Recognizing Aboriginals: A Constitutional Omission

The Australian Constitution does not recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia. In 1967, a referendum altered the Constitution to include Aboriginal and Torres Strait Islander people in population counts and allowed the Federal Parliament to make laws for them. However, this did not introduce new wording that acknowledged Aboriginal and Torres Strait Islander peoples as the traditional owners of the land and waters of Australia. In 2023, a referendum was held to recognise the First Peoples of Australia in the Constitution by establishing an Indigenous Voice to Parliament. However, this proposal was not agreed upon by the Australian public. The lack of recognition in the Constitution has been associated with perpetuating discrimination and negatively impacting the mental health and well-being of Aboriginal communities.

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The Australian Constitution does not recognise Aboriginal and Torres Strait Islander peoples

The 1967 referendum altered the Constitution to amend Section 51 (xxvi) to remove the phrase 'other than the Aboriginal race in any State' and remove Section 127 entirely. These amendments allowed Aboriginal and Torres Strait Islander peoples to be counted as part of the national population and for the Commonwealth government to make laws for them. However, it did not grant them the right to vote in elections, as they already had this right since 1962. The referendum also did not recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia or acknowledge their prior occupation and custodianship of the land.

Since 1967, there have been numerous proposals and attempts to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. In 2010, then Labor Party leader Julia Gillard put the idea on the national political agenda during the federal election campaign. In 2012, the Gillard government commissioned a report, chaired by Professor Patrick Dodson, which outlined the nature of changing the constitution to include Aboriginal and Torres Strait Islander peoples. Despite this, the Gillard government did not pursue a referendum on this issue.

In 2013, the federal parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act, which recognised the Indigenous peoples of Australia and established a committee to advise on a suitable date for a referendum on these proposals. However, the plan was shelved in 2015 due to low public support. In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, calling for an Indigenous Voice to Parliament as their preferred form of recognition. This proposal was submitted to a national referendum in 2023 but was heavily defeated, with only 39.6% of the public supporting the alteration.

The lack of recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution is a significant issue, as it affects their place within the community and contributes to a "deep stain of racism and discrimination" in the country. Recognising Indigenous peoples in the Constitution would build stronger relationships of trust and mutual respect between Aboriginal and Torres Strait Islander peoples and other Australians. It would also allow for the prohibition of racial discrimination and the protection of Indigenous languages and cultures.

The 1967 referendum removed racist language but did not include recognition

The Australian Constitution came into effect on 1 January 1901, establishing the Commonwealth of Australia. It is a living document that continues to shape Australia and is notoriously challenging to change. Amendments to the Constitution can only be made through referendums, which have a high bar for success. Before a referendum can take place, the proposed changes must be approved by the Parliament and put to the Australian voting public. For a referendum to pass, it must be approved by a majority of voters in a majority of states and by a majority of voters across the nation, a requirement known as a double majority.

The 1967 referendum altered the Australian Constitution by amending Section 51 (xxvi) to remove the phrase "other than the aboriginal race in any State" and removing Section 127 in its entirety. Section 127 had excluded Aboriginal and Torres Strait Islander peoples from being counted as part of the national population. The 1967 referendum was significant as it received overwhelming support, with 90.77% of Australian voters voting "Yes" to the changes. These amendments allowed Aboriginal and Torres Strait Islander peoples to be included in the national population count and enabled the Commonwealth government to make laws for them.

However, it is important to note that the 1967 referendum did not introduce any new wording that specifically recognised Aboriginal and Torres Strait Islander peoples in the Constitution. While it removed racist language and addressed some discriminatory references, it did not grant Aboriginal and Torres Strait Islander peoples the right to vote in elections. This right had been granted earlier through Commonwealth legislation in 1962, and full voting rights were not federally granted until 1984 when compulsory registration on the electoral roll was required.

The absence of explicit recognition for Aboriginal and Torres Strait Islander peoples in the Constitution has been a longstanding issue. Various proposals have been put forward to symbolically acknowledge the unique status of Indigenous Australians as the First Peoples of Australia and to enact substantive changes, such as prohibiting racial discrimination, protecting Indigenous languages, and establishing new institutions. Despite efforts by successive governments, referendums to recognise Indigenous Australians in the Constitution have not gained the required public support. The most recent referendum held in 2023, which proposed recognising the First Peoples of Australia by establishing an Indigenous Voice to Parliament, was heavily defeated, receiving only 39.6% support.

The lack of constitutional recognition for Aboriginal and Torres Strait Islander peoples highlights the ongoing struggle for equal rights and representation in Australia. While the 1967 referendum was a significant step towards addressing discriminatory language in the Constitution, further efforts are needed to ensure that Aboriginal and Torres Strait Islander peoples are fully acknowledged and respected within the nation's founding document.

Constitutional recognition would not give any Australians more rights than others

The Australian Constitution does not recognise Aboriginal and Torres Strait Islander peoples. In 1967, the Australian people agreed in a referendum to modify the Constitution to include Aboriginal and Torres Strait Islander peoples as part of the national population, and to allow the Commonwealth to make laws for them. However, this alteration did not introduce new wording that recognised Aboriginal and Torres Strait Islander peoples in any context.

