6.  Discuss the current push for recognition of the Aboriginal and Torres Strait Islanders in the Australian Constitution which would need to be put to the Australian people as a referendum question. Discuss your reasons in favour or against this constitutional change.

The tenor of Australian attitudes towards indigenous Australians has radically shifted from the time of settlement to the present day. What may have seemed unfathomable in the past, the notion of constitutional recognition of indigenous Australians, is now seen by many as an important step wrongfully elided in the development of our national narrative. An affirmative answer to the question of whether constitutional recognition should be conferred upon the indigenous peoples of Australia is supplied in three sections.

The first section discusses the currently-favoured form of recognition, outlining in particular the origins of the current push and the recommendations issued by the recently-established Expert Panel on Constitutional Recognition. The second section considers the positive case for such reform: the significance of constitutional recognition to an accepted aim of public policy, reconciliation, and consideration of the position adopted by foreign jurisdictions with a similar history of colonisation. The final section refutes the most tenable rejoinders to constitutional recognition, of which two variants are logically possible: “strong” counterarguments, which reject any possibility of constitutional recognition irrespective of the form of the change, and “weak” counterarguments, which simply generate the conclusion that constitutional change in the form proposed is flawed. Under the first head, the claim that recognition of a particular group undermines the conception of an Australia for all Australians is discussed. Under the second head, insofar as a purely symbolic constitutional change is being proposed, which is a debatable assumption, the argument for a bolder constitutional framework, comprising either an affirmation of indigenous sovereignty or inclusion of substantive rights, is considered. 
 

The Current Push for Constitutional Recognition

Although constitutional recognition of indigenous Australians has been the subject of sustained advocacy by indigenous rights activists for decades,[1] it is only since 2007 that bipartisan political commitments have been made to constitutional recognition.[2] The issue most recently emerged on the national agenda in the aftermath of the 2010 Federal election campaign. In order to resolve the political stalemate resulting from a hung Parliament, and form a minority government, the Australian Labor Party committed itself, inter alia, to holding ‘referenda during the 43rd Parliament or at the next election on Indigenous constitutional recognition’.[3] Consequently, in 2010, the Federal Government established the Expert Panel on Constitutional Recognition of Indigenous Australians, which undertook public consultation between May and October 2011.[4]

The report presented by the Panel in January 2012 recommended that constitutional recognition be conferred in two new sections within the Constitution.[5] Section 51A seeks to grant the Federal Government a new head of power to pass laws benefitting Aboriginal and Torres Strait Islander peoples; the text of the section is preceded by a preambular ‘statement of recognition’ acknowledging Aboriginal and Torres Strait Islanders as the first occupants of Australia, who maintain a continuing relationship with their traditional lands and waters, with an ongoing ‘need to secure [their] advancement’.[6] Section 127A additionally acknowledges Aboriginal and Torres Strait Islander languages as Australia’s first languages whilst affirming that English is Australia’s national language. Consistent with a progressive Constitution, the Panel further recommended the deletion of section 25, which permits restriction of suffrage on the basis of race, and section 51(xxvi), the power to discriminate on the basis of race.[7] The Federal Government responded by introducing a Bill for an Act of Recognition of Indigenous Peoples on 28 November 2012 as an interim measure.[8] Acting in co-operation with the Opposition, the Government also established a Parliamentary Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples to facilitate constitutional recognition in accordance with the Panel’s report.[9]

Here, it must be noted that other forms of constitutional recognition for indigenous Australians have been mooted over the years, the most common proposal being recognition through the Preamble to the Constitution.[10] Indeed, the unsuccessful 1999 Constitutional Referendum included a question about the insertion of a new Preamble, which made cursory reference to indigenous peoples’ prior occupation of Australia.[11] However, the following arguments on whether constitutional recognition is desirable rely solely on the form of the Panel’s recommendations. The dismal record of Australian referenda, with only 8 of 44 referendum proposals succeeding since Federation,[12] has indicated that successful constitutional reform requires bipartisan political support and broad and open consultation processes with the public to ensure the referendum’s substance is well understood.[13] Both these factors serve to ensure that the referendum passes the principal formal requirement for constitutional reform: the assent of a majority of the Australian electorate and a majority of voters in a majority of States.[14] The Panel’s recommendations, being both the product of a consultative public process and bipartisan input through the composition of the Expert Panel and, now, the Parliamentary Joint Committee,[15] are most likely to conform to these practical realities, and thus rest on superior foundations to other proposals.[16]

Why Constitutional Recognition?

