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Dylan Lino
Conference Paper
World Congress of Constitutional Law 2014
16–20 June 2014
University of Oslo
Workshop 17: Federalism, Community Identity and Distributive Justice
Written Constitutions and the Politics of Recognition: Symbolism and Substance
Dylan Lino
PhD Candidate, Melbourne Law School; Visiting Researcher, Harvard Law School
[email protected]
I
Introduction
Written constitutions are a major site of contestation in the political struggles by marginalised
groups to have their identities respected within public institutions – the ‘politics of
recognition’, in Charles Taylor’s influential coinage.1 Indeed, the significance of written
constitutions in struggles over recognition was made plain in Taylor’s original 1992 essay,
which took as its main case study the fractious debate over Quebec’s relationship to the
Canada’s Constitution Act 1982, especially the Charter of Rights and Freedoms.2
Recognition politics involve claims for the just treatment of distinct identity groups within
society, and include the claims of women, racial, ethnic and cultural minorities, religious
groups, migrants, gay women and men, nationalist groups and Indigenous peoples, among
others. For these groups, a key political aim is to ensure that public institutions – from the
designation of public holidays, to the design of educational curricula, to the very structuring
of the state itself – adequately respect the group’s identity, rather than simply reflecting the
perspectives and concerns of dominant groups. Written constitutions have often been the
focus of demands for recognition.3
I argue in this paper that, in struggles over recognition, two dimensions of written
constitutions are pertinent. The first – the constitutional dimension, which is the primary role
of written constitutions – is to distribute and limit the most fundamental aspects of public
power within the state. Accordingly, written constitutions may be amended to redistribute
public power in a way that better respects a given group’s identity. A second element of
written constitutions – a non-constitutional, symbolic dimension – is their status as cultural
symbols of the polities to which they are attached. Constitutional amendments recognising
identity groups may thus seek to render these symbols more inclusive and representative of
the polity overall.
The politics of constitutional recognition have played out in recent years in Australia
in relation to the nation’s Indigenous peoples, the Aboriginal and Torres Strait Islander
1
Charles Taylor, ‘The Politics of Recognition’ in Amy Gutmann (ed), Multiculturalism and ‘the Politics of
Recognition’ (Princeton University Press, 1992) 25.
2
Ibid 52–61.
3
For academic treatments of some of these issues, see, eg, Helen Irving, Gender and the Constitution: Equity
and Agency in Comparative Constitutional Design (Cambridge University Press, 2008); Sujit Choudhry (ed),
Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press, 2008);
Stephen Tierney, Constitutional Law and National Pluralism (Oxford University Press, 2004); Barbara A
Hocking (ed), Unfinished Constitutional Business?: Rethinking Indigenous Self-Determination (Aboriginal
Studies Press, 2005). For a broader focus on constitutionalism (rather than written constitutions per se), see
James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995).
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peoples. Though many proposals for constitutionally recognising Indigenous peoples have
been controversial, one sort of reform has garnered significant mainstream political support.
This kind of reform entails the insertion of explicit but legally ineffectual mentions of
Indigenous peoples within either a preamble or discrete section of the constitutional text.
Several amendments along these lines have already been made to constitutions at the State
level, and there will likely be a similar proposal put forward at the national level within the
next few years.
Though these reforms take place within written constitutions, there is nothing
particularly constitutional about them. Having no effect on the distribution of public power
within the Australian legal order, such reforms focus entirely on the non-constitutional
symbolic function of written constitutions. In this paper, I argue that attending to the
expressive dimension of written constitutions should not be discarded from the politics of
recognition: symbolic recognition in written constitutions can have salutary effects for those
being recognised. However, as the Australian example shows, constitutional recognition that
is purely symbolic can be deficient in two major ways. First, denying such forms of
recognition any substantive constitutional function can have negative symbolic effects in
itself. Second, the pursuit of wholly symbolic recognition in written constitutions often
neglects valid grievances about how power is wielded by the state over the group in question.
For both problems, the solution is pursuing substantive forms of constitutional recognition.
II
Two Dimensions of Written Constitutions
Two dimensions of written constitutions are especially relevant to the politics of recognition.
These are written constitutions’ constitutional and expressive dimensions.
A
The Constitutional Dimension
In places where written constitutions are not mere ‘shams’,4 they play a major role in
establishing, channelling and limiting the basic power of the state. This is their constitutional
dimension. Written constitutions typically create the major governmental institutions like
legislatures, executives and courts, and define the contours of their authority.5 The
fundamental relationships among these institutions are also laid out within written
constitutions, such as the courts’ role in supervising the constitutional compliance of the
political branches. In the written constitutions of federations, these institutional
configurations extend to the respective powers of the federal and State governments. Written
constitutions also commonly delineate important aspects of the relationship between the state
and the polity’s citizens.6 This ordinarily includes defining the lawmaking power of the state
over citizens, the major rights citizens hold against the state and the role of citizens in
electing government officials and in lawmaking (especially in amending the written
constitution itself). The constitutional dimension of written constitutions is their primary
function. As Russell Hardin succinctly puts it, ‘[t]he whole point of a constitution is to
organize politics and society in particular ways’; it is a written constitution’s raison d’être.7
4
David Law and Mila Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review 863.
See, eg, Ernest Young, ‘The Constitution Outside the Constitution’ (2006) 117 Yale Law Journal 408, 415–16.
Written constitutions will not necessarily create the state ab initio, as there will often be governmental
institutions that pre-exist and continue under the written constitution. Federations are the classic example. See
Jacob Levy, ‘Not So Novus an Ordo: Constitutions Without Social Contracts’ (2009) 37 Political Theory 191.
6
See, eg, Young, above n 5, 416.
7
Russell Hardin, ‘Why a Constitution?’ in Denis Galligan and Mila Versteeg (eds), Social and Political
Foundations of Constitutions (Cambridge University Press, 2013) 51, 52.
