In this blog, Ellen Joy, one of the CRU’s interns, discusses the significance of the use of the term ‘peoples’ in the constitutional amendment proposed by the Expert Panel on Indigenous Constitutional Recognition:
What difference does a letter ‘s’ make? When it comes to the words ‘people’ and ‘peoples’ the distinction, although at first elusive, is potentially quite important. The Expert Panel’s report ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’ proposes a provision to give the Commonwealth Parliament power to make laws with respect to Aboriginal and Torres Strait Islander ‘peoples’ rather than ‘people’. The existing constitutional provision- which would be repealed and replaced by the recommended provision- gives Parliament the power to make special laws with respect to the ‘people’ of any race. What constitutional ramifications might flow from the addition of the letter ‘s’ to the word ‘people’?
First, it would suggest that Parliament could not legislate generally in relation to Aboriginal persons and Torres Strait Islanders. It would instead have to legislate in relation to different ‘peoples’; presumably groups such as the Wik people or the Eora people. This leads to questions about how a ‘people’ would be defined and whether this would prove more or less difficult to define than the people of a ‘race’.
Secondly, ‘peoples’ at international law have particular rights, including the right to self-determination. To what extent is the reference to ‘peoples’ in the proposed constitutional provision able to attract particular rights at international law and would the High Court interpret it as doing so?
The concepts of self-determination and ‘peoples’ under international law are (deliberately) vague, although there is some consensus that Indigenous peoples may be defined as ‘peoples’ under international law and entitled to ‘internal’ self-determination. This means the right to freely determine political status and pursue their economic, social and political development. Examples of this process can be seen in the Indian Territories in the United States, the recognition of Indigenous languages as a national language, or the creation of governing bodies (such as the now defunct Aboriginal and Torres Strait Islander Commission). This right to Indigenous self-determination is also affirmed by the Declaration on the Rights of Indigenous Peoples (DRIP) which was eventually supported by the Rudd Government in 2009. However, it is questionable whether the High Court would impute this meaning into the proposed provision.
If the Court were to take a textual approach, ‘peoples’ is likely to be understood as a reference to the various Indigenous communities within Australia, which would not import any right to self-determination. However, where there is ambiguity in a provision, the court may look to other sources to determine meaning. The court is therefore likely to look to comparative international jurisprudence, parliamentary debates and perhaps international instruments such as treaties.
A number of other jurisdictions recognise Indigenous ‘peoples’ in their Constitutions, including Canada, Columbia, Ecuador, Mexico and Russia. Canada’s constitution defines ‘peoples’ as the Inuit, Indian and Metis peoples, and does not incorporate the international definition. Interestingly, Russia’s constitution gives its Indigenous persons any rights created under international law. Although subsequent cases have restricted rights to self-determination; it is difficult to assess the extent to which Indigenous peoples have been afforded those rights. As such, international comparisons would suggest a leaning towards the recognition of multiple indigenous communities in a territory, and a tendency not to recognise ‘peoples’ in an international sense that would imply rights to self-determination.
The Court may also look to the Convention Debates to ascertain the intended purpose of a constitutional provision. The modern equivalent of the debates would be Parliamentary second reading speeches, which may also assist in determining purpose. Although there are currently no relevant speeches to examine, the focus of the Expert Panel’s report and poor community attitudes towards Indigenous self-determination and sovereignty suggest it is highly unlikely the Parliament will illustrate such a purpose in a second reading speech.
Finally, the High Court may choose to use former Justice Michael Kirby’s ‘interpretive principle’ of reading ambiguous provisions in light of universal rights principles. Given the ICCPR, ICESCR and DRIP, the Court could find that Indigenous persons are to be regarded as ‘peoples’ in the international sense, attracting a right to self-determination. However, Kirby’s interpretive principle has not been well received or implemented by other members of the judiciary. Heydon J pointedly stated in Roach v Electoral Commissioner that twenty-one Justices had considered and rejected the notion that legislative power could be curtailed by implied rights stemming from international law. A reliance on international treaties to impute a right of indigenous self-determination is unlikely to be accepted by the courts.
Even if the Court established that Aboriginal and Torres Strait Islander persons constituted ‘peoples’ in the international sense, there is still the issue of whether this implies the right to self-determination. The Court has been reticent to imply terms into the Constitution and at the very least, any implication needs to be based on the terms and structure of the Constitution itself. It seems a significant stretch to suggest that the term ‘peoples’ implies not only an international definition, but also a right to self-determination. Furthermore, implying rights derived from an alternative legal system would drastically undermine the supremacy and legitimacy of the Constitution.
Whilst it seems unlikely that the Court will imply a right to self-determination in the proposed provision, it is clear that greater discussion is required regarding the intended purpose of the proposed provision and what rights, if any, are intended to be conferred on Aboriginal and Torres Strait Islander Peoples.
Ellen Joy, CRU Intern, 17 May 2012
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