The non-lawyers guide to the Constitutional recognition of Aboriginal and Torres Strait Islander peoples

The Constitutional recognition of Indigenous Australians has been in the pipeline for years. How far away are we? What is holding up the process? How will our Constitution change? In this (relatively) short guide for non-lawyers, I try to clearly answer these questions.

What step are we up to in the process?

Two key reports have been created (see below), leading to the formulation of three options for Constitutional recognition of Indigenous Australians. The government held a summit of 40 Indigenous leaders in early July 2015 where it was decided a series of community forums will be held as the next step towards the referendum. The community forums will assist in deciding which model of Constitutional reform will be taken to referendum. After a model is selected, a public education campaign will be rolled out to ensure high levels of awareness before Australia votes on the Constitutional changes.

Constitutional recognition of Indigenous Australians is not new. Many of our state Constitutions already contain such recognition clauses. For example Queensland and Victoria both have a recognition clause which does not provide any substantive rights or effect the interpretation of the rest of the Constitution document. One reason state Constitutions are ahead of the Commonwealth Constitution in recognising Indigenous Australians is that the state constitutions are flexible and relatively simple to amend. A second reason is that the three proposed models go further than mere symbolic recognition, containing a persons power and in some cases, a general prohibition on racial discrimination.

Key concepts you need to know:

1.       Symbolic recognition

The “recognition” aspect of the proposed Constitutional change is symbolic. Aboriginal and Torres Strait Islander peoples will be acknowledged as the first occupants of Australia. The continuing relationship of Indigenous Australians with their lands and waters will be recognised, as will their cultures, languages and heritage. This aspect of the Constitutional changes is not controversial.

2.       The persons power

The Constitution currently contains s51(xxvi), which gives the Commonwealth parliament the power to “make laws for the peace, order and good government of the Commonwealth with respect to the people of any race for whom it is deemed necessary to make special laws”. This power is colloquially known as the “race power”. In the early 1900s, the power was directed at making laws for temporary workers in Australia, so the Commonwealth could make sure temporary workers returned to their home countries. Section 51(xxvi) originally excluded Indigenous Australians, and it was the state parliaments that had power to legislate with respect to Indigenous Australians. In the 1967 referendum, the Commonwealth was given the power to make laws for Indigenous Australians. Most Australians voting “Yes” in the referendum believed the power could only be used to make laws benefitting Indigenous Australians. However, the power has been used to justify laws that could be said to be adverse to Indigenous Australians. Complicated case law exists in this area, which I am not going to go into in this blog post.

What the general public needs to know is that the proposals for Constitutional recognition include the removal of section 51(xxvi) and the insertion of a new “persons power” to give the Commonwealth power to make laws concerning Indigenous Australians, but with better legal parameters preventing abuse of the power than the existing s51(xxvi).

3.       Prohibition on racial discrimination

This is the aspect of the proposed Constitutional changes that causes the most public confusion. The Expert Panel recommended a general prohibition on racial discrimination be inserted into the Constitution. This general prohibition on racial discrimination was picked up by the Joint Parliamentary Committee’s Model 1.  This is a substantive clause in the Constitution and will be treated as an enshrined right. Some have termed this potential clause “Australia’s one clause Bill of Rights”, as the Constitution does not currently contain any explicit protections of individual freedoms. Racial discrimination is currently prohibited by legislation in Australia, but legislation can be repealed and the protection can be removed. Prohibiting racial discrimination in a section of the Constitution essentially enshrines the right, as it can only be removed by a double majority at referendum. There are strong arguments both for and against enshrining a prohibition on racial discrimination.

The proposed Model 2 and Model 3 do not contain a general prohibition on racial discrimination. However, they do contain a “persons power” and prohibit the use of this power being used to discriminate adversely against Indigenous Australians.