5
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Unlike other laws, written constitutions are often distinctive in being especially
entrenched and legally supreme. Entrenched constitutional norms possess, at least formally, a
special legal status not enjoyed by ordinary laws, for they can only be changed by way of a
special and more onerous procedure than regular lawmaking.8 The flipside of entrenchment is
legal supremacy: ‘ordinary law which conflicts with the constitution is invalid or
inapplicable’.9 The supremacy of constitutional norms presupposes ‘an institution with the
authority in the event of conflict to check the constitutionality of governmental legal acts’, 10
and in practice that institution has most commonly been the judiciary.11 These two special
features of written constitutions – their entrenchment and supremacy – mean that written
constitutions can channel and limit state power in a way that is relatively enduring, definitive
and legally potent.
Though written constitutions are designed to perform a constitutional role and they
are often the central locus of a polity’s constitutional order, it is important to emphasise that
the constitutional domain is not coextensive with written constitutions. One reason is that
constitutional norms can and do exist outside of written constitutions. This is obviously true
of those few states that lack a conventional written constitution, such as the United Kingdom,
whose constitution is manifest in a range of statutes, common-law principles and embedded
political practices.12 But it is increasingly accepted by constitutional scholars even in a polity
like the USA, where the written constitution is so central to public life, that there are
constitutional norms which exist outside the written constitution.13 Though norms outside the
written constitution may not be formally entrenched and legally supreme, they can still
establish, channel and limit the basic power of the state.14 In short, then, written constitutions
do not have a monopoly on the constitutional domain.
The other reason why written constitutions are not coterminous with the constitutional
domain is that not all of their contents will necessarily perform a constitutional role. In
Anthony King’s words, written constitutions ‘quite commonly contain provisions relating to
matters that are of no constitutional importance whatsoever’ (he gives as an example the
Austrian Constitution’s elaborate description of the national coat of arms).15 Certainly, as a
formal or nominal matter it makes sense to refer to the entire contents of a written
constitution as ‘constitutional’.16 However, only those provisions or structures that regulate
the basic distribution of public power can be regarded as constitutional in any substantive
sense. This gives rise to the possibility that there can be non-constitutional provisions within
written constitutions: an idea that will become important for the later discussion of the
constitutional recognition of Indigenous peoples in Australia.
8
See, eg, Joseph Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in Larry
Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998) 152, 153.
See generally Rosalind Dixon, ‘Constitutional Amendment Rules: A Comparative Perspective’ in Tom
Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011) 96.
9
Raz, above n 8, 153.
10
Jutta Limbach, ‘The Concept of the Supremacy of the Constitution’ (2001) 64 Modern Law Review 1, 3.
11
Tom Ginsburg, ‘The Global Spread of Constitutional Review’ in Keith Whittington, R Daniel Keleman and
Gregory Caldera (eds), The Oxford Handbook of Law and Politics (Oxford University Press, 2008) 81, 81.
12
See, eg, Adam Tomkins, Public Law (Oxford University Press, 2003) 9.
13
See, eg, Young, above n 5; Akhil Reed Amar, America’s Unwritten Constitution (Basic Books, 2012);
William Eskridge Jr and John Ferejohn, A Republic of Statutes: The New American Constitution (Yale
University Press, 2010); Keith Whittington, ‘The Status of Unwritten Constitutional Conventions in the United
States’ (2013) University of Illinois Law Review 1847. For an earlier piece making similar claims, see Karl
Llewellyn, ‘The Constitution as an Institution’ (1934) 34 Columbia Law Review 1.
14
Young, above n 5.
15
Anthony King, The British Constitution (Oxford University Press, 2007) 7.
16
Richard Primus, ‘Unbundling Constitutionality’ (2013) 80 University of Chicago Law Review 1079, 1106.
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What significance does the constitutional dimension of written constitutions have for
the politics of recognition? The central point is that written constitutions may be amended to
redirect or limit the basic power of the state in ways that better respects a given group’s
identity. There are many possible ways for written constitutions to do this, and it will depend
on the group in question as to which is appropriate. Possible constitutional reforms include
guarantees of citizenship rights such as the franchise; protections against invidious
discrimination; guarantees of representation in government institutions like legislatures or
courts; protections of group rights to culture, language and territory; and the creation of
federal arrangements to facilitate self-government. Constitutional recognition within the
written constitution, where it is entrenched and supreme law, can help ensure that the
recognised group continues to be respected by the state into the future and that the group’s
identity is an overriding legal concern within the polity.
B
The Expressive Dimension
Written constitutions, and indeed all laws, also have an expressive dimension.17 By setting up
a polity in a particular way, a written constitution will embody certain values, attitudes,
histories and so on. Sometimes written constitutions will be expressive in an explicit and selfconscious way, even acting as ‘mission statements’.18 Preambles, bills of rights, basic
organising principles and directive principles of state policy, which possess varying degrees
of legal enforceability, are often self-consciously symbolic.19
Particular factual and ethical beliefs will also be expressed implicitly in constitutional
provisions and structures that are not intended to be self-reflexively expressive. As an
example, the Australian Constitution sets out a constitutional scheme for a federal system of
government. In doing so, it implicitly expresses normative beliefs about the value (at least in
the Australian context) of a federal system over, say, a unitary one and about the powers
appropriate to each level of government. Written constitutions may also be expressive in what
they leave out: the Australian Constitution’s lack of a bill of rights is, for instance, expressive
of beliefs about the relative merits of parliaments and courts in protecting people’s rights. 20
Australia’s ‘small brown bird’ of a Constitution is no less expressive than ‘the magnificent
and much admired American eagle’, though it is less self-reflexive about what it expresses.21
Written constitutions, while like other laws in implicitly and explicitly expressing
certain values and beliefs, are distinctive in their capacity to symbolise what is of basic
importance – indeed, of constitutional significance – to the polity. This expressive capacity
17
See generally Cass Sunstein, ‘On the Expressive Function of Law’ (1996) 144 University of Pennsylvania
Law Review 2012; Elizabeth Anderson and Richard Pildes, ‘Expressive Theories of Law: A General
Restatement’ (2000) 148 University of Pennsylvania Law Review 1503. On the expressive dimension of written
constitutions, see Denis Galligan and Mila Versteeg, ‘Theoretical Perspectives on the Social and Political
Foundations of Constitutions’ in Denis Galligan and Mila Versteeg (eds), Social and Political Foundations of
Constitutions (Cambridge University Press, 2013) 3, 8–18; Jeff King, ‘Constitutions as Mission Statements’ in
Denis Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (Cambridge
University Press, 2013) 73; Vicki Jackson, Constitutional Engagement in a Transnational Era (Oxford
University Press, 2010) 3, 5, 18–20, 31–2, 104–5; Mark Tushnet, ‘The Possibilities of Comparative
Constitutional Law’ (1999) 108 Yale Law Journal 1225, 1269ff.
