Is constitutional change what Australia’s First People need?

There are more references to lighthouses, beacons and buoys in Australia’s Constitution than there are to Aboriginal and Torres Strait Islander people. As it stands, our First Peoples aren’t mentioned at all.

Most Australians and the two major political parties agree this must change – but opinion is divided on how such changes should take form.

The then prime minister Tony Abbott had wanted a referendum on Indigenous Constitutional recognition to take place on 27 May 2017 – the 50th anniversary of the 1967 referendum to include Aborigines in the census and amend racially discriminatory sections of the Constitution. But the 2017 referendum didn’t happen.

What needs amending?

Constitutional law professor George Williams has said, “The 1967 referendum deleted discriminatory references specific to Aboriginal people, but put nothing in their place. Torres Strait Islanders have never been referred to in the constitution. As a result, rather than recognising Indigenous people, the referendum left a silence at the heart of the Constitution”.

While race discrimination specifically against Indigenous people has been deleted, “Australia is now the only democratic nation in the world that has a constitution with clauses that still authorise discrimination on the basis of race”, says Williams.

There are two sections of the Constitution that mention race. The first, section 25, says that the states can ban people from voting based on their race. The second, section 51(26), gives federal parliament power to pass laws that discriminate against people based on their race.

Professor Melissa Castan says, “section 51(26), the so-called “races power”, has been interpreted by the High Court to allow the federal parliament to make laws that discriminate adversely on the basis of race.” She points out, “Parliament only ever used the races power regarding Aboriginal and Torres Strait Islander people.”

Some are concerned that a Constitutional amendment which states Indigenous people are the original custodians of the land will make non-Indigenous people feel like imposters in the place they call home.

Some concerns from Constitutional conservatives

Some Australians are concerned that a Constitutional amendment which states Indigenous people are the original custodians of the land will make non-Indigenous people feel like imposters in the place they call home.

This concern is an echo of the reluctance to embrace a national apology to Australia’s stolen generations in 2008.

Speaking at the Kennedy School of Government at Harvard soon after the apology, former Liberal PM John Howard said, “I do not believe, as a matter of principle, that one generation can accept responsibility for the acts of an earlier generation.”

The apology, however, did not trigger the onset of mass guilt in the non-Indigenous Australian population. It was overwhelmingly celebrated.

Howard went on to say his view was shared by Noel Pearson of the Cape York Indigenous Council, a man whom he regarded as “the voice of contemporary Indigenous Australia”.

Pearson remains an authority for many conservatives. In an effort to temper the concerns of constitutional conservatives, in 2015 Pearson put forward a three-part proposal to minimise Constitutional change:

1. Remove racially discriminatory wording in the Constitution
2. Devise a Declaration of Recognition to stand alongside the Constitution
3. Assemble a parliamentary advisory body to comment on laws affecting Indigenous people

Vice-chancellor of the Australian Catholic University, Greg Craven, described Pearson’s proposal as “genuinely brilliant”.

The apology did not trigger the onset of mass guilt in the non-Indigenous Australian population. It was overwhelmingly celebrated.

“The greatest danger would be inserting vague, manipulable language into the Constitution,” Craven argued. “There are no references to ‘sovereignty’ or sweeping guarantees of equality and far-flung rights.”

Craven claims Pearson’s proposal will allay constitutional conservatives’ fears that recognition of Indigenous Australians will promote Aboriginal and Torres Strait Islander people as in some way superior to other races.

“Indigenous identity, indigeneity, is not superior to the identity of other Australians, nor does it in any way threaten that national identity”, Craven wrote. “It simply is the case that an identity based upon millennia of profound connection with this country, physical and spiritual, is sufficiently special to be worthy of safe, certain recognition.”

What are some of the proposals by Indigenous leaders?

The then Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, was reluctant to accept a Declaration that sat outside of the Constitution, so was not a legal document. “It is the law out of which all other law in this country comes from and to be recognised in [the Constitution] is probably the ultimate form of recognition,” he said.

Geoff Clark, former chairman of the disbanded Aboriginal and Torres Strait Islander Commission, had proposed Australia, “include a simple clause in the body of the Constitution that the consent of the Aboriginal people is required for the application [of] laws and policies that may have an effect on Aboriginal people.”

Such a clause would have had the power to stop a government initiative like the Northern Territory Intervention, which has been criticised for lack of consultation with Indigenous communities. On the other hand, Craven says, Pearson’s body of Indigenous representatives, would “advise, suggest and comment. Its views would be debatable, disputable and disposable.”

RECOGNISE was an Indigenous advocacy group governed by the board of Reconciliation Australia, which from 2012 to 2017 ran a campaign “to see fairness and respect at the heart of our Constitution, and to ensure racial discrimination has no place in it. Our goal is a more united nation.”

Based on the recommendations by an Expert Panel in 2012, RECOGNISE proposed Constitutional amendments that included a provision for government to: “pass laws for the benefit of Aboriginal and Torres Strait Islander peoples”.

However, for many Indigenous people, the goal is not constitutional reform, it is sovereignty and a treaty. As mentioned in this Expert Panel report a survey conducted by the National Congress of Australia’s First Peoples in July 2011 revealed: “88 per cent of Congress members identified constitutional recognition and sovereignty as a top priority. Unfortunately, it was apparent from consultations and submissions that sovereignty means different things to different Aboriginal and Torres Strait Islander communities.”

The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was established in November 2012 to interpret the findings from the Expert Panel.

What might voting ‘No’ look like?

Senator Cory Bernardi remains opposed to a Constitution that makes special reference to racial groups. “Anything that seeks to divide our country by race, and every proposal that I’ve heard of seeks to do exactly that, I think is doomed to fail … I would be absolutely campaigning for the ‘No’ vote,” Bernardi told AM.

If stamping out racism is what Bernardi was aiming for, that is honourable. But the way he conjures a post-racial society seems to frame race as a distinctly negative quality. Wilful ‘colour blindness’ to what makes us different denies what makes us special. From wherever on earth we descend, we should hope to draw on our racial heritage as a source of pride, and find a comforting sense of community in our culture.

A position statement from The Royal Australian and New Zealand College of Psychiatrists states: “The lack of acknowledgement of a people’s existence in a country’s constitution has a major impact on their sense of identity and value within the community, and perpetuates discrimination and prejudice which further erodes the hope of Indigenous people.” The College concluded, “Recognition in the constitution … is an important step to support and improve the lives and mental health of Indigenous Australians.”