Recognition basics

Worldwide, the US, Canada and New Zealand have all moved to recognise Aboriginal people in their respective constitutions.

The United States Government has more than 350 treaties with Native Americans. Norway’s constitution recognises the country as bi-­cultural.

"A glance at the [Australian] constitution reveals the deep stain of racism and discrimination," says reputable journalist Jeff McMullen. ^[1] "It is one of the few constitutions in the world today with negative race powers allowing government to make laws and policy that pointedly trample the rights of Aboriginal and Torres Strait Islander people."

“Constitutionally speaking we are still basically White Australia, however much we boast that we have changed,” adds former High Court Justice Michael Kirby. ^[1]

90% of surveyed Australians want Aboriginal people officially recognised. ^[2] But Aboriginal people are not so sure.

A survey released in May 2015 by the government-funded Recognise group found that that 87% of Aboriginal people would vote “yes” to be recognised within the Australian Constitution. But in June 2015 another survey by IndigenousX, a social media platform across Twitter and Facebook, found that only 25% of Aboriginal people supported the Recognise campaign, 58% opposed. ^[3]

There is a big difference if Aboriginal people are recognised in the preamble or the body of the constitution.

The preamble is not part of the constitution, and any change to it would have no legal consequences.

Alternatively, inserting a statement of Aboriginal recognition into the constitution itself, would be interpreted by the courts, with the potential for outcomes at odds with today's understandings of the statement's purpose. ^[4]

Why is constitutional recognition important?

The constitution might not seem to matter much in our daily lives, but it is always there: it informs the work of parliaments, governments and courts. It has a long-term, profound effect on Australian politics and laws.

More specifically, the constitution is a "rule book" for the country. The rules determine who can do what and to whom; establish relationships between, people and institutions; and recognise national values and goals.

In each of these ways, the constitution affects Aboriginal people and their place within the community. A lack of acknowledgement can have serious effects on people's health, as the Royal Australian and New Zealand College of Psychiatrists has found: "The lack of recognition of Aboriginal and Torres Strait Islander peoples as the traditional owners of the land and waters of Australia in the Constitution impacts on identity and sense of belonging within the communities, perpetuating discrimination and eroding mental health and social and emotional wellbeing." ^[5]

"I don't want to resent any longer"

Aboriginal film-maker Rachel Perkins believes that constitutional recognition could "lift the historical burden that sits like a heavy skin across our nation", causing resentment among Aboriginal people.

"There is a deep subterranean feeling of burning resentment, carried within my people, that has been handed down from parent to child across six generations since 1788... This is the inheritance passed on to me. I do not want to resent my own country any longer." ^[6]

Video: A humorous view of constitutional recognition

Watch this video of The Weekly for a tongue-in-cheek view of the topic.

National constitutional recognition

Nationally efforts started in 2011 to have Aboriginal people recognised in Australia's constitution.

Australia's constitution does not recognise Aboriginal or Torres Strait Islander peoples' prior occupation and custodianship of their land.

In fact, section 51(xxvi) allows special laws to be passed to the disadvantage of Aboriginal people, and section 25 enables state laws to disqualify people of a particular race from voting at state elections.

An expert panel recommended to remove sections 25 and 51(xxvi) and adopt new sections:

• Add Section 51 (A) to recognise Aboriginal peoples' occupation of the land and continuing relationship with lands and water. The section would also pay respect to culture, language and heritage, and state that the government can only make laws to the benefit of Aboriginal people.
• Add Section 116A to specifically prohibit racial discrimination for all Australians. It would forbid any government from discriminating against a person based on race, colour, ethnicity or national origin.
• Add Section 127 (A) for recognition of languages and to acknowledge and protect the role that languages have in Aboriginal communities.

In 2012 the government set up the Recognise campaign, overseen by Reconciliation Australia. Recognise partnered with more than 180 organisations, and its distinctive "R" logo was used by sporting teams and companies, but opponents of constitutional recognition quickly reinterpreted it as "refuse". With opposition to recognition mounting, the campaign was abandoned in August 2017. ^[8]

On 13 February 2013, federal parliament passed an Act of Recognition which formally recognised the presence of Aboriginal and Torres Strait Islander people in Australia before white settlement.

Also in 2013, the Australian government planned a nationwide referendum to recognise Aboriginal people in the preamble of the Constitution, but it shelved the plan later, citing low public support. ^[9] It later slated the referendum for 2017, coinciding with the 50th anniversary of the 1967 Referendum, a plan that also didn't eventuate.

High Court recognises Aboriginal people

A High Court decision in early 2020 seems to have recognised Aboriginal people as Australia's First Peoples.

