Aboriginal and Torres Strait Islander Peoples Recognition Act

In determining who the Act is for, the definition of ATSI people must be considered. As this Act does not provide a definition, a review of prior Australian legislative and common law definitions is therefore required. The definition of ATSI people has a long and contentious history in Australia. Even today, two very different definitions are concurrently in use. One, commonly found in Australian legislation, defines Aboriginals as a person who is a member of the Aboriginal race of Australia. The second definition, a three-part test proposed in the early 1980’s by the Commonwealth Department of Aboriginal Affairs, identifies ATSI peoples as being ‘of Aboriginal or Torres Strait Islander descent who identify as an Aboriginal or Torres Strait Islanders and are accepted as such by the community in which they live. ’ The first definition becomes problematic as it fails to establish the sort of evidence required to satisfy it. Advances in the field of human genetics have concluded that there is no meaningful genetic or biological basis for the concept of ‘race’. The second definition presents its own problems, which arise when the Aboriginality of the community doing the accepting is thrown into question. Subsequent case law has further developed the definition of ATSI people, for example in Gibbs v Capewell (1995), Justice Drummond stated that ‘the less the degree of Aboriginal descent, the more important cultural circumstances become in determining whether a person is Aboriginal’. In Eatock v Bolt [2011], Bromberg J considered the extent to which each criteria in the three-part test needed to be deployed, stating that: â€Å"For some legislative purposes and in the understanding of some people, compliance with one or two of the attributes of the three-part test may be regarded as sufficient. † The currently favoured three-part definition may be considered an advancement over earlier colonial definitions of ATSI people, which comprised of derogatory terms such as â€Å"nobel savage† or â€Å"prehistoric beast†. The fact remains however within in Australia, only ATSI people are required to prove their identity. Furthermore, it is Australia’s legislature, comprising of mainly non-ATSI representatives, who are tasked with defining ATSI people, rather than ATSI peoples themselves. Who will benefit The question as to who this Act will benefit requires an examination of what the Act aims to achieve prior to the conclusion of its two year ‘sunset provision’, as well as the longer term aims to which the Act is directed. Parliament has acknowledged that the Act is only an interim step towards recognition of ATSI peoples in the Constitution, and that the Act is not intended to be a substitute for constitutional recognition itself. The Act provides for the recognition of ATSI people as Australia’s first occupants, acknowledges their continuing relationship with their traditional land and waters, and acknowledges ATSI people’s culture, language and heritage. The Act does not create any material or economic benefits for ATSI people. Rather, it aims at building political support for Constitutional reform. As the Australian Founding Fathers paid no attention at all to the position of the Australian aboriginal race, the Act may be of some benefit to the emotional wellbeing of ATSI people as it formally acknowledges their cultural heritage. However, due to the section 5 of the Act, which causes these to cease two years after its commencement, any such benefit will be temporary. Furthermore, as Parliament must hold a successful referendum to effect any Constitutional change, there remains a possibility that Parliament could fail to generate enough support for the amendments it proposes. In that case the Act would have been little, if any, lasting benefit. As Parliament is yet to propose any amendments to the Constitution, it remains unclear who will benefit in the longer term. PART B: Provisions to Bind Future Parliaments The Act provides a process for progressing constitutional recognition of ATSI people into the future. Section 4 (1) of the Act provides that the relevant minister must conduct a review of support for a referendum to recognize ATSI people in the Constitution within 12 months of the commencement of the Act. As the Act commenced in February 2012, and a Federal election is due for the same year, it is