Constitutional recognition of Aboriginal and Torres Strait Islander peoples became part of the national agenda after Julia Gillard formed government in 2010 with the critical support of three independents.
For the most part, efforts have received bipartisan backing.
The government appointed an expert panel to confer with Australians across the nation – marking the only instance to date of the Indigenous community being consulted on the issue – and formulate a proposal for constitutional amendment.
The panel recommended substantial changes to the Constitution, including:
- Removing Section 25, which says states can ban people from voting based on their race;
- Removing Section 51(xxvi), which can be used to pass laws that discriminate against people based on their race;
- Inserting a new Section 51A to recognise Aboriginal and Torres Strait Islander peoples and to preserve the federal government’s ability to pass laws for their benefit;
- Inserting a new Section 116A, banning racial discrimination by government; and
- Inserting a new Section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first, while confirming that English is Australia’s national language.
These recommendations were not implemented in the 43rd parliament; the government gave them to a parliamentary committee for further review. And the process of constitutional recognition that was initially to be completed by 2013 is now being directed towards a referendum in May 2017 to mark the 50th anniversary of the 1967 referendum.
The constitutional recognition process so far has placed disproportionate pressure on Aboriginal and Torres Strait Islander peoples. It’s been presented as a once-in-a-generation opportunity, raising the possibility that a diluted proposition designed to attain consensus will have to be accepted.
And there’s now considerable confusion around what a referendum may be about.
For non-Indigenous Australians, the conversation is framed around the idea of equality, or at least some notion of equal treatment. But, for Aboriginal and Torres Strait Islander peoples, the discussion is about recognition of difference and their relationship with the state.
The constitution already treats Indigenous Australians differently (insofar as it allows laws to be passed for and about Aboriginal and Torres Strait Islander peoples, cultures, and heritage) just because they are Indigenous. And this potentially allows the federal parliament to make laws that might end up disadvantaging Aboriginal and Torres Strait Islander peoples.
For Aboriginal and Torres Strait Islander peoples, then, constitutional change is about righting injustices inherent in the current recognition of difference, rather than promoting an agenda of sameness. A discussion based on the idea of sameness – and equal treatment – would be anathema to many Indigenous activists.
This was made clear after a meeting of around 500 Aboriginal and Torres Strait Islander people in Melbourne in February 2016, which voted unanimously against the constitutional recognition process.
The other outstanding issue identified by Aboriginal activists is the relationship between constitutional recognition and longer-term aspirations towards a treaty and debates about sovereignty. If we accept that Aboriginal and Torres Strait Islander people never ceded sovereignty, the idea that Australia can grant it to them is logically impossible – it already exists.
Statements about sovereignty have often been accompanied by calls for a treaty or, more specifically, a treaty framework that has capacity to deal with Indigenous nations as distinct legal polities. These goals are more than aspirations; they’re the long-held demands of Australia’s Indigenous peoples. And they raise the possibility of Aboriginal and Torres Strait Islander people rejecting the current process.
If we examine such transitional processes elsewhere in the world, we see the clear need for a political process involving representation across political divisions if reconciliation is to be achieved.
But the only representative body for Australia’s Indigenous peoples, the National Congress of Australia’s First Peoples, has been defunded. The body grew out of the void created by the 2005 abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC), a legislated national representative structure.
The National Congress was formed in 2010, and funded (although insufficiently) by the Gillard government to the tune of A$29 million for five financial years. But the Coalition government has refused to provide the congress with the resources committed by the previous government. It’s now in real danger of extinction.
What’s more, the current debate on constitutional recognition in Australia is taking place without an agreed process of consultation for Indigenous peoples and how it will inform the actual wording of the referendum. There has been little thinking about what might happen after the referendum, whether it passes or fails.
And it’s unclear how National Congress – or any other representative structure or body of representation – is to maintain dialogue about the relationship between Indigenous and non-Indigenous people, and the Australian state after the process formally ends.
Finally, the rushed timeline – forced by an arbitrary deadline – is problematic and doesn’t allow for a proper process. All these shortcomings raise the stakes in the debate, and the likelihood that Indigenous people will either be coerced into acceptance of constitutional recognition or blamed for its failure.
Clearly, the merits of the current process are limited. They offer little towards continuing the debate that many Aboriginal and Torres Strait Islanders want about a treaty (or a series of agreements between a variety of Indigenous groups and the state). What we need is a more open discussion about the process itself, representation therein, and the topics that are on the table for discussion.
Until we get to the starting line of imagining this kind of engagement, we haven’t even started a proper conversation, let alone established a meaningful process towards constitutional recognition.
That a “Yes” vote in a referendum might happen regardless points to the failure of constitutional recognition to transform relations in Australian society – and the claims of Aboriginal and Torres Strait Islander peoples for a lawful relationship with settler Australians that reflects historical injustices against them and the need to recognise their difference.
Mark McMillan is a Wiradjuri scholar and NAIDOC Award recipient, working as Associate Professor of Melbourne Law School, University of Melbourne. Adrian Little is Professor of Political Theory & Head of the School of Social and Political Sciences, University of Melbourne.