THE DREAMING: Constitutional reform

IN THE course of human history, nations sometimes do very bad things. South Africa and Japan are a case in point. In 1948, South Africa introduced Apartheid, a regime designed to deny the majority black population the same rights enjoyed by whites.

Apartheid inevitably collapsed in 1994, amid sustained international outcry and economic and social sanctions.

In 1941, Japan attacked the United States, and went on to commit some of the worst crimes of modern warfare.

But today, the national character of both nations bears little resemblance to their dark past. Their reform began with accepting their own histories, and both nations put it in writing.

Following its unconditional surrender, Japan rewrote its Constitution in 1946. The Preamble is overt in its admission of guilt, and its vision for the future.

“We, the Japanese people, acting through our duly elected representatives… determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government…

“…We recognize that all peoples of the world have the right to live in peace, free from fear and want. We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.”

Quite a turnaround from a nation that brought us the bombing of Darwin and the Changi Railway.

South Africa’s constitutional admissions are just as overt.

On December 10, 1996, President Nelson Mandela – once the most famous victim of Apartheid – signed into law a revised Constitution of South Africa.

The Preamble, in part, reads: “We the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity.”

More than a decade later, and half a world away, our nation – the country from which South Africa’s Apartheid laws were originally drawn (Apartheid was based on the Queensland ‘Protection Acts’) – is also considering constitutional reform, in particular to acknowledge Aboriginal and Torres Strait Islander peoples.

For that to occur, Australia must conduct a national referendum, and ask at least one question of the Australian people. As yet, we don’t know what that question will be.

An expert panel of men and women, black and white, have been engaged to lead discussions around the nation on what, if any, changes may occur.

The Panel are to report their recommendations to parliament before the end of the year.

But before we vote ‘yes or no’, there are other more important questions facing out nation.

Do we have the courage to do the same as Japan and South Africa? Can we face up to our own black past and admit the atrocities from which most Australians have benefitted?

And can we truly commit ourselves to a more just future?

Genuine constitutional reform requires that as a nation, we not only truthfully acknowledge our past, but extend to First Nations peoples the same rights as others, and honour and celebrate their special status in this country.

Given the state of the Constitution as it stands – it still contains two sections designed specifically to discriminate against non-Caucasian races – that seems a long way off. Almost like a dream.

Factor in the current state of political play and it seems unlikely Australians are ready for an honest assessment of our history, and a bold vision for our future, based on humanitarian principles and equal rights for all.

Lest we forget that only four years ago, Australia suspended the Racial Discrimination Act in order to enact laws against Aboriginal people of the Northern Territory, laws which have been condemned by the global community.

We jail black males nationally at a rate five times greater than South Africa in the dying days of Apartheid.

We still refuse to obey international law in the treatment of asylum seekers. And while we flaunt global treaties, we expect that other nation’s continue to trade with us, and buy our wealth of minerals.

We can’t even stop dressing up in blackface.

So perhaps the first question we should address is this: If the most overtly racist nation in history can acknowledge it sins and commit to a better future; and if one of the most aggressive nations of the past century can also face up to its past and commit to a peaceful existence; what is an appropriate constitutional change from the nation with the world’s worst record in its treatment of its Indigenous people?

With that in mind, this special feature on constitutional reform is designed to help you understand the key issues, and gain an informed perspective. It’s the who, what, when, where, why and how of the debate, with a few extra tidbits thrown in.


Both major political parties – Labor and Liberal – and the Australian Greens have committed to supporting a referendum on the redrafting of the Australian Constitution to acknowledge Australia’s First Nations peoples.


Australia’s Constitution was drafted in 1900, and came into force in 1901, after the colonies of Australia realised that there were mutual benefits in joining together, to forge a single nation of states – a federation.

According to Kathy Laster in Law as Culture (Federation Press), a Constitution spells out “the broad parameters of authority and social organisation in a society including the nature and structure of government”.

The Australian Constitution is actually an Act of British Parliament – the Commonwealth of Australia Constitution Act 1900. In order to amend the Australian Constitution, a question – in the form of a referendum – must be put to the Australian people. The exact content of any question/s for constitutional reform has not yet been established.

The Australian Government has appointed an ‘expert panel’ of Australians – black and white – to consult with the nation, and put forward a series of recommendations on what changes might be made to the Australian Constitution.

These changes might include a redrafting of the Constitution, such as the removal of certain powers which have been used to discriminate against Aboriginal and Torres Strait Islander people, or it may simply be in the form of a preamble’ to the Constitution, which acknowledges First Nations people.


The expert panel is due to report its recommendations back to the government by the end of 2011.

The referendum has been promised in ‘the life of this parliament’, and if it proceeds the question will be asked of the Australian people at the next federal election. The Constitution allows for three-year terms of Parliament, which means the next federal election is likely to be held in the second half of 2013.


Relevant sections of the Constitution which are currently being discussed include:

• a proposal for a preamble. A preamble is a statement at the start of a constitution which often outlines the values and aspirations of a nation. It may also, in Australia’s case, recognise past events. Preambles are not usually legally binding, although they do influence how courts interpret law.