The two key reports you need to know about:

1.       Report of the Expert Panel

The Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples was launched in December 2010 and made up of Aboriginal and Torres Strait Islander leaders, constitutional experts, and parliamentary members. The Expert Panel conducted widespread consultation and engagement programs throughout 2011. The Expert Panel’s thoroughly prepared and researched report was provided to parliament in January 2012. The key recommendations to amend the Constitution for Constitutional recognition included:

1.       The insertion of a new section 51A, which recognises Australia was first occupied by Aboriginal and Torres Strait Islander peoples and contains a “persons power”;

2.       The insertion of a new section 127A acknowledging Aboriginal and Torres Strait Islander languages as the original Australian languages and stating the national language of Australia to be English; and

3.       The insertion of a new section 116A prohibiting racial discrimination.

2.       Report of the Joint Select Committee

Commonwealth parliament created a Joint Select Committee on Constitutional recognition on 2 December 2013 to report on the steps that needed to be taken to progress to a successful referendum and to come to a consensus on the potential wording of the recognition in the Constitution. The work undertaken by the Joint Select Committee was staggeringly detailed. A Progress Report was tabled in October 2014 and the Interim Report was completed on 15 July 2014. After the Interim Report, the Joint Select Committee conducted extensive public consultation including receipt of submissions up to 31 January 2015 and large public hearings in Adelaide on 13 March 2015, Emerton on Sydney on 20 February 2015, and 21 February 2015. The Joint Select Committee’s Final Report was tabled in parliament on 25 June 2015.

The Joint Select Committee was tasked with creating multi-partisan consensus and formulating options for amending the Constitution that would both:

1.       Provide Constitutional recognition

2.       Protect Aboriginal and Torres Strait Islander peoples from discrimination.

Three options were put forward by then Joint Select Committee in the Final Report:

MODEL 1 (BROAD OPTION): A recognition clause with a “persons power” (s51A) and a clause prohibiting racial discrimination (s116A). The racial discrimination clause protects all Australians from racial discrimination. This proposal reflects the views of the Expert Panel and had the support of most of the Joint Parliamentary Committee.

51A Recognition of Aboriginal and Torres Strait Islander Peoples Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

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.

The Committee supported Model 1 strongly because they believe the proposal:

· is legally and technically sound;

· retains a persons power as per the 1967 referendum result;

· contains a special measures provision;

· limits the constitutional capacity of the Commonwealth, states and territories to discriminate;

· offers a protection for all Australians;

· had the overwhelming support of Aboriginal and Torres Strait Islander peoples and non-Aboriginal and Torres Strait Islander peoples during the inquiry; and

· accords with the recommendation of the Expert Panel.

MODEL 2 (NARROW OPTION): This proposal was originally put forward by Mr Henry Burmester AO QC, Professor Megan Davis and Mr Glenn Ferguson. There are two main differences between this proposal and Model 1:

1.       Model 2 contains a recognition clause and a “persons power” that cannot be used to discriminate against Indigenous Australians. Model 2 protects Indigenous Australians from racial discrimination. Unlike Model 1, Model 2 contains no general prohibition on racial discrimination.

2.       The recognition clause is contained within its own new Chapter of the Constitution. In Proposal 1, the recognition clause will be in its own new section in an existing Chapter. The practical significance of putting the recognition clause in its own chapter, is that for interpretation purposes, the clause will be more isolated from the rest of the Constitution, and less likely to influence the interpretation of other provisions.  

CHAPTER IIIA Aboriginal and Torres Strait Islander Peoples Section 80A

(1) Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage; the Parliament shall, subject to this Constitution, have power to make laws with respect to Aboriginal and Torres Strait Islander peoples, but so as not to discriminate against them.

(2) This section provides the sole power for the Commonwealth to make special laws for Aboriginal and Torres Strait Islander peoples.

The committee believes this proposal:

· is legally and technically sound;

· is clear in meaning;

· limits the capacity of the Commonwealth only with regard to discrimination, so states and territories are not affected by constitutional change;  and

· offers constitutional protection from racial discrimination for Aboriginal and Torres Strait Islander peoples.

MODEL 3 (NARROW AND BROAD OPTION): This proposal was developed by the Public Law and Policy Research Unit at the University of Adelaide. The proposed section 60A contains a recognition element, a persons power, and a prohibition on discrimination against Indigenous Australians. Unlike Model 2, the proposed s60A in Model 3 is not contained in its own Chapter.

60A Recognition of Aboriginal and Torres Strait Islander Peoples Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage;

(1) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

(2) A law of the Commonwealth, a State or a Territory must not discriminate adversely against Aboriginal and Torres Strait Islander peoples.

