Considering Canadian Approaches to Equality in the Context of Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
| Author | Louise Parrott |
| DOI | 10.22145/flr.41.1.6 |
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| Subject Matter | Article |
CONSIDERING CANADIAN APPROACHES TO EQUALITY
IN THE CONTEXT OF CONSTITUTIONAL RECOGNITION
OF ABORIGINAL AND TORRES STRAIT ISLANDER
PEOPLES
Louise Parrott*
ABSTRACT
In the context of proposals to amend the Australian Constitution to recognise Aboriginal
and Torres Strait Islander peoples, the Expert Panel established by the Australian
Government recommended the insertion of a prohibition of racial discrimination.
Canadian experiences may assist when exploring the potential implications of
prohibiting discrimination in the Australian Constitution and when considering the
various options that are available. With this in mind, in this article I discu ss the
constitutional ideas regarding equality and non-discrimination that have a lready
begun migrating from Canada to Australia and could continue to inform Australian
consideration of the numerous issues that may arise. I start with an appraisal of the
perceived problems surrounding s 51(xxvi) of the Australian Constitution and the
reform options that have already been identified, before considering what Canadian
approaches could offer Australia, if anything. My view is that the utility o f the
transplantation of constitutional provisions depends on the starting point. Its
usefulness may be less when the focus is a parochial issue. While it may be possible to
draft a tighter prohibition, there could remain a risk that focusing on non -
discrimination could overshadow the Aboriginal righ ts dimensions underlying many
calls for recognition.
I INTRODUCTION
In the context of proposals to amend the Australian Constitution to recognise Aboriginal
and Torres Strait Islander peoples, the Expert Panel established by the Australian
Government identified 'insert[ing] a new guarantee of non-discrimination and racial
equality' as one of the 'recognised approaches for addressing the problem of the "race
power"'.
1
The Report of the Expert Panel subsequently recommended the inserti on of a
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* BA, LLB (Hons) (Melbourne); SJD Candidate, Australian National University; Senior Legal
Officer, Attorney-General's Department. The views expressed in this article do n ot
necessarily represent the views of the Australian National University, nor of the Attorney -
General's Department. I would like to thank Dr Katharine Young, Brendan Lim, Jeff
Murphy, Leonie Young and the anonymous referees for their helpful suggestions.
164 Federal Law Review Volume 41
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new s 116A into the Australian Constitution entitled 'prohibition of racial
discrimination'.
2
On 15 February 2012 the Prime Minister announced fundi ng 'for a
community conversation, to be sponsored by Reconciliation Australia' that aim s 'to
build understanding of the ways in which con stitutional recognition might be
achieved'.
3
This article is a contribution to that conversation. Rather than dismissing a
prohibition on racial discrimination outright, I co nsider the various issues and whether
there are other ways of approaching a non-discrimination guarantee. Inspired by The
Migration of Constitutional Ideas,
4
I discuss the constitutional ideas regarding equality
and non-discrimination that have already begun to migrate from Canada to Australia
and are informing Australian consideration of the various issues.
5
I start with an appraisal of the perceived problems surrounding s 51(xxvi) of the
Australian Constitution and the reform options that have already been identified, be fore
considering what Canadian approaches could offer Australia, if anything. My view is
that the utility of the transplantation of constitu tional provisions depends on the
starting point. Its usefulness may be less when the focus is a parochial issu e. My
conclusions therefore remain tentative. While it may be possible to draft a tighter
prohibition, there could remain a risk that focusing on non- discrimination could
overshadow the aboriginal rights dimensions underlying many calls for recognition.
II SECTION 51(XXVI) AND RECENT PROPOSALS FOR REFORM
Section 51(xxvi) originally empowered the Parliament to make laws with respect t o 'the
people of any race, other than the aboriginal race in any State, for whom it is deemed
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1
Expert Panel on Constitutional Recognition of Indigenous Australians, 'A National
Conversation Aboriginal and Torres Strait Islander Recognition' (Discussion Paper, May
2011) 18 ('Expert Panel Discussion Paper').
2
Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising
Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2011)
xviii ('Report of the Expert Panel').
3
Commonwealth, Parliamentary Debates, House of Representatives, 15 February 2012, 1330
(Julia Gillard). Although the Government announced on 20 September 2012 that, in the
Government's view, 'there is not yet enough community awareness or support for change
to hold a successful referendum at or before the next federal election', the Government
reaffirmed its support for constitutional change that includes 'removal of references to race,
reflecting the nation's fundamental belief in the importance of equality and non-
discrimination': Jenny Macklin, 'Progressing Indigenous Constitutional Recognition'
(Media Rele ase, 20 September 201 2) <http://www.jennymacklin.fahcsia.
gov.au/node/2098>.
4
See especially Sujit Choudhry, 'Migration as a New Metaphor in Comparative
Constitutional Law' in Sujit Choudhry (ed), The Migration of Constitutional Ideas (Cambridge
University Press, 2006) 1 Unlike Choudhry, my intention is to k eep the concepts
'transplantation' and 'migration' somewhat distinct (the form er being a subset of the latter).
I consider 'transplantation' to involve the deliberate adoption or modification of the
approach of another jurisdiction as a means of reform; whereas I use 'migration' in a looser
sense to mean the movement of ideas from one jurisdiction to another.
5
Indeed the Report of the Expert Panel notes that '[t]he most commonly referenced
comparative example of recognition at consultations and in submissions was Canada':
above n 2, 52.
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