: Constitutional reform: Are we ready?

Constitutional reform: Are we ready?

Anne Macduff and the ACT committee

When the tall ships from England arrived on the shores of what became known as Australia, the Indigenous peoples were not recognised. Indigenous laws and culture were subjugated to the laws and culture of England. And again at the moment of Federation in 1901, the Indigenous people were not recognised. The Australian Constitution ignored both Indigenous claims to land and Indigenous sovereignty. Indigenous peoples were excluded from being counted in the census, and their right to vote was dependent on state laws which were largely exclusionary.

While there are still many fundamental injustices to address, the Australian community is slowly recognising its Indigenous Australians. However, changing the text of the Constitution to bring it into line with contemporary social values is a challenge. Constitutional reform can only occur through the referendum process, and for a referendum to be successful it requires a ‘double majority’. That is, a majority of Australians nationally, as well as a majority of Australians in four out of six states. While in 1967 the most successful referendum ever in Australian constitutional history attempted to improve the situation for Indigenous Australians, hindsight has shown us that the changes in 1967 were not enough. Indigenous Australians still struggle to have their rights to equality, land, law and cultural heritage recognised.

In November 2010, the Gillard government committed to holding a referendum before or at the next federal election on the recognition of the special place of Indigenous people in the text of the Australian Constitution.1 The government stated that constitutional recognition is ‘another step in the journey’ towards reconciliation started by the Stolen Generations National Apology.2 The proposal to hold a referendum to recognise Indigenous Australians in the Constitution seems to have general multi-partisan support from the Government, the Opposition, the Greens and the Independents.3

However the proposed amendments to the Constitution are not yet known. In December 2010, the Gillard government established a Panel of Experts to consult with the community to develop options for change. That panel met with members of the community throughout 2011 and delivered its report in January 2012. The FAHCSIA website notes that the government will now consider the report and draft amendments to the Constitution and release them for public comment.

But while the government considers its options, the next federal election fast approaches. Even if the government waits and conducts the referendum at the next federal election, that will be no later than 30 November 2013. This means Australians will be asked to comment on the amendment proposals and vote on them within the year.

The Australian community needs to be ready to turn its attention to the issue and consider why Indigenous Australians should be recognised in the Constitution, and if so, in what ways. Recently, Indigenous leader Mick Dodson observed that:

we really don’t have much knowledge — unless you happen to be a constitutional lawyer or a law student — of our Constitution. A recent poll said that something like 58 per cent of Australians think we have a right to bear arms in our Constitution. It sends a message to me that we know more about what the Yanks have got in their constitution than we know about our own. So I think we have got to bring our Constitution to life, bring it into the 21st century.4

The theme of this edition of the Alternative Law Journal seeks to raise awareness about the upcoming referendum on the constitutional recognition of Indigenous Australians. Three articles speak to different aspects involved in thinking about a referendum: why we should have the referendum, what the process might be, and what the text of the referendum proposal should include. The editors hope that through the articles on this theme, our readers will be able to consider these very important aspects of the referendum — and share their thoughts in discussion and debate — with enough time to bring the Constitution to life and into the 21st Century.

ANNE MACDUFF and the ACT Committee


1. See statement made by the Australian Government, ‘Constitutional Recognition of Indigenous Australians’ Fact Sheet. http://www.youmeunity.org.au/downloads/9d901e3cc61f576a22ed.pdf.
2. Ibid.
3. See YouMeUnity, ‘Frequently Asked Questions’ http://www.youmeunity.org.au/be-informed/faqs. But also Greens, ‘The Australian Greens & the Australian Labor Party (The Parties) Agreement’ (September 2010), 2 http://greens.org.au/sites/greens.org.au/files/Australian%20Greens_ALP%20agreement.pdf; Coalition, Coalition Election Policy 2010: The Coalition’s plan for real action for Indigenous Australians (2010), http://www.liberal.org.au/~/media/Files/Policies%20and%20Media/Community/Indigenous%20Australians%20Policy.ashx (link broken); Independent, ‘The Hon Julia Gillard & Mr Andrew Wilkie ‘The Parties’ Agreement’ (September 2010) 2, http://www.abc.net.au/4corners/special_eds/20110620/wilkie/docs/agreement.pdf.
4. Mick Dodson, ‘Constitutional Recognition of Indigenous Australians’ (Senate Occasional Lecture Series at Parliament House, Canberra, 5 August 2011) http://www.aph.gov.au/About_Parliament/Senate/Research_and_Education/pops/pop57/c02.

(2012) 37(3) AltLJ 150
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