Constitutional
Recognition
We begin this presentation by acknowledging the Traditional Owners of
the Lands and Waters here where we are gathered and Elders past and
present.
What is the Constitution?
The Australian
Constitution is the
foundation of
Australia’s legal and
political system. It is
the set of rules by
which Australia is
governed.
Why is the Constitution
important?
• The Constitution sets out the powers of
the 3 branches of government: the
Parliament, the Executive and the Courts.
How Can the Constitution be
Changed?
Only the people of Australia can change
the Constitution through what is known as
a referendum.
Referendum
To be successful a referendum
must receive a double majority.
A double majority means that
1) The majority of Australian voters
across all States and Territories
have to vote Yes. AND
2) A majority of States have to
vote Yes.
The First Peoples and the
Constitution
•
•
In the lead up to Federation, Aboriginal and Torres
Strait Islander peoples, or ‘the First Peoples’, were
largely excluded from the writing of the Constitution.
The result is that Australia adopted a Constitution that
referred to Aboriginal and Torres Strait Islander
peoples only in negative terms:
– Section 127 made it unlawful to include ‘Aboriginal
natives’ when counting the total number of
‘people’ of the Commonwealth.
– Section 51(26) stated that the Federal Parliament
can make special laws for ‘people of any race,
other than the aboriginal race in any State, for
whom it is deemed necessary to make special laws.
1967
In 1967, a referendum was held on the status
of the First Peoples in Australia.
Australians voted overwhelmingly for:
1. Section 127 to be removed from the
Constitution, which meant that Aboriginal
people and Torres Strait Islander people would
now be included in estimating the total
population of Australia; AND
2. Section 51(26) to be changed so that the
Federal Government could now make laws for
Aboriginal and Torres Strait Islander peoples.
However, the 1967 referendum
did not go far enough
"Our Constitution does not recognise the First Australians. In fact
it enables governments to discriminate against under the 'race
power.' The referendum of 1967, while it resulted in indigenous
people being counted in the census and gave the Commonwealth
the power to legislate on indigenous matters, did not give us
recognition or equality."
Professor Marcia Langton
A number of problems remain that still which need to be addressed,
including:
1.
The Constitution does not recognise the prior occupation of
Aboriginal and Torres Strait Islander peoples.
2.
The Constitution currently contains racially discriminatory
provisions.
Racially discriminatory
provisions
• Section 25 - This section contemplates state
governments excluding people from voting on
the basis of their ‘race’.
• Section 51 (26) - After the 1967 referendum this
section allows the Parliament to make laws for
the people of any race for whom it is deemed
necessary to make special laws, including
Indigenous Australians. However, this section
does not specify that such‘special laws’have to
be for the benefit of the people they affect.
The time has come for Australia to
take the next step and recognise
Aboriginal and Torres Strait
Islander peoples in the Constitution
and remove racial discrimination
from our founding document.
Political Support
In delivering the National Apology in 2008,
Kevin Rudd committed to progressing
constitutional recognition.
In August 2010, the Australian Labor
Party, the Coalition and Australian Greens
election platforms all included a
commitment to Constitutional Recognition.
Expert Panel
• In November 2010 the Gillard Government established
an Expert Panel on Constitutional Recognition of
Indigenous Australians.
• The Expert Panel was made up of Aboriginal and Torres
Strait Islander and non-Indigenous community leaders,
lawyers and members of parliament.
• All major parties were represented, and the Panel
included an Independent member.
• The Panel lead public consultations and debate all over
Australia.
• In January 2012, the panel reported back to Parliament,
with a number of recommendations.
What the Expert Panel
Recommended
• Repeal Section 25 which contemplates
State governments excluding people from
voting on the basis of race.
• Repeal Section 51(26) which can be used
to create laws that are to the detriment of
a particular ‘race’.
• Both powers described as “a blemish on
our nationhood”.
What the Expert Panel
Recommended
Add a new Section 51A to recognise Aboriginal
and Torres Strait Islander peoples, including
their prior occupation, their continual relationship
with the land, their continuing languages,
cultures and heritage.
This would preserve the Federal Government’s
power to make laws with respect to Aboriginal
and Torres Strait Islander peoples.
What the Expert Panel
Recommended
Add a new Section 116A that would
prohibit racial discrimination on the basis
of ‘race’, colour or ethnic or national origin;
but still allow laws to protect cultures,
languages and heritage or overcome
disadvantage or effects of past
discrimination.
