Statement on the Interim Report on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples

Mr STEPHEN JONES (Throsby) (17:27): Thank you, Deputy Speaker Porter. Can I say at the outset how pleased I am that you are in the chair, being a member of this committee and somebody who I have enjoyed an interlocution with over the subject matters of this report. As you know, all of those members of the 44th Parliament who represent a major party were elected on a platform which included the bipartisan proposition that it is now time to recognise the Aboriginal and Torres Strait Islander peoples, and their language, cultures and unbroken connection to land, in the founding document of our Commonwealth—that is, our Constitution.

I cannot improve on the words of my friend and colleague Senator Nova Peris, who explained that in this act of recognition we do not ask that Australians relinquish 200 years of settlement and that history, but rather we join to that over 40,000 years of continuous Aboriginal history. Nova is a renowned Australian and the first Aboriginal woman to be elected to our federal parliament. She is a powerful advocate and tells a poignant personal story on the importance of recognition. Nova is the first Indigenous woman to be elected to the Australian Senate.

As you would know, it took over 70 years from the time of Federation for the first Aboriginal Australian to enter the federal parliament as a member of this place. On 8 September 1971, that first Aboriginal Australian to take up a seat, Senator Neville Bonner, made his first speech to parliament. In that speech he made the following observation:

Less than 200 years ago the white man came, I say now in all sincerity that my people were shot, poisoned, hanged and broken in spirit until they became refugees in their own land. But that is history and we take care now of the present while, I should hope, we look to the future. Following the advent of the white man came a transitional period which still exists today. Then began to appear the emotional scars; the psychological wounds became a torment from which by and large we have still not recovered.

That was in 1971 and it is well known to most members in this place that we have still not completed the task of reconciliation. Those wounds have still not been healed. I have chosen Neville Bonner because he was the first Aboriginal senator in this place. I could equally have quoted from scores and scores of Aboriginal and Torres Strait Islander people who have told their story in very moving ways about the impact that settlement has had, the impact of dispossession and the impact on our first peoples' cultures, their livelihood and their psyche. I was very moved when I again read the 2008 contribution of Galarrwuy Yunupingu, who spoke of the fact that he has met and discussed this issue with every Australian Prime Minister from Gough Whitlam to the present, and how it is his deep concern that we resolve this issue of constitutional recognition.

The simple objective of recognition is slightly more complicated when we attend our focus to the text of the Constitution. It is a resilient document which has been interpreted flexibly over the past 114 years, but there are some sections which cannot be reinterpreted as anything other than racist in their intent. Section 25 is one such section. It contemplates the race-based exclusion of people from the electoral roll for state or federal elections. It is inconceivable that we might address the subject of recognition of Aboriginal and Torres Strait Islander peoples without addressing this racist remnant within our Constitution. As the report states, there is clear agreement on the removal of this clause.

The second issue that we need to attend to is a clear statement of recognition, and in this the obvious task has been aided by the work of the expert panel who have handed down a report which the JSC has had the benefit of relying upon. There are forms of words within there, and within the interim report of the JSC, which I think all parliamentarians can attend their mind to and around and around which we will find agreement.

That is the first two of three tasks that need to be completed in the act of recognition, the first being the removal of racist clauses and the second being the inclusion of a statement of recognition. But the expert panel recommended—and I agree—that we need to do one further thing. I argue that we need to go further and include within the proposition to be put before the Australian people a clause which would prohibit henceforth the Commonwealth parliament from passing legislation which discriminates against people on the basis of their race. I argue that the members of the government and their supporters within the community should support this constitutional protection against discrimination, and I believe that it is entirely consistent with liberal and conservative philosophy. A failure to do that—to support the protection of this right—is a denial of fundamental liberal values, the first of which—which those on the conservative side of politics have long held dear—goes to the primacy of the rights of individuals. Governments, it is argued, should only do what individuals cannot do and should tread warily when interfering with the rights of individuals that are recognised by all civil societies. Liberals have long imagined a society built upon the primacy of those rights of individuals—the rights to property untrammelled by interference from government, the rights of freedom of speech and the right of freedom against arbitrary detention without trial. Our Constitution protects some of these but not all of them. I also argue that the protection against discrimination on the basis of race is one of these rights that liberals have always championed.

The second reason I argue that this is consistent with liberal philosophy goes to a consistent thread of liberalism from the founding of the Liberal Party and the conservative parties to this date—that is, the fact that there should be reasonable restraints upon governmental power. No government and no parliament should have unlimited power to legislate in ways that interfere with the liberties of its citizens. This is a point that is made with special force in societies that have sought to federate their governmental powers as a check and balance against central government. The constraints are underpinned by social norms, by democratic representation and by the rule of law—but, importantly, these powers should also be constrained by that constitutional protection against those forms of discrimination that I contemplate.

The third point is this: the protection of the rights of the minority against the majority. Whether it is in the field of workplace relations, in business or in public debate, liberals and conservatives have always sought to guard against the tyranny of majoritarian rule. It is why our founding fathers created a Senate and gave small states equal representation of senators to the larger states; it is why our Constitution contains numerous protections that were created out of concerns that the larger states would dominate the smaller ones; and it is why, in classic conservative philosophy, there is an emphasis on restraining the power of the strong against the weak.

I argue that a further protection should be the protection of individuals of a particular race, whether they are a majority or a minority, against discrimination. It is no answer to this to say that those protections should be maintained by the popular vote and through the democratic process of representative government. It is why a true liberal and a true conservative should be attracted to the notion that the right of an individual should not be determined by their race, no matter whether that individual is a part of an overwhelming majority or a tiny minority. Some may argue, and they have, that this right is already protected by federal laws—and this is true—but the fact is that the federal law does not constrain the federal parliament, as this change would contemplate. I argue simply this: those who argue that the federal parliament should be able to discriminate against people on the basis of race have an onus upon them to explain why that should be so.