Constitutional change

Constitutional change remains on the agenda – Prime Minister Tony Abbott has announced that he will work towards a constitutional referendum although he has not yet announced what changes he will be proposing. In the past, a range of constitutional changes have been mooted, including:

  • recognition of Aboriginal and Torres Strait Islander people in the preamble to the Constitution
  • enshrining the principle of non-discrimination into the Constitution
  • negotiating an instrument of reconciliation or a treaty
  • the repeal of section 25 of the Constitution which allows state governments to make discriminatory laws about voting rights
  • specific recognition of Indigenous people’s rights.

As a comparison, the Canadian Constitutional Act 1982 added the following provision:

‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’ – section 35 (1)

This has not provided a blanket protection of Indigenous rights in Canada and has seen those rights balanced against other rights such as the right of Canadians to development.

Some advocates argue that constitutional change is not the best way to protect Indigenous rights and that a legislative bill of rights that gives greater rights protection is a much more flexible approach.

Legislative Bill of Rights

Entrenched in the Constitution

  • is passed by Parliament
  • can be changed by Parliament
  • can be overridden by Parliament
  • courts interpret and are guided by the intention of Parliament
  • is seen as a fluid rights framework that can be changed as new issues emerge
  • allows for broader participation by the community as they can influence legislators about the way they want rights protected and balanced.
  • is in the Constitution
  • can only be changed by a referendum
  • Parliament is bound by the rights in the Constitution
  • courts interpret what the rights in the Constitution mean
  • allows for rights to be more firmly protected as parliament cannot simply override them as they want to, but it also means rights can become outdated and it is difficult to alter them.

KRUGER case

Discussion about improving the rights framework in Australia is usually driven by the absence of comprehensive rights protections. An illustration of this can be seen in the 1997 High Court case of Kruger v The Commonwealth. This was the first case to be heard in the High Court that considered the legality of the government assimilation-based policy of removing Indigenous children from their families.

In Kruger, the plaintiffs had brought their case on the grounds of the violation of various rights by the effects of the Northern Territory Ordinance that allowed for the removal of Indigenous children from their families. The plaintiffs had claimed a series of human rights violations, including the implied rights to due process before the law, equality before the law, freedom of movement and the express right to freedom of religion contained in section 116 of the Constitution.

They were unsuccessful on each count, a result that highlighted the general lack of rights protection in our system of governance and the ways in which, through policies like child removal, there was a disproportionately high impact on Indigenous people as a result of those silences.

The Kruger case illustrated the way in which the issue of child removal – seen as a particularly Indigenous experience and a particularly Indigenous legal issue – can be expressed in language that explains what those harms are in terms of rights held by all other people – the right to due process before the law, equality before the law, freedom of movement and freedom of religion.

Kruger also highlights how few of the rights that many Australians would assume are protected by our legal system are not. It is a reminder of the silences about rights in our Constitution and that these silences were intended. It gives us a practical example of the rights violations that can be the legacy of that silence.