This new section would protect all
Australians from racial discrimination.
What the Expert Panel
Recommended
Add a new Section 127A that recognises
that Australia’s national language is
English and that, as the original Australian
languages, Aboriginal and Torres Strait
Islander peoples’ languages are part of
Australia’s heritage.
Why is Constitutional
Recognition so important?
Constitutional recognition offers an
important opportunity to re-set the
relationship between Aboriginal and
Torres Strait Islander people and the wider
Australian community.
Why is Constitutional Change so
important?
Constitutional change would not only have
powerful symbolic effects but also real
practical effects.
Practical Effects of Constitutional Change
Research shows that
Constitutional recognition
would have a positive
effect on Aboriginal and
Torres Strait Islander
peoples’ social and
emotional wellbeing.
Recognition will improve the Health
of Indigenous Australians
“The lack of acknowledgement of a people’s
existence in a country’s constitution has a major
impact on their sense of identity, value within the
community and perpetuates discrimination and
prejudice which further erodes the hope of
Indigenous people… Recognition in the
Constitution would have a positive effect on
the self esteem of Indigenous Australians
and reinforce their pride in the value of their
culture and history. It would make a real
difference to the lives of Indigenous
Australians.”
Dr Maria Tomasic, President of The Royal Australian and New
Zealand College of Psychiatrists
Other Practical Effects
Constitutional Change will ensure that all
Australians are treated equally under the law.
Section 116A would
protect all Australians
from being discriminated
against in law on the
basis of race, colour or
ethnicity. Racial equality
is important for everyone.
Doesn’t the Racial Discrimination
Act protect us from being
discriminated against?
Yes, the Racial Discrimination Act 1975
(Cth) protects individuals from being
discriminated against on the basis of race.
BUT unlike the Constitution the Racial
Discrimination Act can be suspended or
removed by the Government at any time.
Practical Effects
It will prevent future Parliaments from
making racially discriminatory laws to bar
people from voting, working or joining
certain professions on the basis of their
race.
Practical Effects
It will also ensure that the Government is able to
make necessary laws to improve the lives of
Aboriginal and Torres Strait Islander peoples by
addressing disadvantage and protecting
heritage and culture.
The Government already has power to do this,
but can also make discriminatory laws.
These changes would limit the Government’s
power to making non-discriminatory laws.
Common Myths and
Misconceptions
Myth: Recognising Aboriginal and Torres Strait
Islander people in the Constitution is based on
outdated concepts of ‘race’ and inconsistent with
the proposed racial equality clause.
Fact: This is incorrect.
Aboriginal and Torres Strait Islander people
would not be recognised in the Constitution on
the basis of their ‘race’ but rather because of
their unique status as the original custodians of
Australia.
Common Myths and
Misconceptions
Myth: The Expert Panel has proposed
that the Commonwealth Government be
given a power to make ‘special laws’ to
Aboriginal people. Won’t this mean that
they will be preferential treatment?
Fact: No.
Common Myths and
Misconceptions
• It is important to clarify that the changes
proposed will not create any new powers.
• Rather, they are designed simply to maintain the
power which the Commonwealth Government
currently has to make positive laws with respect
to Aboriginal people, while removing the power
to create negative or discriminatory laws.
Common Myths and
Misconceptions
Myth: Isn’t the non-discrimination clause
a one clause bill of rights?
Fact: No, that would be like saying the
Racial Discrimination Act is a one clause
Human Rights Act. It is merely a oneclause non-discrimination principle.
“You say that the current
Constitution discriminates against
Aboriginal and Torres Strait Islander
peoples; but you also say that it
doesn’t mention them at all.
Aren’t these two arguments
completely inconsistent?”
• The Constitution fails to acknowledge the prior
occupation, unique languages, cultures and
heritage of Aboriginal and Torres Strait Islander
peoples. In this way, our founding document is
incomplete.
• It also includes a number of provisions that are
racially discriminatory. Whilst Aboriginal and
Torres Strait Islander peoples are not named
specifically in these provisions, it is clear from
historical records that they were intended
targets; and some provisions have only ever
been used with respect to Aboriginal people and
no others – for example, to preclude them from
voting.
“Why should Aboriginal and Torres Strait
Islander peoples receive benefits and
entitlements that other Australians can’t
access? There are lots of struggling
white families in Australia. Shouldn’t the
Commonwealth make laws for people on
the basis of need, not ‘race’?”
