Aust Constitution

This is a guest post by Darwin-based lawyer, Matt Punch.

A campaign is kicking-off to add a proposed section 116A to the Australian Constitution. The proposed section 116A will actually have an opposite effect to what people think it will: it removes an existing safeguard and risks entrenching the superstructure of separate racially based laws and policies governing remote Aboriginal lands and people. What we really need to do is have a look at racial discrimination in our law and policy–as it exists–for Indigenous Australians.

Writing in the July 6 2015 edition of The Australian, Joe Morrison, CEO of the Northern Land Council, issued a clarion call for the electorate to accept constitutional change that would prohibit racial discrimination. Indigenous Australians, he wrote, are owed more than gestures and “want explicit protection from racial discrimination enshrined in the Constitution”. Similar sentiments are commonly expressed by progressive Australians. A secondary campaign has rapidly jumped on the back of the proposed ‘recognition’ amendments to our Constitution. This campaign supports a new section 116A of the Constitution and wants it to be considered at a referendum in 2017.

In response, conservative commentators are increasingly fearful of what is proposed. For example, writing in the December edition of Quadrant, John Bryson Q.C. stated that the proposed section 116A would effectively be:

…a short-form Bill of Rights: not any stated rights but of whatever rights ingenuity could breathe into the concept of discrimination.

Neither camp has got this right.

For some of us who support the constitutional recognition campaign, the current ‘add-on’ campaign for placing the proposed section 116A in the Constitution somewhat accidentally brings to the foreground the need to confront racial discrimination as it currently exists in Australia.

It is not proposed to eliminate racial discrimination from Australia’s laws and policies by the proposed change to our Constitution. Rather—and I’m sure most Australians would find this surprising–the proposed change to insert section 116A would remove safeguards and creates the risk of entrenching racially discriminatory laws currently affecting Indigenous Australians –many of those laws being, in whole or part, of questionable standing or necessity.

What is proposed?

First proposed in the Expert Panel Report in 2012, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples Final Report (June 2015) (Joint Committee Report) recommends inserting into the constitution section 116A titled ‘Prohibition of racial discrimination’.

116A Prohibition of racial discrimination

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.

(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group;

Proposed section 116A includes subsection 116A(1) which would prohibit discrimination on the grounds of race. However, it also includes subsection 116A(2) which explicitly provides that the prohibition does not preclude laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

This legislative power as proposed in subsection 116A(2) is a far wider power to implement racially discriminatory laws and policies than is permitted by our existing Racial Discrimination Act (the RDA).

Currently, a safeguard exists through section 8 of the RDA which references the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention). “Special Measures” of racial discrimination are allowable, but only on the following basis (Article 1(4) of the Convention):

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

For modern Australia, the key phrase in the definition is “provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups”. This is a protection from explicit systems of racial segregation – think apartheid or Jim Crow laws – but also a safeguard from ostensibly beneficial laws and policies of racial discrimination which become permanent and effectively divide the rights of a country’s citizens by race.

International law thus demands that racial discrimination should only be countenanced in the strictest manner, within clear limitations and with a clear expiry.

Yes, it is lawful and reasonable to make racially discriminatory laws and policies in certain circumstances. Those“special measures” circumstances have been, and are often, present with respect to Indigenous Australians. But those laws or policies must nonetheless not lead to a permanent distinction between people’s rights due to race. It is worth remembering that “special measures” are a small exception to a blanket prohibition. The purpose (and name) of the Convention, implemented by our RDA, is to eliminate racial discrimination.

There is no safeguard in section 116A from permanent laws and policies creating or effecting racial discrimination. There is no demand that all racial discrimination must be eliminated.

This should be deeply troubling but has largely escaped discussion.

A Home or a Prison?

Once started on a course of racially discriminatory special measures, it rapidly gets tricky to identify where “beneficial” ends and “detrimental” begins. The horrific enforced removals of the Stolen Generations were said to be by some at the time for the benefit of those Aboriginal people removed. The Northern Territory National Emergency Response Act 2007 (Cth)–known commonly as “The Intervention” and widely derided by many as racist–originally contained section 132(1) explaining that the racial discrimination enacted was for the benefit of Aboriginal Territorians:

The provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.

Indeed, any quick glance at a list of Commonwealth legislation and its explanatory memoranda will show up many statements that are more or less the same as the above.

Any legislation passed by our parliament which creates racial discrimination between Indigenous and non-Indigenous people is always apparently for the benefit of Indigenous people. The truthfulness of these statements are almost never questioned and there is no rigorous analysis applied as to whether the special measures criteria is actually met.

We seem to have no perspective on what we actually legislate. Stan Grant, for example, recently noted that the Australian Law Reform Commission records 67 different definitions of Australian Indigenous people. But he didn’t take it a step further: a definition of Aboriginal or Indigenous arises because we make laws or policies that discriminate between Indigenous and non-Indigenous people. As Grant’s enumeration makes clear, this is not uncommon. Yet the Joint Committee Report can confidently state, “racial discrimination has no place in modern Australia, nor in the decisions of its parliament” (at 5.83).

