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Introduction

The Australian Constitution became effective in 1901 January 1st and it is a set of the most powerful laws in the nation. It united South Australia, Victoria, Queensland, the British Colonies of New South Wales, Tasmania, and later Western Australia and formed the federation known as the Commonwealth of Australia and forms the foundation of the Australian legal and political system (Australian Human Rights Commission 2011). Neither the government nor the politicians can change the constitution and only the Australian people have the power to through referendums. The framers of the constitution however did include the indigenous Australian people in the constitution and the proposed changes are meant to amend this for the purpose of fostering greater national cohesion for every Australian. Despite not recognising the indigenous people, the constitution discriminates indigenous people especially through race (Australian Human Rights Commission 2011). This paper therefore seeks to address how the proposed constitutional changes will be of advantage to the indigenous Australian person.

The UN Declaration on the rights of indigenous people

The UN declaration of 2007 on the rights of indigenous people (Gilbert 2007; Davis 2007) has a major effect on the proposed changes to the Australian constitution. Even though Australia was among the nations that rejected the declaration when it was created, later Australia officially endorsed the United Nations Declaration on the Rights of indigenous People (Gilbert 2007). The Declaration is part of international law and it’s important in that it sets the standards for the survival, well-being, and dignity f all indigenous people. According to Gilbert (2007) and Reconciliation Australia (2015) the Declaration on the rights of indigenous people therefore is one of the major background drivers of the constitutional reform process with the aim to achieve the ends of the Declaration.

Article 15 particularly outlines the rights of the indigenous people and to have their diversity in culture and dignity respected and it imposes obligations to nations to take the necessary actions regarding indigenous people as to combat prejudice and promote tolerance, good relations, and understanding (Davis 2007). The constitutional reforms process therefore can be considered to be a nation-building process that aims towards realization of this.

Indigenous people and the Australian constitution

It is unfortunate that the 1901 Australian constitution doesn’t recognise Aboriginal and Torres Strait Islander Australians. On the contrary, it contained a number of references that are explicitly discriminating against indigenous Australians (Reconciliation Australia 2015; Pearson 2010; Williams 2000; Magarey and Garden 2013). These references where however removed in the 1967 Federal Referendum with over 90% of the eligible voters voting YES to changes that reo\moved these references (Lundie 2012; Reconciliation Australia 2015). The current Australian constitution doesn’t still recognize Aboriginal and Torres Strait Islander people. In addition, the constitution still contains clauses that (Section 25 and 51) that allow the Commonwealth and State governments to discriminate a person on the basis of their race. According to Reconciliation Australia (2015), these powers have been used by governments severally by enacting legislation that affects the indigenous Australians only.

It is essential that the indigenous people be recognized in the constitution because, in addition to being a set f laws, the constitution is a reflection of the values of a nation and its idea of itself. Modern day Australia prides itself as a nation of equity and fairness to all its citizens, but at the core of it, the Australian constitution doesn’t recognize indigenous communities as the first people of the land (Dudgeon, Wright, Paradies, Garvey and Walker 2010). In the National Apology to the Stolen Generations, the Australian Government honoured the indigenous people as being “the oldest continuing cultures in human history” (Reconciliation Australia 2015) yet the nation fails to mention them in its constitution.

According to Weight (2013), the history of the Australian Nation, as per the constitution is incomplete because as the constitution has been described as the “birth certificate of the nation” (Williams & Hume 2010), remains silent on the histories of the people who occupied the land before European settlers. According to Behrendt (2003), the drafters of the constitution excluded the indigenous communities during the creation of the new Commonwealth nation which was to be situated on their ancestral territory. The proposed changes are therefore the opportunity for the nation to reflect the rich Australian identity by recognition of the indigenous history.

Proposed changes to the body of the Constitution

The proposed changes to the Australian Constitution are targeted towards two objectives; fixing the historical exclusion of the Indigenous Australian community and to remove those references in the law that remain and allow for discrimination on racial basis (Lundie 2012; Reconciliation Australia 2015). The recommendation of an Expert Panel made up of indigenous and community leaders, parliamentarians, and constitutional experts after extensive consultations and reported to the government that a referendum should be to; remove section 25 which allows for banning of people from voting based n race, remove section 51 (xxvi) which can be used to discriminate persons on the basis of race, insertion of a new section 15A that recognises indigenous Australians and to preserves the Australian government ability to pass laws for the benefit of aboriginal and Torres Strait Islander persons, insert a new section 116A banning racial discrimination by the government, and insert a new section 127A that recognises indigenous languages as the first tongues of the country (Reconciliation Australia 2015; Davis. & Lino 2010; Magarey and Garden 2013).

