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Aborigines and Torres Strait Islanders in Australia's Constitution

  • 06 July 2012

Since 1967, the Australian Constitution has made no reference to Aborigines and Torres Strait Islanders.  Prior to 1967, people 'of the aboriginal race' were exempt from the Commonwealth Parliament’s power to make laws with respect to the people of any race 'for whom it is deemed necessary to make special laws'.  Most Australians agree that it is time for the Constitution to make positive reference to Indigenous Australians thereby affirming their status as equal citizens free from all vestiges of racial discrimination and recognising their status as Indigenous Australians.  

This can only be done by a super majority of the Australian population at referendum with a majority of voters in four of the six states voting in favour.  This will only happen if any proposal is supported and strongly backed by the major political parties.  We are now a sufficiently mature polity to know that will not happen unless any proposal has first met the approval of a broad range of respected Indigenous leaders.  That’s why the Report of the Expert Panel, chaired by Pat Dodson and Mark Leibler, including key Aboriginal leaders and academics and members of the major political parties, published in January 2012 is a useful starting point.  But it is not the final word.  

The Panel is right to have recommended that any referendum proposals be first discussed with all political parties, the independent members of the Commonwealth Parliament, and also 'State and Territory governments and oppositions', and that any referendum proceed only 'when it is likely to be supported by all major political parties, and a majority of State governments'.  The atmosphere in our national parliament is so toxic at the moment that I cannot see these conditions being met in time for the next federal election.   

Uncontroversially, the Panel has recommended that the outdated and now racist section 25 of the Constitution be repealed.  Gone are the days when the Commonwealth would contemplate people of a particular race being excluded from the franchise for the House of Representatives.  That much is easy.

The Expert Panel has presented the government with a number of measures going beyond the simple 1988 suggestion that section 25 be repealed and section 51(26) be replaced with a power to make laws with respect to Aborigines and Torres Strait Islanders.  The Panel has suggested some splendid words of acknowledgement:

Recognising that the continent and its islands now known as Australia were first occupied by