Disassembly of Our Constitutions By Ian Wilson LL.B

Question of law: is it legal and/or constitutional to appoint a public body of people restricted by race? At first blush, that would seem to conflict with anti-discrimination legislation, but there are exceptions in the various legislations, and exceptions can always be legislated for, and as the enacted law is more recent than the anti-discrimination law, it will hold if constitutional. So is a race-based law, constitutional?

Section 51(xxvi), the so-called “race power,” conferred on Parliament the power to make laws with respect to “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.” This is supposed to be “racist” from the knee-jerk argument that the word is mentioned, but from a plain reading, the laws could be positive, and in any case do not apply to Aboriginal people, so it is not “racist,” knee-jerkers. It is an interesting question whether the race power would apply to the race-based consultation panel. Certainly section 51 xxvi will confer no such power, but in these cases they usually seek to blend together a number of powers to get the required result. The real question is whether there is anything to preclude such a panel, rather than justify it, because that is how the law works, or is worked, today. There does not appear to be so. Thus, unless there is political opposition, this too will be rolled through, just like everything else, with much more to come.

https://www.theaustralian.com.au/nation/indigenous/aboriginal-leaders-attack-lack-of-consultation-over-treaty-plan/news-story/494a5200e69371dbf5fa7871ee0a891c

“Aboriginal leaders have attacked the direction of the Palaszczuk government’s push for a treaty with Queensland’s Indigenous people, saying there needs to be wider consultation and legislative empowerment of traditional owners in local planning decisions.

The move to strike a treaty was adopted as policy by the Labor government in 2018, and earlier this year a treaty advancement committee was set up to act on a report last year stetting out a path to negotiate with Indigenous people.

Led by Aboriginal academics, activists and public servants Jackie Huggins and Mick Gooda, the report of the government-­appointed Treaty Working Group proposed a South African-style truth and healing commission ahead of negotiating a treaty.

The report was condemned last year by the executive of the Queensland Indigenous Labor Network, which had initially pushed the treaty, as evidence of the process being “hijacked” by personal and political agendas.

Five of the eight-member QILN executives resigned, saying the report’s recommen­dations bore “no resemblance” to the original ALP state conference proposal for a treaty.

Cape York leader Gerhardt Pearson, who last week attended a public meeting of the treaty advancement committee, said the treaty direction lacked practicality and appeared to be “a Labor Left political management exercise’’. “The question I have is how does this treaty benefit and advance our people, our children, our old people?’’ he said.

Mr Pearson said economic development for Cape York’s Indigenous peoples had been stifled by a suite of at least 15 pieces of legislation in the past 40 years, including the now-abandoned Wild Rivers Legislation.

He said the government needed to meet its promise last year to “fix” the wrongful transfer of land title in 1994 by bureaucrats across more than 140,000ha of Aboriginal land, admitted by the government, and include native title holders in planning decisions.

“The status of cultural heritage and native title land holders in local government areas, when it comes to planning, needs to be elevated to beyond just being a resident,’’ he said. “I question how serious this process is if the government continues to treat First Nations people as mugs.’’

Darren Godwell, who helped draft the treaty policy at the 2018 state ALP conference, said the process had failed to properly consult Indigenous peoples. “As it stands, the process and policy is not consistent with the ALP platform on the treaty,’’ he said.

“The fundamental pillar of that platform was respect for traditional owners speaking for their country. The current approach has meant there is a committee of outsiders having more say over people’s country than those from that country.”

Last year, the report recommended the government introduce legislation creating a treaty institute, backed by 10 years of funding in the budget.