Constitutional reform: Creating a nation for all of us – May 2011 2011



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Australian Human Rights Commission

Constitutional reform: Creating a nation for all of us – May 2011




2011

Constitutional reform: Creating a nation for all


of us

……………………….


Aboriginal and Torres Strait Islander
Social Justice Commissioner

May 2011


Contents

1 Introduction 5

2 Why does Australia as a nation need to recognise Aboriginal and Torres Strait Islander peoples in the Constitution? 8

a. Achieving true equality for Aboriginal and Torres Strait Islander peoples 8

a. Achieving true equality for Aboriginal and Torres Strait Islander peoples 8

i. Symbolic value leading to practical effect 8

i. Symbolic value leading to practical effect 8

ii. Will there be greater protection for the rights of Aboriginal and Torres Strait Islander peoples? 11

ii. Will there be greater protection for the rights of Aboriginal and Torres Strait Islander peoples? 11

b. Achieving a unified nation within Australia 12

b. Achieving a unified nation within Australia 12

(i) Enriching the nation’s identity 12

(i) Enriching the nation’s identity 12

ii. Improving the effectiveness of our democracy: Protecting the human rights of the Australian community 13

ii. Improving the effectiveness of our democracy: Protecting the human rights of the Australian community 13

iii. Headway towards a reconciled nation 14

iii. Headway towards a reconciled nation 14

3 What could reform look like? 16

(a) Preambular reform 17

(a) Preambular reform 17

b. Reform to the body of the Constitution 18

b. Reform to the body of the Constitution 18

4 What are the next steps to a successful referendum? 20

(a) Bipartisan support 22

(a) Bipartisan support 22

(i) The 1967 referendum 22

(i) The 1967 referendum 22

ii. The 1999 referendum 23

ii. The 1999 referendum 23

iii. Lessons learnt 24

iii. Lessons learnt 24

b. Popular ownership 24

b. Popular ownership 24

(i) The 1967 referendum 24

(i) The 1967 referendum 24

ii. The 1999 referendum 26

ii. The 1999 referendum 26

iii. Lessons learnt 27

iii. Lessons learnt 27

c. Popular education 28

c. Popular education 28

(i) The 1967 referendum 28

(i) The 1967 referendum 28

ii. The 1999 referendum 28

ii. The 1999 referendum 28

iii. Lessons learnt 29

iii. Lessons learnt 29

d. Ensuring a successful referendum strategy 30

d. Ensuring a successful referendum strategy 30

(i) Expert Panel on Constitutional Recognition of Indigenous Australians 31

(i) Expert Panel on Constitutional Recognition of Indigenous Australians 31

ii. Advice and outreach to complement the work of the Expert Panel 32

ii. Advice and outreach to complement the work of the Expert Panel 32

Leadership and engagement 32

Leadership and engagement 32

Ambassadorial outreach 33

Ambassadorial outreach 33

Technical advice 33

Technical advice 33

iii. Engagement with the Australian community 34

iii. Engagement with the Australian community 34

iv. The role of the Australian Government 35

iv. The role of the Australian Government 35



  1. Introduction


A century ago, the Australian people engaged in a debate about creating a nation. They held meetings…They wrote articles and letters in newspapers. Many views were canvassed and voices were heard. The separate colonies, having divided up the land between them, discussed ways of sharing powers in order to achieve a vision of a united Australia. The result was the Australian Constitution, establishing the Commonwealth of Australia in 1901.

A century ago our Constitution was drafted in the spirit of terra nullius. Land was divided, power was shared, structures were established, on the illusion of vacant land. When Aboriginal people showed up – which they inevitably did – they had to be subjugated, incarcerated or eradicated: to keep the myth of terra nullius alive.

A century after the original constitutional debate we have an opportunity to remake our Constitution to recognise and accommodate the prior ownership of the continent by Aboriginal and Torres Strait Islander people.1

One hundred and ten years ago years ago, Queen Victoria gave Royal Assent to the Australian Constitution, the founding document of our nation and pre-eminent source of law in the country.

Aboriginal and Torres Strait Islander peoples were noticeably absent from its drafting.

We were excluded from the discussions concerning the creation of a new nation to be situated on our ancestral lands and territories.

We were expressly discriminated against in the text of the Constitution, with provisions that prevented us from being counted as among the numbers of the new nation, and which prevented the new Australian Government from making laws that were specifically directed towards us.2

As a consequence, the Constitution did not – and still does not – make adequate provision for us. It has completely failed to protect our inherent rights as the first peoples of this country.

