The Indigenous Voice within the Australian Constitution

It has been over 250 years since Captain James Cook’s first voyage to Australia and 100 years since the Australian Constitution was created. Wrapped in her kangaroo skin cloak, Linda Burney - the first Aboriginal woman to enter the House of Representatives - had something to say about this in her Maiden Speech in August 2016:

“The Australian constitution is the only constitution of a first world nation with a colonial history that does not recognise its First People.”

Linda Burney’s Maiden Speech at Parliament House wearing a kangaroo skin cloak. Courtesy of ABC, 2021.

So, how is it that in this ‘lucky country,’ this modern, multicultural society that we still have no mention or recognition whatsoever of First Nations in the Australian Constitution? It is absolutely disheartening that First Nations peoples and their sacred connection to Country - in which they possessed for sixty millennia - has disappeared from world history (ABC News, 2019).

RMIT ABC Fact Check investigated this with a variety of experts, and found that Linda’s statement checks out. First Nations peoples were only mentioned twice when the Australian Constitution came into force in 1901. Dr. Julian Yates, political ecologist and development geographer from Monash University, informed Fact Check that the original mention of the Indigenous natives in Section 51 and Section 127 of the constitution was only to exclude them from it, as seen below:

Section 51 read: 

“...the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to...The people of any race, other than the aboriginal race in any State, for whom it is necessary to make special laws” (APH, 2021).

Section 127 read: 

“...in reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted” (APH, 2021).

1967 Referendum protests. Courtesy of NITV, 2016.

Professor William (2013) informs that, according to Australia’s first Prime Minister, Sir Edmund Barton, this discrimination was put into the constitution “to enable the federal parliament to regulate the coloured and inferior races within the Commonwealth.” Those negative and exclusionary references were taken out by the 1967 Referendum, thus leaving the First Nations with no mention at all in the constitution (Yates, 2019). Professor George William (2013), from UNSW’s Gilbert + Tobin Centre of Public Law, expresses his concern on this matter:

“If you read the document [the constitution] you’d probably get the impression that the history of this continent began in 1788.”

The ‘yes’ vote in the 1967 Referendum resulted in the removal of any mention of Aborigine people from the Australian constitution. Courtesy of State Library of New South Wales, 2021. 

In RMIT ABC Fact Check’s research, they found that University of Toronto’s Emeritus Professor of Political Science, Peter Russell, wrote a book that charted Indigenous recognition across Australia, New Zealand, Canada and the United States. Russell informed Fact Check that these aforementioned countries all provide greater constitutional recognition of their First People than Australia (ABC News, 2019). ABC News’ Fact Check presenter Madeleine Morris broadcasted this research where she said Canada’s 1982 Constitutional Act “mentions its Indigenous people several times in their constitution, including recognising treaties that have been made.” She goes on to say that the Constitution of the United States mentioned Indian tribes “twice in relation to trade and federal representation.” Thirdly, Madeleine presented that New Zealand’s 1840 Treaty of Waitangi “doesn’t have one single constitution, but a series of laws that form a constitutional framework… the Treaty of Waitangi was signed between the settling British and Māori chiefs in 1840 and guarantees Maori possession of lands in return for seeding sovereignty.” (ABC News, 2019). 


Painting of the treaty signing by Marcus King, 1938. Courtesy of the Alexander Turnbull Library, 2021.

Some years after the referendum, The Racial Discrimination Act (RDA) was passed in 1975. The RDA recognises Aboriginal people in parts I and II in relation to the equal rights of people before the law “without regard to their race, colour or national or ethnic origin” (Legislation.gov.au, 2021). The University of Newcastle’s Associate Professor Amy Maguire (2019) told Fact Check that “although the RDA was a significant measure in Australian law, it was not specifically focused on Indigenous peoples” (ABC, 2019). Russell (2019) supports this claim where he told ABC Fact Check that even though the Indigenous natives may have been the RDA’s greatest beneficiaries, he does “...not regard the Racial Discrimination Act to be constitutional recognition of Australia’s peoples.” This is because, as told by Maguire (2019) to Fact Check, the RDA is “subject to suspension at the prerogative of parliament, as occurred in the Northern Territory intervention.”  

William (2013) further enforces the severity of this issue of inequality and exclusion of Indigenous natives within the constitution where he says: 

“The constitution in Section 25 also recognises that the state can stop people from voting because of their race. I’m not aware of any other constitution of the world today that still contains a clause of this kind. These clauses about race were based upon discredited 19th century thinking about how race can determine everything, from a person’s suitability for certain roles or even their intelligence. These are the sorts of policies and ideas that underpin the White Australian Policy. Unfortunately, this thinking about race still remains embedded in Australia’s constitutional DNA.” 

In 1967 First Nations Australians were counted; in 2017 they sought to be heard. This occurred through the Uluru Statement From The Heart - a 440 word statement of propositions devised by 250 First Nations leaders at the National Constitutional Convention (Uluru Statement, 2017). With Uluru as the backdrop, the Uluru Statement (2017) called for two constitutional reforms:

“...the establishment of a First Nations Voice enshrined in the Constitution,” and, “...a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.” 

The canvas of the Uluru Statement, bearing the signatures of 250 Indigenous delegates, 2017. Courtesy of Uluru Statement, 2021.

Proud Cobble Cobble woman, leading constitutional lawyer and professor at the University of NSW, Megan Davis, explains - on behalf of the delegates present - what this would mean in her speech at the First Nations Convention in Alice Springs, 2017: 

“With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood...We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.” 

According to Professor Davis, this statement would mean allowing Indigenous Australians to have a meaningful voice in the laws and policies made about them. Ultimately, this would occur via an Australia-wide vote in a referendum. For decades treaties, reconciliation and constitutional recognition have been debated, although this has occurred “without properly consulting the First Nations people on what meaningful recognition might look like to them” (Davis, 2020). Davis (2017) informs further:

“The fact that Australia has failed to recognise Indigenous people’s voices in a meaningful way is an important explanation for why so many laws and policies have worked over the years and why we are failing to close the gap in health outcomes.” 

First Nations National Constitutional Convention for the gathering of the Uluru Statement from the Heart, 2017. Courtesy of Uluru Statement, 2021.
 
By holding a referendum, the Australian Government has a rare opportunity to fix this issue and recognise Aboriginals in the constitution. In doing so, the government will be able to create a constitution that will treat all Australians equally (Williams, 2013). However, it is important to note that “if an Indigenous Voice is included in the constitution reform, it must be deeply entrenched so that it is much harder for legislation to alter it in the future” (Maguire, 2019). 

 

Check out the video below for a summary about the Uluru Statement From The Heart. Courtesy of Uluru Statement, 2021. 

So, “From Australia’s heart to yours, let’s support this constitutional change, and begin our journey to a better Australia” (Uluru Statement, 2017). 

Check out the Uluru Statement’s website here, and for their Instagram page here.

Keep your eyes peeled for an upcoming article about the Uluru Statement and the history that’s prompted this much needed movement.