I was asked to make some remarks about the concept of‘consultation’ in the proposal for Indigenous constitutional recognition put forward by the Cape York Institute (‘CPI’). My understanding of what presently is proposed is taken from the two submissions by the CPI to the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (‘Joint Committee’)1 and from Anne Twomey’s very helpful piece in The Conversation, translating these proposals into constitutional form.
The essential elements, as I understand them, are these:
- An Indigenous body would be required by the Constitution, with its composition, roles, powers and procedures provided in legislation.
- The body would provide ‘advice’ to the Commonwealth Parliament and government on what are described as ‘matters relating’ to Aboriginal and Torres Strait Islander peoples.
- The advice would be required to be tabled in the Parliament as soon as practicable, by the Prime Minister or the Speaker (in principle, I prefer the latter).
- Both Houses would be required to ‘give consideration’ to the advice in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.
- The ‘advice’ would not be binding and the provisions would be drafted so as to be non-justiciable (although without expressly saying so).
- The Indigenous body could be proactive as well as reactive, in the sense of offering advice on any matters as it considered fit.
- This new provision would be added to the Constitution in a new Chapter IA, immediately following the chapter on the Parliament and preceding the chapter on the Executive.
In my view, this is a helpful and constructive proposal, offering a new and quite different approach to constitutional recognition, which has some potential to be both effective and broadly acceptable.
Cheryl Saunders AO is a laureate professor at Melbourne Law School. She has specialist interests in Australian and comparative public law, including comparative constitutional law and method, intergovernmental relations and constitutional design and change. She is a President Emeritus of the International Association of Constitutional Law, a former President of the International Association of Centres for Federal Studies, a former President of the Administrative Review Council of Australia and a current member of the Advisory Board of International IDEA.
This paper was originally presented by Cheryl Saunders at a symposium on constitutional reform at Sydney Law School on 12 June 2015.