been brought to the highest courts in this land where people have been denied the right to purchase land for no reason other than their race. In my own area, I speak to some of the elders. They tell stories of their parents—or even themselves in their young days—being denied the right to shop in certain shops. And in the movie theatres there was a roped off area they had to sit in because blacks were not allowed to mix with white Australians when they went to the movies.

In a whole range of areas of Australian life, from education to employment, Aboriginal Australians were discriminated against. Of course, up until 1967 they were denied the right to vote. We had been a democratic nation for a full 67 years, but we had overlooked the democratic rights of the first Australians. But these were not only acts of a sovereign government, for the most part; these acts were not only permitted but contemplated by our Constitution. We know that from the decision of the High Court in the Kartinyeri case, otherwise known as the Hindmarsh Bridge case. In that decision, the majority of the High Court determined that the Constitution contemplated the sorts of discrimination against Aboriginal and Torres Strait Islander people that the plaintiffs were there complaining about.

So the third and final issue that we have grappled with, and which we have not yet found a landing on, is whether the Constitution should provide a restraint on the capacity of parliament to discriminate against people on the basis of race. This is something that people on this side of the House think we should do. And we argue that those who oppose such a proposition should make the case about why a sovereign government should have the right to discriminate against a group of people for no reason other than their race. We think, for the most part, that this offends our basic human rights. There are not a lot of rights that are recognised within the Constitution. It is prohibited for the Commonwealth to remove property without just compensation, but in our Constitution as it currently stands it is perfectly lawful for you to discriminate against somebody on the basis of their race. I argue that this should be the third limb of a proposition to alter our Constitution. And we need to find within ourselves something that we can all agree upon—a way that we properly restrain parliament from discriminating in a way that I think most Australians would agree was offensive.

In the time I have left, I want to focus on this one point. It is, across the chamber, widely agreed that we need to do this. I take the Prime Minister at his word when he says he is truly committed to constitutional recognition. But it is unfair of us as a parliament to ask the people of Australia to focus on something if we as a parliament have not focused upon it. That is why the committee recommends that both houses of parliament set aside a full day to debate the issue of constitutional recognition. And I think we would find that that would be one of the finest debates we have ever enjoyed within this house. We welcome the fact that the Prime Minister has finally agreed to conferences about our first people. I think this is an important step too.

But I finish on this point: it is simply unrealistic—nay, it is unfair—for us to ask the people of Australia to focus on something if the Prime Minister himself has not focused on it. For that reason, we ask that the Prime Minister shift this issue—this critical issue—to the top of his interests.