18
Jeff King, above n 17.
19
Jeff King, above n 17, 82–5.
20
Jeffrey Goldsworthy, ‘Constitutional Cultures, Democracy, and Unwritten Principles’ (2012) Illinois Law
Review 683, 686–7.
21
Justice Patrick Keane, ‘In Celebration of the Constitution’ (Speech delivered at the Constitution Founders
Lectures, National Archives of Australia, Canberra, 12 June 2008)
<http://www.naa.gov.au/collection/publications/papers-and-podcasts/australian-constitution/keane.aspx>.
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stems in large part from written constitutions’ primary, constitutional role.22 That written
constitutions are the main sites for establishing and regulating basic governmental institutions
gives them a unique symbolic power (among laws at least) to express a polity’s core
commitments. Other, related features common in written constitutions may contribute to their
expressive power. As I explored earlier, written constitutions, unlike other laws, are formally
entrenched and legally supreme, and so signify ‘what matters most to the state by fixing the
palette of non-negotiable colors in its [constitutional] self-portrait’.23 They also frequently
have a democratic pedigree and legitimacy not enjoyed by other laws. This is because
standardly their drafting, adoption and amendment will entail a greater degree of public
participation and engagement than ordinary lawmaking processes.24 For these reasons, the
symbolic force of written constitutions is bent towards expressing views about what is of
foundational, constitutional significance to the polity.
Although written constitutions everywhere are symbolic cultural artefacts as well as
constitutional instruments, in some places they become major touchstones in civic discourse
beyond the courtroom. As Jack Balkin has put it, a written constitution in this context is not
simply a ‘basic law’ setting up governing institutions, but also becomes a ‘higher law’ – a
repository of values and standards to which social and political actors refer and aspire – and
‘our law’ – an object of ongoing public attachment and identification.25 The US Constitution
was Balkin’s focus and offers the clearest example, but written constitutions in other polities
have also attained these ‘higher’ and ‘our’ law statuses.26
It is not inevitable that written constitutions will come to assume a prominent
symbolic place in a polity’s public life. In the words of Dieter Grimm, ‘[w]hile constitutions
– provided they are intended to operate as legally binding texts – automatically produce
normative effects, their integrative influence … can, but need not, exist’.27 The Australian
Constitution is a well-known case in point. When the Constitution is discussed within public
discourse, which is probably less frequently than in many other countries, the Constitution is
generally perceived and discussed as a legal document – one providing potential or actual
grounds for constitutional litigation, or perhaps needing amendment – rather than a
wellspring of national aspirations and identity.28
But to regard written constitutions, even in places like Australia, as neutral, purely
functional legal instruments, having no impact whatsoever on the wider consciousness and
culture, would be a mistake. A written constitution inevitably receives some sort of public
discussion, even if, as in Australia, that discussion understands it largely legalistically. It is a
22
Cf Dieter Grimm, ‘Integration by Constitution’ (2005) 3 International Journal of Constitutional Law 193, 194
(‘Precisely as a result of its bestowal of these [constitutional] benefits, a constitution is subject to expectations
that extend far beyond its normative regulatory function. People expect the constitution to unify their society as
a polity’).
23
Richard Albert, ‘Constitutional Handcuffs’ (2010) 42 Arizona State Law Journal 663, 700.
24
On democratic participation in constitution-making, see, eg, Vivien Hart, ‘Democratic Constitution Making’
(Special Report 107, United States Institute of Peace, July 2003)
<http://www.usip.org/files/resources/sr107.pdf>; Jason Blount, ‘Participation in Constitutional Design’ in Tom
Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011) 38. On democratic
participation in constitutional amendments, see, eg, Dixon, above n 8, 103. See also Stephen Tierney,
Constitutional Referendums: The Theory and Practice of Republican Deliberation (Oxford University Press,
2012).
25
Jack Balkin. Living Originalism (Belknap Press, 2011) ch 4. See also Grimm, above n 22, 194–5.
26
Grimm, above n 22, 201–3.
27
Grimm, above n 22, 195. See also Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56
American Political Science Review 853, 861 (‘A constitution may contain, to be sure, statements of “aspiration”
… However, this occurrence does not indicate an essential constitutional feature; it merely indicates a possible
content of any type of constitution’).
28
Goldsworthy, above n 20, 685–6.
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visible public symbol existing within and exerting an influence upon a broader social and
cultural milieu. To some extent or another, then, a written constitution ‘helps to define as
authoritative certain ways of seeing’ and ‘serves to organize people’s knowledge of the past
and present and their capacity to imagine the future’.29 A written constitution occupies a
space within the wider social world and cannot but have some impact on that world.
The expressive dimension of written constitutions is non-constitutional: it is not
concerned with the basic distribution and exercise of public power within the state. Rather,
the expressive dimension of written constitutions concerns their place as reflections of and
influences on the polity’s identity. In their expressive dimension, written constitutions are a
sort of cultural production, in the manner of public holidays, national monuments, museums,
official celebrations and commemorations, educational curricula and so on. Of course, the
expressive and constitutional dimensions of written constitutions can and do overlap. As I
mentioned earlier, substantively constitutional provisions and structures – from bills of rights
to federal structures – will have an expressive, non-constitutional element, whether selfconsciously or not. On the other hand, given the possibility referred to above of there being
non-constitutional provisions within written constitutions, it is also possible that written
constitutions will contain provisions that are entirely expressive and not substantively
constitutional at all. Constitutional preambles, for instance, may attain this purely symbolic
status in some places;30 unenforceable directive principles of state policy offer another
possible example.31
How is the expressive dimension of written constitutions important for the politics of
recognition? Given the status of written constitutions as symbols of the polity’s identity,
constitutional amendments recognising marginalised groups may help to render these
symbols more inclusive and representative of the polity. Rather than simply expressing the
values, beliefs and history of dominant identity groups, the provisions of written constitutions
may thereby also come to symbolise a respect for and validation of the perspectives,
experiences and identities of subordinated groups. I will discuss the value of constitutional
symbolism in greater detail later in this paper.
