Constitutional recognition of Indigenous Australians

This article is part of a series on the
Aboriginal and
Torres Strait Islander Voice
Proposed Australian federal Indigenous advisory body to represent Indigenous communities.
Background
2023 referendum
See also

Constitutional recognition of Indigenous Australians refers to various proposals for changes to the Australian Constitution to recognise Indigenous Australians in the document. Various proposals have been suggested to symbolically recognise the special place Indigenous Australians have as the first peoples of Australia, along with substantial changes, such as prohibitions on racial discrimination, the protection of languages and the addition of new institutions. In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, which called for the establishment of an Indigenous Voice to Parliament as their preferred form of recognition. When submitted to a national referendum in 2023 by the Albanese government, the proposal was heavily defeated.

1958: FCAATSI

From its formation in Adelaide in February 1958, the Federal Council for Aboriginal Advancement, the first united national Aboriginal advocacy group, began a campaign to change the Constitution. Their efforts culminated the yes vote in the 1967 Australian referendum (Aboriginals), which changed the Constitution to include Aboriginal and Torres Strait Islander people in population counts, and allowed Federal Parliament to legislate specifically for this group.[1]

1995: ATSIC report

In February 1995, the Recognition, Rights and Reform report by the Aboriginal and Torres Strait Islander Commission (ATSIC) stated that constitutional reform was a priority, finding massive support for recognising Indigenous Australians in the Constitution.[1]

On 16 October 2007, Prime Minister John Howard promised to hold a referendum on constitutional recognition, and Labor leader Kevin Rudd gave bipartisan support. On 8 November 2010 Prime Minister Julia Gillard announced plans for a referendum on the issue.[1]

2012: Expert panel

In 2010, the federal government established an Expert Panel to inquire into changing the federal Constitution so that Australia's Indigenous peoples would be recognised in it. The panel's co-chairmen were Patrick Dodson and Mark Leibler. The report titled Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution was presented to prime minister Julia Gillard on 19 January 2012.[2][3] The report recommended the removal of Constitution sections 25 and 51(xxvi), and the insertion of new sections 51A. 116A and 127A:[4]

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;
the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

Section 116A Prohibition of racial discrimination

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Section 127A Recognition of languages

(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.[2]: p xviii 

The panel recommended that there be a single referendum, in which removal of s 51(xxvi) and insertion of the new s 51A would be proposed together, so that the validity of legislation that depends upon s 51(xxvi), such as the Native Title Act 1993 (Cth), would switch immediately from s 51(xxvi) to s 51A.[2]: p xviii  The panel sought a referendum process that will be nationally unifying and not divisive, with an eventual level of public support similar to that in 1967.[2]: pp xvii & xix  To that end, it proposed that the referendum be preceded by "a properly resourced public education and awareness program" and "should only proceed when it is likely to be supported by all major political parties, and a majority of State governments". If the federal government were to prefer different changes, the panel advised, it should return to consultation with the Aboriginal and Torres Strait Islander peoples.[2]: p xix 

Recognition Act 2013

On 12 March 2013, with all-party support, the federal parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, which recognised the Indigenous peoples of Australia and required the establishment of a committee to advise on a suitable date for a referendum on these proposals.[5] The process was to have been completed within two years, with a sunset provision ending the force of the Act on 28 March 2015, but provision was made to make it self-repealing on 28 March 2018.[6]

2015: Joint Select Committee

A Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was established in 2013 to consider the recommendations of the Expert Panel report and delivered its report in June 2015.[7]

2015: Referendum Council

On 7 December 2015, a Referendum Council, with 16 Indigenous and non-Indigenous members, was established to advise the Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten on progress toward a referendum. It built on extensive work by the Expert Panel and the Joint Select Committee.[8] It conducted national consultations which continued through the second half of 2016,[9] and published a discussion paper about five key proposals in October 2016.[10] The Recognition Council used a deliberative process which included six months of regional dialogues which resulted in a collective report of what constitutional recognition meant to aboriginal people.[11]

The Uluru Statement from the Heart was the culmination of a national Indigenous public consultation process in May 2017 at the First Nations National Constitutional Convention held at Uluru .[1] It proposed constitutional reform on three points: voice, truth, and treaty.[12] It was a deeply considered statement recommending deliberate structural reform, setting out three steps to achieve this, in a way that recognises First Nations sovereignty and overcomes their current powerlessness.[13] The main proposals of the Uluru Statement were:[12]

  • a national representative body with the power to advise parliament on laws that affect Indigenous peoples (Voice); and
  • a "Makarrata Commission" to supervise a process of agreement-making (Treaty) between governments and First Nations and undertake a public truth-telling process (Truth) about Australia's history.

