The Constitution Amendment (Recognition of Aboriginal People Bill) 2015 (WA) – its Passage, its Significance and its Implications.

By September 6, 2016Victoria Park

Introduction

On 19 August 2015, the Member for Kimberley, the Gidja woman, Josie Farrer, moved that the Constitution Amendment (Recognition of Aboriginal People) Bill 2015 be read for the Third Time in the Legislative Assembly.  It was done so with unanimous support and transmitted to the Legislative Council.  The Legislative Council, also unanimously, read the Bill for the third time on 10 September 2015.  Thus, without the need for a referendum, following Royal Assent, the Western Australian Constitution Act 1889 was amended to add, at the end of the Preamble, the following words:

‘And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia’.

While there has long been discussion about ‘cleaning up’ redundant sections of our State’s Constitution, this was outside the remit of the Committee, however, we did take the opportunity to remove two redundant provisions that specifically referenced Aboriginal people.

Clause 5 of the Amendment Bill deleted section 42 of the Constitution.  Section 42 provided that in calculating the population of the Colony of Western Australia, the ‘aboriginal natives’ of WA were to be excluded.  While the Parliamentary debates surrounding the introduction of what became section 42 made no mention as to why this approach to the populations head count was adopted (probably because, at the time, it needed no debate), it was the Committee’s view that this was no longer appropriate to remain on the statute books.

Clause 6 of the Amendment Bill deleted part of section 75 of the Constitution Act 1889, which was to delete the definition of the Aborigines Protection Board.  The Board had long been redundant and the Parliament took the opportunity to also remove the last vestiges of the Board from the Constitution.

While the desire to amend our State Constitution to specifically acknowledge Aboriginal people was not new, Western Australia was late to make this amendment, being the last of the mainland States to recognise Aboriginal people in its Constitution.  South Australia was the most recent State to recognise Aboriginal people passing legislation on 5 March 2013.  NSW passed legislation on 19 October 2010.  Queensland passed legislation on 23 February 2010 and the first State to give recognition to Aboriginal people was Victoria, passing the Constitution (Recognition of Aboriginal People) Bill on 26 August 2004.

At a Federal level the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 was passed by the House of Representatives on 13 February 2013 and was assented to on 27 March 2013.  This Bill was part of the ongoing debate around Commonwealth Constitutional Recognition of Aboriginal people and had a two year sunset clause.  The purpose of the sunset clause was explained by the Minister, at Second Reading as:

‘The sunset date ensures that legislative recognition does not become entrenched at the expense of continued progress towards constitutional change’.

The requirement for a referendum making such change a much more difficult task than for the Australian States.

Constitutional history

While Josie Farrer’s Bill eventually sailed through the State Parliament without a dissenting voice, the history of Aboriginal people with our State Constitution is, of course, problematic.

While we have amended our State Constitution to specifically acknowledge Aboriginal people, it is not in the context of a Constitution that was silent about Aboriginal people, indeed, the original Constitution Act 1889 gave much thought to Aboriginal people.  And, over the years, the position of Aboriginal people in the Constitution has been the subject of much debate.  Most of it, of course, did not reflect favourably on Aboriginal people, and, specifically, did not seek to acknowledge and celebrate the long connection to this country.

However, what is clear is that, in the lead up to the granting of self-Government in Western Australia, those in London did not trust its far flung colony on the Swan to provide for its Aboriginal inhabitants.

It was WA Governor Broome who was largely responsible for making the case for self-government –  acting as the emissary between an increasingly parochial and independent Swan River population and Whitehall.  Writing to the then Secretary of State for the Colonies, Lord Knutsford in May 1888, Governor Broome wrote:

Unceasing vigilance is required to protect the Aborigines from ill-usage by those evil-disposed persons who are to be found in every community, and it appears to me, looking to the great extent and special circumstances of this Colony, in which the settlers are ever coming into new contact with the Natives at numerous points in a million square miles of territory, that it is absolutely necessary, when party Government shall be introduced, that some permanent body, independent of the political life of the day, shall be specially charged to watch over the Aboriginal population.