III
Recognising Indigenous Peoples in Australia’s Written Constitutions
A
Context
Throughout the 20th and 21st centuries, Aboriginal and Torres Strait Islander peoples and their
supporters have articulated claims for recognition from the Australian settler state. Many of
these claims have possessed a constitutional dimension in the ‘small-c’ sense, concerning the
basic distribution of public power. It is worth noting that, unlike in Canada, New Zealand and
the USA, Australia’s colonial constitutional development did not involve the conclusion of
treaties between the settlers and Indigenous peoples.32 Until the 1960s, demands for the
29
Steven Lukes, ‘Political Ritual and Social Integration’ (1975) 9 Sociology 289, 301.
Where, however, they have an effect on constitutional interpretation, this is enough to make them more than
mere symbols and perhaps even to qualify them as substantively constitutional. On the symbolic and legal status
of constitutional preambles, see Liav Orgad, ‘The Preamble in Constitutional Interpretation’ (2010) 8
International Journal of Constitutional Law 714; Justin Frosini, Constitutional Preambles at a Crossroads
Between Politics and Law (Maggioli, 2012).
31
Jeff King, above n 17, 83–4. Legally unenforceable provisions should not automatically be dismissed as nonconstitutional. Despite the principles’ unenforceability, the political branches may come to take them seriously,
so that it becomes an entrenched and generally obeyed political practice (known in the Commonwealth world as
a ‘constitutional convention’) to follow them.
32
On reasons why no treaties were negotiated upon the settlement of Australia, see, eg, Bain Attwood, ‘Law,
History and Power: The British Treatment of Aboriginal Rights in New South Wales’ (2014) 42 Journal of
Imperial and Commonwealth History 171.
30
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recognition of ‘equal dignity’, in Taylor’s words,33 dominated Indigenous advocacy: demands
for Aboriginal and Torres Strait Islander people to be afforded the same rights and treatment
as other Australian citizens and in some cases to be given temporary special treatment to
eliminate their relative disadvantage.34 In the last five decades or so, claims for the
recognition of equal dignity have been significantly supplemented by demands for the
recognition of Indigenous difference.35 Indigenous and non-Indigenous advocates have
sought, with varying degrees of success, the protection of Aboriginal and Torres Strait
Islander peoples’ rights to ancestral lands and culture, self-determination and sovereignty.36
Australia’s written constitutions – especially the national Constitution but to some
extent also the State and Territory constitutions – have been a key domain in which demands
for Indigenous recognition have been made. A demand for the constitutional recognition of
Indigenous people’s identity as citizens, one that emerged from Indigenous and nonIndigenous activism, was realised in 1967 in the most successful constitutional referendum of
Australia’s history.37 This referendum removed two existing exclusionary constitutional
references to Indigenous people, each of which had reflected and reinforced their
marginalisation from the national polity when the Constitution was drafted.38 The most
significant of these two provisions effectively left the governance of Aboriginal and Torres
Strait Islander people to the State governments, which governed them under paternalistic and
discriminatory regimes of ‘protection’ and later assimilation.39 By removing this exclusionary
provision, the 1967 referendum expanded the federal government’s power in Indigenous
affairs, paving the way for a hoped-for more enlightened, national approach to the treatment
of Aboriginal and Torres Strait Islander people, one that respected them as civic equals.40
After the 1967 referendum, and particularly from the 1980s onwards, claims for
Indigenous recognition in Australia’s written constitutions have centred less on Indigenous
citizenship and more on Indigenous difference. Many different proposals have been put
forward. These include constitutional protection for Aboriginal and Torres Strait Islander
peoples’ rights to land, culture, language, self-determination and sovereignty,41 constitutional
33
Taylor, above n 1, 37–8.
See generally Bain Attwood, Rights for Aborigines (Allen & Unwin, 2003); Bain Attwood and Andrew
Markus, The Struggle for Aboriginal Rights: A Documentary History (Allen & Unwin, 1999).
35
See generally Attwood, above n 34; Attwood and Markus, The Struggle for Aboriginal Rights, above n 34. On
this transition within the politics of recognition more generally, see Taylor, above n 1, 38.
36
Note that many of these claims are not only about recognition but also about ‘redistribution’: redressing the
serious material deprivation experienced by many Aboriginal and Torres Strait Islander people. On the
recognition vs. redistribution distinction, see Nancy Fraser and Axel Honneth, Redistribution or Recognition?:
A Political–Philosophical Exchange (Verso, 2003); James Tully, ‘Struggles over Recognition and Distribution’
(2000) 7 Constellations 469.
37
See generally Bain Attwood and Andrew Markus, The 1967 Referendum: Race, Power and the Australian
Constitution (Aboriginal Studies Press, 2007).
38
Australian Constitution ss 51(xxvi), 127.
39
This was s 51(xxvi), which had originally given the Federal Parliament power to make laws with respect to
‘the people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make
special laws’ (emphasis added). The referendum removed the italicised words. The other provision, s 127, had
excluded ‘aboriginal natives’ from the enumeration of the Australian population for the purposes of populationbased constitutional calculations (such as the allocation to the States of seats in Parliament’s lower house).
40
See generally Attwood and Markus, The 1967 Referendum, above n 37.
41
See, eg, Yirrkala Petition Presented to Prime Minister Kevin Rudd at Yirrkala (23 July 2008), contained in
Galiwinku Constitution Consultation Meeting, Submission No 3526 to Expert Panel on Constitutional
Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the
Constitution, 24 October 2011
<http://www.recognise.org.au/uploads/have_your_say/5b9d39239b0319337385.pdf>.
