Analysis of Australia’s Constitution and Aboriginal Discrimination

2628 words (11 pages) Essay in Australian Law

05/06/19 Australian Law Reference this

Last modified: 05/06/19 Author: Law student

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“The best way to mark the 100th anniversary of the Australian Constitution might be “to build a new modern Constitution, in which the original people of this land can play a distinct, creative role” (Professor Daes cited in the Constitutional Recognition of Indigenous Peoples, Law Council Discussion Paper). Critically discuss the provision of citizenship and recognition of our First Peoples.

Oxford dictionary defines ‘constitution’ as “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.” These principles, or ‘rules’ are the most powerful set of laws in most democratic countries.The Australian Constitution was created and passed by the British Parliament as part of the Commonwealth of Australia Constitution Act 1900, to be put into effect January 1 1901. The Constitution was voted for in a series of national referendums. The Parliamentary Education Office states “The Australian Constitution establishes the composition of the Australian Parliament, and describes how Parliament works, what powers it has, how federal and state Parliaments share power, and the roles of the Executive Government and the High Court” (Parliamentary Education Office (PEO), 2017). The Australian Constitution explains how the country is run, keeping order within the nation. This is then again broken down into separate constitutions for each Australian state for a more applicable set of rules. From the very beginning, the Australian Constitution did not formally recognise Aboriginal and Torres Strait Islander Australians, but instead contained specific references discriminating against them.

Even in today’s society, equality is not evident. Although society is heading in the right direction for harmonious living and more effort is being made to cater for people who have been excluded and discriminated against, there is still strong evidence supporting how far we are from this concept still. For example, the Indigenous peoples of Australia now have specific benefits for living and education. This can be viewed as a form of reconciliation rather than push for equality. The whole concept of ‘saying sorry’ to the Aboriginal and Torres Strait Islander peoples is the fault of the British invasion as well as the development and implementation of the Australian Constitution. Throughout the 1890’s, two constitutional conventions were arranged to create the overall rules of the country. Aboriginal and Torres Strait Islander people, women, and people of other ethnic communities were all excluded from these conventions, which evidently resulted in a strong male British heritage standpoint in the establishment of the Constitution for the Commonwealth of Australia. According to Reconciliation Australia, “It was also feared that any official recognition of Aboriginal and Torres Strait Islander Australians might lead to claims for rights to, or compensation for, land taken since European settlement”, suggesting the Australian Constitution was a legal safeguard for the European settlers to invade without any consequences (Aboriginal and Torres Strait Islander Australians and the Constitution, n.d.). The European settlers expressed their thoughts in relation to the ownership of the land and eventually drafted the Constitution of 1901 based on the ideology of Australian land to be ‘Terra Nullius’, meaning “nobody’s land”. This incorrect belief allowed for the British to take control of the land, and create laws to exclude the original owners of the land. Within the Constitution of Australia 1901, it excluded the Aboriginal and Torres Strait Islander peoples with two specific references. “Section 51 (xxvi) gave the federal government the power to make national laws for ‘the people of any race for whom it is deemed necessary to make special laws’ — the ‘race power’. But the wording excluded Aboriginal people from the power. That meant outside the Northern Territory, the States remained in control of Indigenous affairs. Section 127 said that when calculating the ‘people of the Commonwealth’ Aboriginal people were not to be counted” (Daes, 2016). The act of discrimination was a push towards eradicating any form of land ownership by the Aboriginal and Torres Strait Islander peoples.

After a long period of racial discrimination and eradication of basic human rights, a new referendum was held on 27 May 1967. This Federal referendum was to determine whether the previous stated sections, which directly discriminated against the Indigenous Australians, should be removed from the Constitution. The final decision agreed upon amending “section 51 (xxvi) so that federal laws under the race power could apply to Aboriginal and Torres Strait Islander people” and deleting “section 127 so that Aboriginal and Torres Strait Islander peoples could be counted in the national population”, with over 90% voting YES in favour of the changes (Daes, 2016). Although this updated referendum acknowledged the previous discrimination towards Aboriginal and Torres Strait Islander peoples, it still did not include any form of agreement of equality or recognition of their rights and culture. Although the Indigenous peoples of Australia were granted the right to vote in 1962 (except Queensland), and Queensland eventually in 1965, section 25 of the Constitution states “if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted” (History of the Indigenous vote, 2006). Ultimately, this permits inequality in the process of voting rights for any race, resulting in a continuous push by Indigenous Australians to have this section altered in favour of racial equality.

Racial discrimination is thought to be outdated in the present time, however section 25 of the Constitution is still in place. In an effort to close the gap and unite all Australians, recognition has become a critical factor. Recognition of social, spiritual, and historical elements of Aboriginal and Torres Strait Islander culture. Two critical examples of recognition are the Mabo decision, and Kevin Rudd’s official apology. In 1992, the Mabo decision declared the land was in possession of the rightful owners, the Aboriginal and Torres Strait Islander peoples, rather than the land being announced as ‘Terra Nullius’ by the European settlers upon arrival. Again, this effort only did so much for the recognition of legitimate property rights. Former Prime Minister John Howard stated that “the wrongs committed against Indigenous people were historic and therefore not the responsibility of Australians today” (Behrendt, 2003).

Following the Mabo decision was the official apology to the Aboriginal and Torres Strait Islander peoples by Prime Minister Kevin Rudd in 2008. The apology formally recognised the destruction to their culture, the negative impact of the Stolen Generations and the families inflicted, as well as a hope for a future of mutual respect and opportunity (“Apology to Australia’s Indigenous peoples“, n.d.).

