Constitutional Recognition of Aboriginal and Torres Strait Islander People

The history of referenda in Australia

ABC Radio National this week ran a programme on constitutional referenda in Australia, in the context of a debate on the proposal to recognise Aboriginal and Torres Strait Islanders in the Australian constitution.

Referendums have become synonymous with failure in Australia, even when initial polling shows great support for a proposed change.

The figures are well known: 44 referendums have been put to the Australian people, but only eight have been passed.

The programme highlighted the various roadblocks that constitutional referenda face. The record of failed referenda in Australia is worth keeping in mind as the current debate continues.


Email: Major report backs changes to section 18C

Bob_DayA government review of Commonwealth laws has identified section 18C of the Racial Discrimination Act 1975 as being ‘of particular concern’ to freedom of speech, in a major report released last week.

The Australian Law Reform Commission, which was joined last month by the IPA’s academic advisor Professor Suri Ratnapala as a part-time Commissioner, is conducting a review into Commonwealth encroachments of ‘Traditional Rights and Freedoms’.

In its interim report last week it identified the freedom of speech implications of section 18C, and the need for a ‘more thorough review’ of the law.

This follows the tick of approval by the Parliamentary Joint Committee on Human Rights to amend put forward by Senator Bob Day to remove the words ‘offend’ and ‘insult’ from the law.

With the Prime Minister’s own party’s rank and file also having endorsed Senator Day’s amendment bill in June, the government should consider this an ideal opportunity to honour its election promise and take a stand for freedom of speech.

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‘Recognising’ the Constitution, and its limits: Part II

Part I appeared on FreedomWatch yesterday, and can be seen here.


As I wrote yesterday, the recognition debate has seemingly moved away from considering minimal, albeit still problematic, symbolic constitutional change. At the Garma festival in Arnham Land last weekend, Noel Pearson acknowledged that ‘there’s no substantial constituency in Indigenous Australia for just some kind of preambular embroidery’, while Galarrwuy Yunupingu suggested that a constitutional clause outlawing racial discrimination was ‘not negotiable right from the start‘.

This follows both the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (in June 2015) and the Expert Panel on Constitutional Recognition of Indigenous Australians (in January 2012) putting forward suggestions that included the amendment of the existing race power under s. 51(xxvi) to provide for a ‘beneficial’ race power and the insertion of a new constitutional provision prohibiting racial discrimination.

There are a number of significant problems with these substantive proposals. The first is that any constitutional race power – even if it claims to be exclusively beneficial – undermines the simple proposition that nobody should be judged or discriminated against because of the colour of their skin. It is difficult to see how enshrining references to race in our Constitution could do anything other than undermine racial equality and reconciliation.

At a more practical level, the inclusion of a ‘beneficial’ race power assumes that the interests of all Aboriginal people are homogenous, that public policy can clearly labelled as either ‘beneficial’ or ‘detrimental’, and that these public policy discussions are better determined by the courts through litigation rather than the parliament through elections.

The more minimalist option of simply removing references to race from the Constitution through the removal of both sections 25 and 51(xxvi) seems to have fallen by the wayside. This is a lost opportunity. Amending our Constitution to ensure that it is not itself racist would be a small but unifying step forward that would have a realistic chance of succeeding at a constitutional referendum.

Trying to transform our Constitution into a single-clause Bill of Rights that will itself defeat racism both fails to take into account the fundamental character of our Australian Constitution, and opens up a constitutional debate that is highly likely to result in failure at a referendum.

The Recognise discussion does offer a real opportunity to contribute to a more unified and reconciled nation. But we need to be realistic about what our Constitution is, and more importantly what it is not. When the referendum is held it is not, as Professor Marcia Langton claimed recently, a choice between ‘do you want Aboriginal cultures to survive, or do you not want Aboriginal cultures to survive’. Instead it is an overdue opportunity to remove antiquated provisions that should have no continuing place in our daily governance.

The final proposal should ultimately be assessed not by any symbolic value ascribed to it, or indeed the fear of being characterised as racist for not simply agreeing sight unseen to ‘Recognise’ – regardless of what the final proposal ends up being. Instead it should be judged by the only criterion that is ever relevant when considering questions of constitutional reform, namely will these changes actually improve the practical workings of our constitutional structure?


‘Recognition’ not enough to achieve constitutional recognition?

