What is the Constitution?
Australia is governed according to a set of rules known as the Australian Constitution. The Constitution sets out Australia’s system of government, including how Parliament works, what power it has, how the federal and state Parliaments share power and the roles of the Ministers and the High Court. As well as being the most powerful set of laws in the nation, the Constitution is an important reflection of the nation’s values (1). You can view the Australian Constitution here.
What’s the problem?
The Constitution came into affect on the 1st January 1901. Some of the issues with the Constitution as far as many Indigenous people are concerned are that:
- It was drafted without any involvement of Indigenous people, representing the way in which Indigenous people were marginalised within society.
- It does not recognise Indigenous people’s unique place as traditional owners and first peoples of this land, representing the denial of their dispossession.
- It doesn’t include a Bill of Rights, leaving Indigenous Australians vulnerable to exploitation and the violation of their human rights (2).
As it was originally drafted, the Constitution also explicitly discriminated against Indigenous people. Although these discriminatory clauses were amended by the 1967 Referendum (see The 1967 Referendum), the Constitution remains silent about the Indigenous history of this land, which stretches back tens of thousands of years. Moreover, our Constitution still permits racial discrimination, authorising the federal government to make laws that only apply to people of particular races (Sections 25 and 51).
The Heart of the Issue
These issues with the Constitution epitomise the historical wound in our nation - the denial of the existence, prior occupation and dispossession of Indigenous people, and the lack of engagement, involvement and relationship with Indigenous people. Because of this, Constitutional recognition can be a painful and sensitive topic for many Indigenous Australians.
What's more, the question of whether or not to recognise Indigenous people will ultimately be decided by non-Indigenous Australians. For many Indigenous people, having this highly sensitive and significant decision made on their behalf by people who generally don't have a lot of awareness and understanding about the issue is like rubbing salt in the wound.
What changes are suggested?
The Constitution can only be amended by a national vote, known as a referendum, in which the majority of people in the majority of States must vote yes in order for changes to occur. For decades, many Indigenous and non-Indigenous Australians have pursued a referendum to remove racial discrimination from our Constitution and insert recognition of Indigenous Australians. However, there are several ways that Indigenous people could be recognised in the Constitution and much debate has revolved around what form recognition should take; specifically, whether changes should be made to the preamble or the body of the Constitution.
Changes in the wording of the preamble
A preamble is a statement that introduces the Constitution but has no legal power. Changing the preamble to acknowledge Indigenous Australians would be an important symbolic statement about the place and value of Indigenous people as the First People of Australia (3).
Changes to the body of the document
Changing or adding to the body of the Constitution would have legal significance. For example, if a non-discrimination clause was included in the body of the Constitution, it would be illegal for a government to make laws which discriminate against Indigenous Australians (4). Some suggested changes to the body of the Constitution include:
- Acknowledging the place and value of Indigenous people as the First Peoples of Australia.
- Removing references that remain in the Constitution allowing discrimination on the basis of race.
- Inserting a non-discrimination clause.
What’s the controversy?
Not all Indigenous people support the push to recognise Indigenous Australians in the Constitution. In fact, there are many different opinions on Constitutional recognition among Indigenous and non-Indigenous Australians.
Those in favour of Constitutional recognition believe that it will benefit Indigenous people by:
- Addressing a history of exclusion of Indigenous peoples in the life of the nation.
- Improving the sense of self worth and social and emotional well-being of Indigenous peoples as individuals, communities and as part of the national identity.
- Enshrining the principles of non-discrimination in our Constitution.
- Building positive relationships based on trust and mutual respect between Indigenous people and the broader Australian community (5).
There are different degrees of support for recognition. For example, some people support recognition in the preamble but not in the body of the Constitution, while others support the removal of discriminatory clauses but not the insertion of a non-discrimination clause.
There is currently bipartisan support for a referendum that would see Indigenous people recognised in the Constitution, but as yet no decision has been made about what this recognition would look like. In the meantime, it’s important to acknowledge that Constitutional recognition is a complex and controversial issue, and there is no single ‘Indigenous opinion’.
In this video interview Rosalie Kunoth-Monks, a central Australian Indigenous Elder, voices her opposition to Constitutional recognition.
In this article, Indigenous lawyer and author Larissa Behrendt responds to arguments against Constitutional recognition and explains why she supports Constitutional reform.
Recognise is an initiative of the government-funded not-for-profit organisation, Reconciliation Australia. The Recognise movement exists to promote and gather support for Constitutional recognition.
To find out more about the campaign and hear more arguments in support of recognition, visit recognise.org.au
Report of the Expert Panel on Constitutional Recognition of Indigenous Australians
In 2011 an Expert Panel composed of Indigenous and community leaders, Constitutional experts and parliamentarians was established to consult extensively across the nation regarding Constitutional recognition of Indigenous Australians.
The Panel reported to the Prime Minister in 2012, recommending that Australians should vote in a referendum to:
- Remove Section 25 – which says the States can ban people from voting based on their race;
- Remove section 51(xxvi) – which can be used to pass laws that discriminate against people based on their race;
- Insert a new section 51A - to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples;
- Insert a new section 116A, banning racial discrimination by government; and
- Insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first tongues, while confirming that English is Australia’s national language (6).
The full report can be downloaded here.
Want to know more?
Watch Sharing Our Story to learn more about our shared history.