The court ruled that an Aboriginal person can't be considered an "alien" under the constitution – or, as the media put it, "you can be an Australian and not an Aboriginal person, but you can't be an Aboriginal person and not an Australian". ^[10]

Under the constitution, "aliens" are people who are not Australian citizens, and up until the High Court decision their race did not matter. But now the court decided that Aboriginal people who are not Australian citizens are also not "aliens" because of their deep connection to land which goes far beyond citizenship. The High Court first acknowledged this connection in its 1992 Mabo case.

One of the judges described this connection as "an underlying fundamental truth that cannot be altered or deemed not to exist by legislation". ^[11] And if Aboriginal peoples' connection to land is "fundamental" and cannot be denied legally, so is their occupation of the land prior to invasion. And isn't that a recognition?

Why do many Aboriginal people reject constitutional recognition?

While the movement for constitutional recognition appeared strong and vocal, many Aboriginal people reject it: ^[12][13]

There is a huge lack of trust towards the government and its campaign. Kombumerri woman and academic, Mary Graham, says that “constitutional recognition is a way of promising something, but with no real substance”.

It's a view echoed in many communities throughout Australia. Even politicians know about this. Victorian Aboriginal Affairs Minister Natalie Hutchins, in her time in office, found communities "consistently" express opposition to constitutional recognition. ^[14] And a "large and diverse audience" of 500 Aboriginal people unanimously rejected recognition in the constitution at a government consultation meeting in February 2016. ^[14]

There is also fear in the Aboriginal community that the government wants to use recognition as a distraction from the real problems.

Gumbaynggirr historian Dr Gary Foley believes that the government just wants "to divert our attention from the real issues”. And Veteran Gunnai activist Robbie Thorpe told the Tracker newspaper that a focus on constitutional reform equates to “taking us onto the back of the White Australia Policy, 100 years later”. The government created the policy in order to create an all-white Australia.

“Who gives a damn about whether we’re mentioned in the Australian Constitution," Foley says. "What real difference will it make? It’s a grand token gesture and will mean nothing in the long run, so it’s a waste of time for people to be even talking about it". ^[15]

Others believe constitutional recognition could mean the end of the fight for a treaty and loss of their sovereignty.

Michael Anderson, leader of the Euahlayi Peoples, suggests that "the real hidden agenda of the proposed referendum [for constitutional recognition] is to coerce Aboriginal Nations and Peoples to become part of the Australian Constitution and by doing so consent to be governed. The Commonwealth government can then claim that Aboriginal Nations and Peoples have acquiesced. This is the main weapon the Crown has to counter our sovereignty movement." ^[16]

Fred Hooper, chair of the People’s Council of the Murrawarri Republic, concurs with this view. "Being recognised in the constitution, we feel, will wipe out our identity. There will no longer be separate Indigenous nations within the continent of Australia. We will all be labelled Australian Aborigines. We won’t have identity back to country. A lot of the services that are helping people that are recognised in the constitution will dry up." ^[17]

The thinking behind these statements is that, for many Aboriginal communities, the goal is not constitutional reform. The goal is sovereignty and a treaty.

Fact Since the 1967 Federal Referendum, where voters decided to remove discriminating references, Aboriginal people are not mentioned in the Australian constitution.

Fact South Australian campaigner Tauto Sansbury estimates that "60% to 70% of Aboriginal people are interested in treaties rather than constitutional change". ^[13]

The lack of acknowledgement of a people's existence in a country's constitution has a major impact on their sense of identity, value within the community and perpetuates discrimination and prejudice ... Recognition in the Constitution would have a positive effect on the self-esteem of indigenous Australians and reinforce their pride in the value of their culture and history.

— Dr Maria Tomasic, president of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) ^[18]

Panel discussion

Watch a panel discussion about "Constitutional Recognition of Australia's first peoples: Sell out or stepping stone?" where leading Aboriginal and non-Aboriginal public commentators discuss the suggested constitutional changes recommended by the "expert panel" and the related issues of land rights and sovereignty.

Panelists include Prof. Kerry Arabena (Director & Chair of Indigenous Health, Onemda VicHealth Koori Health Unit, The University of Melbourne), Prof. George Williams (University of New South Wales), Chris Graham (Freelance Journalist and former and founding editor National Indigenous Times). Moderated by Melissa Castan (Monash University).

Video commissioned by NITV and produced for Melbourne Conversations by Jeffrey Taylor, City of Melbourne. Thank you for your permission to feature the video here.

Should self-determination be included in the Constitution?

Geoff Clark, former chairman of the disbanded Aboriginal and Torres Strait Islander Commission, does not believe that self-determination needs to be included in the Constitution's preamble.

"Aborigines probably already have the right of self-determination quite independent of the Australian Constitution," he says ^[19]. He believes that any such inclusion would be "read down" by judges as has been done in the past with native title.

Clark suggests to include a simple clause in the body of the Constitution "that the consent of the Aboriginal people is required for the application [of] laws and policies that may have an effect on Aboriginal people." ^[19] Such a clause would have stopped the Northern Territory Intervention.