As we know, eventually the new State legislature was empowered to “make laws for the peace, order and good government of the colony”. Except with respect to Aborigines.  WA had, like all other States except Tasmania, established the Aborigines Protection Board, under the Aborigines Protection Act.  It’s members were appointed by the Governor and were responsible directly to him.  Those coming under the Act were defined as ‘every aboriginal native of Australia, every aboriginal half-caste or child of a half caste, such half caste or child habitually associating and living with aboriginals’,

Thus, as a condition of granting responsible government to WA, the British Government insisted that the Aboriginal Protection Board remain an autonomous body under the control of the Governor.

Our Constitution’s original form had the well-known Section 70:

There shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund the sum of Five thousand pounds mentioned in Schedule C to this Act to be appropriated to the welfare of the Aboriginal Natives, and expended in providing them with food and clothing when they would otherwise destitute, in promoting the education of Aboriginal children (including half-castes), and in assisting generally to promote the preservation and well-being of the Aborigines.  The said annual sum shall be issued to the Aborigines Protection Board.

It goes onto state:

…under the sole control of the Governor…

And then later, importantly:

Provided always, that if and when the gross revenue of the Colony shall exceed Five hundred thousand pounds in any financial year, an amount equal to one per centum on such gross revenue shall, for the purposes of this section, be substituted for the said sum of Five thousand pounds in and for the financial year next ensuing.

The Board, and Section 70, was very quickly the subject of critique by the governing establishment in the new self-governing colony, led principally, and interestingly, by the Premier, Sir John Forrest.

I say ‘interestingly’ as it was Forrest, as Surveyor General, who headed the Commission for Governor Broome that recommended, in September 1884, the establishment of a board ‘for the management of all matters connected with the Aboriginals, and to which all monies to be expended on them should be entrusted’.

Forrest, as Premier, would seek the abolition of this Board just six years later.

Westminster’s hesitation in handing over authority over the colony’s Aboriginal inhabitants continued after self-Government was granted.  Chamberlain, the then Colonial Secretary, wrote to Governor Broome advising:

When in 1887 the Legislative Council of the colony passed a resolution that the time had arrived when the executive should be made responsible to the Legislature of the colony, and that Western Australia should remain one and undivided, Lord Knutsford, while accepting these resolutions in principle, stipulated for special protection for the natives, and, in his Despatch of January 3, 1888, he expressed his concurrence in the opinion of the Governor, Broome, that some measure would be necessary for placing the aboriginal inhabitants under the care of a body independent of the Parliament of the day…”

It went on:

This correspondence was before the Imperial Parliament when considering the Bill, and the provision respecting the Aborigines Protection Board was clearly understood to be one of the conditions of the grant of self government.

It did not take long for Forrest to succeed with the WA Parliament passing a repeal bill in 1894 and sent it to Britain for agreement.  In a Despatch to the British Parliament, Forrest wrote:

The Parliament of Western Australia is more likely to look after the interest of the aborigines than the Imperial Government. I am not aware that the Imperial Government has ever done much for the aborigines of Western Australia, nor do I know of any special efforts being made for their welfare by the people of the United Kingdom. That being so, why all this outward show of sympathy for the aborigines and, at the same time, want of confidence in the colonists of Western Australia, who have alone done whatever has been done for their welfare?

The Colonial legislation purporting to abolish Section 70 then sat at Downing Street for a period of time.  Chamberlain, lobbied by Forrest, was aware of the desire of a WA Parliament, but he still had his concerns about the welfare of the Aboriginal inhabitants of the colony. He did not want to give up section 70 quite so easily so he wrote to Sir AC Onslow, the Acting Governor in 1895, about a year after the state Parliament passed the repeal bill and said —

I am anxious to meet the views of Colonial Government as far as possible. I am prepared to approve Reserved Bill, omitting from Section 70 as much as places expenditure under the care of independent unofficial Board, so that while permanent appropriation of 5,000L secures requirements of natives, your responsible advisers would advise Governor as to management of fund, same way as other expenditure.