Instead of distinguishing between Australians on account of race, we should be considering whether our special measures are of the required legal character. Further, and perhaps more importantly, we have a duty to consider all laws and policies we already have in place and to rid ourselves of those that have led to separate rights for different racial groups. Indeed, Justice Brennan, one of the great native title and land rights judges, noted in the Gerhardy v Brown [1985] HCA 11 case that even land rights legislation–sanctified by progressives everywhere as legislation that has redressed many wrongs–raises very real racial discrimination concerns:[4]

… an Aboriginal community would not be advanced by granting them title to land to which they would be confined against their wishes. Such a grant would be a step towards apartheid. Even if the promoters of the measure had the purpose of promoting the interests of the residents of that land, the measure would deny the residents’ human rights and fundamental freedoms (see pars.128-131 of the Namibia (S.W. Africa) Advisory Opinion of the International Court of Justice: I.C.J. Reports 1971, p.16, at pp.56-57).

The difference between land rights and apartheid is the difference between a home and a prison. Land rights are capable of ensuring that a people exercise and enjoy equally with others their human rights and fundamental freedoms; apartheid destroys that possibility

Considering racial discrimination based on the example of a home and a prison is a good way to approach the concept. A person can come and go from a home, sell or rent the home, even destroy the home and rebuild there or somewhere else. A prison is the opposite – a person is trapped; the prison immovable and permanent.

The problem with section 116A is that it does not restrict special measures legislation and policy from becoming permanent racial segregation.

Section 116A is no protection from turning homes into prisons.

Any racial discrimination for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group can stay on the books, without any limitation.

Racial Discrimination as it exists in Australia

One of the reasons the flaw in the wording of section 116A matters so much to modern Australia is that it must be open to question whether we already have created some “prisons” of permanent racial discrimination out of our special measures.

What has occurred in Australia over the past few decades—thankfully–is the dismantling of the apparatus of Federal, State and Territory governments that treated Aboriginal Australians as lesser than other Australians.

However, in its place, and in the name of advancement or protection or fairness or ‘beneficial goals’, we have created another superstructure of funding, legislation and policy that is racially discriminatory in its object and effect. People may know of, or have dealt with, some of the laws and policies that make up this superstructure–matters like native title, land rights, specific Indigenous heritage laws, exemptions in fishing or flora/fauna laws, or specific Indigenous child protection standards to avoid repeating the Stolen Generations.

Parts of the above mentioned superstructure are obviously in line with the RDA and the Convention. The recognition of native title, for example, is heavily linked to the RDA.

But many aspects of this superstructure are now increasingly questionable as “special measures”. Many current policies and laws possibly contravene the Convention because they have created and entrenched permanent separate rights on the basis of race – as foreshadowed long ago in the above-quoted High Court case Gerhardy v Brown [1985].

The historic Land Rights laws in the Territory and South Australia have become permanent systems which mandate different legal rights for, and restrictions upon, Aboriginal people effectively because of race. Why, for example, are traditional Aboriginal owners of Aboriginal freehold land–which makes up 50% of the Northern Territory land mass–not entitled to subdivide, or mortgage, or sell their land like any other freehold landowner in Australia?

Corporate law is another example. Why have two separate corporations laws including one restricted to Aboriginal and Torres Strait Islanders? Indigenous people suffer uniquely punitive regulation and the inability to issue shares when incorporating under the race-specific law. They largely do so because it is mandated by government funding sources. More generally, why do we allow remote Aboriginal lands to be exempt from the application (and protection) of many other laws that are taken for granted in our civil society – environmental laws, planning laws or even litter prohibitions?

The answer to these questions is that we have a large number of separate laws, policies and institutions just for Aboriginal lands and Aboriginal people. Whole areas of Australia are governed, owned, regulated and funded in an entirely different manner on account of race. This has been the case for many decades in some places, like on Aboriginal land in the Northern Territory. Despite the clear legal imperative not to entrench racial discrimination, we have.

If we want to have a debate about banning racial discrimination, let’s have that debate. As Noel Pearson champions in his Quarterly Essay, “A Rightful Place“, let’s rid our law and policy of distinctions based on the horrific 19th century myth of race. Let’s examine all the laws and policies of racial discrimination we have and determine how we can reach our required goal of getting rid of them.

But let’s not confuse that approach with what is proposed by section 116A. The constitutional change proposed could entrench questionable laws and policies separating Australians – as exemplified by the separate legal and policy superstructure stifling remote Aboriginal people and their lands.

The proposed section 116A is premised on prohibiting a type of readily identifiable “bad” racial discrimination common in our history. However, section 116A ignores the special measures safeguard of non-permanence that is required to be enforced in, and highly relevant to, today’s Australia.


Matt Punch is a Darwin based commercial lawyer. He has previously worked as a native title and Aboriginal land rights lawyer at native title organisations in the Northern Territory, Western Australia and New South Wales.