Objectives of constitutional reform to recognise Aboriginal and Torres Strait Islander Peoples o Goals ALC 24, Davis 241

rights would be given force through the rule of law, an independent judiciary and review of legislation. (Davis 242) o Process began in 1990s with CAR (Davis 242), now look to guiding principles of Panel (YMU 16) o Benefits of change to the constitution (YMU 12) cf Webbers point that move away from White Australia etc was made without constitutional amendment [23]. Danger of constitutionally entrenched values [48]. Benefits of legislated values (McKenna) o Webbers concession that in certain circumstances constitutional change is especially appropriate. [47] o Other countries constitutional reform efforts suggest ways to recognise distinct indigenous identities in C documents. (Davis, LCA 9) o Davis 239, You Me Unity: Baringa and Kalkaringi Statements o Yolngu and Bininj Leaders Statement of Intent (YMU, Davis) o Insufficiency of current legislative/constitutional framework o Non-recognition/deletion is not enough. History of exclusion Barton and Q and quotations (Osgoode 648), exclusion from Conventions and voting rights (651, 653), Davis 248 for systematic exclusion by framers Exclusion from constitution after 1967 referendum (653), Davis 248 Kartinyeri: S-G: infused with a power of adverse operation (Osgoode 654) Native Title Amendment Act (659) Kruger 660 Bringing Them Home human rights abuses 660 Living with racism; importance of symbolism (Davis 249) o Report of the Council for Aboriginal Reconciliation made it clear that reconciliation will require several changes to Australias legal structure. Two directly affect the Australian C [preamble and treaty]. [Osgoode 662] o Goals set out in 2020 Report (Davis 244) o Statement of Intent (Davis 245) o Importance of recognition: international examples, normative imperative for formal state recognition (Davis 250) o Question is how Constitutional Reform can best contribute to reconciliation between Indigenous and non-Indigenous Australians. Importance of consultation ALC 12, referencing Social Justice Commissioner, ALC 22, 24. Also Kalkaringi Statement, Winckel on failures of 1999 10.

Range of amendments have been proposed to meet these objectives. Webber at [30] [31] identifies four categories of amendments those designed to remove past traces of discriminatory policy, and those designed to facilitate more general participation in the institutions of society at large, structural measures designed to promote autonomy [33], measure whose relationship to Australias cultural diversity would be primarily symbolic (eg preamble [34]. (YMU 10) Those consulted urged that C recognition should address issues such as sovereignty, self-determination, political representation including through guaranteed seats in Parliament, recognition of customary law, and outstanding issues in relation to land and resources. Advocacy of constitutional entrenchment of UNDRIP. ALC 13 Room for ongoing discussion. ALC 12 Ability (to a certain extent) of a new preamble to meet the objectives of reconciliation: o Importance of preamble in terms of imagery and national vision. Allow ATSI peoples to assume rightful place in Australian society. (Davis 250) See Webber for importance of imagery [1] [4] South African example (Davis 253), McKenna 3 Purpose of preamble (WP 20) Preambles may permeate the social and cultural fabric, acting as a potential totem for state, community and individual. [McKenna 1] Two functions in a constitutional setting: can capture and chart the history and aspirations of a nation; can be used in constitutional interpretation and in the construction of statutes and development of the CL as a statement of fundamental values. [McKenna 2] o Irrelevance of current preamble to the Australian people Shortcomings of preamble as it currently stands (Osgoode 647, 648) (Winckel P 3), McKenna as cited in Davis at 259 o Practical benefits of symbolic structural amendments. Many indigenous leaders point to the construction of a false dichotomy between symbolic and practical benefits.(Davis 243) Even if the discussion is to take place in those terms, there is evidence that symbolism has a powerful role to play in improving the standard of living experienced by disadvantaged peoples. o Educative potential of preamble Davis 262 An amended preamble would thus be an appropriate vehicle for recognition of ATSI peoples if it were to bear certain characteristics of form and content.

o Reference to preamble may have had an important rhetorical or symbolic impact, but hardly a legally important one. [McKenna19] o The risks presented by a justiciable preamble are small, particularly when weighed against the advantages of providing a symbolic underpinning for the High Courts development of the concept of popular sovereignty. Moreover, a legally sterile preamble would not retain the symbolic potency intended for it. [McKenna54] o Possible form and content statement of values/statement of recognition. See ALC for possible formulation. 14 Council for Aboriginal Reconciliation: preamble to acknowledge prior occupation and ownership, and continuing dispossession of ATSI peoples ALC 23 o Procedure is an important consideration in seeking form and content to meet the objectives of Constitutional reform. See Constitutional Convention report 1998, Constitutional Commission Report 1988, CAR Report. Consultation with indigenous Australians is vital. o Content: Davis 256 on what has had popular support throughout 90s and into 21st C. o Argument against: legal effects of preamble. These are often overstated. Legal role played by preambles part of the Act as a whole, but never a law-making part. Clarifying principles. Winckel partisanship 13. Constructive re ambiguity. Winckel 2 o where ambiguity exists, role varies according to the greater or less ambiguity of the enacting words, and the distinctive language of the preamble itself. As a guide to legislative intent and the object of an Act, the preamble may indicate how various ambiguous enactments may be restrained or enlarged. o cannot affect the interpretation of the words, the words must be construed according to plain and ordinary meaning. 3 o May be obvious that Parliament intended to legislate beyond the preamble. Likewise, a wide preamble ought not to automatically suggest an enlarged enactment, for the legislature may have desired it to be more specific in that area. 3 o General words may e interpreted narrowly where it is clear that such an interpretation was intended. In such a situation, reference to the preamble is relevant to the question of intention.

