I regard it as a great privilege to be able to address this Constitutional Convention which will provide you with the opportunity to debate issues of profound importance to this nation.

Among the many important recent developments in Australian Constitutional Law has been the High Court's recognition that the Constitution incorporates an implied freedom of political communication. As the Court said in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, at 559:

"Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates".

The Convention of which you are a part lies at the very heart of our democracy. The greatest safeguard of liberty, especially in difficult times such as we are now experiencing, is an informed citizenry, particularly one willing to contribute to and participate in the political process. That is precisely what you are doing.

That is the good news. The bad news is that we have a Constitution which has barely changed, at least in form, since it was adopted at the very dawn of the twentieth century. The founding fathers - they were all men - provided democratic procedures for amending the Constitution. In particular, s 128 of the Constitution provides that any proposal to amend the Constitution must secure the approval at a referendum of a majority of voters in a majority of States.

These procedures, democratic as they may be, have not proved conducive to constitutional reform. Of the 44 proposals put to electors at referenda since 1901 only eight have succeeded. One of these was, of course, the 1967 referendum which repealed s 127 and removed the words "other than the Aboriginal race in any State" appearing in s 51(xxvi) of the Constitution. As a matter of interest, the most recent successful referendum was in 1977 when, among other things, the Constitution was changed to require federal Judges to retire at age 70. It seems that a fear of elderly and infirm Judges is one of the few things that unites this country.

At one level, the rather unfortunate history of constitutional referenda in this country is a reminder of how difficult it has been to achieve constitutional reform in the century since federation. But as formidable as the obstacles may be, they should not discourage vigorous discussion of important policy issues such as those most recently exposed by the Counsel for Aboriginal Reconciliation in its Final Report. Nor should the obstacles deter efforts to build the national consensus which in practice is the necessary pre-condition to constitutional reform.

It is impossible to understand the approach taken by the Constitution towards the indigenous inhabitants of Australia without appreciating the historical forces that shaped that document. It is an undeniable fact that, despite the great achievements of the founders in forging the compromises necessary to create a new nation, the Constitution was drafted at the Convention Debates of the 1890s against a background of institutionalised racism in Australia . That racism was by no means directed solely at indigenous people, but they were the victims, along with Chinese, South Sea Islanders and others whom Sir Edmund Barton, Australia 's first Prime Minister and one of the first Judges of the High Court, described at the 1898 Constitutional Convention as "people of coloured or inferior races".

As it happens, the original purpose of s 51(xxvi), the so-called race power, was not to discriminate against the indigenous inhabitants of Australia . Rather the framers had in mind that Parliament should be able to deal with the members of any "alien race" after they had entered the Commonwealth. In other words, far from being a provision designed to make special laws for the benefit of a particular race, s 51(xxvi) was in truth primarily designed to facilitate discrimination against racial minorities. The exclusion of Aboriginal people from s 51(xxvi), as originally drafted, was in one sense advantageous to them, although they remained at the mercy of the States. (As it happens, Aboriginals in four States were entitled to vote for the first Parliament in 1901. In that same election, the only women entitled to vote were those resident in South Australia and Western Australia. ).

Of course, the removal of the reference in s 51(xxvi) to "the aboriginal race in any State" as a result of the 1967 referendum has conferred on Parliament a power to make special laws that it deems to be necessary for Aboriginal people. That power was exercised, for example, to enact the Native Title Act 1993 in its original form, as a response to the decision of the High Court in Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1. In the Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, the High Court upheld the Native Title Act as a "special law" for the people of a particular race because it conferred unique benefits on Aboriginal and Torres Strait Islanders whose native title interests could be extinguished only in accordance with the provisions of the legislation. The race power has also been exercised to enact the Aboriginal and Torres Strait Islander Heritage Protection Act (1984) (Cth), which attempts to preserve and protect areas and objects of particular significance to indigenous people in accordance with their traditions and customs.

