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A NATIONAL CONVERSATION ABOUT ABORIGINAL and TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION Discussion Paper

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A NATIONAL CONVERSATION ABOUT ABORIGINAL and TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION Discussion Paper A NATIONAL CONVERSATION ABOUT ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION Discussion Paper . May 2011 A NATIONAL CONVERSATION ABOUT ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION Discussion Paper . May 2011 CONTENTS 1. Introduction 5 A Constitution for the people 5 The benefits of constitutional recognition 6 Gathering momentum for change 7 2. BacKground to THE AUSTRALIAN CONSTITUTION 9 How does a referendum work? 9 3. WHY IS recognition IMportant? 10 Reflecting who we are as a nation 10 Eliminating racial discrimination in our Constitution 10 4. WHY CHANGE THE CONSTITUTION? 12 Acknowledging Aboriginal and Torres Strait Islander cultures 12 Improving health and wellbeing 12 National identity 12 5. THE CHALLENGES OF constitutional REFORM 14 Multi-party support 14 Community education on the need for change 14 Ownership by the people 15 6. PRINCIPLES GUIDING THE PANEL 16 7. SOME IDEAS FOR CHANGE 17 Statements of Recognition/Values 17 Idea 1 Statement of Recognition in a preamble 17 Idea 2 Statement of Recognition in the body of the Constitution 17 Idea 3 Statement of Values in a preamble 17 Idea 4 Statement of Recognition and Statement of Values in the body of the Constitution 17 Equality and non discrimination 18 Idea 5 Repeal or amendment of the ‘race power’ 18 Idea 6 Repeal of Section 25 19 Constitutional agreements 19 Idea 7 Agreement-making power 19 Questions for consideration 20 8. THE PANEL 21 9. How YOU CAN GET involved 22 10. FurtHER READING AND relevant LINKS 23 Books 23 Book chapters 23 Articles 23 Lectures and speeches 24 Reports 24 Other reading 11. Endnotes 26 3 A NATIONAL CONVERSATION ABOUT ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION 4 1. INTRODUCTION Ten years ago Catherine Freeman carried This paper has been written to encourage the Aboriginal flag and the Australian flag all Australians to express their views on how together on her triumphant victory lap around to acknowledge Aboriginal and Torres Strait the Olympic Stadium. Her simple gesture Islander peoples in the Constitution. In the burnt an unforgettable image of pride and coming months the Australian people will be reconciliation into the national memory. As the consulted on a range of ideas for recognising Daily Telegraph said at the time, it ‘captured Indigenous peoples in the Constitution. People the essence of the nation’1. That year more can participate by attending one of the public than 300 000 people came together to walk meetings, by writing a letter or email, or by across the Sydney Harbour Bridge in support lodging a written submission. The Panel will of reconciliation. In 2007 then Prime Minister also conduct surveys to capture the views John Howard announced he would work to of people not directly participating in the achieve broad community support for some consultation process. Drawing on the results of form of acknowledgement of the unique place these consultations, surveys and expert advice, of Indigenous Australians in our Constitution. the Expert Panel will make recommendations In 2008 then Prime Minister Kevin Rudd made to the Prime Minister in December 2011 on the Parliament’s historic National Apology options to change the Constitution which to Australia’s Indigenous peoples, and in could be put to the Australian people at a particular to the Stolen Generations. In recent referendum. years ‘closing the gap’ has become pressing This paper aims to provide a starting point business for Australians in government, for this national conversation. It discusses the companies, schools and communities right importance of constitutional recognition of across the country. Aboriginal and Torres Strait Islander peoples, Despite progress in the understanding and provides general information on Australia’s respect between Aboriginal and Torres Strait Constitution and the process of constitutional Islander peoples and other Australians, the reform, and poses some questions designed unique contribution of Indigenous Australians to promote public discussion. All Australians to our national life is not reflected in the are invited to take part in this discussion. At nation’s founding document, the Australian the end of this paper there is information Constitution. about how you can participate in the national conversation, as well as links to further Today, a large number of Australians from information and suggested reading. all walks of life are seeking to change this situation. In December 2010 Prime Minister Julia Gillard appointed an Expert Panel on A CONSTITUTION FOR THE PEOPLE Constitutional Recognition of Indigenous The Australian Constitution