Recognising Aboriginal and Torres Strait Islander peoples in the Constitution

[Qsaint]

sad person.

maybe we might like to be recognised as the original inhabitents in the constitution.

I dont think most people are against that as long as it doesn't indirectly grant any special rights. HapPy for it to be part of the preamble and remove the discriminative clause. The problem is Dodson is a bit of a separatist and the amendments could give aboriginals a special rights

 

[Chief]

I've submitted my assignment, I'll repeat my conclusions here.

Tapping this out on the phone so it's rough:

Basically s25 will probably go. Almost nobody objects to that. It makes sense.

S51(xxvi) is likely to go, but then you have the problem where 'special measures' laws (under CERD) like the native title act become unconstitutional.

So in comes s51A which gives the Cth power to enact these laws. The idea behind the statement of recognition in the section and not in the preamble is that a preamble might affect other sections. Put it in s51A and you sort of undo Kartinyeri, where the HCA decided s51(xxvi) was a head of power that could be used to make laws detrimental to the people of any race, unrelated to any actual public purpose.

To finish off the detrimental racial laws which could still be passed under tge territories power et al, and ensure we can pass 'special measures' laws to ameliorate the effects of past mistakes, s116A is proposed. This would also mean parliament couldn't suspend the racial discrimination act, which John Howard did twice, as it would be unconstitutional to do so.

But Tony Abbott hates bills of rights or constitutionally enshrined human rights. He thinks they are left-wing tricks to allow judges to change society in ways parliament wouldn't dare - ie they give power to all the minorities he's scared of. So he'll run a campaign against that and 116A won't get up even though 70%+ of us want our human rights protected. The other 30% probably didn't understand the question.

S127A is weird. It is not intended to affect anything. It's supposed to be symbolic. It would be better off in the s51A statement of recognition.

The issue about Aboriginals not being citizens under the Constitution - I'll link an article refuting this, which blames acts and practices of parliaments for that.

 

[medusala]

So he'll run a campaign against that and 116A won't get up even though 70%+ of us want our human rights protected. The other 30% probably didn't understand the question.

Not so sure of that Chief. Many people reserve a special contempt for human rights lawyers and it isn't particularly difficult to see why. As for racial discrimination, the state will continue to do that.

 

[tandino]

First, I don't think these questions should be wrapped up into one nice little package. It would be bound to fail if that eventuated.

Section 25 should go, and that's probably the only recommendation that would have a better than average chance of success. I think it is pretty much redundant anyway, so it would have no obvious consequences.

Section 127A should be rejected. I don't think there is a need for the Constitution to define a national language.

In regards to the rejection of Section 51(xxvi) and the addition of elements of Section 51A, and Section 116A, those two recommendations are linked in such a way that they would have to be asked as a single question.

I was surprised at the wording of 51A, specifically the link between recognition and racial-based law making. I think it would be more logical for anything that wasn't recognition to be inserted into 116A. Obviously the driving force behind this proposed Constitutional amendment is recognition. It is puzzling, but not so much of a surprise, that other issues would be included that goes beyond any public sentiment for recognition.

It decreases the chance of success.

This would also mean parliament couldn't suspend the racial discrimination act, which John Howard did twice, as it would be unconstitutional to do so.

If the idea of 116A is to make something like the Northern Territory Intervention illegal, I don't think it would be as clear cut as that. I think it could be argued that a move such as an Intervention would conform to 51A and 116A(2)

But something like that is a matter for the High Court of course.

And finally, any question about Local Government should be, and would be, rejected. It's a waste of a ballot paper.

 

[BlueManic]

The way this country deals with Aboriginal issues astounds me. It isn't logically possible to allow a group of people to live as hunters and gatherers as they did 200 years ago and expect them to have the same living standards as people of today. We don't let other people from other countries do this - why allow them? Aborigines have been taken over by an industry of guilt in this country and those that participate in that industry should be ashamed of themselves.

By all means practice your traditional beliefs and culture - no problem. But do so after you have worked 40 hours per week like the rest of us and earned the right to leisure time. Or better yet use your culture and traditions to generate an income for yourself if you can.

Plenty of civilisations throughout history have lost land to war and other means. That is what has happened throughout human history. If your land was stolen 70 years ago I could understand the effect on those who witnessed it and the generation after. That isn't the case here - over 200 years have passed.

