Alternative Law Journal

Formal recognition of Australia’s indigenous peoples

Melissa Castan

Federal

In November 2010, the Gillard government announced it intended to formalise recognition of Australia’s Indigenous peoples within the Commonwealth Constitution. To do so requires a referendum, and with that aim in mind, the government appointed an ‘expert panel’ to examine the appropriate changes to the Constitution, and the best ways to engage the general population in the referendum process. The last referendum on Indigenous issues, in 1967, removed a limitation on the federal Parliament’s capacity to make laws for the ‘Aboriginal race’ (s51 (xxvi)), as well as deleting the racist requirement in s 127 that ‘Aboriginal natives not be counted’ as part of the population of the states and territories for certain purposes. These amendments to the Constitution met with a high degree of support from the Australian community, and had bipartisan support from the major political parties, thus the referendum passed with a resounding majority (over 80 per cent in all states, over 90 per cent in some).

While the 1967 referendum was considered a success, most are not. The majority of attempts at reform of the Constitutionhave failed — of 44 referenda, only 8 have passed, in part because of the peculiarities of the 'double majority' requirement (which requires that not only a majority of people approve of a change, but a majority of people in a majority of states), and in part because of political and community uncertainty.

The lessons learned from this are, for referenda to succeed, there must be widespread political and popular support; the government has therefore called on 18 Indigenous, parliamentary, legal and community representatives to assist in progressing the debate on constitutional reform for Indigenous peoples. While initially it was suggested that the constitutional recognition may be limited to the Preamble of the Constitution, the debate has moved on to the necessity to amend or repeal s 51 (xxvi), which allows the Federal Parliament to now make laws regarding 'any race', an antiquated and possibly undefinable concept. In addition there are other areas of the Constitution that are offensive to Indigenous Australians, particularly s 25 because it anticipated for 'people of any race' to be disqualified from state voting, and thus impacts on representation in the House of Representatives.

The expert panel will be tasked with trying to find the right balance between appropriate legal reform, and 'selling' the reform message to the wider Australian community. The more topics the 'recognition referendum' includes, the greater the propensity for community and political division on the content and impact of the proposed changes, which put at risk a successful vote in favour of reform. The referendum date has not been set, but is expected before the next federal election.

Government information on the referendum and the expert panel is available at http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/Path2Referendum.aspx

MELISSA CASTAN teaches law at Monash University.

Cite as

(2011) 36(1) AltLJ 61