Recognition in state and territory constitutions

Victoria (2004)

In August 2004 Victoria inserted Section 1A into the Constitution Act 1975 with the Constitution (Recognition of Aboriginal People) Act 2004:

1A Recognition of Aboriginal people
(1) The Parliament acknowledges that the events described in the preamble to this Act occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria.
(2) The Parliament recognises that Victoria's Aboriginal people, as the original custodians of the land on which the Colony of Victoria was
established—
(a) have a unique status as the descendants of Australia's First People; and
(b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and
(c) have made a unique and irreplaceable contribution to the identity and well-being of Victoria.
(3) The Parliament does not intend by this section—
(a) to create in any person any legal right or give rise to any civil cause of action; or
(b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.

New South Wales (2010)

On 8 September 2010 New South Wales Premier Kristina Keneally introduced legislation to amend the preamble of the NSW constitution to formally recognise Aboriginal people as the first peoples in the state, and their contribution to the state's identity. ^[20]

The amendment introduces the following section into the Constitution Act 1902 preamble:

1) Parliament, on behalf of the People of New South Wales, acknowledges and honours the Aboriginal people as the State's first people and nations.
2) Parliament, on behalf of the People of New South Wales, recognises that Aboriginal people as the traditional custodians and occupants of the land in New South Wales:
 a) Have a spiritual, social, cultural and economic relationship with their traditional lands and waters and
 b) Have made and continue to make a unique and lasting contribution to the identity of the State.
3) Nothing in this section creates any legal right or liability, or gives rise to or affects any civil cause of action, or affects the interpretation of tan Act or law in force in New South Wales.

The amendment followed a two-month consultation period with the public. The government insisted on the third paragraph to be included which makes the amendment symbolic only.

Queensland (2010)

Queensland ratified the Constitution (Preamble) Amendment Act 2010 early that year. The preamble reads in part:

The people of Queensland, free and equal citizens of Australia—
(a) intend through this Constitution to foster the
peace, welfare and good government of Queensland; and
(b) adopt the principle of the sovereignty of the people, under the rule of law, and the system of representative and responsible government, prescribed by this Constitution; and
(c) honour the Aboriginal peoples and Torres Strait Islander peoples, the First Australians, whose lands, winds and waters we all now share; and pay tribute to their unique values, and their ancient and enduring cultures,
which deepen and enrich the life of our community; [...]

South Australia (2013)

South Australian Aboriginal peoples were the first in the nation to seek this constitutional recognition, ^[21] but a new section 2 for the constitution was only tabled in 2013 to SA’s lower and upper houses. It reads:

(2) Following the Apology given on 28 May 1997, the Parliament, on behalf of the people of South Australia—
(a) acknowledges and respects Aboriginal peoples as the State's First Peoples and nations; and
(b) recognises Aboriginal peoples as traditional owners and occupants of land and waters in South Australia and that—
(i) their spiritual, social, cultural and economic practices come from their traditional lands and waters; and
(ii) they maintain their cultural and heritage beliefs, languages and laws
which are of ongoing importance; and
(iii) they have made and continue to make a unique and irreplaceable
contribution to the State; and
(c) acknowledges that the Aboriginal peoples have endured past injustice and dispossession of their traditional lands and waters.
(3) The Parliament does not intend this section to have any legal force or effect.

Proclamation Day is celebrated each December at Gumtree Park in Adelaide’s Glenelg – the only event of its type in Australia.

Western Australia (2015)

On 10 September 2015, the Western Australian State Parliament passed the Constitution Amendment (Recognition of Aboriginal People) Bill 2015. It amended the preamble of the state's constitution to officially recognise Western Australia’s Aboriginal people as the First People of this land:

And whereas the Legislature of the Colony, as previously constituted, was replaced through this Act with a Parliament, to consist of the Queen,
the Legislative Council and the Legislative Assembly with the members of both Houses chosen by the people, and, as constituted, continued as the Parliament of the Colony until Western Australia's accession as an Original State of the Commonwealth of Australia in 1901 and thereafter has been the Parliament of the State;
And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia.

Tasmania (2016)

In October 2016, the Tasmanian Parliament unanimously passed the Constitution Amendment (Constitutional Recognition of Aboriginal People) Act 2016. It amends the Tasmanian Constitution Act 1934 to recognise Aboriginal people as Tasmania’s First People:

And whereas the Parliament, on behalf of all the people of Tasmania, acknowledges the Aboriginal people as Tasmania’s First People and the traditional and original owners of Tasmanian lands and waters; recognises the enduring spiritual, social, cultural and economic importance of traditional lands and waters to Tasmanian Aboriginal people; and recognises the unique and lasting contributions that Tasmanian Aboriginal people have made and continue to make to Tasmania.