I know I will get slammed for saying this - but build a bridge.

 

[Chief]

The flip side is that they don't think they need your permission to continue their cultures.

It doesn't seem such a big ask to give resources and support to try to ameliorate some of the effects of dispossession and cultural oppression. Recognition in the Constitution is a pretty good way to get things lined up to progress to a better place.

This "industry of guilt" thing you heard Andrew Bolt talking about - who are the people involved? Surely they have a guild or some such supporting organisation? Actually don't worry - I'll just read it in his blog.

 

[Chief]

If the idea of 116A is to make something like the Northern Territory Intervention illegal, I don't think it would be as clear cut as that. I think it could be argued that a move such as an Intervention would conform to 51A and 116A(2)

But something like that is a matter for the High Court of course.

The High Court would look at those laws and throw them out. They were drafted in a very short time and passed with almost no debate, labelling themselves CERD special measures laws and so not racist but, just in case, they suspended the operation of the RDA and state discrimination laws. A bet each way.

With s116A the government simply could not do that without close scrutiny.

Does anyone really think Aboriginals are the only people in the NT who abuse alcohol, women and kids?

http://www.health.nt.gov.au/library...tle=Alcohol use in the Northern Territory.pdf

With these changes to the constitution the High Court would strike down tons of the provisions of the NTNER Act. That Act is a grand, sweeping Liberal party statement beginning "Now look, I'm not racist but..."

 

[medusala]

It doesn't seem such a big ask to give resources and support to try to ameliorate some of the effects of dispossession and cultural oppression.

They have been given circa 50% of the NT. That doesnt sound like dispossession to me.

As for cultural oppression: WTF?

 

[tandino]

The High Court would look at those laws and throw them out. They were drafted in a very short time and passed with almost no debate, labelling themselves CERD special measures laws and so not racist but, just in case, they suspended the operation of the RDA and state discrimination laws. A bet each way.

You're putting the horse before the cart though Chief.

The relevant acts that led to the intervention did not have to conform to parts of the constitution that did not exist at the time. I'm sure that if they had existed at the time, or they end up being introduced at some point of time in the future, they can be worded so that they would conform.

The recommendations even allow for laws to be passed in relation to A&TSI issues

Putting it simply, it's obvious that the amendements are intended to allow "positive" racial based law, while outlawing "negative" racial based law. The terms positive and negative and what might fall under each is highly subjective and contested.

Is it too much of a stretch to suggest that the idea of the Intervention itself (leaving out all the specific nuances of the relevant act) would be an example of...

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

But that's for others to rule on.

 

[BlueManic]

The High Court would look at those laws and throw them out. They were drafted in a very short time and passed with almost no debate, labelling themselves CERD special measures laws and so not racist but, just in case, they suspended the operation of the RDA and state discrimination laws. A bet each way.

With s116A the government simply could not do that without close scrutiny.

Does anyone really think Aboriginals are the only people in the NT who abuse alcohol, women and kids?

http://www.health.nt.gov.au/library...tle=Alcohol use in the Northern Territory.pdf

With these changes to the constitution the High Court would strike down tons of the provisions of the NTNER Act. That Act is a grand, sweeping Liberal party statement beginning "Now look, I'm not racist but..."

See this is the point - the NT intervention was a very effective and popular policy. The large majority of Australians supported it. But if there was such a provision in the Constitution or a Bill of Rights the High Court would use that as a rationale for declaring a policy that has fundamental merit and is supported by the majority of Australians invalid.

Judicial activism is what makes people lose faith in the legal system.

 

[BlueManic]

The High Court would look at those laws and throw them out. They were drafted in a very short time and passed with almost no debate, labelling themselves CERD special measures laws and so not racist but, just in case, they suspended the operation of the RDA and state discrimination laws. A bet each way.

With s116A the government simply could not do that without close scrutiny.

Does anyone really think Aboriginals are the only people in the NT who abuse alcohol, women and kids?

http://www.health.nt.gov.au/library...tle=Alcohol use in the Northern Territory.pdf

With these changes to the constitution the High Court would strike down tons of the provisions of the NTNER Act. That Act is a grand, sweeping Liberal party statement beginning "Now look, I'm not racist but..."