Both efforts of recognition are of great value to the nation’s history, as cultural recognition must be supported by the Aboriginal and Torres Strait Islander peoples. For this to occur, more involvement by Indigenous Australians is advocated to ensure meaningful and appropriate steps are being taken to close the gap and recognise respectfully.

With a higher demand for Aboriginal and Torres Strait Islander peoples’ involvement in the political world, it has been discussed over many years, to give Indigenous people a Parliamentary position. This idea has gained support from both Indigenous and non-Indigenous Australians as it allows the selected people to deal with matters directly affecting or relating to the Aboriginal culture. With Parliamentary power, Indigenous Australians will have the chance to express their voice in an equal manner. The latest information from the Australian Bureau of Statistics affirms that “Australia’s Aboriginal and Torres Strait Islander population has reached 669,900”, only constituting to 3% of the national population (Australian Bureau of Statistics, 2013). Due to this minor percentage of the whole nation’s population, it is integral for the Indigenous peoples to advocate for equal representation for their voices to be heard and culture to be respected appropriately. Providing a fairer political system introduces opportunity in attaining better policies in conjunction with preventing discriminatory laws being enforced.

There is a strong need for motivational change from the Indigenous peoples as many Australians are led to believe the referendum of 1967 cured all problems in relation to Aboriginal heritage. This is not the case. Even today, “many Aboriginal and Torres Strait Islander peoples still struggle to enjoy full citizenship in Australia”, Dr Paula Gerber stated. This is because of the struggle Indigenous Australians encounter when trying to obtain a birth certificate and/or other legal documents to confirm their identity. By being unable to register their birth, these people are then unable to gain a driver’s license, tax file number, or open a bank account, classifying these people as legally invisible (Gerber, 2012). Denying full citizenship to the original custodians of Australian land is a modern example of racial discrimination. Having such laws still in place supports the demand for motivational change from the Indigenous community.

The most recent record of motivational change was in 2012. An Expert Panel set up by former Prime Minister Julia Gillard, comprised of Indigenous and community leaders, constitutional experts and parliamentarians (Aboriginal and Torres Strait Islander Australians and the Constitution, n.d.). The panel reported back to the government with recommendations for racial chance and human equality. The changes submitted to the government possess objectives to guarantee racial discrimination to be banished. The following was asked of the government:

“Remove Section 25 – which says the States can ban people from voting based on their race;

Remove Section 51(xxvi) – which can be used to pass laws that discriminate against people based on their race

Insert a new section 51A – to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples

Insert a new section 116A, banning racial discrimination by government

Insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first tongues, while confirming that English is Australia’s national language.”

(Aboriginal and Torres Strait Islander Australians and the Constitution, n.d.)

The overall outcome of this political movement is largely supporting and improving social, political and cultural recognition, continuing to close the gap as Australia as a nation, and vanquishing the disadvantage of the Indigenous community. Professor Daes claims the best way to mark the 100th anniversary of the Australian Constitution might be “to build a new modern Constitution, in which the original people of this land can play a distinct, creative role”. Daes concept of reform supports the Expert Panel in which is making progress in the political world for Indigenous Australians. Acknowledging Aboriginal and Torres Strait Islander peoples by making changes or ‘building a new’ Constitution will indeed protect them from discrimination as well as assure their culture to be a valued element in Australia’s history. Granting these rights exempts equality across all Australians. In no way does it extend more rights to any group. Aboriginal and Torres Strait Islander peoples will benefit from improved rights in addition to correct recognition of culture and history.

In order to make such changes, or create a new ‘modern’ Constitution of Australia, first a referendum must be held. This comprises all voting aged Australians are called to vote ‘yes’ or ‘no’ to the proposed Constitutional change. The change relies on a majority ‘yes’ vote from the voters. Since the original Australian Constitution in 1901, 44 Constitutional referendums have been held to propose changes, however only 8 of the 44 referendums were passed in favour of the amendments (Aboriginal and Torres Strait Islander Australians and the Constitution, n.d.). The most successful being the 1967 referendum which removed several discriminatory references to racial affairs within Australia. The reason it was so successful was due to the campaigns and education offered to the people of Australia to inform them about the importance of these changes to the nation, it’s people and its identity. A positive result of creating a new Constitution, if passed, is the stability and guarantee Indigenous Australians will attain. The stability comes from the regulation that the government cannot change, overlook or suspend the Constitution in any way, but can only create laws in accordance with it. This reassures the Indigenous Australians in a way that majority vote is needed to change any aspect of the laws. In most recent times, education is wider spread throughout the nation, ensuring easier access. As a result, Australians can educate themselves about racial and cultural awareness, and continue to grow together as a community. By educating the people, the creation of a modern rights framework in which protects the rights of all Australians will have a greater chance. By protecting all Australians and their rights, vulnerable groups and cultures among the country are to be protected with the same equitable policy (Behrendt, 2003).

The Aboriginal and Torres Strait Islander peoples have fought for over 200 years for their land back. Although times will never be the same as they were before the European settlement, progress has been made in recognising the culture and removing historical ignorance surrounding the experiences of Aboriginal and Torres Strait Islander peoples and the Stolen Generation. Indigenous peoples are still being denied full citizenship in the forms of birth certificates and drivers licences, suggesting the push for an updated Constitution of Australia could benefit all Australians. The act of appropriate recognition and closing the gap will potentially give every Australian the same level of human rights. It is indicative that Aboriginal culture deserves the correct value and place in Australian history, just as much as all people deserve the same basic human rights without any form of discrimination.


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