Call for bill of rights

Larissa Behrendt...bill of rights would draw a line in the sand

by Kerri Carr

A bill of rights should be on Australia's agenda, University of Technology, Sydney law and indigenous studies Professor Larissa Behrendt told Federation's Aboriginal Members Conference on May 11.

Ms Behrendt said the powers to make decisions about rights generally all are vested in the parliament, with no protection from the Constitution.

"There's nowhere there that says to the government: 'You cannot cross this line."

Ms Behrendt said a bill of rights was about "drawing a line in the sand against governments, saying these are the rights that you cannot breach".

She said there was now "a very stark difference between our legal system and the legal systems of every other Commonwealth country, which has now got some form of bill of rights, whether it's in the constitution...or whether it's a piece of legislation".

When the Constitution was being drafted, the Tasmanian Parliament suggested that the Constitution should protect rights, such as due process before the law and property rights, but the proposal was rejected.

Ms Behrendt said rather than putting rights protection in the Constitution for judges to interpret, drafters of the Constitution decided to "leave it to the parliament, so that parliament could decide which rights to protect and which ones not to".

"That decision to trust parliament was a tragic decision for Aboriginal people, because we didn't fare to well under it," she said.

Ms Behrendt reflected on the impact of the 1967 referendum on Aboriginal people.

"It's really interesting to compare what it was that people actually hoped to achieve, what their aspirations were, and then track how they've kind of been thwarted in the ways things have turned out since then," Ms Behrendt said.

The referendum allowed indigenous people to be included in the census.

She said advocates for the 'yes' vote felt it would lead to inclusiveness and be counted as equals, but native title law showed just how far away that goal was.

"[Native title] is the lowest form of protection anyone has to a piece of land," she said.

The referendum also gave the federal government power to make laws in relation to Aboriginal people.

Ms Behrendt said there had been a "very strong assumption" that if the federal government was given this power it would use it for the benefit of (and to protect) Aboriginal people.

"But...there's nothing [in the Constitution] that says that you have to use this power benevolently," she added, outlining how the Federal Government suspended the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in respect of the construction of the Hindmarsh Island Bridge.

Ms Behrendt said an "unintended consequence" of the 1967 referendum giving power to the federal government to make laws in relations to Aboriginal people was responsibility for indigenous issues then got shifted between state and federal governments.

"Rather than having one body responsible it was two; and rather than both levels of government working together, collectively, trying to get the best outcome for indigenous people...the usual response of governments has been to try and blame the other for the failures in the sector and force the other to put the resources into fixing issues," Ms Behrendt said.

"Blaming someone else is a real key feature of the indigenous portfolio," she added.

"Cost shifting [is] an enormous barrier to effective policy making for Aboriginal people," she also said.

Ms Behrendt said the 1967 referendum was an "important step forward" at "improving some of the faults with the Constitution" but we need to "look at how much further we've got to go".

She said the experience of the Stolen Generation was a really good guide of how much further we had to go.

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Last Modified: 24 May 2007