Should Aboriginal Peoples Be Recognised in the Australian Constitution?

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WHITLAM INSTITUTE AND UNIVERSITY OF WESTERN SYDNEY LAW ADDRESS 20 AUGUST 2013, UNIVERSITY OF WESTERN SYDNEY

I INTRODUCTION

The idea of recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution has been championed by both sides of politics for more than a decade. Prime Minister John Howard sought, unsuccessfully, to have the Australian people support a new preamble to the Constitution of the Commonwealth of Australia ("the Constitution). This was a question on the ballot paper for the 1999 republic referendum. The new preamble would have stated:

   We the Australian people commit ourselves to this Constitution ...
   honouring Aborigines and Torres Strait Islanders, the nation's
   first people, for their deep kinship with their lands and for their
   ancient and continuing cultures which enrich the life of our
   country. (1)

Even though this attempt failed, it spurred like change at the State level. Victoria was the first to move, adding the following text in 2004 to its Constitution Act 1975 (Vic):

1A Recognition of Aboriginal people

(1) The Parliament acknowledges that the events described in the preamble to this Act occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria.

(2) The Parliament recognises that Victoria's Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established--

(a) have a unique status as the descendants of Australia's first people; and

(b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and

(c) have made a unique and irreplaceable contribution to the identity and well-being of Victoria.

(3) The Parliament does not intend by this section--

(a) to create in any person any legal right or give rise to any civil cause of action; or

(b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.

Similar statements of recognition have since been added to the constitutions of Queensland, (2) New South Wales (3) and South Australia. (4)

Howard's advocacy for change did not end with the 1999 referendum. In the lead up to the 2007 election, he stated: T announce that, if reelected, I will put to the Australian people within eighteen months a referendum to formally recognise Indigenous Australians in our Constitution--their history as the first inhabitants of our country, their unique heritage of culture and languages, and their special (though not separate) place within a reconciled, indivisible nation'. (5) He declared that his 'goal is to see a new Statement of Reconciliation incorporated into the Preamble of the Australian Constitution'. (6)

Howard lost the 2007 election, but his successor, Kevin Rudd, continued to argue for change. One of his first acts as Prime Minister was an Apology to the Stolen Generations. In that speech, he sought bipartisan support for the 'constitutional recognition of the first Australians'. (7)

Rudd did not progress the issue further, leaving matters to his successor as Prime Minister, Julia Gillard. The hung Parliament produced by the 2010 election lead her to make a commitment to hold a referendum on recognising Aboriginal peoples in the Constitution in that term of government. She made this to Independent and Greens MPs in return for their support for her government. The promise was, however, dropped in 2012 when it became clear that not enough work had been done to give the referendum a reasonable chance of success.

While the Gillard government did not hold a referendum, it did establish an Expert Panel to examine the issue. Chaired by Professor Patrick Dodson, former Chairman of the Council for Aboriginal Reconciliation, and former Reconciliation Australia co-chair Mark Leibler, the Panel travelled the length and breadth of Australia to talk to people about whether the Constitution should be changed, and, if so how. …