Obviously, s 51(xxvi) can be used to enact laws for the benefit of Aboriginal people. The drafting history of s 51(xxvi) of the Constitution suggests that it could also be used to enact legislation detrimental to the interests of indigenous people. The point was debated, but not finally decided in the Hindmarsh Island Case (Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337). The issue in that case was whether the Commonwealth, having made a declaration under the Heritage Protection Act protecting certain areas considered to be of particular religious significance to Ngarrindjeri women, could amend the legislation so as to withdraw those areas from the legislative regime. A majority of the High Court decided that if the original legislation protecting the area was valid, then Parliament also had power to repeal that legislation, even though the repeal might be disadvantageous to particular groups of Aboriginal people. The decision does not, however, necessarily mean that Parliament can use the race power to enact legislation which directly discriminates against indigenous people, although it is possible that it could be used in this way.

One of the issues you have been asked to consider in your deliberations is whether the Constitution should be amended so as to prohibit discrimination on the grounds of race and to protect indigenous rights, perhaps as part of a more general Bill of Rights. To assess this proposal, some further understanding of historical forces shaping our constitutional structure is important.

The Australian Constitution has no Bill of Rights. In this respect, it is different from the United States which has a Bill of Rights in the form of the first ten and the fourteenth Amendments to the Constitution of the United States. Canada too, has also adopted a Charter of Rights, as recently as 1982. It is true that the Australian Constitution has several provisions with a "Bill of Right flavour". These include s 51(xxxi), which has been read as prohibiting the Commonwealth from acquiring property except on just terms (that is, except on the payment of adequate compensation), and s 116, which prohibits the Commonwealth from establishing any religion. But there is no general guarantee of fundamental rights incorporated into the Australian Constitution.

The reason for this omission is instructive. The framers of the Australian Constitution came very close to adopting a provision based on the Fourteenth Amendment to the United States Constitution: that is, a clause providing that no person should be deprived of life, liberty or property without due process of law or denied equal protection of the laws. Critics pointed out that if the proposal was adopted, legislation discriminating against Chinese residents of Australia would be held invalid. Sir John Forrest, one of the critics, expressed concern that the proposal would invalidate legislation preventing "coloured persons or Asiatic or African aliens enjoying the rights of Europeans".

There are very few who would mount these arguments today against a Bill of Rights. Nonetheless, repeated attempts to introduce Bills of Rights in Australia , whether to address indigenous issues or more general human rights concerns, have proved unsuccessful. Indeed, Australia is now one of the few countries in the western world that lacks a comprehensive Bill of Rights. This might seem quite remarkable, given that Britain , that bastion of Parliamentary sovereignty, has not only signed up to the European Convention on Human Rights, but has enacted its own Human Rights Act designed to safeguard fundamental liberties.

Any proposal that Australia should protect indigenous rights in the Constitution will have to meet the objection that the effect will necessarily be to transfer power from elected legislators to unelected Judges. There seems to be a profound suspicion in this country about conferring greater power on Judges, even if the object is to protect basic rights.

Interestingly enough, this is precisely what happened in Canada in 1982. Section 35(1) of the Constitution Act 1982 provides that "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed". This provision does not create aboriginal or treaty rights. Rather, it confers constitutional status and priority on treaty rights that existed as at 1982. Those rights include, but are not limited to the equivalent in this country of native title: that is, rights founded on the occupation by indigenous peoples of their traditional land in accordance with their own systems of law and custom. The potential scope of s 35(1) is shown by the continuing debate in Canada as to whether "existing aboriginal and treaty rights" include a right for aboriginal communities to govern themselves. A question you may have to consider is whether this is the sort of decision that should be made by Judges or (as in the case of the grant in Canada of self-government to the Inuit inhabitants of Nunavut ) by democratically elected legislatures?

Let me sound another note of caution about constitutionally entrenched rights. The fact that indigenous rights are constitutionally protected may be of symbolic importance, but it does not necessarily mean that they will survive unimpaired. Section 35(1) of the Constitution Act prevents the Canadian government from extinguishing aboriginal rights simply by passing legislation or by taking executive action. But under the law that has developed in Canada, aboriginal rights can still be extinguished provided that the Court is satisfied that the asserted aim of the legislation is "compelling and substantial" (for example, development of agriculture or infrastructure, or environmental protection) and that the legislation does not "unduly restrict" aboriginal rights.

The same is true of treaties, which is another subject of passionate debate in this country. There was essentially only one reason why the authorities in British North America and in the United States were prepared to enter into treaties with Indian tribes. The reason, to use the language of Chief Justice Marshall in Worcester v Georgia , was Congress' "most anxious desire to conciliate the Indian nations". In other words, treaties were necessary because the Indian tribes were formidable adversaries in the wars of the time.