34
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guarantees of Indigenous representation in Parliament,42 the entrenchment in the Constitution
of a treaty between Indigenous peoples and the Australian government,43 and the recognition
of Indigenous governments as constituent parts of Australia’s federation.44 This is not to say
that the quest to recognise Indigenous people’s citizenship in the Constitution has entirely
abated; indeed, one of the proposals most commonly put by advocates of Indigenous rights is
for a general constitutional protection against racial discrimination.45 Some of these claims
for Indigenous recognition – notably, Indigenous rights to land,46 culture47 and nondiscrimination48 – have been realised to some extent in ordinary legislation and court
decisions, and at least some of this protection can be regarded as possessing a ‘small-c’
constitutional status. Without being entrenched in the Constitution, though, such protection
has repeatedly proven vulnerable to hostile political action, with governments winding back
Indigenous peoples’ legal protections on several significant occasions.49
Excepting the 1967 amendments, many of the more recent proposals for Indigenous
recognition in the Constitution have been controversial, and few have been seriously pursued
by mainstream politicians. At the national level, the Constitution is very difficult to change,
requiring majority approval in a referendum by voters nationwide and in at least four of six
States.50 Aboriginal and Torres Strait Islander people comprise 3 per cent of the overall
population,51 making it very difficult to generate enough support for the constitutional
entrenchment of Indigenous rights. Added to these factors is the reluctance of Australia to
constitutionally entrench rights more generally: Australia’s written constitutions contain few
rights protections and there is significant opposition to changing that status quo.52 A recent
and ongoing official process to pursue Indigenous recognition within the Constitution has
confirmed the difficulty of the task.53 In this context, comparatively modest reform proposals
– the most significant is a constitutional prohibition on racial discrimination – have faced an
uphill battle in generating enough elite and community support for referendum success. 54
42
See, eg, Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and
Torres Strait Islander Peoples in the Constitution (2012) ch 7.
43
See, eg, ibid ch 8.
44
See, eg, Michael Mansell, ‘Andrew Bolt, Indigenous Australian? Come Off It’, The Guardian Australia
(online), 30 January 2014 <http://www.theguardian.com/commentisfree/2014/jan/31/andrew-bolt-indigenousaustralian-come-off-it>.
45
See, eg, Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising, above n 42, ch 6.
46
There is a system of native title, originally a common law doctrine and since supplemented by statute: Mabo v
Queensland (No 2) (1992) 175 CLR 1; Native Title Act 1993 (Cth). There are also various statutory land rights
regimes at the State and Territory level, for example, the Aboriginal Land Rights Act 1983 (NSW).
47
See, eg, Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
48
See, eg, Racial Discrimination Act 1975 (Cth).
49
In recent memory, the most notable is the 2007 ‘Northern Territory Intervention’, which continues in
modified form today: see Jon Altman and Melinda Hinkson (eds), Coercive Reconciliation: Stabilise,
Normalise, Exit Aboriginal Australia (Arena, 2007); Joint Committee on Human Rights, Parliament of
Australia, Stronger Futures in the Northern Territory Act 2012 and Related Legislation (2013).
50
Australian Constitution s 128. See generally George Williams and David Hume, People Power: The History
and Future of the Referendum in Australia (UNSW Press, 2010).
51
Australian Bureau of Statistics, 3238.0.55.001 – Estimates of Aboriginal and Torres Strait Islander
Australians, June 2011 (30 August 2013)
<http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/3238.0.55.001Main+Features1June%202011?OpenDoc
ument>.
52
For a now-canonical treatment of this issue, see Hilary Charlesworth, ‘The Australian Reluctance About
Rights’ (1993) 31 Osgoode Hall Law Journal 196. More recently see George Williams and David Hume,
Human Rights Under the Australian Constitution (Oxford University Press, 2nd ed, 2013).
53
Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising, above n 42.
54
For an assessment of the political feasibility of the reform proposals, see Helen Irving, ‘A Referendum on
Indigenous Constitutional Recognition –What are the Chances?’ (Constitutional Reform Unit, University of
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There is, however, one exception to this general contemporary resistance to
Indigenous recognition in Australia’s written constitutions.
B
Indigenous Recognition Provisions in Australia’s Written Constitutions
Since the late 1990s, Australian governments at the national and State levels have proposed –
and, in four States, enacted – constitutional provisions designed to formally and explicitly
recognise Aboriginal and Torres Strait Islander people within the constitutional text. The idea
for these Indigenous recognition provisions emerged from two different developments. One
development was the aforementioned rise in Indigenous demands for constitutional
recognition and protection of their distinctness – land rights, culture, self-determination,
sovereignty, and so on. The Indigenous recognition provisions, while their language reflects
these struggles for more extensive constitutional change, represent a less radical proposal,
one more politically palatable to wider Australia. The second development that brought
Indigenous recognition provisions to prominence were debates from the late 1980s to the turn
of the millennium over Australian national identity more generally, especially as it was
reflected in the Constitution.55 As the Australian polity engaged in reflection over who it was,
Indigenous difference could not be ignored. These debates culminated in 1999 in two failed
national constitutional referendums: one would have made Australia a republic; the other
would have inserted a new constitutional preamble that included a reference to Aboriginal
and Torres Strait Islander people and aspects of their identity.56 In the wake of the failure of
those referendums, four governments at the State level, starting in 2004, have inserted
Indigenous recognition provisions into their written constitutions.57 The creation of these
Indigenous recognition provisions has largely been driven by mainstream non-Indigenous
political actors, though at the State level at least, the provisions’ development typically
involved the input and support of Indigenous stakeholders.58
The Indigenous recognition provisions in Australia’s written constitutions take the
form of a formal declaration, from ‘the people’ or ‘the parliament’, acknowledging certain
dimensions of Indigenous difference. These declarations are contained either in a
constitutional preamble or a stand-alone section towards the beginning of the constitution.