likely that this provision will take effect after the election. The question of whether this provision is binding on future Parliaments requires an examination of whether the Parliament has the power do so, and if it does, under what circumstances. Parliamentary Sovereignty Parliamentary sovereignty represents one of the twin pillars of British constitutional law, along with the rule of law, identified by the influential nineteenth century jurist, Alfred Venn Dicey (1835-1922). Dicey defined Parliamentary Sovereignty as essentially being â€Å"the power of lawmaking unrestricted by any legal limit† which gives Parliament â€Å"the right to make or unmake any law; whatever†. However, unlike the United Kingdom, the Australian Parliament is constrained by the Commonwealth Constitution and is therefore not absolutely sovereign In theory, there is a necessary limit to sovereignty. If Parliament were absolutely sovereign to pass any law whatsoever, it could pass laws limiting the power of its successors, and parliamentary sovereignty would be short-lived. In Australia, the general rule is that Parliament is not bound by a previous Parliament. This was supported by the majority in Kartinyeri, who concluded, as Brennan CJ and McHugh J put it, that â€Å"the power to make laws includes the power to unmake them†. Each new Parliament is therefore free to create new laws afresh. The notion that Parliament is not bound by prior legislation is further supported by the doctrines of express repeal and implied repeal. The doctrine of express repeal works on the proposition that a later act of Parliament can be enacted which expressly and clearly repeals an earlier act in its totality. The doctrine of implied repeal states that certain sections of an earlier act maybe accidently or impliedly repealed where the provisions of an earlier act are inconsistent with a later act. The Act in question is not binding of successor Parliaments, and may therefore be amended or repealed as Parliament sees fit. Manner and Form Provisions Australian Parliaments have on occasions sought to affect the power of their successors by imposing special requirements for the passing of some laws. These requirements, known as ‘manner and form’ provisions, are restrictive procedures. They restrict the legislative powers of the Parliament by requiring that laws on certain topics may only be enacted by a special and more difficult procedure. Probably the most common manner and form provision is the referendum requirement whereby, before royal assent is given to the bill, it must be approved by a majority of the electorate. Such a provision reconstitutes Parliament by adding an additional chamber, the electorate. This would provide a difficult hurdle for any future Parliament as only 8 of 44 referendums have been successful in Australia’s history. Although Parliament has not drafted this Act in a way which restricts its amendment or repeal, Parliament could do so by inserting manner and form provisions for this purpose. PART C: The Expert Panel Prior to drafting the Bill, the Federal Labor Government established an Expert Panel on constitutional recognition for ATSI people. Throughout 2011, the Panel engaged with thousands of Australians through submissions, consultations and meetings, to hear the views of a wide cross-section of the Australian community. In January 2012, the Panel published its report where it provided recommendations on the possible forms of constitutional recognition, along with constitutional amendments relating to racial non-discrimination. Constitutional background to this legislation The Australian ‘founding fathers’ paid no attention at all to the position of the ATSI peoples. The Constitution as originally framed in 1901 provided for the exclusion and the discriminatory treatment of the ‘aboriginal race’. There were only two references to ATSI people in the body of the original Australian Constitution: (a) Federal Parliament was denied power to make laws with respect to people of â€Å"the aboriginal race in any State†; and (b) Section 127 provided: â€Å"In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted. † The 1967 referendum, which did away with the discriminatory references in s 127 and amended s 51 (xxvi) to allow Parliament to make laws for ATSI people, was intended to be in the best interests of the Aboriginal people. However, in the case of Kartinyeri v Commonwealth (1998), which was the legal climax of a long political controversy, the majority of justices said that ‘for’ does not require the Parliament to legislate beneficially. The outcome meant that the Australian Parliament were empowered to enact laws that would not only benefit ATSI people, but also discriminate against them. And so, while the 1967 referendum made well-intentioned symbolic changes, the overall legal effect was that the discriminatory attitudes of the Constitution’s founders were retained. One of the principles agreed to by the Panel for its assessment of proposals for constitutional was that a proposal must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples. It could therefore be argued that an Expert Panel, comprised not only of lawyers but prominent ATSI community members, carefully scrutinising the legal ramifications of any proposed constitutional amendments, will make it less likely that constitutional recognition would have unintended outcomes for ATSI people (as in Kartinyeri). Furthermore, Megan Davis, a member of the expert panel, stated that constitutional recognition – whether amendment of a race power or a non-discrimination clause – does not foreclose on the question of sovereignty. The above findings by the Panel, along with its widespread consultation with ASTI people, will undoubtedly play a significant role in addressing the concerns the Australia people may have in relation to the proposed referendum. [ 1 ]. Dr John Gardiner-Garden, Defining Aboriginality in Australia (3 February 2003) Social Policy Group . [ 2 ]. Ibid. [ 3 ]. See, eg, Human Rights and Equal Opportunity Commission Act 1986 (Cth). [ 4 ]. Department of Aboriginal Affairs, Report on a Review of the Administration of the Working Definition of Aboriginal and Torres Strait Islanders (1981), Commonwealth of Australia, Canberra, cited in J Gardiner-Garden, The Definition of Aboriginality: Research Note 18, 2000–01 (2000) Parliament of Australia, 2. [ 5 ]. See above n 1. [ 6 ]. J Graves, The Emperor’s New Clothes: Biological Theories of Race at the Millennium (2001) Rutgers University Press, New Brunswick. [ 7 ]. See above n 1. [ 8 ]. 54 FCR 503. [ 9 ]. FCA 1103 (28 September 2011). 10 ]. Michael Dodson ‘The End in the Beginning: Re(de)finding Aboriginality’ (Speech delivered at the Wentworth Lecture, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1994). [ 11 ]. Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) s 5. [ 12 ]. Explanatory Memorandum, Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 (Cth). [ 13 ]. Above n 11, s 3. [ 14 ]. Geoffrey Sawer, ‘The Australian Constitution and the Australian Aborigine’ (1966) 2 Federal Law Review 17. [ 15 ]. Australia Constitution s 128. [ 16 ]. Ibid. [ 17 ]. Above n 12. [ 18 ]. Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (Thomson Reuters, 3rd ed, 2010) 3. [ 19 ]. A V Dicey, The Introduction to The Study of the Constitution (Macmillan and Co, first published 1885, 1889 ed). [ 20 ]. Ibid. [ 21 ]. Above n 21. [ 22 ]. A Reilly, G Appleby, L Grenfell and W Lacey, Australian Public Law (Oxford University Press, 2011). [ 23 ]. Ibid. [ 24 ]. 152 ALR at [13]. [ 25 ]. See, eg, Vauxhall Estates, Ltd. v. Liverpool Corporation [1932] 1 KB 733. See also Ellen Street Estates Ltd. v. Minister of Health [1934] 1 KB 590 at 597. [ 26 ]. Ibid. [ 27 ]. Above n 24. [ 28 ]. Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (The Federation Press, 5th ed, 2010) 440. [ 29 ]. Ibid. [ 30 ]. Gerard Carney, ‘An Overview of Manner and Form in Australia’ (1989) 5 QUT Law Review 1. [ 31 ]. Ibid. [ 32 ]. Above n 32, 1340. [ 33 ]. Expert Panel on Constitutional Recognition of Indigenous Australians, Canberra, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2012) . [ 34 ]. Geoffrey Sawer, ‘The Australian Constitution and the Australian Aborigine’ (1966) 2 Federal Law Review 17. 35 ]. Asmi Wood, ‘Constitutional Reform 2013: What are we trying to achieve? ’ (2012) 37 (3) Alternative Law Journal 156-160. [ 36 ]. Law Council of Australia, Constitutional Recognition of Indigenous Australians, Discussion Paper (2011) 19. [ 37 ]. Australian Constitution s 51 (xxvi). [ 38 ]. Above n 18, 484. [ 39 ]. 195 CLR 337. [ 40 ]. Pet er Hanks Deborah Cass, Australian Constitution Law: Materials and Commentary (Butterworths, 6th ed, 1999). [ 41 ]. Commonwealth v Tasmania (1983) 158 CLR 1, 110 (Gibbs CJ). [ 42 ]. Above n 35, 158. [ 43 ]. Above n 33.