Positive impact of constitutional changes to indigenous people

The question of the origin of the Australian nation and the legacy of the now discredited terra nullius legal doctrine has been pertinent to the modern day Australia. Many Australians have come in recent years to understand the injustice, suffering, and damage that the indigenous communities were subjected to and which up to now, there have been inadequate effective to rectify (Davis & Lemezina 2010; Dodson & Strelein 2001). As stated by Dudgeon et al. (2010), Australians came from more than 230 nations and they have built a thriving, multicultural, and optimistic democracy that occupies land that the Aboriginal and Torres Strait Islander lived on, cherished, and cared for as long as historical records indicate before the arrival of the European settlers. By being recognized by the Australian constitution, the Aboriginal and Torres Strait Islander people will be formally accorded their place in the history and identity of the nation as well as the birth certificate of the Australian nation.

As stated by Davis & Lino (2010) and Dodson & Strelein (2001), Indigenous Australians are the modern day custodians of the oldest continuous culture in the human history and the entire Australian population share in the pride of this unique cultural heritage. By being recognized by the Australian constitution, the indigenous people of Australia will be reassured of that their unique culture and heritage will continue to be valued by the nation, reassurance which currently lacks (The Hon Sir Gerard Brennan AC KBE 2011).

The 1967 Referendum and subsequent amendment of the Australian Constitution was a major step in guarantee the rights of Aboriginal and Torres Strait Islander people in the Australian Constitution (Howard 2007). However, to date indigenous Australians do not share equally in the opportunities and the wealth Australia has to offer. This is evidenced through; life expectancy, education, health, and employment were the majority of indigenous Australians are acutely disadvantaged. Recognition of indigenous Australian by the constitution would be a major milestone towards alleviation of these disadvantages and provide them with a sense of visibility and ownership in the life of the Australian nation. According to Langton (2001), there has been efforts by the Commonwealth, state and territorial governments to close the gap between non-indigenous and indigenous Australians in education, health, employment, and economic development but these efforts have been more like a drop in the ocean because indigenous people feel as aliens to the ‘non-indigenous” system. Recognition of these indigenous communities is considered to bear positive effects in creating a sense of belonging of the Aboriginal and Torres Strait Islander people (Pearson 2010; Howard 2007; Dodson & Strelein 2001).

Recognition of aboriginal and Torres Strait Islander people in the Australian Constitution is an affirmation of the importance of the Australian indigenous communities and their culture to the nation (Behrendt, 2003). The positive effects of this recognition are that it could help to sustain the value of indigenous cultures into the future. In addition, positive recognition would result to tangible effects on the lives of Aboriginal and Torres Strait Islander people and the communities in general as well as contribute to national pride of all Australian (Reconciliation Australia 2015). Recognition of the Aboriginal and Torres Strait islander people in the Australian Constitution is a chance for the entire Australian population to walk together in the spirit of friendship, respect, and hope towards the realization of the truly reconciled nation (Pearson 2010).

The other positive effect of recognition of indigenous Australians in the constitution is the official elimination of racial discrimination in the country. Most Australians enjoy living without fear of official discrimination, but there is nothing in the current constitution that provides protection. As stated by Dudgeon et al. (2010), the Aboriginal and Torres Strait Islander Australians have been exposed to discriminatory treatments by governments and parliaments throughout the over 200 years. Before the 1967 Referendum, indigenous Australians couldn’t participate in census but the referendum changed this in addition to amending section 51 (xxvi) to allow the Commonwealth Parliament make laws specific to the Aboriginal and Torres Strait Islander Australians (Williams 2000). There still exists the possibility of racial discrimination of indigenous Australians under the constitution. According to law experts, amendments on the Australian Constitution should be on Section 51 (xxvi) and Section 25 to eliminate the possibility of discrimination on racial basis (Davis & Lemezina 2010). The proposed amendments therefore will be of positive impact to indigenous Australians by entrenching protection against discrimination on the basis of race in the constitution.