Most prominently, the provisions allude to Indigenous peoples’ occupation of (what is now
known as) the Australian landmass before the arrival of settlers. This is typically expressed in
references to Aboriginal and Torres Strait Islander peoples as first Australians,59 people,60
peoples61 or nations.62 Another aspect of Indigenous identity referred to is Indigenous
Sydney, February 2012)
<http://sydney.edu.au/law/cru/documents/2012/A_Referendum_Indigenous_Constitutional_Recognition.pdf>.
55
In the late 1980s, the work of a Constitutional Commission had this effect. Throughout the 1990s, there were
various processes associated with efforts to make Australia a republic as well as the centenary of federation and
the Constitution’s enactment. Placing more emphasis on the relationship between Indigenous peoples and wider
Australian society was the work throughout the 1990s of the Council for Aboriginal Reconciliation.
56
Constitution Alteration (Preamble) 1999 (Cth).
57
The State governments in question are Victoria, Queensland, New South Wales and South Australia. The
provisions are Constitution of Queensland 2001 (Qld) Preamble, as amended by Queensland (Preamble)
Amendment Act 2010 (Qld); Constitution Act 1975 (Vic) s 1A, as amended by Constitution (Recognition of
Aboriginal People) Act 2004 (Vic); Constitution Act 1902 (NSW) s 2, as amended by Constitution Amendment
(Recognition of Aboriginal People) Act 2010 (NSW); Constitution Act 1934 (SA) s 2, as amended by
Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013 (SA).
58
See, eg, details of the process in South Australia, as contained in Advisory Panel on the Recognition of
Aboriginal Peoples in the South Australian Constitution, Time for Respect (30 October 2012).
59
Constitution of Queensland 2001 (Qld) Preamble.
60
Constitution Alteration (Preamble) 1999 (Cth) sch; Constitution Act 1975 (Vic) s 1A(2); Constitution Act
1902 (NSW) s 2(1).
61
Constitution Act 1934 (SA) s 2.
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peoples’ unique relationships to their ancestral lands and waters; some provisions refer to
Indigenous peoples as traditional or original custodians, occupants or owners.63 Some of the
recognition provisions also refer to Indigenous cultures, values and heritage,64 and to the
special contribution Aboriginal and Torres Strait Islander peoples have made to society.65
Most provisions gesture towards an Indigenous collective political capacity by adopting the
language of ‘peoples’ or ‘nations’.66 Finally, two provisions identify Aboriginal people as
having been wronged through the process of colonisation.67 Within all of these provisions,
there are also declarations that such acknowledgements of Indigenous identity are about
respecting,68 honouring69 or otherwise valuing70 Aboriginal and Torres Strait Islander
peoples.
These forms of recognition are designed to be wholly symbolic, having no legal effect
whatsoever. This is because, beyond their ceremonial and declaratory (rather than norm-like)
form, they have all been accompanied by explicit disclaimers denying the possibility of any
such legal effect. The New South Wales provision, for instance, stipulates:
Nothing in this section creates any legal right or liability, or gives rise to or affects any civil
cause of action or right to review an administrative action, or affects the interpretation of any
Act or law in force in New South Wales.71
Simpler, but probably having the same impact, is the South Australian disclaimer: ‘The
Parliament does not intend this section to have any legal force or effect.’72 The Victorian and
Queensland provisions, and the failed Commonwealth proposal, are accompanied by similar
clauses.73 Such clauses render the forms of recognition they attach to legally ineffectual and
thus wholly symbolic.
Returning to the distinction between the constitutional and expressive dimensions of
written constitutions, the Indigenous recognition provisions disavow the constitutional
62
Constitution Act 1902 (NSW) s 2(1); Constitution Act 1934 (SA) s 2(2)(a).
Constitution Act 1975 (Vic) s 1A(2)(b); Constitution Act 1902 (NSW) s 2(2)(b); Constitution Act 1934 (SA)
ss 2(2)(b), 2(2)(b)(i); cf Constitution of Queensland 2001 (Qld) Preamble; Constitution Alteration (Preamble)
1999 (Cth) sch. The Commonwealth formulation of these relationships as ones of ‘deep kinship’ was much
criticised: see Megan Davis and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a More
Inclusive Constitution or Entrenching Marginalisation?’ (2010) 33 University of New South Wales Law Journal
239, 258.
64
Constitution of Queensland 2001 (Qld) Preamble; Constitution Alteration (Preamble) 1999 (Cth) sch;
Constitution Act 1934 (SA) s 2(2)(b)(i)–(ii).
65
Constitution Act 1975 (Vic) s 1A(2)(c); Constitution Act 1902 (NSW) s 2(2)(b); Constitution Act 1934 (SA)
s 2(2)(b)(iii); cf Constitution Alteration (Preamble) 1999 (Cth) sch (‘their ancient and continuing cultures which
enrich the life of our country’); Constitution of Queensland 2001 (Qld) Preamble (‘their unique values, and their
ancient and enduring cultures, which deepen and enrich the life of our community’).
66
Constitution of Queensland 2001 (Qld) Preamble (‘peoples’); Constitution Act 1902 (NSW) s 2(1) (‘nations’);
Constitution Act 1934 (SA) s 2 (‘peoples and nations’).
67
Constitution Act 1975 (Vic) s 1A(1); Constitution Act 1934 (SA) ss 2(1)(b), 2(2) (referring to an earlier
parliamentary apology made to Aboriginal peoples), 2(2)(c).
68
Constitution Act 1934 (SA) s 2(2)(a).
69
Constitution Alteration (Preamble) 1999 (Cth) sch; Constitution Act 1902 (NSW) s 2(1); Constitution of
Queensland 2001 (Qld) Preamble.
70
See, eg, Constitution Act 1902 (NSW) s 2(2)(b) (‘Aboriginal people ... have made and continue to make a
unique and lasting contribution to the identity of the State’); Constitution of Queensland 2001 (Qld) Preamble
(‘their unique values, and their ancient and enduring cultures, which deepen and enrich the life of our
community’).
71
Constitution Act 1902 (NSW) s 2(3).
72
Constitution Act 1934 (SA) s 2(3).