By the way are you a law student, and if so, can I ask where? PM me if that is easier.

 

[Chief]

They have been given circa 50% of the NT. That doesnt sound like dispossession to me.

As for cultural oppression: WTF?

The sad thing is you're serious.

 

[campbell]

sad for me reading this thread, is the palpable fear i feel .

why so scared to go through this process.

 

[BlueManic]

sad for me reading this thread, is the palpable fear i feel .

why so scared to go through this process.

so because people don't want to waste taxpayers money and valuable national debate time going through a process for which there is no way the outcome will be obtained you somehow assume it is all because of fear and prejudice? The lefty buzz words for people who aren't as "progressive" as you :roll eyes:. Hence why the most oppressive regimes of the 20th century were left of centre.

 

[Chief]

No way it will be achieved? And you're accusing me of overreaching?

The report shows very wide support for the proposals. I think the only thing standing in the way would be a Coalition campaign.

 

[Chief]

See this is the point - the NT intervention was a very effective and popular policy. The large majority of Australians supported it. But if there was such a provision in the Constitution or a Bill of Rights the High Court would use that as a rationale for declaring a policy that has fundamental merit and is supported by the majority of Australians invalid.

Judicial activism is what makes people lose faith in the legal system.

With respect, the majority of Australians aren't Aboriginals. This is a point often missed: The NTNER Act was drafted by the Liberal party with no consultation with the people it would most affect. The idea that it looks anything like a CERD 'special measures' law is far fetched. So far fetched that the NTNER describes itself as a special measures law but the drafters themselves were so unsure of this they felt the need to suspend the RDA!

You'll find plenty of people adversely affected who are quite capable of balancing the family budget.

Based on weeks of reading (of the work of the HCA, experts in peer-reviewed legal journals and so on) I suggest that the High Court would look at the NTNER and say - good try, but under s116A and s51A this goes too far and you need to go back and find a better way that isn't so outright offensive to the constitution.

This would force the government to the conference table to innovate and negotiate rather than declare blanket prohibitions and limitations based on race with no real evidence to support them. Doing the latter leaves money on the table, so to speak.

Who knows? They may have come to a similar place as the NTNER and the High Court might have seen the whole process as conforming to s51A and s116A.

 

[BlueManic]

With respect, the majority of Australians aren't Aboriginals. This is a point often missed: The NTNER Act was drafted by the Liberal party with no consultation with the people it would most affect. The idea that it looks anything like a CERD 'special measures' law is far fetched. So far fetched that the NTNER describes itself as a special measures law but the drafters themselves were so unsure of this they felt the need to suspend the RDA!

You'll find plenty of people adversely affected who are quite capable of balancing the family budget.

Based on weeks of reading (of the work of the HCA, experts in peer-reviewed legal journals and so on) I suggest that the High Court would look at the NTNER and say - good try, but under s116A and s51A this goes too far and you need to go back and find a better way that isn't so outright offensive to the constitution.

This would force the government to the conference table to innovate and negotiate rather than declare blanket prohibitions and limitations based on race with no real evidence to support them. Doing the latter leaves money on the table, so to speak.

Who knows? They may have come to a similar place as the NTNER and the High Court might have seen the whole process as conforming to s51A and s116A.

It is very very difficult to predict what the High Court would do. I haven't done the research on this area of law so I can't speak to what the research shows is likely to occur. Though I suspect if the NT laws were remotely likely to be struck down someone would have funded the litigation.

Again you miss the point about the intervention being well supported and popular - courts have to be very careful in engaging in judicial activism. Personally I have no issue with the laws because I prioritise the fate of abused children over all else.

As for the Report you speak of - the panel was compromised from the word go. It is comprised of people who would have no clue what the average person thinks. You seem to think any failed campaign would be as a result of the Coalition. I always find this funny when someone says I failed because my opponent made a more effective argument than me. If you go into politics it is to advocate for a policy position - basically Labor and people like yourself are admitting the Libs are better policy advocates. Talk about giving up before you start!

 

[BlueManic]

With respect, the majority of Australians aren't Aboriginals. This is a point often missed: The NTNER Act was drafted by the Liberal party with no consultation with the people it would most affect. The idea that it looks anything like a CERD 'special measures' law is far fetched. So far fetched that the NTNER describes itself as a special measures law but the drafters themselves were so unsure of this they felt the need to suspend the RDA!

