A proposal for the amendment of the Australian Constitution to acknowledge the First Peoples of Australia

Many eyes are on the imminent election of the next President of the United States. Recently, someone pointed out to me the irony of such a momentous political event taking place on the same day as a momentous event in Australian history – the 164th running of the Melbourne Cup, an Australian thoroughbred horse race. We call it the race that stops a nation. How Australian of us that for that day we will be more focused on four-legged winners than on those two-legged beings who potentially hold our future in their hands.

We are not always so trivial. A year ago Australians were wrapped up in their own momentous political event; one we could claim sits on a par with that of the Presidential vote, and one that captured the attention of the nation even more than the Melbourne Cup.

We went to the polls to vote on a referendum to change the Constitution of Australia.

Many people confuse the Australian Constitution with that of the United States of America, and as we hear so much from that side of the world, they can hardly be blamed for that. The truth is that ours is so mundane few manage to get through all of its eight chapters without their eyes glazing over. The primary purpose is to set out the fundamental laws governing the political structure of Australia. That is, the Australia that came into being when the separate colonies of Britain amalgamated into a Federation on 1st January 1901.

Australia consists of six states and two territories. Before Federation, these were British colonies with the power to make laws to suit themselves and to raise income via taxes. In the lead up to Federation, there was a tit-for-tat over who would control what. The outcome is defined in the Constitution. For example, the Federal government got Foreign Affairs, Defence, and (later) Medicare. The State governments got hospitals, police and roads. The Feds get the income tax on people’s earnings. The States get income through other taxes and levies. See? It’s hardly an exciting document. It’s procedural and has nothing to do with a statement of national identity. Unless you were indigenous, that is, in which case, you came in for special mention:

Section 51 (xxvi) gave the Commonwealth power to make laws with respect to ‘people of any race, other than the aboriginal race in any state, for whom it was deemed necessary to make special laws’;

Section 127 provided that ‘in reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’.

Let’s not fool ourselves here. These distinctions did not favour our First Nations peoples.

The only way to change the Constitution is via a Referendum. A referendum is a national vote where Australians vote yes or no to any proposed change. Voting is compulsory in Australia for everyone over eighteen. Voting in a referendum is a bit like an election, except that instead of electing members of parliament, voters choose to approve or reject a proposed change to the Constitution by writing ‘Yes’ or ‘No’.   

Since that 1901 Federation, Australia has held 19 constitutional referendums, proposing 44 different changes to the Constitution. Some of the changes we’ve voted on include whether the federal government should be responsible for social services, if judges in the High Court should retire at 70, if people in the territories can vote in referendums, and if the government should have the power to regulate the cost of rent and wages.  

The constitution cannot be altered without ‘the approval of the people’ but getting that approval is not easy. It requires a Double Majority. There must be a national majority of voters (more than half of all voters from all states and territories) AND a majority (more than half) of all voters from at least four of the six states. Thus, the votes of electors living in the Australian Capital Territory (ACT – the seat of Federal Government), and the Northern Territory are not counted in that second calculation.

Under this voting regime, how many of those 44 questions have been carried with a Yes vote?

Eight (8)

How many of those are locked in people’s memory?

One (1).

On 27 May 1967, the Constitution was altered through a referendum with majority 90.77% support, to amend Section 51 (xxvi) to remove the phrase ‘other than the aboriginal race in any State’ and remove section 127 entirely. These amendments allowed Aboriginal and Torres Strait Islander peoples to be counted as part of the national population, and for the Commonwealth government to make laws for them.

In other words, up to this point, our First Nations people were not considered citizens of Australia.

Here’s a “fun” fact (insert sarcastic tone to my voice). Until considered citizens, Indigenous Australians were not actually subject to the same taxation laws as other Australians. Albert Namatjira, the successful artist who is said to have “captured the Heart of Australia” was given full citizenship rights around 1955. Why?

So the government could tax the earnings from sales of his paintings.

In the 1967 alteration, the Constitution thus removed Aboriginal and Torres Strait Islander peoples from the text entirely. BUT! It did not introduce new wording that recognised Aboriginal and Torres Strait Islander peoples in any context.

This alteration, however, did not grant Aboriginal and Torres Strait Islander peoples the right to vote in elections. This had been granted (an entire*) five years earlier by Commonwealth legislation in 1962. (* again, insert sarcastic tone here).

It also did not recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia. This took place later in the 1992 High Court decision, Mabo (no 2).

That momentous court ruling overturned the notion of ‘terra nullius’ (unoccupied land prior to colonisation) and recognised the past and continuing relationship Aboriginal and Torres Strait Islander people have to Australian land.

Back in October 16th, 2007, then Prime Minister John Howard (Liberal) made a re-election pledge to hold a referendum on constitutional recognition for Indigenous Australians. Kevin Rudd, as opposition leader (Labor), followed by promising bipartisan support for the proposal, regardless of the election outcome – although he did go on to win.

These leaders were followed by Gillard (Labor), Rudd v.2 (Labor), Abbott (Liberal), Turnbull (Liberal), and Morrison (Liberal).

And what happened?

Nothing much until The Referendum Council was appointed in 2015 by then Prime Minister Malcolm Turnbull (Liberal) and then Leader of the Opposition Bill Shorten (Labor). Its purpose was to advise on progress toward a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution.

In 2017 a series of dialogues around the country culminated in an invitation from a (collectively nominated) group of First Nations people to non-Indigenous Australians, known as the Uluru Statement from the Heart. Attendees included Turnbull and Shorten (in the above-mentioned roles), and also Anthony Albanese, then a Shadow Minister under Shorten.

The Statement called for substantive reform to help realise Indigenous rights, through the establishment of an Indigenous Voice to Parliament and a Makarrata Commission. ‘Makarrata’ is a multi-layered Yolŋu word understood as the coming together after a struggle. The Statement specifies that the Makarrata Commission would undertake processes of agreement-making (treaty) and truth-telling.

The three key pillars of substantive reform called for in the Statement are:

• Voice – a constitutionally enshrined representative mechanism to provide expert advice to Parliament about laws and policies that affect Aboriginal and Torres Strait Islander peoples.
• Treaty – a process of agreement-making between governments and First Nations peoples that acknowledges the historical and contemporary cultural rights and interests of First Peoples by formally recognising sovereignty, and that land was never ceded.
• Truth – a comprehensive process to expose the full extent of injustices experienced by Aboriginal and Torres Strait Islander peoples, to enable shared understanding of Australia’s colonial history and its contemporary impacts.

In May 2022 Anthony Albanese became the 31st Prime Minister of Australia, and shortly after set in motion the steps needed for the first promise: A referendum to enshrine a Voice in the Constitution.

On Saturday 14th October 2023 Australian voters were asked to say YES or NO to the following question:

“A Proposed Law:

To alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

Do you approve this proposed alteration?”

THE RESULT?

Okay. I’m way over my usual wordcount. So that will have to be:

CONTINUED IN MY NEXT

Sources: Museum of Australian Democracy; humanrights.gov.au, theuluruatatement.org, and various other resources freely available on the internet.