Constitutional recognition of Indigenous Australians

In February 1995, the Recognition, Rights and Reform report by the Aboriginal and Torres Strait Islander Commission (ATSIC) stated that constitutional reform was a priority, finding massive support for recognising Indigenous Australians in the Constitution.^[1]

On 16 October 2007, Prime Minister

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;

Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

Section 116A Prohibition of racial discrimination

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.

(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Section 127A Recognition of languages

(1) The national language of the Commonwealth of Australia is English.

(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.[2]^{: p xviii}

The panel recommended that there be a single referendum, in which removal of s 51(xxvi) and insertion of the new s 51A would be proposed together, so that the validity of legislation that depends upon s 51(xxvi), such as the Native Title Act 1993 (Cth), would switch immediately from s 51(xxvi) to s 51A.^{[2]: p xviii} The panel sought a referendum process that will be nationally unifying and not divisive, with an eventual level of public support similar to that in 1967.^{[2]: pp xvii & xix} To that end, it proposed that the referendum be preceded by "a properly resourced public education and awareness program" and "should only proceed when it is likely to be supported by all major political parties, and a majority of State governments". If the federal government were to prefer different changes, the panel advised, it should return to consultation with the Aboriginal and Torres Strait Islander peoples.^{[2]: p xix}

Recognition Act 2013

On 12 March 2013, with all-party support, the federal parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, which recognised the Indigenous peoples of Australia and required the establishment of a committee to advise on a suitable date for a referendum on these proposals.^[5] The process was to have been completed within two years, with a sunset provision ending the force of the Act on 28 March 2015, but provision was made to make it self-repealing on 28 March 2018.^[6]

2015: Joint Select Committee

A Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was established in 2013 to consider the recommendations of the Expert Panel report and delivered its report in June 2015.^[7]

2015: Referendum Council

On 7 December 2015, a Referendum Council, with 16 Indigenous and non-Indigenous members, was established to advise the Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten on progress toward a referendum. It built on extensive work by the Expert Panel and the Joint Select Committee.^[8] It conducted national consultations which continued through the second half of 2016,^[9] and published a discussion paper about five key proposals in October 2016.^[10] The Recognition Council used a deliberative process which included six months of regional dialogues which resulted in a collective report of what constitutional recognition meant to aboriginal people.^[11]

The Uluru Statement from the Heart was the culmination of a national Indigenous public consultation process in May 2017 at the First Nations National Constitutional Convention held at Uluru .^[1] It proposed constitutional reform on three points: voice, truth, and treaty.^[12] It was a deeply considered statement recommending deliberate structural reform, setting out three steps to achieve this, in a way that recognises First Nations sovereignty and overcomes their current powerlessness.^[13] The main proposals of the Uluru Statement were:^[12]

• a national representative body with the power to advise parliament on laws that affect Indigenous peoples (Voice); and
• a "Makarrata Commission" to supervise a process of agreement-making (
  truth-telling
  process (Truth) about Australia's history.

The final report released on 30 June 2017 by the Referendum Council was largely supportive of the Uluru Statement. The majority of the council recommended that a referendum be held to change the Constitution to establish an "

That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

The council commented but did not recommend the establishment of a Makarrata Commission, which was outside its terms of reference.[15]

There was little debate in the media after the release of the Referendum Council's report. On 26 October 2017, the Turnbull government released a media statement that largely rejected the major proposals. It said that an Indigenous national representative body would "inevitably become seen as a third chamber of Parliament" and would not be supported by the majority of Australians. The next step would be a Joint Select Committee to consider the recommendations of the existing bodies of work developed over the previous decade to develop a different set of constitutional amendments which would be acceptable to all.^[16]

2018: Joint Select Committee

The Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples was appointed in March 2018, co-chaired by Senator

1. In order to achieve a design for The Voice that best suits the needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee recommends that the Australian Government initiate a process of co-design with Aboriginal and Torres Strait Islander peoples.
2. The Committee recommends that, following a process of co-design, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish The Voice.

Chapter IX – Recognition of Aboriginal and Torres Strait Islander Peoples

129 Aboriginal and Torres Strait Islander Voice

In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

(1) There shall be a body to be called the Aboriginal and Torres Strait Islander Voice;

(2) The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.[25]

The wording of the amendment was finalised with the bill passing both houses of the Australian Parliament on 19 June 2023.^[26] The referendum to establish an Indigenous Voice to Parliament was voted down on 14 October 2023.^[27]

Challenges

The question of how exactly to bring about constitutional change remains a topic of debate among Indigenous leaders. According to Marcia Langton (now co-chair of the Senior Advisory Group), "for such a national agreement to be achieved, there must be some mutually pressing reason related to security or economic issues for both parties to abide by the terms".^[28]

The Australian Human Rights Commission supports recognition of Aboriginal and Torres Strait Islander peoples in a preamble to the Constitution.^[29]

The call for a treaty is related to constitutional recognition of prior ownership of the land, as it reinforces the symbolic recognition of sovereignty of the original owners: a treaty is "a contract between two sovereign parties".^[30] As of 2020^[update], a number of Indigenous treaties in Australia are under way at state level.^[31]

On 26 March 2023, the South Australian Parliament created a First Nations Voice at state level.^[32]

Polls

See also

• Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013
  , an Act to incorporate recognition of Aboriginal peoples in the South Australian Constitution
• Reconciliation in Australia
• Australian Indigenous sovereignty

References