That is, Chamberlain’s compromise was that the Board would not be abolished but made responsible to a Government Department instead of to the Governor.

Ultimately Forrest was, of course successful in having Section 70 repealed.  However, the series of attempts to do so had what the late Peter Johnston described as ‘an element of farce’.

The first attempt lapsed due to failure to receive Royal Assent within the required 2 years.

The most interesting footnote to the repeal of Section 70 I am again indebted to the late Peter Johnston for bringing this to my awareness.  In 1905, Mr F Lyon Weiss, a man of particular interest in the welfare of Aborigines challenged the validity of the 1898 repeal of section 70.  The end result was the Secretary of State for the Colonies recommending that another Bill be passed by the WA Parliament as soon as possible validating everything done since 1897 (and, of course, avoiding the necessity of paying out the Five thousand pounds).  Parliament took this advice and quickly passed the now infamous Aborigines Act 1905, which validated everything between 1987 and 1905.

It is important when reflecting on debates around constitutional recognition of Aboriginal people, be it at a State or Federal level, that Aboriginal people have not been absent from those documents.  Indeed, much time was spent working out the place of Aboriginal people in the developing legal structures of the Swan River Colony.  Perhaps most surprising is the level of concern that Whitehall and Westminster had about the intentions of the colonialists towards the welfare of Aboriginal people.

WA Amendment

Recognising Aboriginal people in State Constitutions took a bit in WA.

Introduced by Josie Farrer on 11 June 2014 as a Private Members Bill, it then came on for substantive debate at Second Reading, on 12 November 2014.

In the first instance the Government did not support Josie’s Bill.  There were three main arguments advanced for this refusal to accept the Member for Kimberley’s Bill:

  1. it was proper to wait for the Commonwealth constitutional amendment to proceed beforehand;
  2. It might jeopardise the Noongar claim;
  3. it will have impacts on freehold title renewal.

Ultimately Kim Hames gave the real indication about why the Government was reluctant, initially, to support Josie’s Bill when he advised the Parliament that ‘bipartisan manner is normally initiated by the government of the day’.

Two weeks later, on 26 November 2014, the Member for Kimberley moved to Suspend Standing Orders to move the following motion:

That the Constitution Amendment (Recognition of Aboriginal People) Bill 2014 be immediately referred to a select committee of six members for consideration and report by 26 March 2015’

After some discussion, both Houses of the Parliament passed a motion that established a joint select committee of seven members, three from the Council (Michael Mischin, the Chair and Attorney General), Sally Talbot and Jacqui Boydell and four from the Assembly, Josie Farrer, Murray Cowper, Wendy Duncan and me.

The timeframe for the Committee was tight, having been instructed by the Parliament to report to both Houses on 26 March 2015.  Accordingly, the terms of reference were deliberately narrow and crafted to not include the merits of whether recognition ought to be made (by now this was universally accepted in the Parliament), but how it ought to be done.

Interestingly, the third clause of the motion establishing the Joint Select Committee stated that ‘the standing orders of the Legislative Assembly relating to standing and select committees will be followed as far as they can be applied’.

Standing Order 251 of the Legislative Assembly states:

‘No Minister of the Crown will be eligible to be appointed as a member of a committee’.

Nothing was made of this dichotomy in the Legislative Assembly with the Attorney General on the Committee – we were taken by the Premier’s offer to have the AG on the Committee, thereby giving the Committee access to the advice of the Solicitor General.  In any event, each Chamber controls its own destiny and we had suspended standing orders so appointed as we saw fit.

The Hon Nick Goiran, however, disgruntled at having a fewer members on the Committee from the Legislative Council, did point out this contradiction – however, the Committee was duly formed and away we went.

Towards a True and Lasting Reconciliation – Report into the Appropriate Wording to Recognise Aboriginal People in the Constitution of Western Australia

The Report of the Joint Standing Committee contained 16 Findings and 2 Recommendations.