• An amendment to Section 51 (xxvi), often referred to as the ‘race power’. This section of the Constitution reads,

“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, for whom it is deemed necessary to make special laws”.

This part of the Constitution has been relied on, in part, by the federal government to defeat Aboriginal aspirations in matters like the Hindmarsh Islands Bridge affair, and to impose laws like the Northern Territory intervention. Australia holds the dubious distinction of being the only developed nation on earth that has reserved itself the right of a ‘race power’ in its Constitution.

• Section 25. This part of the Constitution allows the Australian Parliament to disqualify any race of people from participating in an Australian election. While the power has never been used, it was designed at a time when Australia was formulating its ‘White Australia policy’, and was created to help ensure that people of colour could never gain political control of the nation.


There are many reasons to amend the Australian Constitution. Arguments advanced include:

• It contains provisions designed to discriminate against Aboriginal people, and people of other races, specifically Sections 25 and 51(xxvi).

• A Preamble in the Constitution, while not necessarily legally binding, does influence how our courts interpret laws made by parliament. For example, if, in 1996 there was a Preamble to the Constitution which expressly acknowledged that Aboriginal people should enjoy the same rights as all Australians, the Government could probably not have passed the Hindmarsh Islands Bridge Act, which overturned Aboriginal legal rights to heritage protection.

• The Australian Constitution currently has no Preamble. This means the Constitution, while dealing well with the structure and powers of government, does not detail the values and aspirations of our nation.

• First Nations people have a right to expect that their special place in the history of the nation should be acknowledged. A preamble would be one appropriate place to achieve this.


In order for the Australian Constitution to be amended, there must first be absolute majority support for the referendum in both houses of the Australian Parliament.

If so, a question – or questions – must then be put to the Australian electorate, by way of a national referendum.

The answer to the question must either be ‘yes’ or ‘no’.

For constitutional change to occur, a majority of voters in a majority of states must vote ‘yes’.

That means that four of the six states – NSW, Queensland, WA, SA, Victoria and Tasmania – must have 50 percent + 1 vote of electors ticking the ‘yes’ box.

In addition to this, the ‘yes’ vote must return a majority of all Australian voters – that is, 50 percent + 1 of the total number of Australian voters.

Because the Australian Capital Territory and the Northern Territory, as their names infer, are territories and not states, their vote only counts towards the national total.

Voting in referendums, like Australian elections, are compulsory.

Race powers must go, says NSWALC

The NSW Aboriginal Land Council (NSWALC, publisher of Tracker magazine) has provided a submission to the Indigenous Constitutional Recognition Secretariat, which is assisting to manage the consultation process for any possible constitutional change.

In particular, NSWALC has called for the removal of racially discriminatory measures contained within the Australian Constitution. Following is an extract from NSWALC’s submission. More information is available at

Constitutional recognition of Aboriginal and Torres Strait Islander peoples is essential as it has the potential to enshrine principles of non-discrimination and begin to address the history of exclusion of Aboriginal and Torres Strait Islander peoples in the nation.

The proposal for constitutional reform that is considered by government must reflect Australia’s international human rights obligations, which include Aboriginal and Torres Strait Islander peoples right to self determination, the right to protect their distinct cultures and identities and the right to be protected from racial discrimination.

NSWALC recommends that reform to the Australian Constitution should move beyond mere symbolic recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution and seeks to at the least:

1. Provide full constitutional recognition of Aboriginal and Torres Strait Islander peoples as the sovereign First Peoples of Australia.

2. Remove section 51(xxvi) of the Constitution, also known as the “race power”, and replace this with a power for the Australian Government to make laws with respect to ‘matters beneficial to Aboriginal and Torres Strait Islander peoples in that such laws are only enacted for the sole purpose of securing the adequate advancement and the equal enjoyment or exercise of human rights and fundamental freedoms for Aboriginal and Torres Strait Islander peoples’. This conforms with the accepted international standard for ‘special measures’ as allowed under the Convention on the Elimination of All Forms of Racial Discrimination.

3. Remove in its entirety, section 25 of the Constitution, which anticipates the disqualification of persons of a particular race from voting in state elections.

4. Insert a general guarantee of racial equality and a prohibition on racial discrimination into the Constitution.

NSWALC also advocates the Australian Government moving beyond just the reform of the Australian Constitution, in order to provide greater rights protections of Aboriginal peoples.

To ensure opportunities are created for Aboriginal peoples of Australia to remedy the disproportionate disadvantage experienced by so many Aboriginal peoples, the New South Wales Aboriginal Land Council strongly advocates for:

The Australian Government to move forward from its ‘commitment to formally support’ the Declaration on the Rights of Indigenous Peoples, to fully implement these principles into laws, policies and most importantly practical measures.

The Australian Government must unreservedly ratify and fully implement the International Labour Organisation Convention 1969 and the Indigenous and Tribal Populations Convention, 1989.

• The importance of change

Powers and rights under the Australian Constitution have greater force than statute law.
This can be seen in the Parliament passing of the Northern Territory Emergency Response Act (the NT intervention).