• The Commonwealth Government already has
the power, for example under the Social Security
head of power, to make laws on the basis of
need and alleviate poverty and disadvantage for
struggling Australians. The changes proposed
will not make any change to those broader
powers.
• The current changes are designed to ensure that the
Commonwealth maintains the power it has had since the
1967 referendum to make positive laws with respect to
Aboriginal and Torres Strait Islander peoples; AND
• Seek to remove the Australian Government’s power to
make discriminatory laws and bring the Constitution in
line with contemporary standards.
“Referenda cost a lot of taxpayer
money, and few succeed. Wouldn’t
we be better off investing this money
to address Aboriginal and Torres
Strait Islander disadvantage?”
Recognition and addressing disadvantage are not
mutually exclusive priorities. Indeed, experience shows
that improving relationships is vital to improving
outcomes in Aboriginal and Torres Strait Islander
communities.
Recognising Aboriginal and Torres Strait Islander
peoples in the Australian Constitution is a crucial step in
resetting the relationship between governments, the
broader community and the First Australians.
It is also likely to generate direct Aboriginal and Torres
Strait Islander health and social and emotional wellbeing improvements.
What do Australians think about
Constitutional Change?
Q. Thinking now about
Indigenous Australians. If
there was to be a
referendum to recognise
Indigenous Australians in
the Australian constitution,
based on what you know
now would you vote in
favour of it or against it?
Results of the Newspoll survey
conducted in February 2011
Response Per Cent
In favour
75
Against
16
Don’t
Know
9
What do Indigenous Australians think
about Constitutional Change?
The National Congress of Australia’s First
People surveyed their Aboriginal and Torres
Strait Islander members on Constitutional
change.
Of 466 respondents surveyed:
– 88.6% selected ‘very important’ to describe
how they felt about the need for change
– A further 6.7% said that recognition was
‘somewhat important’.
What are Aboriginal leaders
saying?
“Constitutional recognition
of Aboriginal and Torres
Strait Islander People would
be good ''not only for our
own heads and hearts… but
also for the nation's soul.’’
Dr Lowitja O’Donoghue,
former Chairperson of the
Council for Aboriginal
Reconciliation
What are Aboriginal leaders
saying?
“We're gathered to take a
Professor Patrick Dodson,
Co-Chair of the Expert Panel
on Constitutional Recognition
remarkable step forward.
Forward to a nation that
acknowledges its history, its
heritage, in its founding
document. Forward to a nation
who stands up to be counted as
opponents of racism and
proponents of recognition.”
What are Aboriginal leaders
saying
“ We must, I believe, leave
our children with a formal
acknowledgement in our
Constitution of the existence
of the Aboriginal and Torres
Strait Islander peoples, one
that goes beyond the
racialised citizen and
encompasses the explicit
rights of peoples within our
nation state.”
Professor Marcia Langton,
Chair of Australian
Indigenous Studies,
University of Melbourne
What are Aboriginal leaders
saying
"What is still needed is a
positive citizenship for
indigenous Australians: a
positive recognition of
our status as the
country's indigenous
peoples and yet sharing
a common citizenship
with all other
Australians."
Noel Pearson, lawyer, academic, land
rights activist and founder of the
Cape York Institute for Policy and
Leadership
What Aboriginal leaders are
saying
“Constitutional reform is
more than just symbolism.
The positive effect on our
self-esteem, the value of our
culture and history, and the
respect it marshals from
others can make real
differences to the lives of
indigenous
Australians everywhere.”
Mick Gooda, Aboriginal and
Torres Strait Islander Social
Justice Commissioner
Be part of the change
•
Get informed. Go to: http://www.antar.org.au/constitutional_recognition
•
Ask if you can put up a poster in your workplace, neighbourhood centre,
school, library, university, local cafe or public place. To order a free poster,
go to www.antar.org.au or contact [email protected]
•
Organise an event in your home, workplace, school, university, TAFE or
community centre. See ANTaR’s ‘Event Hints and Tips’.
•
Circulate ANTaR’s petition calling on Federal politicians to support changes
to recognise Aboriginal and Torres Strait Islander peoples in the Constitution
and protect all Australians from racial discrimination. Go to www.antar.org.au.
•
Make a financial contribution to ANTaR’s campaign for Constitutional
Recognition.
•
Tweet the Prime Minister and tell her you stand for
#ConstitutionalRecognition.
•
Volunteer your time at ANTaR’s campaign HQ. Fill out our campaign
supporter registration.
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