Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution Report of the Expert Panel January 2012 © Commonwealth of Australia 2012 ISBN 978-1-921975-28-8 (print) ISBN 978-1-921975-29-5 (PDF) ISBN 978-1-921975-30-1 (HTML) Creative Commons licence Except where otherwise noted, all material presented in this document is provided under a Creative Commons Attribution–Non-Commercial-NoDerivs 3.0 Australia licence (http://creativecommons.org/licenses/by-nc-nd/3.0/au). The details of the relevant licence conditions are available on the Creative Commons website (accessible using the links provided) as is the full legal code for the CC BY-NC-ND 3.0 AU licence (http://creativecommons.org/licenses/by-nc-nd/3.0/au/legalcode). This document should be attributed as: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel Disclaimer The material contained in this document has been developed by the Expert Panel on Constitutional Recognition of Indigenous Australians. The views and opinions expressed in this document do not necessarily reflect the views of or have the endorsement of the Commonwealth Government or of any minister, or indicate the Commonwealth’s commitment to a particular course of action. In addition, the members of the Expert Panel, the Commonwealth Government, and its employees, officers and agents accept no responsibility for any loss or liability (including reasonable legal costs and expenses) incurred or suffered where such loss or liability was caused by the infringement of intellectual property rights, including the moral rights, of any third person, including as a result of the publishing of the submissions. Inquiries Inquiries regarding the licence and any use of this document are welcome at: Group Manager, Indigenous Policy and Engagement Department of Families, Housing, Community Services and Indigenous Affairs GPO Box 7576 Canberra Mail Centre ACT 2610 Email: [email protected] Telephone: 1800 836 422 This document is available online at www.youmeunity.org.au and at www.fahcsia.gov.au. Editorial, design and artwork by Wilton Hanford Hanover Index by Barry Howarth Printed by Blue Star Print Canberra 16 January 2012 The Hon Julia Gillard MP Prime Minister Parliament House Canberra ACT 2600 Dear Prime Minister We are pleased to present to you the report of the Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution. This report has been prepared in accordance with the Expert Panel’s terms of reference issued on 23 December 2010. Yours sincerely Patrick Dodson Mark Leibler AC Co-chair Co-chair Expert Panel on Constitutional Recognition of Indigenous Australians Letter to the Prime Minister iii Foreword from the co-chairs We present this report to the Prime Minister with the gratitude of all members of the Expert Panel for the opportunity to carry out the important task we were given in December 2010: to investigate how to give effect to constitutional recognition of Aboriginal and Torres Strait Islander peoples. The Panel’s task was to report to the Government on the options for constitutional change and approaches to a referendum that would be most likely to obtain widespread support across the Australian community. The conversation with our fellow Australians took place in communities, towns and cities across the country and gave the Panel invaluable insights into how people from many backgrounds and walks of life want to see their sense of nationhood and citizenship reflected in the Constitution. The consultations the Panel undertook were a reminder of how far Australia has come since the nation’s legal and political foundations were laid down in the late nineteenth century. Then, in line with the values of the times, Aboriginal and Torres Strait Islander peoples were excluded from the deliberations that led to the adoption of the Constitution. The text of the Constitution excluded them. It was not until two-thirds of the way through the nation’s first century that the exclusion was removed and the Constitution shifted closer to a position of neutrality. The logical next step is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race. Public participation in and support for the Panel’s consultations and submissions program has been strong. Together with research commissioned by the Panel during 2011, this has given us confidence that the constitutional changes recommended in this report are capable of gaining the overwhelming public support needed to succeed at a referendum. While we believe that the options outlined in this report are capable of succeeding at a referendum, the consequences of failure would be damaging to the nation. An essential pre-condition to gaining the support needed for a successful referendum is cross-party parliamentary support. Notwithstanding their political differences, all major political parties have strongly affirmed the principle of constitutional recognition of Aboriginal and Torres Strait Islander peoples. We believe that significant common ground exists across the political spectrum in relation to the Panel’s recommendations, and that this support has grown as the Panel has carried out its work throughout the year. In this we have been greatly assisted by the Panel’s four parliamentary members. The Panel hopes that all Australians will respond with an open mind to its recommendations. We believe that the current multiparty support creates a window of opportunity to recognise Aboriginal and Torres Strait Islander peoples in and eliminate race-based provisions from the Constitution, provided that the necessary conditions for a successful referendum, as detailed in this report, are in place. It is now for the Government and the Parliament to take the Panel’s recommendations forward. As co-chairs, we would be pleased to assist in this process by participating in discussions and providing advice, including on the extent to which any proposals the Government puts to Parliament are likely to be supported by the Australian community as a whole. Finally, we thank the members of the Panel for their dedication and commitment during the past year, and we also thank the thousands of Australians who have contributed their ideas and their personal experiences to the Panel’s deliberations. Foreword from the co-chairs v Contents Letter to the Prime Minister .............................................................................................................................................................. iii Foreword from the co-chairs ................................................................................................................................................................. v Executive summary..........................................................................................................................................................................................xi Introduction: Expert Panel and its methodology ........................................................................................................1 Background to the establishment of the Expert Panel ....................................................................................... 1 Membership of the Panel.................................................................................................................................................................. 2 Principles to guide the Panel’s assessment of proposals for constitutional recognition .......... 4 Consultation and community engagement ..................................................................................................................... 4 A historic opportunity ...................................................................................................................................................................... 10 1 Historical background.................................................................................................................................................................... 13 1.1 The history of the Australian Constitution ................................................................................................ 13 1.2 ‘Aboriginal natives’ ............................................................................................................................................................ 21 1.3 Colonisation and Aboriginal resistance ......................................................................................................... 22 1.4 ‘White Australia’ ................................................................................................................................................................... 23 1.5 Protection and assimilation ...................................................................................................................................... 24 1.6 Aboriginal and Torres Strait Islander suffrage ....................................................................................... 26 1.7 Early voices for change ................................................................................................................................................. 28 1.8 The 1967 referendum ....................................................................................................................................................