To pass the legislation, both Labor and Liberal agreed to suspend the Racial Discrimination Act (RDA). This had to be done because the NT intervention, by parliament’s own admission, is racially discriminatory. It only targets Aboriginal people.

Any piece of Australian legislation – such as the RDA – can be suspended from future legislation at the whim of the parliament.

But the Australian Constitution cannot be suspended, nor can it be changed without a referendum.
Aboriginal lawyer and academic Professor Megan Davis notes: “In Australia, Indigenous interests have only been accommodated in the most temporary way, by statute. What the state gives, the state can take away, as has happened with the ATSIC, the Racial Discrimination Act and native title.”

The possible benefits flowing on from a reform process is highly dependent on the type of reform that is posed at the referendum.

However, broadly speaking, the removal of the racially discriminatory provisions of the Australian Constitution (that is, the deletion of section 25 and the amendment of section 51 (xxvi) in line with NSWALC’s recommendations) will assist in addressing the systemic and institutionalised discrimination that Aboriginal and Torres Strait Islander peoples currently experience, and may assist the Government in achieving its Closing the Gap targets.

There is strong evidence that this systemic and institutionalised discrimination has resulted in reduced opportunities to access societal resources required for health, leading to increased exposure to ill health.

• Timing is everything

Importantly, in relation to the timing of the referendum, NSWALC notes:

The consultation process from this point forward must involve Aboriginal peoples and peak organisations.
The government must not rush to meet the self-imposed 2013 deadline. If the Australian public is not ready to vote in a referendum on constitutional reform, then the timeframe towards a referendum should be extended.

BLACK AND WHITE: The gulf between two constitutions

In 1999, the Australia people were asked via referendum whether they wanted to insert a Preamble into the Constitution. The question was ultimately rejected, with a national ‘no’ vote of just over 60 percent. The first version of the Preamble was drafted by Prime Minister John Howard and poet Les Murray, and the second and final version drafted with the assistance of Aboriginal Democrats Senator Aden Ridgeway and Senator Meg Lees.

It read: “With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of government to serve the common good.

We the Australian people commit ourselves to this Constitution:

proud that our national unity has been forged by Australians from many ancestries;

never forgetting the sacrifices of all who defended our country and our liberty in time of war;

upholding freedom, tolerance, individual dignity and the rule of law;

honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands

and for their ancient and continuing cultures which enrich the life of our country;

recognising the nation-building contribution of generations of immigrants;

mindful of our responsibility to protect our unique natural environment;

supportive of achievement as well as equality of opportunity for all;

and valuing independence as dearly as the national spirit which binds us together in both adversity and success.”

In 1993, the Aboriginal and Torres Strait Islander Commission, since abolished, also suggested the insertion of a Preamble into the Australian Constitution.

It went a lot further than that put forward by politicians in 1999.

ATSIC’s proposed Preamble was much more in line with that ultimately adopted by South Africa and Japan.

“Whereas the territory of Australia has long been occupied by Aboriginal peoples and Torres Strait Islanders whose ancestors inhabited Australia and maintained traditional titles to the land for thousands of years before British settlement:

And whereas many Aboriginal peoples and Torres Strait Islanders suffered dispossession and dispersal upon exclusion from their traditional lands by the authority of the Crown:

And whereas Aboriginal peoples and Torres Strait Islanders whose traditional laws, customs and ways of life have evolved over thousands of years have a distinct cultural status as Indigenous peoples:

And whereas the people of Australia now include Aboriginal people, Torres Strait Islanders, migrants and refugees from many nations and their descendants seeking peace, freedom, equality and good government for all citizens under law:

And whereas the people of Australia drawn from diverse cultures and races have agreed to live in one indissoluble federal Commonwealth under the Constitution established a century ago and approved with amendment by the will of the people of Australia:

Be it therefore enacted.”

• Referendums past

The 2010 commitment by the major political parties was a commitment to recognise Aboriginal and Torres Strait Islander peoples as well as local government in the Australian Constitution. The history of successful referendums in Australia is limited, with only eight out of 44 being successful. Past referendums have also shown that ones with multiple questions are more likely to lead to the proposed amendments being rejected.

Of the 44 referendums held since federation, referendums were held on 18 separate occasions. Five of these occasions asked single questions, while 13 asked multiple questions.

In a series of referendums (including the 1974 referendum where local government recognition was sought) the ballot grouped together a number of questions.

This in effect meant that a voter who was opposed to a single question had a clear incentive to vote ‘no’ regardless of how they might have felt about any of the other questions.

• Current levels of support?

Recently, Griffith University conducted a national poll entitled The Australian Constitutional Values Survey. Of this survey, 75 percent of respondents indicated it was important to have a referendum to recognise the history and culture of Indigenous Australians (43.2 per cent said it was very important and 31.5 per cent said it was somewhat important).

Support was highest in Victoria and South Australia with 79 and 78 percent respectively of respondents indicating the referendum was at least somewhat important, while in Tasmania support was lowest with 57 percent of respondents seeing any importance in the referendum.

Education campaigns specifically targeting areas that have lower rates of appreciation about constitutional reform are important.

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