The final report released on 30 June 2017 by the Referendum Council was largely supportive of the Uluru Statement. The majority of the council recommended that a referendum be held to change the Constitution to establish an "Indigenous voice to parliament". The first recommendation of the Final Report of the Referendum Council recommended:[14]

That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

The council commented but did not recommend the establishment of a Makarrata Commission, which was outside its terms of reference.[15]

There was little debate in the media after the release of the Referendum Council's report. On 26 October 2017, the Turnbull government released a media statement that largely rejected the major proposals. It said that an Indigenous national representative body would "inevitably become seen as a third chamber of Parliament" and would not be supported by the majority of Australians. The next step would be a Joint Select Committee to consider the recommendations of the existing bodies of work developed over the previous decade to develop a different set of constitutional amendments which would be acceptable to all.[16]

2018: Joint Select Committee

The Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples was appointed in March 2018, co-chaired by Senator Patrick Dodson and Julian Leeser MP and comprising six Lower House and four Upper House representatives. It presented its final report on 29 November 2018. There first two recommendations in the report have a possible bearing on constitutional change:[17]

  1. In order to achieve a design for The Voice that best suits the needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee recommends that the Australian Government initiate a process of co-design with Aboriginal and Torres Strait Islander peoples.
  2. The Committee recommends that, following a process of co-design, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish The Voice.

2019: Indigenous voice to government

An Indigenous voice to government via a "co-design process" was set in train by the establishment of the Senior Advisory Group (SAG), announced by Minister for Indigenous Australians Ken Wyatt in October 2019.[18] The Morrison government has said it would run a referendum during its present term about recognising Indigenous people in the Constitution "should a consensus be reached and should it be likely to succeed”.[19] The National Indigenous Australians Agency (NIAA) website states: "The Australian Government is committed to recognising Aboriginal and Torres Strait Islander Australians in the Constitution".[20] In his Closing the Gap speech in February 2020, Prime Minister Morrison reinforced the work of the Referendum Council, rejecting the idea of merely symbolic recognition, supporting a Voice co-designed by Aboriginal and Torres Strait Islander people, "using the language of listening and empowerment". The Labor Party has supported a Voice enshrined in the Constitution for a long time.[21]

2022: First meetings of referendum working groups

Following an announcement by the Albanese Government in mid-2022 to conduct a referendum on the Indigenous Voice to Parliament, the first meetings[22] of the First Nations Referendum Working Group,[23] aka Referendum Working Group, and the Referendum Engagement Group began to consider the timing to conduct a successful referendum; refining the proposed constitutional amendment and question; and lastly, the information on the Voice necessary for a successful referendum.[22]

On 30 March 2023, the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) bill was introduced to the Australian House of Representatives by Attorney General Mark Dreyfus. The proposed new Section 129 reads:[24]

Chapter IX – Recognition of Aboriginal and Torres Strait Islander Peoples

129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

(1) There shall be a body to be called the Aboriginal and Torres Strait Islander Voice;

(2) The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.[25]

The wording of the amendment was finalised with the bill passing both houses of the Australian Parliament on 19 June 2023.[26] The referendum to establish an Indigenous Voice to Parliament was voted down on 14 October 2023.[27]

Challenges

The question of how exactly to bring about constitutional change remains a topic of debate among Indigenous leaders. According to Marcia Langton (now co-chair of the Senior Advisory Group), "for such a national agreement to be achieved, there must be some mutually pressing reason related to security or economic issues for both parties to abide by the terms".[28]

The Australian Human Rights Commission supports recognition of Aboriginal and Torres Strait Islander peoples in a preamble to the Constitution.[29]

The call for a treaty is related to constitutional recognition of prior ownership of the land, as it reinforces the symbolic recognition of sovereignty of the original owners: a treaty is "a contract between two sovereign parties".[30] As of 2020, a number of Indigenous treaties in Australia are under way at state level.[31]

On 26 March 2023, the South Australian Parliament created a First Nations Voice at state level.[32]