Since then, there have been multiple attempts to include Aboriginal and Torres Strait Islander peoples in the Constitution. In 2010, the federal government established an Expert Panel to inquire into changing the federal Constitution so that Australia's Indigenous peoples would be recognised in it. In 2012, the Expert Panel presented a report titled "Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution" to Prime Minister Julia Gillard. The report recommended the removal of Constitution sections 25 and 51(xxvi), which allowed for the creation of laws that disadvantaged Aboriginal people, and the insertion of new sections 51A, 116A, and 127A. Section 51A would include recognition of Aboriginal and Torres Strait Islander peoples as the first occupants of Australia, acknowledgement of their continuing relationship with their traditional lands and waters, respect for their cultures, languages, and heritage, and acknowledgement of the need to secure their advancement.

Despite these efforts, a referendum held in 2023 to recognise the First Peoples of Australia in the Constitution by establishing an Indigenous Voice to Parliament was not agreed to by the Australian public, with only 39.6% of the public supporting the alteration.

Constitutional recognition of Indigenous Australians refers to proposals for changes to the Australian Constitution to symbolically recognise the special place of Indigenous Australians as the first peoples of Australia. These proposals also include substantial changes such as prohibitions on racial discrimination, the protection of languages, and the addition of new institutions. Recognising Aboriginal and Torres Strait Islander peoples in the Constitution and ensuring it does not discriminate against anyone will not give any Australians more rights than others. Instead, these changes will build stronger relationships of trust and mutual respect between Aboriginal and Torres Strait Islander peoples and other Australians.

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The 2023 referendum on recognition failed to gain support from the public

The 2023 referendum on recognizing Aboriginal and Torres Strait Islander peoples in Australia's constitution failed to gain the support of the public, highlighting the ongoing challenge of achieving meaningful reconciliation in the country. This referendum was a significant opportunity to address the historic exclusion of Indigenous Australians from the nation's founding document and to take a crucial step towards a more inclusive and respectful future. However, a range of factors contributed to the lack of public support for this important initiative.

One key issue was the complexity of the proposed changes and the resulting confusion among voters. The referendum question was not straightforward, and many Australians struggled to understand the implications of the changes. Despite efforts by advocacy groups and the government to provide information and education, the messaging apparently did not resonate with a large portion of the electorate. This underscores the challenge of effectively communicating complex constitutional issues to the public and ensuring that voters feel informed and engaged enough to support such significant changes.

Another factor was the concern among some sectors of the community that the proposed changes could establish a form of racial discrimination. There was a perception that recognizing Aboriginal and Torres Strait Islander peoples in the constitution might create a "special status" for Indigenous Australians and potentially lead to divisions within Australian society. These concerns were often fueled by misleading information and negative campaigning by opposition groups, which unfortunately influenced public opinion and contributed to the referendum's lack of support.

Additionally, the timing of the referendum and the political climate may have played a role in its failure to gain traction. With a federal election also taking place in 2023, the referendum could have been overshadowed by election campaigning and the focus on political party agendas. The referendum may have been seen as a lower priority for voters who were more concerned with immediate political and economic issues. Achieving the required level of public support for constitutional change is always a challenging task, and referendums worldwide often face an uphill battle due to voter apathy, confusion, or a status quo bias.

Moving forward, it is crucial that Australians continue to engage in honest and respectful dialogue about constitutional recognition. It is clear that further education and awareness campaigns are needed to address misconceptions and ensure that all Australians understand the importance of recognizing the world's oldest living culture in the nation's founding document. While the 2023 referendum did not deliver the desired outcome, it is essential to learn from this experience and continue striving for a more inclusive and respectful Australia that honors and values the contributions of its First Nations peoples.

In conclusion, the failure of the 2023 referendum highlights the ongoing challenges and complexities surrounding reconciliation efforts in Australia. It serves as a reminder that achieving meaningful change requires clear and effective communication, addressing misconceptions, and ensuring that all Australians feel included and valued in the process. By learning from this experience, there is an opportunity to build a stronger foundation for future initiatives that will ultimately lead to a more unified and respectful nation.

Other countries have recognised Indigenous people in their constitutions

The Australian Constitution does not recognise Aboriginal and Torres Strait Islander peoples. A referendum held in 2023 asked Australians if they approved a proposal to alter the Constitution to recognise the First Peoples of Australia by establishing an Indigenous Voice to Parliament. The proposal was not agreed to, with only 39.6% supporting the alteration.

In contrast, many other countries have legally recognised Indigenous people in their constitutions. For example, Brazil's 1988 constitution recognises Indigenous peoples' rights to the land they traditionally occupy. In Canada, the recognition of Aboriginal rights was the constitutional foundation for the eventual creation of a separate Nunavut province with extensive self-government in 1999. Section 35 of the Canadian Constitution Act of 1982 recognises and affirms Aboriginal and treaty rights for First Nations, Inuit, and Métis peoples. This includes land rights, rights to occupy and use lands and resources, self-government rights, and cultural and social rights.

In Latin America, a wave of constitutional reform since the 1980s has seen many countries include Indigenous recognition in their constitutions. In Guatemala, the end of a civil war in 1994 was accompanied by constitutional reform that included recognition of Indigenous land and customs. Malaysia's Constitution recognises the "special position" of the Malays and other Indigenous groups, empowering the government to take affirmative action measures. The Sámi people, an Indigenous group living across Sweden, Norway, Finland, and Russia, have been recognised in the constitutions of Finland, Norway, and Sweden, with the right to preserve and protect their culture and language. Each of these nations has established its own Sámi Parliament to advise the national governments on issues relating to the Sámi.

The consequences of Indigenous constitutional recognition have varied widely between countries. While recognising Indigenous groups in a constitution carries political and potentially redistributive consequences, it can build stronger relationships of trust and mutual respect.

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