Modest change ‘could deliver substantive recognition’ results

Frank Brennan says delivering indigenous recognition would result in courts being forced to decide difficult questions.

Legal academic and priest Frank Brennan has warned a key proposal to deliver constitutional ­recognition for indigenous people would result in the courts being forced to decide difficult questions, such as who qualifies as an Aborigine.

In a speech tonight, Professor Brennan will argue forcefully in favour of a minimalist approach to indigenous recognition in the Constitution, pointing out that “modest constitutional changes” ultimately result in “substantive change” to policy.

“Our indigenous leaders are now at a fork in the road,” he will say in his Australasian Institute of Judicial Administration oration to be delivered in Melbourne.

“We await their call. Either we take the short and certain path to indigenous acknowledgment ... or we wait longer to take the less certain path to a more distant destination which may include an ­indigenous council as part of our constitutional arrangements.

“That would not be achievable by May 2017.”

This would be the 50th anniversary of the 1967 referendum which allowed the inclusion of ­indigenous people in the census and for the federal government to make laws with respect to them. Professor Brennan, a Jesuit priest and law professor at the Australian National University’s ­National Centre for Indigenous Studies, warns that the proposal by Aboriginal leader Noel Pearson to include an indigenous representative body in the Constitution would result in litigation, even if all aspects of its ­operation were declared non- ­justiciable.

He says it is “not scaremongering” to point out that any elected body would need judicial oversight even if just to determine who could vote for its representatives.

In the speech he points to the example of senator Jacqui ­Lambie, who caused a furore when she declared in her maiden parliamentary speech that she traced her history over six generations to the “Aboriginal chieftain of the Tasmania east coast, ­Mannalargenna”. “So could ­Jacqui Lambie vote for the proposed constitutional entity?” he says. “That question could ultimately be decided only by a court.”

Professor Brennan says it is “sensible” to consider Mr Pearson’s suggestion for a permanent indigenous body to advise parliament.

He insists such a body should first be tested outside the Constitution and then, if successful, proposed for inclusion in the Constitution at a later date. “The voters will not decide to put such a council in the Constitution untested, sight unseen,” he says.

Professor Brennan also strongly rejects a proposal to ­create a constitutional ban on ­racial discrimination — a change recommended by the former government’s expert panel on indigenous recognition — as “not a possibility at this time”.

He says the scope of such a clause would be uncertain, and could only be determined after “some years” by the High Court scrutinising laws such as border protection measures and dual citizenship laws.

“In short, every hot button policy issue would be ripe for High Court consideration under a non-discrimination clause,” he says.

Professor Brennan says his more modest proposal for constitutional recognition — which would involve acknowledging the nation’s indigenous heritage in the Constitution, scrapping racist clauses and creating a new power to make laws with respect to the protection of Aboriginal culture, language and heritage — would be achievable by 2017. “This is no small change,” he says.