o (potential that a preamble wouldnt always benefit ATSI people) Winckel partisanship 16, McKenna 49. This potential arbitrary use of a preamble in constitutional interpretation highlights why it is inadvisable to progressively accord a preamble any more than the traditional interpretive role with its attendant qualifying principles, as developed by the common law courts. Contextual (WInckel 2 o elates to the manner in which, as part of the context of a whole Act, a preamble may assist in confirming the ordinary meaning of enactments, or indeed, be suggestive of alternative meanings which are consistent with the intentions of the legislature. Authorities support the idea that the preamblel may be surveyed as part of the wider context of a statute. May also be used for checking to see if an ambiguity is present. Winckel 3 o Mason J in Wacando: readily susceptible alternate interpretation in light of preamble = identification of an ambiguity. Reading of the Act must be as a whole and giving effect to its expressed object and purpose. (Winckel 4) In the latter part of twentieth century there is little doubt that a preamble is used like the rest of the context: to help establish the ordinary menaing of the substantive words and to be a guide to the intention of the legislature. It seems to follow from this that a preamble may also assist in identifying ambiguities in the Act where an alternative construction could better enact the intent of the Parliament. The contextual role of a preamble is supported by both legislation (Acts interpretation acts see Winckel 5), and consistent common law precedents (WInckel 6) Application of statutory reasoning to constitutional context is problematic. McKenna 15 Use of constitutional preamble to date (McKenna 17) o Not extensive, hasnt been used to justify either popular sovereignty (McKenna 24) or implied rights (McK 25). Restricted by Kruger (McK 25, Davis 260). HCA has treated preamble with a mix of indifference and reticence (McK as cited in Davis 261) Thus the legal effect of a preamble is limited at best.

o Arguments such as Howards about use of the word custodianship are ill-founded. (Winckel partisanship 14). Offensive (Dodson, Winckel partisanship 17, Davis 257), and insignificant when compared to CL developments like Mabo [No 2] (Winckel P 17) Statement of values might introduce human rights provisions through the back door. (mck 44) Unlikely Even if it does, isnt it better that the values applied by judges in their reasoning (an inevitability) are subject to national debate and discussion, and ultimately agreement? No non-justiciability clause Unnecessary. 125A sought to prevent the realisation of fears about the future judicial use (or misuse) of the preamble. I believe it was unnecessary; and furthermore, that there are a number of policy arguments that suggest a constitutionally entrenched non-justiciability clause is an inappropriate means by which ot resolve the debate about preambular significance. (WP 28) McK 47 judges currently have the ability to derive silent principles anyway. Jumbunna principle at 48. Misleading warning sduring 1998 Constitutional Convention led to increasing level of understanding. WP 32 Actual role clarified in Kruger, which demonstrated that the HCA had never accepted the line of reasoning from Leeth. WP 33, McK 30 Preoccupation with matters of legality in relation to a new preamble ahs caused the Government to lose sight of the equally important issue of symbolism in the constitution (Winckel p 18) Offensive/demeaning. Would not amount to recognition of indigenous rights, which should involve an expansion of the rights ATSI peoples are currently afforded at Australian law. McK 43 o Defensiveness and insincerity (WP 37) o Davis 261 undermine the values it purports to extol. Disingenuous, and has the potential to disaffect indigenous people further from the legal and politial mainstream. Reinformce colonialist paradigm (262) Gives the impression that preamble alone is somehow immensely powerful and potentially dangerous (WP 37) Argument that it improves drafting process, but the 1999 one was still rubbish (WP 39)

