Constitutional recognition of Aboriginal people

Recognition basics

Worldwide, the US, Canada and New Zealand have all moved to recognise Aboriginal people in their respective constitutions.

The United States Government has more than 350 treaties with Native Americans. Norway’s constitution recognises the country as bi-­cultural.

“A glance at the constitution reveals the deep stain of racism and discrimination,” says reputable journalist Jeff McMullen [7]. “It is one of the few constitutions in the world today with negative race powers allowing government to make laws and policy that pointedly trample the rights of Aboriginal and Torres Strait Islander people.”

“Constitutionally speaking we are still basically White Australia, however much we boast that we have changed,” says former High Court Justice Michael Kirby [7].

90% of surveyed Australians want Aboriginal people officially recognised [4]. But Aboriginal Australians are not so sure.

A survey released in May 2015 by the government-funded Recognise group found that that 87% of Aboriginal people would vote “yes” to be recognised within the Australian Constitution. But in June 2015 another survey by IndigenousX, a social media platform across Twitter and Facebook, found that only 25% of Aboriginal people supported the Recognise campaign, 58% opposed. [15]

There is a big difference if Aboriginal people are recognised in the preamble or the body of the constitution.

The preamble is not part of the constitution, and any change to it would have no legal consequences.

Alternatively, inserting a statement of Aboriginal recognition into the constitution itself, would be interpreted by the courts, with the potential for outcomes at odds with today’s understandings of the statement’s purpose [5].

“I don’t want to resent any longer”

Aboriginal film-maker Rachel Perkins thinks that constitutional recognition could “lift the historical burden that sits like a heavy skin across our nation”, causing resentment among Aboriginal people.

“There is a deep subterranean feeling of burning resentment, carried within my people, that has been handed down from parent to child across six generations since 1788… This is the inheritance passed on to me. I do not want to resent my own country any longer.” [14]

Constitutional recognition is a delicate undertaking. In 2014, plans to hold a referendum were shelved for the second time in as many years. Note how the artist chose to depict Aboriginal people using stereotypes. Most Aboriginal people live in cities. Cartoon: Liement [13]

Recognition in state and territory constitutions

New South Wales

On 8 September 2010 New South Wales Premier Kristina Keneally introduced legislation to amend the preamble of the NSW constitution to formally recognise Aboriginal people as the first peoples in the state, and their contribution to the state’s identity [1].

The amendment introduces the following section into the Constitution Act 1902 preamble:

1) Parliament, on behalf of the People of New South Wales, acknowledges and honours the 
   Aboriginal people as the State's first people and nations.

2) Parliament, on behalf of the People of New South Wales, recognises that Aboriginal people
    as the traditional custodians and occupants of the land in New South Wales:
	a) Have a spiritual, social, cultural and economic relationship with their traditional
	    lands and waters and
	b) Have made and continue to make a unique and lasting contribution to the identity
	    of the State.
	
3) Nothing in this section creates any legal right or liability, or gives rise to or affects any
    civil cause of action, or affects the interpretation of tan Act or law in force in New
    South Wales.

The amendment followed a two-month consultation period with the public. The government insisted on the third paragraph to be included which makes the amendment symbolic only.

South Australia

South Australian Aboriginal peoples were the first in the nation to seek this constitutional recognition [6], but amendments to the constitution were only tabled in 2013 to SA’s lower and upper houses.

Proclamation Day is celebrated each December at Gumtree Park in Adelaide’s Glenelg – the only event of its type in Australia.

Victoria and Queensland

These states already recognise Aboriginal people in their constitutions.

Victoria introduced the Constitution (Recognition of Aboriginal People) Act 2004 in August 2004 while Queensland ratified the Constitution (Preamble) Amendment Act 2010 early that year.

Video: A humorous view of constitutional recognition

Watch this video of The Weekly for a tongue-in-cheek view of the topic.

National constitutional recognition

Nationally efforts started in 2011 to have Aboriginal people recognised in Australia’s constitution.

Australia’s constitution does not recognise Aboriginal or Torres Strait Islander peoples’ prior occupation and custodianship of their land.

In fact, section 51(xxvi) allows special laws to be passed to the disadvantage of Aboriginal people, and section 25 enables state laws to disqualify people of a particular race from voting at state elections.

An expert panel recommended to remove sections 25 and 51(xxvi) and adopt new sections:

• Add Section 51 (A) to recognise Aboriginal peoples’ occupation of the land and continuing relationship with lands and water. The section would also pay respect to culture, language and heritage, and state that the government can only make laws to the benefit of Aboriginal people.
• Add Section 116A to specifically prohibit racial discrimination for all Australians. It would forbid any government from discriminating against a person based on race, colour, ethnicity or national origin.
• Add Section 127 (A) for recognition of languages and to acknowledge and protect the role that languages have in Aboriginal communities.