The Findings primarily deal with issues concerning manner and form requirements in the Constitution Act 1889, any potential unintended consequences of the proposed amendment (including potential to limit the legislative powers of the State), whether a non-effects clause was necessary to protect the Parliament from any unintended consequences.  The Committee also made a Finding regarding two other sections of the Constitution, being section 42 and 75.

Having spent most of my political life in Opposition, it was also of some satisfaction to be able to access the advice of the Solicitor General, Mr Grant Donaldson SC and the State Solicitor’s Office Legal Officer, and old Constitutional law lecturer, Dr Jim Thomson SC.  Noting that both represented the Government, the Committee also engaged its own legal advice and had the benefit of barrister, Mr Adam Sharpe, as a research support, and commissioned two pieces of advice from Mr Peter Quinlan SC – our new Solicitor General.

For the benefit of public debate, the Committee elected to make public the advice that we received from Mr Quinlan SC as an appendix to the Committee Report.

Special Legislative Procedure

This was the first issue considered by the Committee.  Did Constitutional recognition of Aboriginal people require a special legislative procedure to be followed?

It is well established that the constitutions of the various Australian states can be amended by legislation that is enacted following the ordinary procedure – unless there is a special procedure specified by the Constitution of that state.

The only provision in the Constitution Act 1889 that provides for special procedures is section 73.

Section 73(1) provides that any Bill which makes ‘any change in the Constitution of the Legislative Council or the Legislative Assembly’ must be passed by an absolute majority in each House of Parliament.

Section 73(2) specifies five categories of Bill which must be passed by absolute majority and then obtain the support of a majority of electors at a referendum to be lawfully enacted.

I do not propose to go through section 73 in detail but suffice to say the Committee found that the proposed recognition of Aboriginal people in the form set out in the Member for Kimberley’s Bill would not trigger the provisions of section 73 and thus could be enacted by ordinary legislative procedure.

Requirement to entrench?

The Committee also examined whether the Parliament should seek to require that any future amendment of the constitutional recognition of Aboriginal people only be effected by special legislative procedure.  Victoria ‘entrenched’ their amendment by requiring any future amendment to require a three-fifths majority in each House of Parliament.

The Committee did not consider it necessary to include any entrenching provisions as it was the view of the Committee that future Parliaments should be well placed to make their own decisions about the contents of the Constitution.  Further, entrenching provisions tend to transfer power away from Parliaments to the courts – always a sure way to scare off a proposed amendment.

Inhibit the Parliament’s power to legislate?

Could such amendment limit the power of the Parliament ‘to make laws for the peace, order and good Government of Western Australia’?  As is often the case, Parliaments worry themselves with any potential implied limitation that a court may find on state legislative power.  The Government’s lawyer, Mr Donaldson SC, advised that there is a remote risk of a court in future interpreting aspirational words of recognition as limiting the power of Parliament, so that Parliament could not enact legislation that was inconsistent with those aspirations. However, such a notion was also acknowledged as being contrary to the law as presently understood.

The general presumption that Parliament intends to pass legislation that is valid was taken by the Committee, from advice, that any Bill intended to alter the legislative power of the Parliament would need to be enacted in accordance with the special procedure set out in section 73(2).  It follows that if a Bill proposing the constitutional recognition of Aboriginal peoples were enacted in accordance with ordinary procedures, then this would lead a court to presume that the Bill was not intended to affect legislative power because it was not enacted in accordance with section 73(2).

Thus, the Committee found that any likelihood of the proposed amendment in the Member for Kimberley’s Bill limiting the legislative power of the state could be discounted.

Location of Recognition?

The Member for Kimberley’s Bill had the words of recognition in the preamble.  The Committee noted that of the other Australian States to have included statements of recognition, Queensland is the only jurisdiction to have chosen the preamble as the preferred location.  Victoria, NSW and South Australia all included their statements in the operative provisions.