The history of North America shows, however, that the rights conferred or recognised by treaties are vulnerable to destruction. In the United States, for example, the Supreme Court has repeatedly held that Congress has the power unilaterally to abrogate (that is overturn) treaties entered into the United States and Indian tribes. And so Congress has. Do not assume, therefore, that treaties necessarily guarantee the survival of rights in the face of changing in social, political and economic circumstances.

The fact sheets which have been provided to you concentrate, naturally enough, on the provisions in the Constitution that expressly refer to or have an obvious connection with indigenous people. A full understanding of the constitutional position of indigenous people in Australia must, however, take account of provisions which, on their face, may seem to have nothing to do with Aboriginal rights or interests. This point can be illustrated by the external affairs power: that is, the power of Parliament to make laws with respect to external affairs (s 51(xxix)).

In 1901, the external affairs power was thought to be insignificant, since Britain handled all Australia 's international relations. Australia , however, has long been a fully independent nation and, as such, has entered into many treaties and conventions with other countries. The modern significance of the external affairs power is that it has been interpreted as permitting the Commonwealth Parliament to enact domestic legislation implementing our treaty obligations.

Australia , for example, is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. The Racial Discrimination Act 1975 (Cth) is a valid law of the Commonwealth because it implements Australia 's obligations under the Convention . This Act has played a pivotal role in preventing the States from discriminating against indigenous people, since under the Constitution (s 109) federal law prevails over State law when there is inconsistency between the two.

The best example of the Racial Discrimination Act operating in this way is the Mabo Case itself. Prior to the High Court handing down its famous decision recognising native title in 1992, Queensland had enacted legislation that attempted to extinguish native title (should the High Court ever find that native title existed) without any compensation to the holders of native title interests. The High Court held (Mabo v Queensland (No.1) (1988) 166 CLR 186) that if the Meriam People could show that they had native title over the islands that they claimed (as they later did), then the Queensland legislation operated in a discriminatory fashion. It did so because it attempted to extinguish native title interests held by indigenous people, but left untouched all other property rights. The Queensland Act was therefore inconsistent with the Racial Discrimination Act and, accordingly, was invalid under s 109 of the Constitution. It was the false assumption that Aboriginal peoples lacked any identifiable system of laws that was the most substantial legal barrier to native title being accepted as part of the common law of Australia .

It is appropriate to conclude a survey of indigenous people and the Constitution with a reference to the famous Mabo Case itself. The Mabo Case did not involve the interpretation of the Constitution. Nonetheless, it transformed Australian law in fundamental ways. The case establishes the proposition that when the Crown acquired sovereignty over the various geographic units that now comprise Australia, it acquired only the so-called "radical title" to the relevant areas, but did not acquire beneficial ownership of the land. According to the High Court, the pre-existing rights and interests of indigenous people over the land were recognised by the common law of Australia and could be protected by remedies available through the courts. Native title was said to have its origin in and to be given its content by the traditional law acknowledged and the traditional customs observed by the indigenous inhabitants of a particular territory. In other words, the High Court recognised that the nature of native title in a particular case must be ascertained as a factual question by reference to the traditional laws and customs of the claimants.

This decision turned Australian law on its head. Previously, it had been assumed that Aboriginal people and Torres Strait Islanders had no interest in their traditional lands that was capable of being enforced against the Crown or against third parties claiming rights from the Crown. Contrary to popular belief, this legal position came about not because the courts erroneously assumed that at the time of European settlement the continent of Australia was simply devoid of indigenous inhabitants and, for that reason, terra nullius. The courts knew perfectly well that Australia was not unoccupied territory at the time of European settlement. Rather, the courts took the view that it was the absence of "settled inhabitants or settled law" that justified treating Australia as equivalent to an inhabited country.

A great deal, of course, has happened in the field of native title since the Mabo Case was decided. The Native Title Act 1993 was substantially amended in 1998 and the High Court has handed down a number of important rulings explaining the extent of native title and the circumstances in which it can be extinguished. Some important and extensive claims to native title have been recognised and endorsed by the courts. What is important for present purposes is to understand that fundamental legal changes sometimes can come about throughout existing institutions and mechanisms, without the need for amendments to the written Constitution.