The committee considers that this proposal:

· is legally and technically sound;

· retains a persons power as per the 1967 referendum result;

· is clear in meaning;

· is both a narrow and a broad option;

· limits the 'adverse discrimination' provision to Aboriginal and Torres Strait Islander peoples; and

· limits the capacity of the Commonwealth, states and territories constitutionally to discriminate.

It is likely that Australia will be voting on one of these three models at the eventual referendum.

Why is it taking so long – the difficulties of a successful referendum

The Constitution can only be amended through the referendum process outlined in s128 of the Constitution. This process has several steps:

1.       The proposed Constitutional amendment must be passed by an absolute majority of each house of Parliament. An absolute majority means one more than half of the votes of the total number of members of the house. This can be contrasted to a simple majority where one more than half of the votes of the total number of members present is required.

2.       A majority of Members and Senators who voted for the proposal and a majority of Members and Senators who voted against the proposal will prepare the YES and NO cases, which are then rolled into an education campaign. If parliament unanimously passes the proposal, only a YES case is prepared.

3.       A final education campaign on the referendum is then rolled out to raise awareness of the main issues involved. Everyone who is enrolled to vote in a federal election is eligible to vote and must vote in the referendum. It is compulsory for those who are enrolled to vote.

4.       The referendum voting day will be held within two and six months after both house of Parliament have passed the proposed Constitutional amendment.

5.       For the referendum to be successful a double majority is required:

a.       A national majority of electors; and

b.      A majority of electors in the majority of states (at least 4 of 6 states).

6.       If the referendum is successful, the proposed law is given to the Governor-General for Royal Assent.

The double majority hurdle is very difficult to overcome. In the history of the Commonwealth, only 8 of 44 referendums have been successful. Given the symbolic importance of the recognition of Indigenous Australians in the Constitution, it is very important that the referendum is successful. This has lengthened the time that the process has taken, as a model has to be developed that is both:

1.       Acceptable to Indigenous Australians; and

2.       Acceptable to most Australians in most states so that the double majority requirement is met.

The process also needs widespread support. In a recent survey conducted by Recognise Australia, 63% of Australians felt ready to vote, and of those 63%, ¾ would vote yes. Public awareness of the Constitutional recognition of Indigenous Australians dropped from 42% in 2012 to 34% in 2014. These figures indicate there is still a way to go before Australians are ready for the referendum.

The importance of the referendum process was identified by the Expert Panel who made several recommendations on the referendum process including:

·         The referendum should only proceed when it is likely to be supported by all major political parties, and a majority of State governments.

·         Before the referendum is held, there should be a properly resourced public education and awareness program. If necessary, legislative change should occur to allow adequate funding of such a program.

·         The Government should take steps, including through commitment of adequate financial resources, to maintain the momentum for recognition, including the widespread public support established through the YouMeUnity website, and to educate Australians about the Constitution and the importance of constitutional recognition of Aboriginal and Torres Strait Islander peoples. Reconciliation Australia could be involved in this process.

The Joint Parliamentary Committee also made several recommendations on steps leading up to referendum, including:

·         Recommendation 7 8.49 The committee recommends that the government hold constitutional conventions as a mechanism for building support for a referendum and engaging a broad cross-section of the community while focussing the debate.

·         Recommendation 8 8.50 The committee further recommends that conventions made up of Aboriginal and Torres Strait Islander delegates be held, with a certain number of those delegates then selected to participate in national conventions.

Timeline of selected events

13 Feb 2008	Prime Minister Kevin Rudd officially apologised to the members of the Stolen Generation. Stated that a way forward includes the Constitutional recognition of Aboriginal and Torres Strait Islander people and that “unless the approach was completely bipartisan, it would fail at referendum”.
2010 election	Prime Minister Julia Gillard promises to have a referendum on Constitutional recognition by the 2013 election.
December 2010	The Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples is created.
2011	The Expert Panel conducts a widespread national consultation and engagement process.
January 2012	The Expert Panel release their report.
28 November 2012	The federal Parliament agreed that a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples be appointed to inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition.
2013 election	Prime Minister Tony Abbott promises to release a draft proposal on Constitutional recognition within 12 months of being elected.
25 June 2015	Joint Select Committee tabled its report and concluded its inquiry.
6 July 2015	The Prime Minister, leader of the Opposition and leaders of the Aboriginal and Torres Strait Islander community met to discuss the way forward towards Indigenous recognition in the Constitution.
27 May 2017	The referendum date proposed by Prime Minister Tony Abbott. This date will be the 50th anniversary of the 1967 referendum which gave the Commonwealth the power to make special laws for Aboriginal and Torres Strait Islander peoples.

