Comment: Recognising Indigenous Australians in the Commonwealth Constitution

Adrienne Stone & Andrew Currie

Melbourne Law School

Australia’s Constitution is a remarkably stable document. Of the 44 referendums held since 1901 on amending the federal Constitution, only eight have succeeded. The last referendum, held in 1999, asked electors whether Australia should become a republic. The defeat of that referendum was thought by many to have chastened advocates of constitutional reform.

Yet reform of the Constitution is again a live issue in Australia. This time, the debate concerns the constitutional recognition of Aboriginal and Torres Strait Islander peoples. The Australian Constitution contains no equivalent to s 35(1) of the Canadian Constitution, which recognises and affirms “existing aboriginal and treaty rights”. In fact, the federal Constitution makes no mention of Indigenous Australians at all. And unlike neighbouring New Zealand, Australia never entered into treaty arrangements with its indigenous people.

The promise of 1967

The place of Indigenous Australians in the Constitution has already been the subject of a constitutional referendum. In 1967, 90.77% of Australians voted in favour of removing discriminatory references to Indigenous Australians from the Constitution, the highest “yes” vote ever recorded in a Commonwealth referendum.

The referendum’s success brought about two changes to the Constitution.

First, the federal Parliament was given the power to make laws with respect to Indigenous Australians. Before 1967, s 51(xxvi) of the Constitution gave the 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”. The referendum removed the exclusion for “the aboriginal race”.

Second, s 127 was removed entirely. That section provided that “aboriginal natives shall not be counted” when determining the numbers of people in the Commonwealth or in a State. The section excluded Indigenous Australians from the calculation of the country’s population for the purpose of allocating seats in the federal Parliament, and was designed to prevent States with large Indigenous populations from securing extra parliamentary representation.

Advocates of reform hoping to avoid the pitfalls of the 1999 republican campaign may see in the 1967 referendum a model of how to secure near-universal support for constitutional change. But few would take it as a legal model of constitutional reform.

While driven by a desire to provide Indigenous Australians with political equality (at least of the formal kind), the referendum, far from recognising the place of Indigenous Australians in the nation, led to their absence from the Constitution entirely. And while advocates of the referendum promised that the amended s 51(xxvi) could be used only to make laws for the benefit of Indigenous Australians, the High Court has not adopted that interpretation.

The proposals of the Expert Panel

The reforms now proposed come from the Expert Panel on Constitutional Recognition of Indigenous Australians, established in 2010 following the election of the Labor government.

If the reforms in 1967 were primarily negative, because directed at deleting discriminatory references to Indigenous Australians in the Constitution, the reforms proposed by the Expert Panel are primarily positive. While the goal of removing discriminatory references remains, the focus is on the recognition of the unique status of Aboriginal and Torres Strait Islander peoples in Australia.

As the Panel noted in its report, delivered to the government in January 2012:

Current multiparty support has created a historic opportunity to recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, to affirm their full and equal citizenship, and to remove the last vestiges of racial discrimination from the Constitution.

The Expert Panel recommended five changes to the Constitution:

1. the repeal of s 25, which reduces the representation of a State in the federal Parliament to the extent that the State disqualifies people of a particular race from voting
2. the repeal of s 51(xxvi), which gives the federal Parliament power to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”
3. the insertion of a new s 51A, giving the federal Parliament power to make laws with respect to Aboriginal and Torres Strait Islander peoples, and, in a preamble to the section, recognising the initial occupation of Australia by Aboriginal and Torres Straight Islander peoples and acknowledging the need to secure their advancement
4. the insertion of a new s 116A, prohibiting discrimination “on the grounds of race, colour or ethnic or national origin” by the Commonwealth, a State or a Territory
5. the insertion of a new s 127A, recognising English as the “national language” of Australia and the Aboriginal and Torres Strait Islander languages as the “original Australian languages”.

Challenges to the Expert Panel’s proposals

The suggested preamble to the proposed s 51A has proved particularly controversial. Conservative commentators Damien Freeman and Julian Leeser have argued that “historical and aspirational statements” have no place in the Commonwealth Constitution, and should instead be found in an “Australian Declaration of Recognition”, loosely modelled on the United States Declaration of Independence. Indigenous leader Noel Pearson, despite his membership of the Expert Panel, has declared his support for Freeman and Leeser’s proposal.

Doubts have also been raised about the legal operation and effect of the Expert Panel’s proposals. In an article advancing a “revised proposal for Indigenous constitutional recognition”, Anne Twomey, Professor of Constitutional Law at the University of Sydney, suggests that the power in s 51A may be wider than intended, as the preamble to the section may not be effective to limit the scope of the power.

Twomey is concerned too that s 116A “has the potential to unbalance the complex adjustments that are made between conflicting rights and interests by legislatures, giving one set of rights absolute protection against all others.” She suggests further that s 127A may better be omitted or given expression in a preambular statement, and that s 25, instead of being repealed, might be replaced by a provision prohibiting discrimination in relation to voting on the grounds of race or sex.

Where to now?

The history of constitutional reform in Australia suggests that proposals must have bipartisan support if they are to succeed at a referendum. While Australia’s major political parties all support the constitutional recognition of Indigenous Australians, achieving agreement on the detail of the amendments may prove difficult.

Options for reform are now being further examined by the parliamentary Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. Having already delivered an interim report in July 2014, the Select Committee is due to hand down its final report by the end of June 2015.

By Professor Adrienne Stone (vice president of IACL) and Andrew Currie – both of the Centre for Comparative Constitutional Studies, Faculty of Law, University of Melbourne.