The narrative of Australian indigenous rights has been a highly chequered one. In supplying correctives to the injustice prevalent in earlier years, domestic measures such as the 1967 Constitutional Referendum to remove the exclusion of indigenous persons from Australian population statistics,[17] the 1991 Royal Commission into Aboriginal Deaths in Custody,[18] which recommended the instatement of a formal reconciliation process,[19] and most recently the bipartisan Apology to the Stolen Generations in 2008 have made significant inroads towards reconciliation between indigenous and non-indigenous Australians.[20]

Moreover, three Australian states have recently accorded indigenous peoples constitutional recognition.[21] Victoria, for example, amended its Constitution in 2004 to acknowledge Victoria’s Aboriginal people as ‘the original custodians of the land on which the Colony of Victoria was established’,[22] whilst New South Wales amended section 2 of its Constitution in 2010, which now ‘acknowledges and honours the Aboriginal people as the State’s first people and nations’.[23] On an international front, Australia’s adoption of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) signifies a commitment to recognising indigenous peoples’ status as first peoples and ensuring their participation in political processes.[24]

Against this backdrop of a concerted effort to redress historical inequities, it strikes a strangely dissonant note that indigenous peoples exist in “a constitutional silence, perpetuating a myth of Indigenous non-existence comparable to the colonial mindset of earlier times”.[25] The Australian Constitution currently makes no direct mention of indigenous peoples. Indeed, at the time of Constitutional drafting, indigenous peoples were not included as delegates to the Constitutional Conventions in the 1890s,[26] consistent with the then-prevailing conception that Australia was terra nullius, or ‘land that belongs to no one’,[27] and were thus excluded from the fundamental exercise of nation-building. Recognition within our founding national document, one which “defines the extent of [Australia’s] legal universe,”[28] thus emerges as a cornerstone of reconciliation.

The progressiveness of international jurisdictions further throws into relief Australia’s constitutional silence. The closest parallels to Australia are New Zealand, Canada and the United States of America, which share a British colonial past and a comparable common law tradition but have instituted a more formal basis for the recognition of indigenous rights. Canada has constitutionally entrenched the Canadian Charter of Rights and Freedoms, which affirms existing Aboriginal rights and treaty rights.[29] The United States Constitution implicitly recognises the status of indigenous communities as first peoples in conferring power upon Congress to “regulate Commerce with foreign Nations...and with the Indian tribes”,[30] reinforced by the qualified sovereignty recognised in the ‘Marshall trilogy’ of decisions in the United States Supreme Court in the early 1800s.[31] New Zealand, by contrast, has attempted a more clearly-articulated structural basis for indigenous democratic participation, originating from the 1840 Treaty of Waitangi between the Maori Chiefs and the Crown, and continued through a series of reforms, most recently the 1993 introduction by referendum of a mixed-member proportional representational voting system, which reserves a certain number of seats in the New Zealand Parliament for Maori.[32]

Furthermore, there is some suggestion that the indigenous peoples of New Zealand, Canada and the USA, countries with similar rates of development to Australia,[33] enjoy higher rates of economic and social advantage than those in Australia.[34] On this view, while the assertion of a direct causal connection between indigenous welfare and constitutional approaches would overreach the point, it is plausible that formal recognition in conjunction with other enabling measures, may serve to create a political landscape more conducive to indigenous socio-economic development, and thus have indirect practical as well as symbolic effect.

It must be acknowledged that reference to international authority given the idiosyncrasies of national history and constitutional frameworks may be a controversial approach. The modest stance adopted here is simply that comparative jurisprudence is instructive, and the dissonance between Australia and similar foreign jurisdictions invites serious consideration of the justification for constitutional silence.

Potential Flaws in Constitutional Recognition

The most tenable lines upon which to frame a “strong” argument, as characterised earlier, is the view that constitutional recognition of indigenous Australians unjustifiably treats certain races as distinctive, and thus erodes rather than cements national unity, a policy objective that overrides all others. Some believe constitutional recognition of a particular race, irrespective of the language used, exists in tension with a document for “all Australians”, a stance reflected in a minority of submissions to the Expert Panel.[35] For instance, citizen Gillian Fennell states “[b]y continuing to separate the indigenous from non-indigenous Australians, we are continuing to drive a wedge between these two elements of society”;[36] while Jesse Sounness believes “…such recognition singles out one race and raises it above all others”.[37]