ACTING AS A MODEL LITIGANT – A CRASH COURSE

In a nutshell what is required of a model litigant?

In civil litigation, it is not enough for government litigants to act honestly and according to court rules. The state and its agencies are held to a higher professional standard in civil litigation than other litigants and must act fairly with complete propriety. I flesh out what these higher professional standards mean in practice below.

Who has to act as a model litigant?

The state and its agencies must act as a model litigant in civil litigation as well as in dispute resolution. The Commonwealth government, state governments, local councils, and government departments must all act as a model litigant. Lawyers working in-house for the government and lawyers in private practice acting for government clients need to be aware of the obligations of the government as model litigant, as the principles place limits on strategy and conduct commonly used in civil litigation.

Why are government litigants held to a higher professional standard?

The obligation to act as a model advocate can be traced to the broad concept of the rule of law. Everyone, including the government, must abide by the laws of Australia. No one is above the law. All are to be equal before the law. It is assumed that the government is the more powerful party in civil litigation. To address this power imbalance and therefore respect the rule of law, government litigants are held to higher professional standards than other litigants. The model litigant principles also reflect the fact that government and its agencies must act in the public interest. A set of principles is required to assist government lawyers act in the public interest and ensure government power is not abused. 

Where can I find the law and who can enforce the model litigant principles?

Model litigant principles were first developed by the courts and can be found in the common law. Most Australian jurisdictions have usefully summarised these principles either in regulations or policies. It is important to note that individuals cannot enforce the model litigant principles as a cause of action in separate court proceedings. This was clarified by the Federal Court in Caporale v Deputy Commissioner of Taxation [2013] FCA 427 where the court stated the relevant model litigant policy was created by the Commonwealth for their own internal supervisory purposes. The model litigant principles did not give rise to private rights. The issue of non-compliance is to be dealt with:

1.        Through the government’s own mechanisms; and

2.       By the judge in the original court proceedings.

In practice, the model litigant principles are monitored by judges during the matter and are monitored by the relevant government audit authority after the dispute resolution or litigation has concluded.

At the Commonwealth level, the model litigant principles can be found in the Legal Services Directions 2005 (Cth). Breaches are investigated by the Office of Legal Services Coordination.

NSW government and its agencies are bound by the Model Litigant Policy, which contains detailed guidelines on best practice. This statement of principles reflects the existing common law. If an individual wishes to complain about a government litigant’s non-compliance with the policy, complaints are referred to the CEO of the relevant government agency. Victoria has its Model Litigant Guidelines 2001 (revised 2011), and other states have similar policies or guidelines.

The obligations of a model litigant include:

1.       Promptly dealing with claims

Unnecessary delay must be avoided. This means some delay tactics commonly used in commercial litigation may be inappropriate. Agencies should not purposely prolong litigation.

2.       Paying out legitimate claims

This may extend to partial payment of a claim even before litigation commences where it is clear the matter will be about quantum and government liability will be at least that amount.

3.       Acting consistently in handling claims and litigation

4.       Avoiding litigation, where possible

There are a few reasons why model litigants must strive to avoid litigation. First, litigation is expensive and it is in the public interest not to waste resources or tax payer money. Second, it is assumed alternative dispute resolution assists to overcome the perceived power disadvantage of persons in a dispute with the government. There is a real focus on alternative dispute resolution within government and their agencies. Government agencies should attempt to settle outside of court through offers of settlement, offers of compromise and alternative dispute resolution.

5.       Making an early assessment of the case

Related to the above point, a government agency should ensure early assessments are made of matters to identify the government’s likelihood of success in pursuing the case and the government agency’s potential liability.

6.       Keeping litigation costs to a minimum including:

a.       Not requiring the other party to prove a fact where the state knows it to be true; and

b.      Not contesting liability where the state knows the real issue is quantum rather than liability.