Noel Pearson and Patrick Dodson

Noel Pearson and Patrick Dodson

The push for constitutional recognition of Indigenous Australians goes much further than simple a simple statement of recognition. Several prominent Indigenous Australians have as much as dismissed any ‘recognition’ provision in the Constitution as insufficient, labelling such changes “preambular embroidery“:

Indigenous leaders Noel Pearson and Patrick Dodson… who are two of the country’s most respected Aboriginal figureheads, have joined to effectively push for a new or reformed head of powers for the benefit of indigenous peoples, and for the removal of outdated constitutional elements that are seen by many as racist.

Mr Dodson sees this as separate from questions about Aborig­inal sovereignty or a treaty between Aboriginal and Torres Strait Islander people and the rest of the country.

Mr Pearson said he was open to inserting a new clause into the Constitution explicitly banning racial discrimination, if doing so helped find “a way through the forest”.

He said he would be “guided by what indigenous Australia has to say” on racial discrimination.

“There’s got to be a substantive power position within the Constit­ution; it can’t just be some embroidery around a preamble or something like that,” Mr Pearson said.

And in another report in The Australian, quoting Senator Nova Peris:

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What really needs to be recognised


For decades now, governments of all persuasions have sought to improve the prospects of Indigenous communities by giving them more and more government. Unsurprisingly, more government has resulted in greater dependency.

Rather than amending the constitution to recognise Indigenous Australians, government attention would be better devoted to encouraging self-reliance and independence from the state.

Nick Cater in The Australian today, sets out what really needs to be ‘recognised’:

The buzzword for the propon­ents of constitutional amendment – recognise – frames a potential blueprint for a new direction. After decades of welfare failure, it is time to recognise the clumsy, self-servicing arm of government is incapable of assisting. If the proposal to remove race powers from the Constitution is to have any practical effect, we must acknowledge the racist assumptions that underpinned the failed policies of separatism and collectivism.

We must recognise the rich and precious Aboriginal culture is not incompatible with individual enterprise, and that the pursuit of self-interest and public benefit go hand in hand.

Above all, we should recognise the social evils destroying traditional culture are, by and large, symptoms of welfare. White public housing ghettos are little different from the ghettos of Central Australia. The pernicious effects of the welfare life are indifferent to ethnicity.


Senator Edwards speaks out for free speech


Senator Sean Edwards

In a newsletter to subscribers, Liberal Party Senator Sean Edwards (South Australia) made these strong comments on the importance of freedom of speech, and the inappropriateness of laws which restrict speech that “offends” and “insults”:

If we consider what most fundamentally distinguishes Western Civilisation from the cultural cavemen of the global islamist movement, it’s the free and forceful exchange of ideas and the way those ideas influence the evolution of our society. The recent Liberal Party Federal Council raised once again the issue of Section 18C of the Racial Discrimination Act and its impact on reasonable debate in Australia.

It’s the public debate of ideas and values that leads to social change and it’s their debate in Parliament that enshrines those changes into law.

But while the latter is protected by Parliamentary Privilege, public debate in Australia is threatened by an overbearing Racial Discrimination Act and its hypersensitive Section 18C. If free speech is muzzled, we can’t be sure our society evolves in the direction the community wants it to.

The Government plans to specifically recognise Aboriginal and Torres Straight Islanders in the Constitution but discussion of who is and is not an Aboriginal person for the purpose of this amendment may well fall foul of the law. So Section 18C may literally prevent Australians from commenting freely on changes to their own Constitution.

Section 18D was envisaged to provide a number of exceptions to the sanctions of Section 18C for scenarios like journalism, art and academic debate. However in doing so it invites a judge to decide whether you hold your view “in good faith” and whether or not it is “reasonable” of you to do so before he or she decides whether they’ll let you off.

Australia did not become the civilised, culturally advanced society that it is by chance or by having our thoughts vetted by the judiciary. We got here through an evolution of ideas, values and beliefs and having them validated or otherwise by the best test there is: public debate. That Federal Council passed a motion calling for removal of the words “offend” and “insult” from the Racial Discrimination Act will, I hope, inspire further attention to the matter from in the Parliamentary Liberal Party.


Gregory Melleuish: Australian constitution is no place for issues of identity


Gregory Melleuish, Associate Professor, School of History and Politics at University of Wollongong, has written a wonderful and enlightening piece on constitutional recognition of Aboriginal and Torres Strait Islander Peoples, which appears in The Conversation today:

There are some problems, which include the Commonwealth’s power to make laws with regard to a particular race. Such a power is an embarrassment in an age of equality and should be consigned to history.