The conventional response is that a category error has been committed in conflating race and historical status; constitutional scholar George Williams indicates as much in defending a parliamentary power for “laws to be made for Indigenous Australians on the ground that they represent a distinct group within the community identified not by their race but by their status as constituting the first nations of the continent”.[38] However, disambiguating race and status fails to address the basic force of the argument that distinctions between groups of Australians, whether on grounds of race or any other discriminant, ought not to be made. A better response to such an objection is that conjecture must give way to empiricism regarding the Australian body politic’s perception of whether constitutional recognition would be divisive. Newspoll surveys conducted in February 2011 and September 2011 suggest that 69% to 75% of citizens would vote in favour of constitutional recognition,[39] with 83% of the submissions received by the Panel broadly in support of the measure.[40] As the referendum proposal is finalised, paralleled by a more extensive campaign to educate the public on the change, this proportion would likely increase to a greater majority. Thus, the ‘challenge to national unity’ argument, although not conclusively defeated given the potentially variable nature of attitudes, is defeasible absent any significant opposition. Moreover, suggestions that constitutional recognition raise any element of society over others are misconceived when the intent is to correct a historical injustice rather than provide an additional benefit.

Less stringent objections accommodate constitutional change in principle but contend that constitutional change as proposed is misguided. In the present case, the Expert Panel’s recommendations do not explicitly grant any positive rights to indigenous Australians, suggesting that the proposed changes are symbolic in intent. Admittedly, the view that constitutional language can be so confined in interpretation is heavily contested.[41] Indeed, the Panel’s choice to recognise indigenous Australians in the text of the Constitution suggests that the statement of recognition’s “functional purpose is to limit the head of power [under section 51A], by inviting future courts to interpret the grant of legislative power in the light of its text”.[42] Nonetheless, while the legal consequences of section 51A, as with any constitutional reform, are difficult to pre-empt precisely,[43] one would expect that in the lead-up to the referendum, the language of the statement of recognition will be subject to significant scrutiny to ensure an undesirably broad construction may not be given to its words.

Assuming that the change is largely limited to a symbolic one, it may be argued that constitutional recognition in the form proposed is unpalatable because a bolder constitutional framework is required. On some views, constitutional recognition without express reference to indigenous sovereignty is inconsequential.[44] For others, the pursuit of constitutional recognition is an attempt to entrench positive rights by relying on the relative immutability of the Constitution as opposed to statute law;[45] recognition without more explicit substantive rights is insufficient.

In light of previously-discussed practical constraints on successful constitutional reform, it is unlikely that bolder proposals would receive bipartisan support, and thus be successfully passed at referendum.[46] Indigenous sovereignty is particularly contentious as it is a poorly-understood term, owing both to the plurality of definitions of ‘indigenous sovereignty’ and the perception of many non-indigenous persons that a claim to sovereignty implies a claim to secession or territorial dispossession.[47] Given that the worry underlying the aspiration for more radical change is that ad hoc attention is paid to the practical advancement of indigenous peoples, a partial solution is for federal and state governments to supplement constitutional recognition with a renewed emphasis on practical measures to give indigenous peoples permanent channels for democratic participation. Ultimately, however, the fact that the impact of symbolism is difficult to assess tangibly should not give rise to the conclusion that a symbolic change lacks merit.

Substantial consensus exists, especially within the indigenous community, around the belief that constitutional recognition is essential in reshaping the national narrative.[48] Mick Gooda, well-placed as an advocate for the indigenous community in his role as the Aboriginal and Torres Strait Islander Social Justice Commissioner, characterised constitutional recognition as ‘an exercise that builds the healthy relationships necessary for an agenda of hope’.[49] In the long-term, symbolic recognition can serve to create the conditions for more substantial reform in the future; indeed, the movement towards constitutional recognition itself has built on the recent momentum provided by the National Apology, itself a profoundly symbolic event.[50] Such considerations permit an uncompromisingly affirmative answer to whether reform is desirable.

Conclusion

The currently-favoured approach towards constitutionally recognising indigenous Australians envisages two new sections within the Constitution, section 51A and section 127A, as proposed by the government-established Expert Panel on Constitutional Recognition. The proposal has much to recommend it: in light of the historical suppression of indigenous rights, constitutional recognition on a federal level would substantially assist in ongoing reconciliation efforts, particularly where the primacy of the Constitution makes it the appropriate avenue for redress, and also bring Australia in consonance with the position adopted by analogous international jurisdictions.

The case against constitutional recognition can also be resoundingly refuted. First, the view that recognition of a particular segment of Australians has the effect of undermining national unity has little empirical basis since most Australians support the measure. Secondly, on the assumption that the change is symbolic, the animus of arguments demanding bolder frameworks for change could be addressed by the institution of practical reforms to supplement constitutional recognition, whilst recalling that symbolic reform possesses significant value.

Consequently, constitutional recognition of indigenous Australians is a sound and necessary reform.