Comparable to the 1967 National Referendum, the 2000 Bridge Walks, or the 2008 National Apology to Australian’s Indigenous people, the recognition of the Aboriginal and Torres Strait Islander Australian people will be an important step in the reconciliation journey in Australia (Howard 2007; Dodson & Strelein 2001). The recognition of Aboriginal and Torres Strait Islander Australians has the positive effects of addressing a history of Aboriginal and Torres Strait Islander Australians exclusion in the life of the Australian country, improvement of the sense of self worth and social emotional status of the indigenous Australian communities as part of the national identity, enshrinement of the principles of non-discrimination in the national constitution, alteration of the context in which debates on the challenges that are faced by indigenous communities take place to the floor of parliaments, and the construction of a positive relationship founded on mutual respect and trust between indigenous people and the wider Australian community (Australian Human Rights Commission 2014; Williams 2000).

 

Conclusion

The recognition of Aboriginal and Torres Strait Islander Australians in the constitution will have positive effects to the indigenous community through improved social, civic, and economic inclusion in relation to the broader Australian community. The constitutional reform therefore holds critical impetus towards alleviation of the disadvantage faced by the indigenous communities as well as serve in brining the Aboriginal and the Torres Strait Islander people closer to the non-indigenous communities.

 

References

  1. Australian Human Rights Commission, (2011), Constitutional reform: Creating a nation for all of us Aboriginal and Torres Strait Islander Social Justice Commissioner, ISBN 978-1-921449-20-8.
  2. Australian Human Rights Commission, (2014). Australia’s Universal Periodic Review, 2014 Progress Report
  3. Behrendt, L. (2003). Achieving Social Justice, The Federation Press, Sydney.
  4. Davis, M. & Lemezina, Z. (2010). Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or Entrenching Marginalisation, University of New South Wales Law Journal, no. 33 , vol. 2, pp. 239–66.
  5. Davis, M. & Lino, D. (2010). Constitutional Reform and Indigenous Peoples, Indigenous Law Bulletin, vol. 7, no.19, pp. 3–4.
  6. Davis, M. (2007).THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES. Indigenous Law Bulletin, ILB, 6, Is. 30.
  7. Dodson, M. & Strelein, L. (2001). Australia’s Nation-Building: Renegotiating the Relationship Between Indigenous Peoples and the State, University of New South Wales Law Journal, 24, pp. 826–39.
  8. Dudgeon, P., Wright, M., Paradies, Y., Garvey, D. and Walker, I. (2010). “The Social, Cultural and Historical Context of Aboriginal and Torres Strait Islander Australians”. In Working Together: Aboriginal and Torres Strait Islander Mental Health and Wellbeing Principles and Practice, ed. Purdie, N., Dudgeon, P. and Walker, R, 25-42. ACT: Commonwealth of Australia.
  9. Gilbert, J., (2007). Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples. International Journal on Minority and Group Rights, 14, 207–230. DOI: 10.1163/138548707X208818
  10. Howard, J. (2007). A New Reconciliation, The Sydney Papers, vol.19, no. 4, pp. 104–10.
  11. Langton, M. (2001). Dominion and Dishonour: A Treaty Between Our Nations? Postcolonial Studies, vol. 4, no. 1, pp. 13–26.
  12. Lundie, R. (2012).Constitutional Alteration (Local Government) 2013, Bills digest, 147, 2012–13, Parliamentary Library, Canberra.
  13. Magarey, K. and Garden, J. (2013).Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, Bills digest, 74, 2012–13, Parliamentary Library, Canberra.
  14. Pearson, N. (2010). Hope 2010: Crisis, Catharsis, Renewal, speech delivered at the Sydney Festival, 13 January.
  15. Reconciliation Australia, (2015). Aboriginal and Torres Strait Islander Australians and the Constitution.
  16. The Hon Sir Gerard Brennan AC KBE, (2011), Pathway to a Republic, George Winterton Memorial Lecture, Banco Court, Supreme Court of NSW, Sydney, 17 February.
  17. Weight, D. (2013).Commonwealth expenditure: legality and scrutiny, Briefing Book, Parliamentary Library.
  18. Williams, G. & Hume, D. (2010). People Power: The History and Future of the Referendum in Australia, UNSW Press, p. vii.
  19. Williams, G. (2000). Race and the Australian Constitution: From Federation to Reconciliation, Osgoode Hall Law Journal, vol. 38, pp. 643–65.

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