Explainer: what Indigenous constitutional recognition means

Bundilla elder Aunty Barbara Raymond with schoolchildren in Darwin last year, supporting the cause of Indigenous constitutional recognition. AAP Image/Supplied by Richard Oppusunggu

Constitutional recognition of Indigenous Australia has been on the national agenda for a long time, but is back in the headlines with the news that the Prime Minister and Opposition Leader hope to release draft proposals for a referendum question within weeks.

That comes on the back of building political momentum for constitutional reform, including the consultation and report of the expert panel convened by the previous government; the passage of the Act of Recognition; the work of a Joint Select Committee of Parliament; and a new Quarterly Essay on the topic by Noel Pearson, released this week.

So what does the Constitution say about race? How do we change it? And what are some of the proposals for what the Constitution might say in future, particularly when it comes to recognising Aboriginal and Torre Strait Islander people as the First Australians?

What are the racial references in the Constitution now?

There are two sections of the constitution that mention race. The first, section 25, says that the states can ban people from voting based on their race. The second, section 51(26), gives Parliament power to pass laws that discriminate against people based on their race. They state:

Section 25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.

This is an antiquated, redundant and racist section, which reflects past discrimination against Indigenous peoples’ rights to vote.

Section 51(26). 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 […] the people of any race, for whom it is deemed necessary to make special laws.

This section, the so-called “races power”, has been interpreted by the High Court to allow the federal parliament to make laws that discriminate adversely on the basis of race. Parliament only ever used the races power regarding Aboriginal and Torres Strait Islander people.

What is the Constitution? And why do we need to go to the polls to change it?

In Australia, the Constitution was a product of the views of the times.

It wasn’t created out of revolution, the need for equality, or even a strong need to be “free” of the British Empire, but rather the desire to bring colonies together to unite as a “Commonwealth”. Indigenous Australians were explicitly excluded from the constitutional processes and from its text.

Our Constitution functions as a powerful symbolic statement of Australian identity. But more than that, it is the ultimate legal document in our legal system. It grants and limits parliamentary powers, and functions as the supreme legal authority.

The Constitution was designed with a lock to prevent hasty reform, found in section 128 and explained in more detail here.

To change the Constitution, we need the approval of a majority of voters, across a majority of states. This is what makes our Constitution so hard to reform.

The 1967 referendum is considered one of the most successful amendments to the Constitution, as it was passed with very high popular support across Australia. Although it was misunderstood as “giving Aborigines the vote”, it did permit the federal government to make laws for Aboriginal and Torres Strait Islanders, which up to then was not constitutionally permitted. But that referendum still did not resolve the issues of recognition of Indigenous Australians and their legal and constitutional protection.

The idea that our Constitution still has sections that anticipate and allow racially discriminatory laws now seems like an anomaly for a modern liberal western democracy.

The reality of section 51(26) is particularly odd, as the High Court has confirmed that this grant of power can mean the federal parliament can pass beneficial laws, or adverse laws, that discriminate on the basis of race.

So our Constitution has some serious exclusions: both by not acknowledging the place of Indigenous Australians in our nation, and by authorising discriminatory laws. The concept of “race” as the basis for discriminatory treatment is long discredited, yet it is there still, an artefact of constitutional history.

A message from the late Dr Yunupingu re-released with permission from his family.

What might go into the Constitution if Australians voted Yes to Indigenous recognition?

The expert panel worked to develop recognition proposals and these underpin the Recognise campaign. In summary these are to:

• Remove Section 25, which recognises that the states can ban people from voting on the basis of their race;
• Delete section 51(26), which can be used to pass laws that discriminate (adversely) on the basis of race;
• Insert a new section 51A, to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples;
• Adopt a new section 116A, prohibiting governments from passing laws that discriminate on the basis of race; and
• Insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first tongues, while confirming that English is Australia’s national language.

Some of these are considered non-controversial, while others have met more resistance.

The racial non-discrimination clause is probably the most difficult, because it is said to leave too much open to judges to interpret. The joint select committee assessed these proposals and canvassed some options for addressing some of the perceived resistance to the expert panel proposals.

Because bipartisan support is needed for a successful referendum, the political concerns about the wording of the proposal are now being debated.

While it might be that some find the proposed “non-discrimination” clause an invitation to unwanted judicial activism, it should be understood that without substantive protection, Indigenous Australians may conclude the referendum is too weak to warrant their support.

Noel Pearson recently asked: “If conservatives assert that a racial non-discrimination clause is not the answer then what is a better solution?”

He highlighted the valuable work of the expert panel and the continuing importance of protection from racial discrimination. So Pearson has suggested that the referendum guarantee “the Indigenous voice in Indigenous affairs”, which could include a number of reforms: some constitutional, some legislative and some procedural changes. There are explored more fully in Pearson’s Quarterly Essay published this week.

The proposed wording for the referendum has not been released, but the news that Prime Minister Tony Abbott and Opposition Leader Bill Shorten are working together is a sign the momentum for reform is continuing. We might see draft proposals by the end of September.

Why should Australia change its Constitution?

Although the legal debate over Indigenous recognition might seem complicated, the importance of the underlying movement is simple justice.

Merely “symbolic” recognition is not really recognition of the proper history of Indigenous Australia, nor of contemporary concerns. It will not provide legal protection from bad, unjust or disproportionate laws.

Weak forms of recognition, or making no change at all, just replicates the same mistakes of legal and political exclusion we have been making since 1770. We should get the Constitution right this time.

Further reading
Culture, not colour, is the heart of Aboriginal identity
The rest of this week’s Abbott in Arnhem Land series:
Birthing on Country could deliver healthier babies and communities
Welcome to my Country: seeing the true beauty of life in Bawaka
‘PM for Aboriginal Affairs’ Abbott faces his biggest hearing test
Australia’s 7 Up: the revealing study tracking babies to adults
Well-connected Indigenous kids keen to tap new ways to save lives
Indigenous Australia’s rapid rise is shifting money and votes
How crowded homes can lead to empty schools in the bush
Would you risk losing your home for a few weeks of work?
Listen to your elders: inviting Aboriginal parents back to school
Indigenous Australians need a licence to drive, but also to work
Keeping Indigenous teens in school by reinventing the lessons
Explainer: Can a DNA test reveal if you’re an Indigenous Australian?