73
Constitution Act 1975 (Vic) s 1A(3); Constitution of Queensland 2001 (Qld) s 3A; Constitution Alteration
(Preamble) 1999 (Cth) cl 4.
63
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dimension. The provisions are not constitutional in any substantive sense because they have
no impact on how the institutions of the state are able to exercise their basic functions. After
these provisions’ enactment, the powers of the legislature, executive and courts, and the State
and national governments, as well as the fundamental rights of Aboriginal and Torres Strait
Islander peoples, remained entirely unaltered. These are, then, non-constitutional provisions,
albeit contained within written constitutions.
Repudiating any constitutional function, these provisions instead instrumentalise the
expressive dimension of written constitutions. The concern is for the written constitution as a
symbol of the polity’s identity, as a ‘founding legal and political document’ in which matters
of basic importance to the polity find expression.74 Mainstream proponents of Indigenous
recognition typically foreground the fact that the written constitution in question, whether
State or national, makes no mention of Indigenous peoples. For example, discussing
Indigenous recognition in Parliament in 2013, Prime Minister Julia Gillard referred to ‘the
great Australian silence which fell upon our founding document’:
among the 128 sections of the Constitution there is no acknowledgement of Australia’s first
peoples – no mention of their dispossession, their proud and ancient cultures, their profound
connection to the land or the unhealed wound that even now lies open at the heart of our
national story.75
When the issue of Indigenous constitutional recognition is posed in this way, what matters
first and foremost is what and who the written constitution makes visible, not how it
distributes state power. The focus is not on the failure of the state to respect Indigenous
identity when exercising the constitutional power granted to it under the written constitution.
Rather, the focus is on the written constitution as a cultural artefact and its failure to respect
Indigenous identity in constructing an image of the polity.
By including references to Aboriginal and Torres Strait Islander peoples within such
instruments, the basic importance of Indigenous peoples to the polity is affirmed. But because
of the way in which the Indigenous recognition provisions are constructed, they stand as nonconstitutional, symbolic adornments to written constitutions. They are not a constitutional
means of recognising Aboriginal and Torres Strait Islander peoples.
IV
The Value and Shortcomings of Symbolic Recognition in Written Constitutions
What is the value of purely symbolic recognition in a written constitution, of the sort being
accorded to Indigenous peoples in Australia? While it is easy to deride symbolism as empty
and tokenistic, I think this is too quick and simplistic a response. The symbolic aspect of the
politics of recognition is important, and Australia’s Indigenous recognition provisions have
value in this domain.
Nonetheless, the Australian experience demonstrates that there are real shortcomings
to pursuing purely symbolic forms of recognition in written constitutions. One problem is that
denying such forms of recognition any substantive constitutional function has (negative)
symbolic effects in itself. The other problem is that this approach neglects, even obscures
valid Indigenous grievances about how power is wielded by the state over Indigenous
74
Expert Panel on Constitutional Recognition of Indigenous Australians, ‘A National Conversation About
Aboriginal and Torres Strait Islander Constitutional Recognition’ (Discussion Paper, May 2011) 5.
75
Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2013, 1120. The idea of a
‘great Australian silence’ was coined in 1968 by anthropologist WEH Stanner to characterise Australia’s
attitudes towards Aboriginal and Torres Strait Islander peoples, and it has since become a common trope in
debates over Indigenous–settler relations: WEH Stanner, After the Dreaming (Australian Broadcasting
Commission, 1969).
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peoples. For both problems, the solution is pursuing substantive constitutional recognition of
Indigenous peoples.
A
The Value of Symbolism
There are several potential benefits of symbolic recognition in written constitutions. Here, it
is important to remember that symbolism is not the sole preserve of non-constitutional
provisions like the Australian Indigenous recognition provisions. Substantively constitutional
means of recognising marginalised groups like Indigenous peoples are also valuably
expressive (to a greater extent and in a more coherent fashion than purely symbolic reforms,
as I shall argue later).76
One virtue of symbolic recognition is that it can help to generate a sense of belonging
and self-respect among those recognised.77 As prominent Aboriginal campaigner Mick
Gooda said upon the passage of South Australia’s Indigenous recognition provision,
‘[r]ecognising Aboriginal and Torres Strait Islander people in Australian constitutions … will
improve our resilience [and] self-worth’.78 Such salutary effects on the recognised group may
extend beyond the moment of the provisions’ enactment if the provisions are also promoted
and commemorated in an ongoing way – for instance, through anniversary commemoration
events, community education campaigns and integration into educational curricula.
Moreover, public symbols can positively affect social attitudes and behaviour towards
those being recognised. Symbols backed by the state have this socialising effect by ‘help[ing]
to define as authoritative certain ways of seeing’ and ‘serv[ing] to organize people’s
knowledge of the past and present and their capacity to imagine the future’.79 Thus, the
enactment of the Indigenous recognition provisions makes it harder to deny that Indigenous
peoples were here before British settlers, that they have special relationships with their
ancestral lands and waters, that they have distinct and unique cultures and languages, that
they are important members of society, that they are ‘nations’ and ‘peoples’. More generally,
over time, any attitudinal change prompted by symbolic recognition may come to influence
state actors, either directly (their own attitudes change) or indirectly (through a
responsiveness to changed attitudes within the wider public), and thereby affect how those
state actors wield their authority. In the long run, achieving substantively constitutional forms
of recognition will depend on there being a whole raft of existing forms of recognition, which
have led members of the polity to view the identity in question as constitutionally
significant.80 Symbolic recognition within written constitutions may very well contribute to
such attitudinal change.
While symbolic forms of recognition may have a diffuse, subtle and cumulative effect
on social attitudes and behaviour, they might also be used more directly as focal points for
political activism. Given the general expression of respect for Aboriginal and Torres Strait
Islander peoples conveyed by the Indigenous recognition provisions, those provisions could
76
Cf Steven Lukes, ‘Toleration and Recognition’ (1997) 10 Ratio Juris 213, 217 (arguing it is ‘a mistake to
suppose that “the symbolic” denotes an isolable class of phenomena, since virtually any kind of action can be
interpreted symbolically as “saying” something’).