Potential negative impact on judicial reasoning. WP 40, see also McKenna quoting Mason on values Pragmatic concerns (getting it passed) (McK 38) not outweighed by the problems. If anything, political difficulties mean it should be done properly the first time (Davis, 265) To assist judges in terms of popular sovereignty and values (McK 41) For this reason, a preamble should be a supplement to other substantive constitutional amendments. Although a preamble may perform the aforementioned functions, it remains a measure inadequate to deal with the constitutions current capacity to provide for the enactment of racially discriminatory legislation. The adoption of a preamble (incorporating a statement of values/recognition) in conjunction with other constitutional amendments would thus be the most appropriate way to recognise, and indeed celebrate, the important place inhabited by ATSI peoples in contemporary Australian society. Debate surrounding the form and content appropriate for a new preamble should not be allowed to supersede the important questions surrounding the ways in which constitutional reform should be effected to achieve both the removal of discriminatory provisions and the proper recognition of the rights of ATSI peoples. o Davis 258: CARs understanding of a preamble as a first step o Limitations of discussion only in terms of preamble (Davis 264), we need to move beyond non-recognition or deletion. o Capacity of constitution to support the enactment of racially discriminatory legislation. YMU 10 -11 o Repeal of s 25. That s 25 should be repealed should hardly be a matter of contention. It betrays the explicit racism evident in the drafting process, and has no place in modern society. Jeremy Webber [at 24, 46] makes the argument that it has value as a piece of history, however other mechanisms available for educative and commemorative purposes render the retention of section 25 completely unnecessary. This conclusion is strengthened by consideration of the cost of its retention: the continued presence of legislative power to be exercised on racially discriminatory grounds. Such continued presence would be a powerful indicator to Australian society and to the global community that Australia has not yet afforded its Indigenous peoples the rights to which they are entitled. (YMU 19 odious) o More contentious is how the races power should be dealt with. The use of this power to support the enactment of legislation that is adversely discriminatory on racial grounds is still a possibility on current High Court authority. 1988 Commission on repeal (Davis 254)

Repeal is not good enough. Even if a preamble containing recognition of ATSI peoples were to be included, simple deletion from the substantive body of the constitution would amount to continued denial of the rights of ATSI peoples as Indigenous Australians. Question of support for existing/future legislation. (Davis 254 It is for this reason that the use of the external affairs power would be similarly inadequate (use of external affairs power suggested in ALC 14). Final report of the Constitutional Commission: Summary, at 55: inappropriate to retain s 51 (xxvi) because the purposes for which, historically, it was inserted no longer apply in this country. Recommended the insertion of a new (xxvi) which would give FP express power to make laws with respect to those groups of people who are, or are descended from, the indigenous inhabitants of different parts othe Australia. ALC 20 Replacement with positive provision allowing positive legislation Frenchs formulation would allow a range of structural measures land rights, treaty, etc. (208), ALC 14 The question of benefit. See also ALC 15: This would leave later definitional argument in Parliament and courts re scope. This would, however, be a necessary consequence of a decision by the Australian people in a Constitutional referendum that there be judicial protection of the rights and interests of ATSI peoples, and tat the powers of the Federal Parliament with respect to Indigenous Austrlaians be limited in accordance with international standards. Masons values argument is relevant here. Mck 41 o Provision for constitutional agreements (YMU 18) Similar to s 105A: recommendation of Senate Standing Committee on Constitutional and Legal Affairs Not able to be modified by legislation Range of issues: education, protection of cultural heritage, land rights Importance of treaty (osgoode 664, ALC 13) o Guarantee of general racial equality Could achieve same result as head of power to legislate FOR the BENEFIT, but wouldnt amount to express recognition of the important place in Australian society occupied by ATSI peoples. If it were constitutionally entrenched, it would have to ensure that special or advantageous or beneficial treatment of indigenous Australians is not susceptible to invalidation

on the ground of infringing a general guarantee of racial equality, and racial non-discriminating. ALC 15 o LC supports insertion of a new provision, similar to s 37 of the Canadian Constitution, providing a commitment to Constitutional conferences or other processes to discuss Indigenous rights. 16 N16: 1988 Constitutional Commission Final Report: A constitutional alteration to provide the framework for an agreement provides an imaginative and attractive approach to the immensely difficult situation which exists. But any alteration should not be made until an agreement has been negotiated and constitutional alteration is thought necessary or desirable. Section 105A, on which a possible alteration may be modelled, was approved at a referendum in 1928 after the Financial Agreement had been entred into between the Cth and the Sates in 1927. The electors, therefore, were in a position to know precisely what was being approved. This approach would obviate the need to put to referendum an extensive catalogue of rights or detailed arrangements, and at the same time, provide a source of C authority for such agreement/s. would provide opportunities for properly resourced consultations with Aboriginal and TI communities and organisations , and wider community education, in relation to appropriate arrangements for addressing much of the unfinished business, re sovereignty, self-determination, political representation, recognition of CI and land rights. ALC 16 Difficulties of constitutional reform o Webber [40] [44]. As explored above, such considerations are outweighed by the need for constitutional reform. o ATSICs 1995 social justice package recommendations particularly re consultation and public education. ALC 22 o Nevertheless, raising civic awareness is no substitute for cultural change facilitating constitutional reform. To achieve meaningful constitutional reform, the Australian public will need to confront the difficult issues of racism, dispossession and exploitation that are embedded not only in our constitution our founding legal document, but that underpin our founding public institutions. Sidestep mechanism or forerunner (Davis 265).