Constitutional Guarantees for Equal Treatment Before the Law

Thank you Honourable Members of the House, and distinguished guests. I dedicate this, my maiden speech, to my father, Ron Castan, who taught me that the law can be a powerful instrument for social change, but it can also be a regressive and obstructionist force, if stagnant, wrongful and unjust. Changing the law is not always an easy task, and fundamental reform is always subject to political pressures, entrenched interests and economic costs. But for those reasons, as Attorney General I have made it my goal to fundamentally reform three fundamental aspects of the way our Australian legal system impacts unequally upon people, and to see those changes through. Let me state my agenda very briefly: I believe the Australian Constitution should be amended to guarantee ‘equal treatment before and under the law, and equal protection and benefit of the law without discrimination’ as found in many comparable nations’ Constitutions. This is long overdue, and it is consistent with Australians’ expectations of their legal system, and with commitments the executive government has undertaken at international law.

With the Speaker’s forgiveness, I will elaborate. The Government intends to formalise recognition of Australia’s Indigenous peoples within the Commonwealth’s Constitution. Remedying this fundamental omission is long overdue. To change the Constitution requires a referendum. The last referendum on Indigenous issues, in 1967, removed a limitation on the federal Parliament’s capacity and allowed the Parliament to make laws for the ‘Aboriginal race’ (s51 (xxvi)). It also deleted the racist requirement in s 127 that ‘Aboriginal natives not be counted’ as part of the population of the states and territories for certain purposes. These amendments to the Constitution met with tremendous support from the Australian community, and, importantly, they had bipartisan support from the major political parties, thus the referendum passed with a resounding majority (over 80 per cent in all states and over 90 per cent in some).

While the 1967 referendum was considered a success, most are not. The majority of attempts at reform of the Constitution have failed — of 44 referenda, only 8 have passed, in part because of the peculiarities of our ‘double majority’ requirement (which requires that not only a majority of people approve of a change, but a majority of people in a majority of states), and in part because of political and community uncertainty about the meaning and impact of changes.

So for referenda to succeed, there must be widespread political and popular support; I would like to see 90 per cent of the Australian voters approve of changes to our Constitution. The government has therefore called on an ‘expert panel’ to assist in engaging everyone in the conversation about constitutional reform for Indigenous peoples. Community consultations on the reforms are starting. Constitutional recognition should not be limited to the Preamble of the Constitution. It is also necessary to amend or repeal s 51 (xxvi), which allows the Federal Parliament to now make laws regarding ‘any race’, an antiquated and possibly undefinable concept. As I said earlier, there should be an ‘equality’ clause in our Constitution. In addition there are other areas of the Australian Constitution that are offensive, particularly s 25 which anticipates ‘people of any race’ could be disqualified from state voting.

We must now to find the right balance between identifying appropriate constitutional reform, and delivering the reform message to the wider Australian community. The more topics the ‘recognition referendum’ includes, the better it will remedy the injustice and omissions of our past, however with that comes the risk of community and political division on the content and impact of the proposed changes. This is a risk we as government must address, through providing coherent information, and clear leadership on the need for these reforms. I call on the opposition leadership, the minor parties and the independent members of the Parliament, to support the Expert Panel’s recommendations, so once again we can face the public with a constitutional referendum that is supported by the whole of our political spectrum The referendum date has not been set, and it was expected to be before the next federal election, but it is critical that we get the reform proposal right, for Aboriginal and Torres Strait Islanders, and for all Australians. If more time is required to achieve wide community support, I will be advocating for that, along with funding a community engagement campaign to develop that support. In time I hope the support for Constitutional reform will develop into support for a legal Accord or Treaty on a wider range of issues, so as to engage Australia’s Indigenous people fully in the political and legal processes of the nation. I draw the House’s attention to the Canadian forms of Aboriginal recognition, in their Constitution (s 35), in the Charter of Rights and Freedoms (s 15, and s 25) and in treaty negotiation processes, which are now simply a normal part of the legal and constitutional framework.

The second area of reform I will be making is to our policy and legislation regarding mandatory immigration detention. As it is clear that the great majority of people seeking refugee status here in Australia are found to satisfy the conditions for that status, I believe that there is no legal reason to detain ‘offshore entry persons’ under vastly different conditions from other people seeking to immigrate to Australia. The artificial excising of Christmas Island and other offshore territories as beyond the normal legal processes of the Migration Act has always been a farcical pretence, and this practice must end. The deaths, and then the funerals of those who drowned off Christmas Island, as well as the recent breakouts, protests and suicides in detention centres, may have reignited our attention to this issue, but our failings in this area are longstanding. Preventative detention should only be invoked where there is a high degree of risk to the community that justifies such detention. As it is clear that no such risk exists in the majority of refugee claimants, they should be allowed to reside in the community while their refugee claims are assessed. We must now find a better way to deter refugees from crossing treacherous seas to come to our shores, and a more humane way of processing those that do so.

Finally, I believe it is time for Australia to recognise same-sex marriage. There are 10 western nations that already do so (Argentina, Belgium, Canada, Iceland, Netherlands, Norway, Portugal, South Africa, Spain, Sweden) as well as another two countries where it is permitted in certain states or cities (USA and Mexico). This has not destroyed or impaired the institution of marriage, as some predicted. Marriage is a socially constructed institution, mandated by religious orthodoxy, and legally approved. The restrictions on marriage have changed over time. It was not so long ago that people of different cultures or faiths were precluded from marriage, yet now that limitation is considered baseless. Australia can legalise recognition of same-sex relationships as it does other relationships. This is consistent with s 116 of the Australian Constitution, which guarantees religious freedom, and precludes establishment of a religion, or imposing any religion. If someone (such as a religious celebrant) does not wish to officiate over same-sex marriages, they cannot be made to do so, under our Constitution. But if a couple wish to be recognised as living together ‘under law’ we now must permit them that self-expression.

I have touched on just three areas of law that I intend to reform, these are not all that I believe are needed. Issues such as a federal Human Rights Act, implementation of our existing international obligations, reform of the scope of many dimensions of executive power, and the proper funding of a wide range of legal and support services are necessary. But I note the Speaker has indicated my time is exhausted, so I will resume my seat. I look forward to working with my ministerial and parliamentary colleagues in bringing equality within the legal system to all Australians.

Melissa Castan teaches law and is a Deputy Director of the Castan Centre for Human Rights Law at Monash University