Page 1487 - Week 05 - Thursday, 7 May 2015
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… debate about whether proposed subsection 27(2) should be inserted into the HRA may be viewed as a matter of whether it cuts across existing HRA rights to an extent that is unacceptable.
From this perspective, the primary right is that in HRA subsection 8(3): “Everyone is equal before the law and is entitled to the equal protection of the law without discrimination”. The example appended to this subsection cites discrimination because of race as an example. It is often regarded as one of the most fundamental of the rights upon which our constitutional system is founded. A law which confers on certain persons rights not afforded to others cuts across the right to equal protection of the law. It might also, in a particular situation, cut across any of the other rights stated in Part 3 of the HRA.
In response to this concern raised by the scrutiny committee, the government has claimed that the rights are consistent with the recommendations of the commonwealth Expert Panel on Constitutional Recognition of Indigenous Australians. The Expert Panel on Constitutional Recognition of Indigenous Australians have recommended that a new section 51A be inserted into the constitution, giving recognition of Aboriginal and Torres Strait Islander peoples. The committee also recommended that a new clause 116A be added to the constitution, namely:
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.
Whilst the recommendations have been made, prematurely legislating in this space without the constitutional changes is fraught with danger. Whilst the bill that is before us today seeks to be consistent with these recommendations, I do not believe that the consequences of legislating prior to any constitutional changes have been thoroughly explored, and further scrutiny would be a prudent step prior to the bill passing the Assembly.
The addition of proposed new section 27(2) is based on the recommendations of the United Nations Declaration on the Rights of Indigenous Peoples, specifically articles 25 and 31. Article 25 states:
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
Article 31 states:
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the
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