Dr Calma and constitutional experts presented the proposed constitutional changes from positions of legal, community, and cultural consideration at The ‘C’ Word – the Challenge and Necessity of Changing our Constitution, a public forum hosted by NSW Reconciliation Council, Reconciliation Australia and Sydney Ideas on May 28 at the University of Sydney.
The current Australian Constitution does not mention Aboriginal and Torres Strait Islander Australians in any way. This is a grave omission that represents the exclusion experienced by Indigenous Australians ever since the commencement of the Constitution in 1901. According to Prof. Sarah Madison, who spoke at the forum, the Constitution is part fiction as it tells an incomplete story. Constitutionally, for the First Australians, “it was as if they were not here.”
Constitutional change can only take place by way of referendum. A successful referendum requires a “double majority”, which is a majority of national voters as well as separate majorities in each of a majority of states.
The proposed changes came out of a thorough national consultation of community views by an Expert Panel appointed by the Gillard government, which reported in January 2012. The proposed changes include the removal of the two sections, (25 and 51(xxvi)), that make use of the antiquated term “race”, as well as the insertion of three new sections.
Section 51A would contain a preamble that recognises Aboriginal and Torres Strait Islander peoples as the First Australians. It would also acknowledge their relationship with land and water, and respect their cultures, languages, and heritage. The new section would empower the federal Parliament to make laws with respect to the “advancement” of Aboriginal and Torres Strait Islander peoples. Section 116A would prohibit racial discrimination by government. Lastly, Section 127A would recognise the original Indigenous languages of Australia, while affirming that the national language of Australia is English.
The proposed changes face a period of negotiation. The stakes are too high to rush a referendum and lose due to underdeveloped public awareness and support. In March this year, the Recognition Act was passed; it states the federal Parliament’s intention to hold a referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples. The Act has a sunset period of two years, after which the Parliament will decide whether there is sufficient support from the Australian public.
A 2011 Newspoll survey found that 75 per cent of Australians support constitutional reform to recognise Aboriginal and Torres Strait Islander peoples. Much like the 1967 referendum campaign, the proposed changes require a grassroots movement to sustain a national momentum. The forum agreed that a widespread conversation needs to happen first so that voters are familiar with the proposed changes. This process is an opportunity for all Australians to actively participate in democracy.
However, changing the constitution has not been an Aussie habit. Only 8 of 44 proposed changes have been accepted, a “notoriously conservative” result, says Prof. Maddison.
A strong people’s movement is essential for constitutional reform, along with maintaining the current bipartisan political support for the campaign. Professor Anne Twomey, speaking at the forum, described our Constitution as currently being a “non-romantic”, “nuts and bolts document”. The opportunity to redress this through referendum is an exciting opportunity of great importance. Speaking on this issue Dr Calma says that the “healing and educative power” of the process has the ability to produce a “unified nation”.
Dr Calma addressed the concern that constitutional recognition could impact Indigenous people’s sovereign status. “The two issues are separate and require separate discussions,” he said. “The time for constitutional recognition should be celebrated in its own right. It does not legally negate the prospect of treaty, instead it is a step that can strengthen that agenda.”
Recognising the unique status of Australia’s First Peoples in the Constitution will go a long way toward consolidating our national identity. Key transitional moments in Australia’s national psyche have conflicted with the document’s exclusion of the First Australians. The ’67 referendum, the introduction of federal and state racial discrimination legislation, the 1992 High Court ruling on native title in Mabo, the Walk for Reconciliation across Sydney Harbour Bridge in 2000, and in 2008 The Apology all suggest that Australian people are ready to make the Constitution tell a different story.
The changes being proposed are substantial, but Dr Calma welcomed them with the words of respected Indigenous leader Lowitja O’Donoghue, who said that the changes will be good “not only for our own heads and hearts … but also for the nation’s soul”.
