1 The Australian Human Rights Commission makes this submission to the Joint Select Committee on Constitutional Recognition. It has been developed by each person who has held the statutory position of Aboriginal and Torres Strait Islander Social Justice Commissioner, namely:
- Ms. June Oscar AO, 2017 – current;
- Mr. Mick Gooda, Social Justice Commissioner, 2010 – 2016;
- Professor Tom Calma AO, Social Justice Commissioner, 2004 – 2010;
- Dr. William Jonas AM, Social Justice Commissioner, 1999 – 2004; and
- Dr. Mick Dodson AM, Social Justice Commissioner 1993-1998.1
2 The role of Social Justice Commissioner was created by the federal Parliament in 1993 to provide ongoing scrutiny and guidance about the human rights issues faced by Aboriginal and Torres Strait Islander peoples.
3 Each Social Justice Commissioner over the past 25 years has highlighted the need for constitutional reform through their work.
4 An overview of the findings of each Commissioner is included as Attachment 1 to this submission. The attachment also identifies related developments in this time.
5 Each Commissioner has identified the need for constitutional reform as an integral component of the reforms necessary across our parliamentary system to address the ongoing human rights concerns faced by Aboriginal and Torres Strait Islander peoples.
6 Crucially, they have all explicitly noted that constitutional reform is but one important element of the response necessary from the government.
7 A failure to understand the complementary nature of constitutional reform is one of the key failings of the current debates on constitutional recognition. It has placed unrealistic expectations on what such reform can achieve while failing to provide appropriate consideration of other essential reforms to accompany it.
8 Social Justice Commissioners, past and present, have come together at this time due to their joint concern at the lack of a clear direction towards the achievement of constitutional reform.
9 There has been significant consideration and public consultation on the issue over an eight-year period. Clear proposals for reform have been identified. A high degree of consensus among the community and Aboriginal communities about these reforms has also been identified.
Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples
10 The present and former Social Justice Commissioners are of the view that successive governments have failed to act decisively on constitutional reform and have not capitalised on public support through this indecision.
11 The statement that follows is intended to assist Parliament to find a pathway forward that will ultimately achieve constitutional reform.
12 The critical elements of such a pathway are identified as follows:
a. A commitment from the federal Parliament to achieve constitutional reform within the next five years.
b. A regular process by which federal parliamentarians can be held accountable to the Australian people by indicating whether they support constitutional reform or not.
c. A process of negotiation between parliamentarians, the government and Aboriginal and Torres Strait Islander peoples about the ultimate form of constitutional recognition.
13 A range of complementary measures are also identified to sit alongside constitutional reform relating to:
- Effective parliamentary oversight for outcomes on indicators of well-being for Aboriginal and Torres Strait Islander peoples.
- Meaningful participation by Aboriginal and Torres Strait Islander peoples including obtaining their consent in matters that affect them.
- A framework for ongoing dialogue to recognise and address the consequences of past and ongoing injustices, through truth and reconciliation processes.
14 These complementary measures will take longer to achieve and require a commitment over a 25 year period. They should, however, commence immediately.
15 The proposals made in this submission are, in our view, consistent with the four criteria of referendum success set out in the Final Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, namely:
- contribute to a more unified and reconciled nation;
- be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander Peoples;
- be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
- be technically and legally sound.