Polls

Polls on Constitutional recognition
Dates Media organisation Sample Yes No DK Ref.
November 2023 Resolve 48% 34% 19% [33]
October 2023 Resolve 58% 27% 15% [34]
July 2021 Essential 1,099 57% 16% 27% [35]
June 2019 Essential 1,097 57% 18% 25% [35]
September 2016 Essential 1,005 58% 15% 28% [35][36]
2016 Australian Broadcasting Corporation 72% 14% 14% [37]
July 2015 Essential 1,006 61% 16% 23% [35]
August 2014 Essential 1,008 58% 10% 32% [35]
2013 Australian Broadcasting Corporation 422,403 70% 13% 17% [38]

State Constitutional recognition

Since 2016 all Australian States have Constitutional recognition of Aboriginal Australians in their State constitutions.

The first State in Australia to give constitutional recognition to Aboriginal people was Victoria, which introduced it in 2004, Queensland (2010) without bipartisan support,[39] New South Wales (2010) with labor/liberal bipartisan support,[40][41] South Australia (2013) with labor/liberal bipartisan support,[42][43] Western Australia (2015) with liberal/labor bipartisan support[44][45] and Tasmania in 2016 with liberal/labor bipartisan support.[46][47]

See also

References

  1. ^ a b c d Chrysanthos, Natassia (27 May 2019). "What is the Uluru Statement from the Heart?". The Sydney Morning Herald. Archived from the original on 5 July 2019. Retrieved 19 July 2020.
  2. ^ a b c d e Expert Panel on Constitutional Recognition of Indigenous Australians (January 2012). Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution : Report of the Expert Panel (PDF). Commonwealth of Australia. ISBN 9781921975295. Retrieved 13 July 2023.
  3. ^ "Push to recognise indigenous Australians in constitution". The Sydney Morning Herald. Sydney. 19 January 2012. Retrieved 3 November 2020.
  4. ^ "Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution—Recommendations" (PDF). Australasian Legal Information Institute. February 2012. Retrieved 13 July 2023.
  5. ^ Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth), retrieved 3 November 2020
  6. ^ "Aboriginal and Torres Strait Islander Peoples Recognition Act 2013". Federal Register of Legislation. Australian Government. 27 March 2013. Retrieved 3 November 2020.
  7. ^ "Role of the Committee - Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples 2015". Parliament of Australia. Retrieved 9 September 2020.
  8. ^ "Get the facts". Referendum Council. 2 January 2019. Retrieved 6 August 2020. Text was copied from this source, which is available under a Attribution 4.0 International (CC BY 4.0) licence. (See here.)
  9. ^ Department of the Prime Minister and Cabinet. "Referendum Council". Retrieved 29 May 2016.
  10. ^ "Discussion paper". Referendum Council. Archived from the original on 11 March 2017.
  11. ^ "Communique – 25 November 2016". Department of the Prime Minister and Cobinet. Retrieved 23 May 2017.
  12. ^ a b "Uluru Statement from the Heart – Referendum Council" (PDF). Referendum Council. Retrieved 10 December 2017.
  13. ^ Appleby, Gabrielle (24 July 2020). "The Uluru statement is not a vague idea of 'being heard' but deliberate structural reform". The Conversation. Retrieved 6 August 2020.
  14. ^ Referendum Council (30 June 2017). Final Report of the Referendum Council (PDF). Commonwealth of Australia. ISBN 978-1-925362-57-2. Retrieved 19 July 2020.
  15. ^ "Response to Referendum Council report suggests a narrow path forward on Indigenous constitutional reform". The Conversation. 18 July 2017. Retrieved 10 December 2017.
  16. ^ "Response to Referendum Council's report on Constitutional Recognition". Attorney General Dept. Archived from the original on 10 December 2017. Retrieved 10 December 2017.
  17. ^ Parliament of the Commonwealth of Australia. Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples (November 2018). Final report. Commonwealth of Australia. ISBN 978-1-74366-926-6. Retrieved 2 November 2023. ...licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License. PDF
  18. ^ "A voice for Indigenous Australians". Ministers Media Centre. 30 October 2019. Retrieved 18 July 2020.
  19. ^ Grattan, Michelle (29 October 2019). "Proposed Indigenous 'voice' will be to government rather than to parliament". The Conversation. Retrieved 18 July 2020.
  20. ^ "Constitutional Recognition". National Indigenous Australians Agency. 12 February 2016. Retrieved 20 July 2020.
