Engaging in the national conversation about equality and recognition:
Some frequently asked questions about Constitutional Recognition
Why do we need
to change the
Constitution?
1. There is no mention of Aboriginal or Torres Strait
Islander Peoples in the Constitution.
2. The Constitution contemplates laws that ban
people from voting on the basis of their race
[Section 25]. This power was last used to exclude
Aboriginal people from voting in Queensland, up
until 1965.
3. The Constitution contains a ‘races power’ [Section
51(xxvi)], which allows ‘special laws’ directed at
the people of a particular race. Whilst this power
enables laws to address disadvantage, it also
leaves open the possibility that future governments
could unfairly target particular ethnic or national
groups.
Isn’t this all about
symbolism? What will
actually change for
Aboriginal people on
the ground?
The package of reforms recommended by the Expert
Panel would have powerful symbolic and real practical
effects for all Australians. In addition to recognising
Aboriginal languages, cultures and prior occupation,
it will also ensure that the Australian Government is
able to make necessary laws to improve the lives
of Aboriginal and Torres Strait Islander Peoples by
addressing historic disadvantage and protecting
heritage and culture. At the same time it will prevent
future Parliaments from making racially discriminatory
laws.
Australia is a
multicultural society.
Why should we
recognise Aboriginal
and Torres Strait
Islander Peoples but not
the cultural heritage of
other Australians?
This process is about recognising the unique status
of Aboriginal and Torres Strait Islander Peoples as
the First Peoples of this land. However it is also
about ensuring that all Australians are protected from
discrimination on the basis of their ‘race’, colour or
ethnic or national origin. Recognition and equality in
Australia’s Constitution would show respect to the
First Peoples and ensure a fair go for all.
The Panel was asked
to examine a preamble
to recognise Aboriginal
and Torres Strait
Islander Peoples but
they have come back
with a proposal to make
major reforms to our
Constitution.
Have the Expert Panel
over-reached?
In consultations conducted by the Expert Panel,
Aboriginal and Torres Strait Islander Peoples expressed
the view that any change needed to be meaningful
and practical, not just symbolic. The Expert Panel
decided that it would be contradictory to recognise the
First Peoples while maintaining racially discriminatory
provisions in our Constitution. It concluded that such
discrimination needed to be clearly removed from
our Constitution in order for it to “reflect the values
of contemporary Australia.” That’s why the Panel has
recommended reforms to recognise the First Peoples
and remove racial discrimination.
Australians are
notoriously reluctant
to support changes
to the Constitution.
What are the chances
of this referendum
succeeding?
There is no denying that Constitutional change is
difficult to achieve in Australia. Since federation, only
eight of forty-four referenda have won the approval of
the Australian people. However, there are a number
of reasons to be optimistic about this proposal. The
experience of 1967 tells us that the Australian people
will overwhelmingly support a proposal that addresses
an historic wrong and enables a better future for
Aboriginal and Torres Strait Islander Peoples. This
proposal would do both. Polling commissioned in
2011 showed high levels of support for Constitutional
change with more than 80% of respondents
supporting changes to remove racial discrimination.
The Expert Panel
has proposed that
the Commonwealth
Government be given a
power to make ‘special
laws’ for Aboriginal
people. Won’t this
mean that they will
be given preferential
treatment?
The changes proposed will not create any new
powers. Rather, they are designed to maintain the
power the Commonwealth Government already has to
make laws to:
a. address the legacy of disadvantage that Aboriginal
and Torres Strait Islander Peoples continue to
experience; and
b. uphold the First Australians’ rights to land, heritage
and culture.
Importantly, the changes would protect future
generations from laws that unfairly target Australians
on the basis of their national origin, ethnicity or
‘race’. Constitutional recognition is not about
preferential treatment, but is about acknowledging
the unique status of Australia’s First Peoples and
the need to continue efforts to close the gap. The
changes proposed will not affect the Government’s
existing powers to make laws to assist other groups
experiencing disadvantage.
Is there support for
these measures from
the Aboriginal and
Torres Strait Islander
community?
There will always be a healthy range of opinions
expressed in any free society; recent polling indicates
Aboriginal and Torres Strait Islander Australians
back the Expert Panel’s proposals. Results of a 2011
survey conducted by the peak representative body
for Aboriginal and Torres Strait Islander Peoples –
the National Congress of Australia’s First Peoples
– showed that almost 90% of respondents thought
Constitutional Recognition of the First Peoples
was important. Prominent Aboriginal Elders and
community leaders like Lowitja O’Donoghue, Patrick
Dodson, Marcia Langton, Mick Gooda and Noel
Pearson have all given their support to Constitutional
recognition as a concrete step on our national journey
to achieve justice and reconciliation.
There are a lot of
struggling nonIndigenous families in
Australia. Shouldn’t the
Commonwealth make
laws for people on
the basis of need, not
race?
The current changes are designed to ensure that the
Commonwealth maintains the power it has had since
1967 to make positive laws with respect to Aboriginal
and Torres Strait Islander Peoples and ensure existing
laws remain valid. However, it also seeks to remove
the Government’s power to make discriminatory laws
and bring the Constitution in line with community
expectations in the 21st Century.
Past generations of Australians have amended the
Constitution so that the Commonwealth Government
can provide a safety net. For example, in 1946,
the Australian people approved a referendum that
inserted a power for the Commonwealth Government
to make social security laws. The package of
reforms recommended by the Expert Panel is about
addressing another deficiency in our Constitution: the
unfinished business of our national reconciliation.
How does Australia’s
Constitution compare
to similar countries’
founding documents?
Australia lags behind other countries in recognising
First Peoples in the Constitution and enshrining
protection against racial discrimination.
The constitutions of Canada, Finland, Norway,
Sweden, the Russian Federation, Bolivia, Brazil,
Colombia, Ecuador, Mexico, the Phillipines and South
Africa all recognise indigenous Peoples in some way.
Canada, South Africa and India all have constitutional
guarantees against racial discrimination, and New
Zealand has a similar provision in its Bill of Rights. The 14th Amendment to the US Constitution contains
an ‘equality before the law’ provision, which includes
racial equality. The US Constitution also includes
a power to ‘regulate commerce with … the Indian
tribes’.
In New Zealand, the Treaty of Waitangi, a negotiated
agreement between the British Crown and the
Mãori, was signed in 1840 and recognised the prior
occupation and the Maori and their continuing
ownership of their lands.
How will Constitutional
Recognition help to
close the gap?
Constitutional recognition will have a real and lasting
impact on Aboriginal and Torres Strait Islander health
and wellbeing and help to close the gap.
Dr Maria Tomasic, President of the Royal Australian
and New Zealand College of Psychiatrists has said:
“the lack of acknowledgement of a people’s existence
in a country’s constitution has a major impact on their
sense of identity and value within the community,
and perpetuates discrimination and prejudice which
further erodes the hope of Indigenous people. There is
an association with socioeconomic disadvantage and
subsequent higher rates of mental illness, physical
illness and incarceration.”
Recognition will enable us together to reset the
relationship between Australia’s First Peoples,
governments and the broader community.
Recognition and respect also form the basis of
partnerships that are our best hope in overcoming
historic disadvantage and closing the 10-17 year life
expectancy gap.