Australian Human Rights Commission Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Shadow report to the CERD Committee – 8 July 2010 6 Issues relating to Indigenous peoples (Aboriginal and Torres Strait Islander peoples) 6.1 Constitutional protection against racial discrimination (ICERD Articles 1,2,5(a),6 and Declaration Article 2) 17. The Australian Human Rights Commission is concerned that the rights of Indigenous peoples are neither recognised nor formally protected in the Australian Constitution. 18. Nor does the Australian Constitution proscribe the enactment of racially discriminatory laws, such as the Native Title Amendment Act 1998 (Cth) and the Northern Territory Emergency Response legislation. 19. Further: • Section 25 of the Constitution contemplates the exclusion of voters on racial lines • The amended section 51(xxvi) of the Constitution, (the ‘races power’) has been interpreted by the High Court to allow for the Commonwealth to make both beneficial and adverse laws for Aboriginal people. 8 • In the case Kruger v Commonwealth (FN: (1997) 190 CLR 1) the High Court has also interpreted section 122 of the Constitution (the ‘Territories power’), which provides for the Commonwealth Parliament to make laws for the government of territories, to be unfettered by a general requirement of equality before the law or any express or implied rights in the Constitution. 9 20. A constitutional guarantee of equality before the law and freedom from discrimination would provide comprehensive protection against racial discrimination 21. Constitutional reform is also considered by many to be part of the unfinished business of reconciliation. 10 In particular, many consider that the first nations status of Indigenous peoples should be recognised in the preamble to the Constitution. Recommendation 10: That the Australian Government commence a constitutional process, with the active engagement of Indigenous peoples, for the recognition of Indigenous peoples in the preamble; removal of section 25 of the Constitution and its replacement with a clause guaranteeing equality before the law and non-discrimination. 11 6.2 22. Implementing the Declaration The Commission welcomed the Australian Government’s formal endorsement of the Declaration in April 2009. The Declaration has become increasingly 9