‘Road-test ideas’ before recognition referendum

One of the key components of the proposed referendum to recognise Aborigines needs to be “road-tested” before voters decide.

One of the key components of the proposed referendum to recognise Aborigines needs to be “road-tested” before voters decide whether to include it in the Constit­ution.

This assessment, from constit­utional lawyer Frank Brennan, comes soon after the release of an unofficial first draft of a new constitutional provision that would establish an indigenous advisory body on laws about Aborigines and Torres Strait Islanders.

Father Brennan believes this body should initially be established by ordinary statute and only incorporated into the Constitution once voters have assessed its track record over several years.

No matter how good the proposed new constitutional clause might be, it would be “a big ask” to expect voters to approve such a move unless the advisory body had been “road-tested”, said ­Father Brennan, who is an adjunct professor of law at the Australian National University and the Nation­al Centre for Indigenous Studies.

The proposed clause to establish the body within the Constitution has been drafted by legal academic Anne Twomey with the aim of showing that it could be achieved without undermining the sovereignty of parliament

Professor Twomey’s proposal, which is outlined in the online journal The Conversation, aims to give effect to a compromise backed by Aboriginal leader Noel Pearson that seeks to address the concerns of those who support recognition of indigenous people but believe it should not be allowed­ to alter the Constitution.

Indigenous professor Marcia Langton described Professor Twomey’s draft proposal yesterday as “a great step forward”.

“With Professor Twomey, a conservative constitutional lawyer, countering the claims made by Father Frank Brennan, we now at last have what seems to be a very sound position to move forward with in relation to the Aboriginal body,” Professor Langton said.

The differences over how to establis­h an indigenous advisory body are part of a growing ­community debate about the form of national recognition of ­Aborigines and Torres Strait Islander­s that will be put to the people at a referendum planned for 2017.

Voters are also expected to be asked to endorse the removal of the “race power” from the Constitution and the insertion of a new, narrower head of power to provide a foundation for laws on indig­enous affairs.

While Father Brennan preferred to establish the advisory body outside the Constitution, he believed it was appropriate for the Constitution to include a statement recognising “Aboriginal realiti­es”.

Additional reporting: Natasha Robinson