77
This point about the psychological value of recognition is particularly prominent in Axel Honneth’s account:
Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts (Joel Anderson trans,
Polity Press, 1995) [trans of: Kampf um Annerkennung (first published 1992)].
78
Mick Gooda, Australian Human Rights Commission, ‘Commissioner Congratulates South Australian
Parliament on Constitutional Recognition’ (Media Release, 22 March 2013)
<https://www.humanrights.gov.au/news/media-releases/commissioner-congratulates-south-australianparliament-constitutional>.
79
Lukes, ‘Political Ritual and Social Integration’, above n 29, 301.
80
Tamar Malloy, ‘Reconceiving Recognition: Towards a Cumulative Politics of Recognition’ (2013) Journal of
Political Philosophy 1 (Early View).
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be used by politicians or advocates of Indigenous rights to contest government action that is
disrespectful towards Indigenous peoples.81 For instance, the provisions’ acknowledgement
of Indigenous peoples’ special relationships with their ancestral lands and waters might be
drawn on to attack future government attempts to diminish Indigenous land rights.82 There is
no guarantee that any such activism would have a significant impact, but symbolic forms of
recognition can at least provide a little more fodder in the activist’s political arsenal.
B
The Shortcomings of Purely Symbolic Recognition
There are two major shortcomings, though, of symbolic, non-constitutional forms of
recognition in written constitutions.
One problem has to do with the potency and coherence of the symbolic message they
send. I argued earlier that the expressive potency of written constitutions stems in part from
their role as important constitutional instruments, the key sites in which public power is
established and regulated. However, this pillar of written constitutions’ expressive power is
knocked out from under purely symbolic provisions in written constitutions. Because reforms
like the Indigenous recognition provisions are deprived of constitutional force, their capacity
to symbolically affirm Indigenous peoples’ importance to the polity is diminished. Denying
constitutional force to these provisions has consequences not only for their symbolic potency
but also for their coherence. Indeed, Indigenous recognition provisions, contained within
written constitutions but lacking constitutional force, commit a performative contradiction.
On the one hand, by referring to Indigenous identity in the polity’s main site of constitutional
norms, they symbolise the constitutional significance of Indigenous identity. On the other
hand, the disclaimers attached to Indigenous recognition provisions symbolically (and
legally) repudiate that constitutional significance. These provisions are thus ill-suited to the
task of conferring symbolic recognition.
The second issue is that real constitutional grievances held by subordinated groups
like Indigenous peoples are ignored and even occluded in the insertion of wholly symbolic
forms of recognition into written constitutions. Aboriginal and Torres Strait Islander peoples
in Australia have legitimate, proven concerns over the capacity of the state, especially the
political branches, to disrespect their identities as citizens and peoples: to discriminate against
them and to disregard their claims to land, culture and self-determination. The Indigenous
recognition provisions do nothing, directly at least, to address this situation.83 Though they
recognise Indigenous peoples as the continent’s first inhabitants, traditional owners of their
ancestral lands and waters, and even peoples and nations – and though such recognition takes
place within written constitutions – the Indigenous recognition provisions cannot be relied
upon to curtail government action that compromises these statuses. They leave the question
of whether or not to respect Indigenous identity at the discretion of the state.
For both shortcomings, the solution is to pursue substantively constitutional forms of
recognition. Rather than formally but legally ineffectually acknowledging Indigenous identity
in the written constitution, reformers should instead seek to reorganise state power within the
written constitution so as to better respect Indigenous identity. On the symbolic side, these
substantively constitutional forms of recognition have much more expressive potency than
purely symbolic measures: the constitutional protection of Indigenous relationships to
ancestral lands, for instance, symbolises a much deeper respect for Indigenous identity than a
81
There is no evidence to date of the Indigenous recognition provisions being used like this to any appreciable
extent.
82
That being said, the provisions are declaratory rather than directive or norm-like, so they offer limited
guidance on this score.
83
Indirectly, these provisions may contribute to campaigns for substantive constitutional change: see Part IV(A)
above.
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written constitution’s unenforceable acknowledgement of those relationships. Moreover, with
properly constitutional recognition, there is no symbolic mismatch between the site of
recognition (the written constitution, whose primary function is to regulate the basic exercise
of state power) and the content of that recognition itself (which, being recognition of a
constitutional kind, involves the regulation of state power).
On the second issue, substantively constitutional forms of recognition, by definition,
address the grievances of subordinated groups about how the state wields its authority over
them. For Aboriginal and Torres Strait Islander peoples in contemporary Australia, this might
mean the passage of constitutional amendments that prohibit governments from
discriminating against them, protect their rights to land and culture against state incursions,
guarantee them a say within mainstream political institutions, even recognise and facilitate
forms of Indigenous self-government. When it comes to the question of whether or not the
state will respect the recognised group’s identity, constitutional recognition, by altering the
basic structures of public power, pushes the answer firmly in the direction of respect.
V
Conclusion
As the 21st century moves forward, written constitutions will continue to feature in the
struggles of subordinated groups to have their identities properly respected by public
institutions. In this paper, I have sought to delineate the two dimensions of written
constitutions – the constitutional and the expressive – germane to such struggles. In Australia,
demands from Indigenous peoples for constitutional recognition have been met with a
response from the political mainstream that privileges the expressive dimension of written
constitutions while disavowing the constitutional dimension. The sort of ‘constitutional’
recognition of Indigenous peoples that prevails in Australia is better understood as
recognition of a non-constitutional, wholly symbolic nature, even though it exists within
written constitutions. I have argued that symbolic recognition should not be dismissed out of
hand, as it can have important benefits for those being recognised. But the best way to pursue
symbolic recognition in written constitutions is through substantive constitutional reforms:
the symbolism of properly constitutional recognition is more potent and coherent than wholly
symbolic ‘constitutional’ recognition. Recognition in written constitutions that is purely
symbolic also fails to address the legitimate grievances of subordinated groups like
Indigenous peoples about the ways in which the state exercises its power over them. If a
particular group is of such fundamental significance to the polity as to be recognised within
the written constitution, surely such recognition should be constitutional in more than name
only.
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