You'll find plenty of people adversely affected who are quite capable of balancing the family budget.

Based on weeks of reading (of the work of the HCA, experts in peer-reviewed legal journals and so on) I suggest that the High Court would look at the NTNER and say - good try, but under s116A and s51A this goes too far and you need to go back and find a better way that isn't so outright offensive to the constitution.

This would force the government to the conference table to innovate and negotiate rather than declare blanket prohibitions and limitations based on race with no real evidence to support them. Doing the latter leaves money on the table, so to speak.

Who knows? They may have come to a similar place as the NTNER and the High Court might have seen the whole process as conforming to s51A and s116A.

Oh and you should perhaps also point out that Labor toyed with extending the NT measures to all welfare recipients. Why not comment on that (something I support)?

When do you finish university? Presumably you want to practice in human rights or other form of advocacy law. If not, drop me a PM and I will organise a clerkship for you with some of the bigger corporate law firms - at least you can mount a sensible, reasoned argument (even if I disagree with you).

 

[Chief]

Off topic:

No aspirations to hr law - this is just the result of my Con Law assignment readings.

To be honest after Constitutional Law it's starting to wear on me and this may be my last semester having done 11 subjects out of 32. Family and BigFooty suffer while I study and I only started this as a bit of a diversion.

I might do Crim B and Property B and maybe Trusts to round those off but not sure. To finish the priestly 12 or whatever they are I'd need to do Admin Law and a couple of others. And I'm told Admin is worse than Constitutional!

 

[skipper kelly]

Off topic:

No aspirations to hr law - this is just the result of my Con Law assignment readings.

To be honest after Constitutional Law it's starting to wear on me and this may be my last semester having done 11 subjects out of 32. Family and BigFooty suffer while I study and I only started this as a bit of a diversion.

I might do Crim B and Property B and maybe Trusts to round those off but not sure. To finish the priestly 12 or whatever they are I'd need to do Admin Law and a couple of others. And I'm told Admin is worse than Constitutional!

Don't be a pussy Chief. Only a few years left.

 

[BlueManic]

Off topic:

No aspirations to hr law - this is just the result of my Con Law assignment readings.

To be honest after Constitutional Law it's starting to wear on me and this may be my last semester having done 11 subjects out of 32. Family and BigFooty suffer while I study and I only started this as a bit of a diversion.

I might do Crim B and Property B and maybe Trusts to round those off but not sure. To finish the priestly 12 or whatever they are I'd need to do Admin Law and a couple of others. And I'm told Admin is worse than Constitutional!

Given your program structure it sounds like you are at QUT. Admin Law there is much much worse than constitutional, but the assessment is a lot easier. You would probably enjoy theories of law or whatever it is called (can't remember but somehow got a 7 in it when I was expecting a 4). The program structure has probably changed since I grassed the QUT law library.

Stick with it mate - it is definitely a good degree to have and in a few more semesters you can choose electives, which are much much easier. Plus if you are struggling with the course load team up with someone bright and split note generating responsibilities. QUOTALS also offers template notes that are a reasonable start.

Or do what I did - **** a nerdy chick for 5 years on a casual basis for her notes. Win win she got sex on the quiet which no one knew about (was Hindu so meant to be a virgin for marriage) and I scored fantastic quality notes that I just adapted.

 

[Chief]

I think my wife is happier when I download notes from the web but I will keep it in mind.

 

[BlueManic]

I think my wife is happier when I download notes from the web but I will keep it in mind.

hahaha if married I do not advocate trading sex for notes.

To be very clear I was single when I engaged in such activities! Now that I am married would never do so, besides I know my wife would chop my balls off if I got caught

 

[tandino]

Who knows? They may have come to a similar place as the NTNER and the High Court might have seen the whole process as conforming to s51A and s116A.

I have no doubt that this would have occurred if the law was in place to work around.

Incidentally, while doing a bit of reading on this subject I came across an article that indicates that Rudd did the required fiddling in 2010 to reinstate the RDA whilst allowing the intervention to continue. I don't think the intervention was so unconstitutional (in a world where the "A" amendments existed) that it couldn't be done.

 

[Hollins]

Absolutely not

The rights industry doesn't need any more encouragement and has gone too far in my correct opinion