The Committee concluded that the risk of unintended consequences is very low no matter where the statement of recognition is included in the Constitution Act 1889.  However, we did come to the conclusion that the risk of unintended consequences is reduced further if words of recognition are included in the preamble as while the interpretation of a preamble as having a substantive legal operation is not unprecedented, it is unusual.

Requirement of a Non-effects Clause?

The Committee spent quite some time on this question.

All Australian states that have statements of recognition also have non-effects clauses.  In Victoria, the non-effects clause provides that Parliament, in its statement of recognition, does not intend to create in any person any legal right or give rise to any cause of action, or to affect the interpretation of the Constitution or any other law of the state.  The Queensland provision has similar scope.  The NSW provision goes further by adding that the statement of recognition does not give any right to review of administrative action.  The South Australian provision simply provides that the statement of recognition is not intended to have any legal force or effect.

The Committee looked hard at this issue as the inclusion of a non-effects clause clearly diminish the words of recognition.

The Committee examined both whether a non-effects clause is required to achieve the intended result that the words of recognition will not have substantive legal effect and whether a non-effects clause would have any efficacy in practice.

Because of some of the findings of the Committee that I have already outlined and the impact of extrinsic materials, such as the Explanatory Memorandum, as per section 19(2) of the Interpretation Act it was the Committees view that it is amply clear that the proposed statement was not intended to have any substantive legal effects.  Further, a non-effects clause would thus be superfluous where a court is following the orthodox approach to statutory interpretation.  The Committee took the view that the only case in which a non-effects clause might become relevant is if a judge was determined to ignore the clear intention of Parliament as confirmed by the extrinsic materials and find some substantive legal effect in the words of the preamble.  A Judge so determined would not see the presence of a non-effects clause as too much of a hurdle it was broadly thought.

Thus, the Committee found that a non-effects clause SHOULD NOT be incorporated into any statement of recognition as such a clause would either be superfluous, or ineffective, and undermine the spirit in which the statement of recognition is made.

The Passage

And so, the Member for Kimberley’s Private Members Bill, with the unanimous support of both Houses of Parliament, amended the Constitution Act 1889.

There are, in effect, two parts to the amendment:

Firstly, the acknowledgment – that Parliament resolves to acknowledge the Aboriginal people as the first People of Western Australia; and

Secondly, the aspiration – that Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia.

And, of course, the removal of two pieces of now redundant section of the Constitution that sought to embed the discriminatory relationship that the State had with its Aboriginal inhabitants.

The Resolution to acknowledge is, to be frank, almost mundane in its impact.  For years the vast majority of Western Australians have acknowledged the position of Aboriginal people as the first people of WA.  Whether it be through the regular ‘Welcome to Country’ words we speak at the beginning of most public and corporate events or through those that travel through our vast State and country, with the Burrup Rock art and rock art of the Kimberley perhaps the most powerful statement that Aboriginal people have had this country for a long, long time.  The ‘normalisation’ of the bitter and divisive native title debate that followed the High Court’s Mabo decision has also led Australians to acknowledge that Aboriginal people have a title to country that pre-dates any of our more recent forms of tenure.

It is the aspirational side of the amendment that will challenge us all in the years ahead. Reconciliation is, by its very nature, a personal journey.  Yes, it is a symbol.  I have outlined tonight the effort that the Committee went to to ensure that the recognition in our Constitution would have no unintended consequences, would not impinge on the legislative power of the State.  So is there a point?

Of course.

Back in 2009, Dr John Falzon, the CEO of the St Vincent de Paul Society National Council, wrote a very thoughtful piece for the Catholic magazine ‘The Record’.  In his article he reflected on the importance of symbolism:

“Human beings are profoundly personal in the way we relate to the world, at the same time as being profoundly symbolic and profoundly political.  I know that there are many who baulk when I put things this way but this is a truth that must be spoken.  The human being is indeed, as Aristotle phrased it, zoon politikon, a political animal. We do not exist in a limbo; we are both the product of, and producers of, the social world.  We are born into social relationships until we die”.