Government agencies should ensure they do not incur extra costs by taking technical points. The focus should be on the real issue in dispute. Rule of thumb: “good points should be pressed hard; technical points should not be”. There are some situations where taking a technical point would be permissible, but technical points should only be pursued where the government’s interests would be prejudiced by the failure to take that technical point.

7.       Not taking advantage of claimants with limited resources

Resources include money and knowledge. Government lawyers should be particularly alert where the other side is an individual who is self represented.

8.       Not appealing unless there is a reasonable likelihood of success or there is a public interest in seeking the appeal

If the government decides there is a justifiable reason for appeal the decision to appeal should be made as soon as practicable.

9.       Apologising where the state or its lawyers have acted improperly

It is important to note that the obligation to be a model litigant does not prevent the government from winning cases or putting their best case assertively forward. The obligation to be a model litigant does NOT prevent the state from:

1.       Acting firmly and properly protecting its interests;

2.       Enforcing costs orders;

3.       Claiming legal professional privilege or other forms of privilege;

4.       Claiming public interest immunity;

5.       Pleading limitation periods;

6.       Seeking security for costs;

7.       Opposing unreasonable or oppressive claims or processes;

8.       Requiring opposing litigants to comply with procedural obligations; and

9.       Making applications to strike out untenable claims.

If you are the lawyer and your client is a government agency, it is your responsibility to ensure that your litigation and dispute resolution work reflects the obligations of the model litigant. Situations could arise where there is a conflict between what your government client is instructing you to do and your obligations as model litigant.

Key cases:

The obligations of the model litigant have been described in the key cases as requiring “the State and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards”. This catchphrase has been adopted in the model litigant policies of most jurisdictions. For further information see the earlier key cases of:

1.       Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342;

2.       Kenny v State of South Australia (1987) 46 SASR 268 at 273; and

3.       Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.

Highlights of judicial commentary in recent cases includes:

1.       Morely & Ors v Australian Securities and Investments Commission [2010] NSWCA 33

 This case was one of the James Hardie group asbestos cases. The NSW Supreme Court discussed the model litigant obligations and emphasised that government litigants do not have a private interest and their actions should reflect this. The NSW Supreme Court held that the failure to call a particular witness was a breach of ASIC’s obligations as model litigant:

“[716] the government agency has no legitimate private interest of the kind which often arises in civil litigation. It acts, and acts only, in the public interest as identified in the regulatory regime.

In partial answer to the first of the questions, whether its failure to call a witness can constitute a breach of the obligation of fairness, in our opinion it can.”

2.       ACCC v Australia and New Zealand Banking Group Ltd (No.2) [2010] FCA 567

The Federal Court held ANZ had failed to follow its obligations as model litigant and the ACCC was ordered to pay 80% of ANZ’s costs. The ACC’s breach centred on the nature of their interrogatories, which included 98 separate and unclear questions:

“[26] ACCC must frame the interrogatory in a way which does not cast an obligation on the other side to do the best it can with the interrogatory and reframe it. The intention must be made clear...if the intention is not clear, the person interrogated does not have an obligation to frame what it perceives to be the intention.”

3.       Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470

The Federal Court emphasised the importance of government litigants being “impartial”, as they do not have a private interest akin to an individual in litigation.

“[192] The submissions were, in my opinion, a little too partisan at times for a statutory officeholder. By partisan I mean infused by a measure of zeal rather than detachment. I would have thought that the Ombudsman should aspire to be a model litigant rather than a partisan one.”

4.       LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90

This case suggested that acting as model litigant is particularly important where independent legal representatives are not involved.

“Speaking generally and without reflecting on counsel who appeared before us, being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards.

This obligation may require more than merely acting honestly and in accordance with the law and court rules.

… [A]s Melbourne Steamship Limited v Moorhead (1912) 15 CLR 333 at 342 reveals,  that expectation, even a century ago, was of long standing. To bring the matter up to the present we note that in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 286 ALR 501, Heydon J said ASIC accepted that there was, in the words of Griffith CJ in Moorhead, an “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”. Its powers are exercised for the public good. It has no legitimate private interest in the performance of its functions. And often it is larger and has access to greater resources than private litigants. Hence it must act as a moral exemplar ….

In our opinion, counsel representing the executive government must pay scrupulous attention to what the discharge of that obligation requires, especially where legal representatives who are independent of the agency are not involved in the litigation.”