On 26 May in 1967 the Australian public was asked whether Aboriginal people should be counted in the national census and whether the Australian federal government should have power to make laws for Aboriginal people. A successful and grassroots campaign across Australia resulted in a resounding Yes vote. This year marks 50 years since the historic 1967 Referendum and there is growing momentum and interest in what constitutional reform can and should look like.
The Constitutional Convention is soon to meet with Aboriginal delegates across Australia at Uluru to seek a proposal for long awaited Constitutional reform. At meetings across Australia, delegates have made it clear that symbolism will not suffice and that substantive reform is required.
It is difficult to predict what constitutional reform proposal will be adopted at Uluru after so many years, committees and recommendations. Some of the reforms being considered are not new, for example, the recommendation that a racial non-discrimination provision be included in the body of the Constitution was first suggested over 20 years ago. Other proposals are relatively recent, in particular that there be a ‘Voice’ to federal parliament allowing Aboriginal people to participate and possibly have a veto over relevant legislation.
One thing that can be certain, however, is that very few referendums achieve the level of support required to make constitutional change a reality.
Indigenous rights campaigner Father Frank Brennan, a long-standing supporter of Aboriginal rights, makes a compelling case that only a moderate proposal for constitutional reform will succeed in a vote of the Australian people. Brennan reconsidered his previous view that a provision prohibiting race discrimination should be inserted into the Constitution. He now asks why racism alone deserves this protection and urges instead for an equality clause prohibiting all forms of discrimination in the Constitution or in a Charter of Rights.
I agree with Brennan that a prohibition on race discrimination alone is not viable or defensible in view of the complexity of peoples own lived experiences with discrimination. Further, as a matter of human rights, we cannot single out racism as being more damaging or significant than other kinds of human rights abuses. It is open to question why a campaign for recognition of Aboriginal rights should elevate race discrimination - when the experiences of Aboriginal men, women and children are often if not always as marked and influenced by class, gender, disability, sexuality and age as they are by race and racism.
Aboriginal people do not experience oppression on any single basis. Prohibiting discrimination on the basis of race in effect ‘essentialises’ the Aboriginal experience to one that is typically experienced by Aboriginal men. The risks inherent in this approach are an Aboriginal politic that is oppressive to women and children and adopts superficial understanding of human rights that fails to respond to the diversity and rights of all.
We may need to address through constitutional reform the High Court’s decision in the 1998 case of Hindmarsh Island (Kartineyi v Commonwealth) in which the question of whether the ‘races’ power under section 51(xxvi) could allow for laws detrimental to Aboriginal people. Justice Kirby the sole dissenter, surveyed the history of the provision including the 1967 referendum and concluded that the race power '... does not extend to the enactment of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race) by reference to their race' (para 157). Other judges did not directly answer the question of whether racial discrimination was permitted under this head of power and it is not clear that a future court would support laws manifestly discriminatory against Aboriginal people under this power. Justice Kirby’s approach was consistent with the 1967 Referendum showing most Australians had goodwill towards Aboriginal people and a future of racial equality.
Aboriginal people were denied Treaty rights, unlike our counterparts in New Zealand and Canada. Understandably many Aboriginal people would prefer to focus on substantive potential gains through a Treaty making process. However this does not mean that Brennan’s caution for a moderate case of constitutional reform is in any sense a ‘sell out’. It is a reasonable case for reform and after so many years now of consultations and deliberation (and significant taxpayer’s funds spent on this process) I am sure many Aboriginal and non-Aboriginal people are in favour of what MP Linda Burney calls a ‘winnable’ referendum.
Entrenching human rights in the Constitution is a difficult if not impossible task, and it also leaves the judiciary as the sole arbiter or what those rights mean. The High Court has shown us that this may not always be in the interests of Aboriginal people. We can ensure greater protection of human rights by way of legislation such as the Human Rights Act adopted in Victoria and the ACT.
Australia is many years away from entrenched human rights protection, but we must resolve the outstanding issue of race in the Constitution without further ado or delay. The Australian Constitution today permits racism under Section 25 that contemplates persons of a ‘race’ from being disqualified from voting. Aboriginal people have no rights or recognition at all. The lack of recognition of Aboriginal people highlights the wrongfulness of colonization and dispossession justified through law and fictions of Terra Nullius. The proposal of a parliamentary mechanism to ensure Aboriginal people have a voice into parliamentary processes may go some way to addressing disadvantage that is proving difficult to overcome notwithstanding goodwill and commitments.
The Uluru Convention this week, 50 years after the 1967 Referendum, is a pivotal step in the direction of Constitution reform, giving Aboriginal people across Australia the opportunity to decide what our future should look like.
Dr Hannah McGlade is a Noongar human rights lawyer, editor of Treaty Let’s Get It Right and author of Our Greatest Challenge, Aboriginal children and human rights. She was appointed senior Indigenous fellow at the UN Office of the High Commission on Human Rights 2016. She previously worked for ATSIC undertaking national consultation on Treaty and is currently Senior Indigenous Research Fellow, Curtin University.