Reconciliation Australia has set up the Recognise website, a helpful resource with background information, learning kits, a blog and an event calendar.

On 13 February 2013, federal parliament passed an Act of Recognition which formally recognised the presence of Aboriginal and Torres Strait Islander people in Australia before white settlement.

Also in 2013, the Australian government planned a nationwide referendum to recognise Aboriginal people in the preamble of the Constitution, but it shelved the plan later, citing low public support [8]. It later slated the referendum for 2017, coinciding with the 50th anniversary of the 1967 Referendum.

Why do Aboriginal people reject constitutional recognition?

While the movement for constitutional recognition appears strong and vocal, not all Aboriginal people support it [10,16]:

There is a huge lack of trust towards the government and its campaign. Kombumerri woman and academic, Mary Graham, says that “constitutional recognition is a way of promising something, but with no real substance”.

It’s a view echoed in many communities throughout Australia. Even politicians know about this. Victorian Aboriginal Affairs Minister Natalie Hutchins, in her time in office, found communities “consistently” express opposition to constitutional recognition.[9] And a “large and diverse audience” of 500 Aboriginal people unanimously rejected recognition in the constitution at a government consultation meeting in February 2016.[9]

There is also fear in the Aboriginal community that the government wants to use recognition as a distraction from the real problems.

Gumbaynggirr historian Dr Gary Foley believes that the government just wants “to divert our attention from the real issues”. And Veteran Gunnai activist Robbie Thorpe told the Tracker newspaper that a focus on constitutional reform equates to “taking us onto the back of the White Australia Policy, 100 years later”. The government created the policy in order to create an all-white Australia.

“Who gives a damn about whether we’re mentioned in the Australian Constitution,” Foley says. “What real difference will it make? It’s a grand token gesture and will mean nothing in the long run, so it’s a waste of time for people to be even talking about it” [12].

Others believe constitutional recognition could mean the end of the fight for a treaty.

Michael Anderson, leader of the Euahlayi Peoples, suggests that “the real hidden agenda of the proposed referendum [for constitutional recognition] is to coerce Aboriginal Nations and Peoples to become part of the Australian Constitution and by doing so consent to be governed. The Commonwealth government can then claim that Aboriginal Nations and Peoples have acquiesced. This is the main weapon the Crown has to counter our sovereignty movement.” [11]

The thinking behind these statements is that, for many Aboriginal communities, the goal is not constitutional reform. The goal is sovereignty and a treaty.

Fact Since the 1967 Federal Referendum, where voters decided to remove discriminating references, Aboriginal people are not mentioned in the Australian constitution.

Fact South Australian campaigner Tauto Sansbury estimates that “60% to 70% of Aboriginal people are interested in treaties rather than constitutional change”.[16]

Quiz: Which word does not occur in the Australian constitution?

aliens
dental
intercourse
love
treaty

Tell me!

The lack of acknowledgement of a people's existence in a country's constitution has a major impact on their sense of identity, value within the community and perpetuates discrimination and prejudice&hellip Recognition in the Constitution would have a positive effect on the self-esteem of indigenous Australians and reinforce their pride in the value of their culture and history.—Dr Maria Tomasic, president of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) [2]

Panel discussion

Watch a panel discussion about “Constitutional Recognition of Australia’s first peoples: Sell out or stepping stone?” where leading Aboriginal and non-Aboriginal public commentators discuss the suggested constitutional changes recommended by the “expert panel” and the related issues of land rights and sovereignty.

Panelists include Prof. Kerry Arabena (Director & Chair of Indigenous Health, Onemda VicHealth Koori Health Unit, The University of Melbourne), Prof. George Williams (University of New South Wales), Chris Graham (Freelance Journalist and former and founding editor National Indigenous Times). Moderated by Melissa Castan (Monash University).

Video commissioned by NITV and produced for Melbourne Conversations by Jeffrey Taylor, City of Melbourne. Thank you for your permission to feature the video here.

Should self-determination be included in the Constitution?

Geoff Clark, former chairman of the disbanded Aboriginal and Torres Strait Islander Commission, does not believe that self-determination needs to be included in the Constitution’s preamble.

“Aborigines probably already have the right of self-determination quite independent of the Australian Constitution,” he says [3]. He believes that any such inclusion would be “read down” by judges as has been done in the past with native title.

Clark suggests to include a simple clause in the body of the Constitution “that the consent of the Aboriginal people is required for the application [of] laws and policies that may have an effect on Aboriginal people.” [3] Such a clause would have stopped the Northern Territory Intervention.

Fact The Ethiopian constitution of 1994 provides in Article 39 that ‘‘Every nation, nationality or people in Ethiopia shall have the unrestricted right to self-determination up to secession’’.