  21. ^ Davis, Megan (17 February 2020). "Constitutional recognition for Indigenous Australians must involve structural change, not mere symbolism". The Conversation. Retrieved 20 July 2020.
  22. ^ a b "First Meetings of Referendum Working Group & Referendum Engagement Group". Attorney-General's Department. Australian Government. 29 September 2022. Retrieved 18 October 2022.
  23. ^ "First Nations Referendum Working Group". voice.gov.au. Australian Government. 9 August 2022. Retrieved 22 September 2023.
  24. ^ "Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023".
  25. ^ "We now know exactly what question the Voice referendum will ask Australians. A constitutional law expert explains". The Conversation. 2023. Retrieved 29 March 2023.
  26. ^ "It's official — the Voice referendum is happening. Here's what comes next". ABC News. 20 June 2023.
  27. ^ Worthington, Brett (30 August 2023). "Aboriginal and Torres Strait Islander Voice to Parliament referendum set for October 14". ABC News. Australian Broadcasting Corporation. Archived from the original on 15 September 2023.
  28. ^ Langton, Marcia (8 July 2019). "Australia's moral legitimacy depends on recognising Indigenous sovereignty". ABC Religion & Ethics. Retrieved 20 July 2020.
  29. ^ "About Constitutional Recognition". Australian Human Rights Commission. Retrieved 20 July 2020.
  30. ^ "The lack of treaty:Getting to the heart of the issue". Australians Together. 29 May 2000. Retrieved 20 July 2020.
  31. ^ Hobbs, Harry (19 December 2016). "Will treaties with Indigenous Australians overtake constitutional recognition?". The Conversation. Retrieved 20 July 2020.
  32. ^ "First Nations Voice Bill 2023". Government of South Australia. 2023. Retrieved 29 March 2023.
  33. ^ "Voice fallout: Support for treaty plunges after referendum". 18 November 2023.
  34. ^ Clennell, Andrew (11 October 2023). "Aussies' opinion on 'colonisation' revealed in exclusive polling following comments made by Jacinta Nampijinpa Price". Sky News. Archived from the original on 16 October 2023.
  35. ^ a b c d e "Indigenous Recognition Referendum". Essential Research. 6 July 2021. Archived from the original on 16 October 2023. Q. If a referendum was held to include recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution, would you vote for or against?
  36. ^ Keane, Bernard (27 September 2016). "Support for indigenous recognition in the constitution struggling: Essential". crikey.com.au. Archived from the original on 16 October 2023.
  37. ^ Ford, Mazoe (20 May 2016). "Vote Compass reveals 72 per cent of Australians are in favour of recognising Indigenous people in th". Radio National. Australian Broadcasting Corporation Radio. Archived from the original on 16 October 2023 – via AM. The latest data collected from the ABC's Vote Compass survey reveals almost three quarters of Australians believe indigenous people should be recognised in the constitution.
  38. ^ "Vote Compass: Most Australians support recognition of Indigenous people as first inhabitants". ABC News. 2 September 2013. Archived from the original on 16 October 2023.
  39. ^ "Indigenous people to be recognised as 'first Queenslanders'". ABC News. 24 February 2010. Retrieved 13 September 2024.
  40. ^ Hayes, Adam Bennett and Isabel (8 September 2010). "Emotional day marks bill introduction". The Sydney Morning Herald. Retrieved 13 September 2024.
  41. ^ "Indigenous Australians recognised in NSW constitution". ABC News. 8 September 2010. Retrieved 13 September 2024.
  42. ^ "Indigenous recognition in SA constitution". SBS News. Retrieved 13 September 2024.
  43. ^ "SA constitution to recognise Aboriginal people". ABC News. 21 March 2013. Retrieved 13 September 2024.
  44. ^ "Western Australia passes bill to recognise Aboriginal people". The Guardian. 10 September 2015. ISSN 0261-3077. Retrieved 13 September 2024.
  45. ^ Wahlquist, Calla (26 March 2015). "Colin Barnett backs bill to recognise Indigenous people in WA's constitution". The Guardian. ISSN 0261-3077. Retrieved 13 September 2024.
  46. ^ "Final state recognises Indigenous first peoples in constitution". ABC News. 15 December 2016. Retrieved 13 September 2024.
  47. ^ "Constitutional recognition a step closer for Tasmania's First People". ABC News. 13 October 2016. Retrieved 13 September 2024.