Former Chief Justice of the High Court of Australia, Sir Anthony Mason, has referred to this as a ‘glaring omission’.3

In the face of this history of exclusion, Aboriginal and Torres Strait Islander peoples have consistently and vehemently fought to have our rights recognised and acknowledged by the Australian Government and the Australian people. In 1938, two great Aboriginal warriors stated that:

You are the New Australians, but we are Old Australians. We have in our arteries the blood of the Original Australians; we have lived in this land for many thousands of years. You came here only recently, and you took our land away from us by force.4

There is a long history of Indigenous and non-Indigenous people calling for this recognition including:



  • 1938 – Aborigines Conference

  • 1967 – Referendum and preceding campaigns

  • 1988 – Barunga Statement

  • 1988 – Constitution Commission’s Report

  • 1995 – Social Justice Package submissions5

  • 1999 – Referendum on the preamble of the Constitution

  • 2000 – Council for Aboriginal Reconciliation Report

  • 2008 – 2020 Summit

  • 2008 – Social Justice Report

  • 2009 – Australian Human Rights Commission Submission to the National Human Rights Consultation.

These examples illustrate years of advocacy for constitutional recognition.

Since the days of the Bark Petition, Aboriginal people have been aware that the protection offered by legislation – ranging from the Aboriginal protection ordinances to the Land Rights Act – is only as secure as the government of the day…We have long believed that the protection of our rights deserves a higher level of recognition and protection.6

It is upon this historical foundation that Australians are increasingly accepting the need to address this non-recognition and exclusion through constitutional reform.

The determination of Aboriginal and Torres Strait Islander leaders to fight to secure our future in this nation has resulted in some improvements in the recognition of our land, cultural and social rights. This has been reflected in advancements such as:



  • the fight of Eddie Mabo and others for the native title rights of the Mer people, that led to the High Court decision of Mabo (No 2)7 and the legislative response, the Native Title Act 1993 (Cth)

  • the work of people such as Lowitja O’Donohue, Les Malezer, Mick Dodson, Megan Davis and Tom Calma in the development of the United Nations Declaration on the Rights of Indigenous Peoples (Declaration)8 and its subsequent endorsement by the Australian Government.

I believe the nation is beginning to come to terms with its true, complete history. This requires the nation, to come to terms with a history of exclusion and the violations of the rights of Aboriginal and Torres Strait Islander peoples.

A major step in this journey was the 1967 referendum that resulted in a critical change that allowed Aboriginal and Torres Strait Islander people to be counted in the census. It also gave the Australian Government the power to make laws for Aboriginal and Torres Strait Islander peoples.

Ten years ago, the Council for Aboriginal Reconciliation identified constitutional reform as unfinished business of the reconciliation agenda, calling for the Commonwealth Parliament to prepare legislation for a referendum.9

The most recent highpoint came in 2008, when the Prime Minister, delivered the National Apology to Australia’s Indigenous Peoples (National Apology) for the forcible removal of Aboriginal and Torres Strait Islander peoples from their lands and their families.10

There have been some further recent positive developments with Aboriginal and Torres Strait Islander peoples being formally recognised in several state constitutions:


  • The Queensland Constitutional Convention, held in June 1999, recommended that the Constitutions of each state should recognise the custodianship of the land by Aboriginal and Torres Strait Islander peoples.11 Queensland’s Constitution was formally changed in 2010.12

  • In 2004, Victoria became the first state to recognise the Aboriginal people of Victoria in their Constitution in 2004.13

  • In 2010, the New South Wales (NSW) Parliament passed legislation to recognise Aboriginal peoples in the NSW Constitution.14

This recognition provides a good basis on which to build the necessary consensus within the Australian community that Aboriginal and Torres Strait Islander peoples should be acknowledged in the nation’s foundational legal instrument.

At the federal level, bipartisan support for amending the Constitution in this regard has been maintained since 2007.15 Bipartisan support was reaffirmed by both major parties as election commitments in the federal election held in August 2010.16

In Constitutional reform: Creating a nation for all of us, I build on these current developments and commitments. I seek to answer three key questions that will go to the heart of a successful campaign:


  • Why is there a need for constitutional reform to recognise Aboriginal and Torres Strait Islander peoples?

  • What could reform look like?

  • What are the next steps?

In section 2 I discuss the need for and significance of constitutional reform. I focus on the symbolic and practical effects on the lives of Aboriginal and Torres Strait Islander peoples, as well as the benefit this could bring to all Australians.

Section 3 outlines some of the possibilities for reform. It is my belief that the nation is ready to move beyond preambular recognition to address the provisions of our Constitution that permit and anticipate racial discrimination.

Section 4 analyses historical lessons and contemporary practicalities to chart some of the essential next steps to be taken, toward achieving a successful referendum.

We have reached a critical juncture. Australians have a rare opportunity to stand together as one people, united in recognition of the contribution of Aboriginal and Torres Strait Islander peoples to this land and this nation, in the past, the present and into the future. What is at stake is an inclusive national identity and a path towards a truly reconciled nation.

History shows that constitutional reform is not easy. As with the 1967 referendum, it will require the open hearts and minds of the majority of Australians in order to succeed.

I believe now is the right time to take up this challenge: for Australia to come together as a nation, as in 1967, to build the consensus and momentum to make this reform a reality.




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