But the current move to recognise Australia’s Indigenous people in the Constitution is worrying. This is not because of its intent. That intent is an expression of the traditions of justice we have inherited from Britain, going back to Magna Carta. Rather, the problem lies in the way in which it changes the nature of the Constitution away from a procedural document by introducing issues of identity into it.

In this regard, it is worth noting that the attempt to introduce God into the preamble in the 1890s led to a vigorous campaign against such a move by the Seventh Day Adventists. They feared that it would be a prelude to the enforcement of Sunday observance.

There is much to be said in favour of recognition of Indigenous Australians somewhere in Australian public life. But it is important that any such recognition should not become the foundation for future attempts to turn the Constitution into a document that comes to focus on issues of identity. We need to appreciate that the Constitution has served us so well because its basic function is procedural.

Gregory Melleuish is a member of the Advisory Board of the IPA’s Foundations of Western Civilisation Program.


Senator Ian McDonald on constitutional recognition


Sen. Ian McDonald

Encouraging comments from LNP Senator Ian McDonald (Queensland) on the debate over constitutional recognition of Aboriginal and Torres Strait Islander peoples. In an email to members, Senator McDonald addressed the recent resolution of the Liberal Party Federal Council to remove references to race from the constitutional altogether:

Whilst I acknowledge that Aboriginal Australians were in this Country long before my ancestors, and I know they are rightly proud of that and have a special attachment to the land and the sea, I have long held the view that in all other respects there should be no discrimination, positive or negative, against any group of people who have made Australia their home. Indigenous leaders tell me and I agree with them that the best thing for Indigenous people is to be treated just as other Australians and have the same rights and opportunities.

Simple things like owning your own home can be a problem for indigenous Australians because of a series of ‘Nanny State’ legislative changes that have happened over the years… the last thing aboriginal people need is to be treated as different because some bureaucrats and what I call the latte sippers in the Southern Capital cities, think that indigenous people cannot look after themselves and need the ‘Nanny State’ to make their decisions for them.


Tim Wilson discusses constitutional recognition on Q&A


Last night, there was a very brief discussion of the proposal to recognise Aboriginal and Torres Strait Islanders in the Australian Constitution on ABC1’s Q&A. The question that kicked off the discussion was:

How long do you think it will be before a long overdue referendum is put to the Australian people to recognise the rights of indigenous people in the constitution? Would you also support increased representation of indigenous people in the federal parliament as a further constitutional amendment?

The best answer to the question was delivered by Tim Wilson, Australia’s Human Rights Commissioner:

I think what the committee should have focused on is removing the existing race power rather than putting in a new non-discrimination provision. But fundamentally we don’t have a proposal – whether it’s the expert working groups panel’s proposal, whether it’s the one put up by the Wyatt group or one that’s put forward by Noel Pearson at the moment – that I believe in its current form can be successful. I think we have to start looking very clearly at issues outside of the constitution to drive aboriginal advancement…

I’ve added that emphasis to highlight the importance of Wilson’s statement. He is absolutely correct. The constitution should be free from all references to race. Race ought to be irrelevant to the system of government that the constitution establishes. It’s refreshing and encouraging to see such a view being promoted by the most senior human rights figure in Australia.


Constitutional recognition a “conceptual, legal, and political mess”


Chris Berg on The Drum has it absolutely right – constitutional recognition of Aboriginal and Torres Strait Islander people is a “conceptual, legal, and political mess.” He continues:

Now, in 2015, there are multiple, contradictory proposals on the table. The purpose of recognition is, if anything, getting less clear. The whole cause is, almost certainly, looking more hopeless.

It’s true that political momentum appears to be building. But momentum for what? For what specific change?

What is the goal of the recognition movement? Its advocates are clear: they don’t want symbolic change, but constitutional change that would lead to material advancement. This was the firm conclusion of last week’s parliamentary report.

Yet that dismissal of symbolism sits uneasily with the claims that the constitution is our great national document which should reflect the principles of Australian society – an assertion that is, fundamentally, about its symbolic role.

Far too much hope for material well-being has been tied up on this referendum. It is not obvious that constitutional change is the low-hanging fruit of Indigenous advancement.

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