The historical relationship between Aboriginal Australia and non-Aboriginal Australia is perhaps our greatest social weakness.  Symbols are important.  That is why so much effort is going into the debate around Reconciliation, around Constitutional recognition, why so much waited and depended on the Apology to the Stolen Generation.  As Josie Farrer said in her second reading speech to this amendment bill, recognition gives us ‘the opportunity for us to stride into the future, not to shuffle forward with eyes closed from the truths of the past’.

Symbols deal with the personal.  The relationships between people.  The past terrible actions of Government must be recognised and accounted for.  Without them, the more ‘practical’ outcomes we desire of reconciliation will not eventuate.

Noongar Recognition Bill

In parallel with the Member for Kimberley’s recognition bill has been the State Government’s settlement negotiations with the Noongar people of the South West of Western Australia.  The first, and key, part of the Government in honouring its side of the settlement has been the introduction, and subsequent passage of the Noongar (Koora, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016.

Schedule 1 to this Act has the ‘Noongar Recognition Statement’.

We, the Noongar people, are the traditional owners of South West

Western Australia, and have been since before time immemorial. As the

First People of South West Western Australia, we continue to practise the

laws and customs of our culture. Through this culture, we continue to

hold rights, responsibilities and obligations in relation to our people,

traditional lands and waters.

 We, the Noongar people, are the largest single Aboriginal cultural bloc

on the Australian continent. We belong to one of the oldest surviving

living cultures on this earth. As a people, we have a common ancestral

language, and a similar history and spirituality. We know that our

traditional country is south and west of a line that stretches from

Geraldton in the north to Cape Arid in the south-east, and that the spirit

of this place can never be conquered.

 Noongar culture, spirit and economy have always depended on the

resources of Noongar boodja. Families still return to the biddi (paths) of

our ancestors. Our people continue to refer to natural landmarks,

especially hills and waterways when describing which families belong to

different areas of Noongar boodja. Although barriers may exist, it is still

in our hearts, in our blood, it is still our country.

 Our living culture, which is long and continuing in this part of the world,

begins with Noongar people. This is the opportunity for all Western

Australians to experience the ancient tradition of respect, relationships

and reciprocity with Noongar people. We have survived.

 

We have survived.  The Noongar people, at the very first instance, wanted the Parliament to recognise the survival of the Aboriginal community that bore the brunt of colonialism.  But also wanting all Western Australians to ‘experience the ancient tradition of respect, relationships and reciprocity’ with the Noongar.

Symbols examine our social psychology.  For too long non-Aboriginal Australians had an entitled ignorance to the cause of the Aboriginal world.  The Aborigines Act 1905, Stolen Generation, Noonkanbah, citizenship, deaths in custody all reflected a long embedded ignorance that Aboriginal people need not be considered in the quest for the greater good.

It is symbols that challenge us to address this ignorance.

Conclusion

Earlier this year I was privileged to give the Rob Riley Memorial Lecture.  20 years after the death of Rob.  In that speech I examined my fear that what has replaced Australia’s entitled ignorance is a ‘great impatience’.  A great impatience with Aboriginal people, culture and aspirations.  A great impatience with Aboriginal people’s demand for inclusion, genuine inclusion, in laws that affect them.  To me, this has been the underlying frustration from Government about our State’s remote communities.  Not that they exist, but they have failed to thrive.  The fact that we have, when we pass laws in the State Parliament, specifically exempt our housing and public health laws from these lands, the fact that most remote communities exist on a land tenure of no security whatsoever, is lost in Government demands for immediate satisfaction.

Symbols require us to examine, personally, our social relationships. This is what the Member for Kimberley challenged us to do with her Private Members Bill to recognise Aboriginal people in our State Constitution.

It is significant and it is something that the Parliament should be proud.

Thank you.

# My thanks to all the members of the Joint Select Committee, the late Peter Johnston, Grant Donaldson SC, Dr Jim Thomson SC,  former Governor Malcolm McCusker, Chief Justice Wayne Martin for their speeches, advice and collaboration that all, in one way or the other, and mostly without knowing, contributed to this speech.