is the founding Australians to lead a national conversation political and legal document of our nation. about making the recognition of Indigenous Changing it is difficult, and for good reason. Australians in the Constitution a reality. Changes can have a far-reaching impact 5 A NATIONAL CONVERSATION ABOUT ABORIGINAL AND TORRES STRAIT ISLANDER CONSTITUTIONAL RECOGNITION because the Constitution underpins our peoples. Moreover, important questions about federal laws and institutions. the way our Constitution treats Aboriginal and Torres Strait Islander peoples remain The power to amend our nation’s founding unresolved. Many Australians will not be aware document lies with us, the people. Many that the possibility of racial discrimination Australians feel the need to address the gaps (against people of any race) is still possible in our Constitution, to bring it up to date to under our Constitution. For over 40 years reflect the reality of Australia in the 21st since the 1967 referendum addressing these century and to create a shared vision of the remaining issues has been a priority for kind of nation we aspire to become. Aboriginal and Torres Strait Islander peoples The values and attitudes of the times meant and all Australians who object to any form that Aboriginal and Torres Strait Islander of racial discrimination. There have been a peoples were not given an opportunity to number of parliamentary committee reports participate in drafting the Constitution in into possible solutions. Many Aboriginal the 1890s, nor were they able to vote for political statements, such as the 1988 Barunga it. Indeed, the only mention of Aboriginal Statement3 and the 1998 Kalkaringi Statement4 and Torres Strait Islander peoples in the reflect the importance many Indigenous Constitution was of exclusion. Ever since people place on achieving constitutional Federation, there have been calls for recognition of their continuing culture. constitutional amendment to secure better treatment of Aboriginal and Torres Strait THE BENEFits OF constitutional Islander peoples and stronger protection of recognition their unique cultures, languages and spiritual connection to the land. The origins of the Australian nation in British colonial heritage and the legacy of the now- In 1967 this movement for change culminated discredited legal doctrine of terra nullius in the most decisive referendum in Australian have been at the centre of much that has history. In that year, over 90 per cent of made Australia the nation we are today. In voters approved changes to the Australian recent years many Australians have come to Constitution. From then on, Aboriginal and understand the damage, injustice and suffering Torres Strait Islander peoples were included caused to Aboriginal and Torres Strait Islander in the counting of the Census, and the peoples which, often inadequately, we have Commonwealth had the power to make laws sought to rectify. for ‘the people of any race for whom it is deemed necessary to make special laws’. This Australians have come from more than 230 power included making laws with respect to countries to build a thriving, optimistic, Aboriginal and Torres Strait Islander peoples multicultural democracy. Our nation occupies from different parts of Australia who were land that Aboriginal and Torres Strait Islander previously subject to the differing laws of each peoples have lived on, cared for and cherished State or Territory. for at least 40 000 years and perhaps much longer. Indigenous Australians are today the While the 1967 Referendum removed custodians of the oldest continuous cultures in some constitutional discrimination against human history. Aboriginal and Torres Strait Islander peoples, it did not afford them the dignity of recognition All of us who live in Australia share pride in the Constitution as the nation’s Indigenous in that unique cultural heritage. However, 6 Aboriginal and Torres Strait Islander peoples and Torres Strait Islander peoples in our have no reassurance that their unique culture Constitution is a chance to walk together, in and heritage will continue to be valued by the spirit of respect, friendship and hope, the nation. Constitutional recognition would towards a truly reconciled nation. be a significant step towards providing such reassurance. GatHERING MOMENTUM Despite the hopes and goodwill expressed at FOR CHANGE the time of the 1967 Referendum, Aboriginal The current multi-party in-principle support and Torres Strait Islander Australians as a for Indigenous constitutional recognition group do not share equally in the nation’s has created an unprecedented opportunity. wealth and opportunities. In terms of Since 1999 there has been support by both life expectancy, health, education and the Australian Government and Opposition employment, many Aboriginal and Torres Strait for constitutional recognition of Aboriginal Islander Australians
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