Articles

Professor Megan Davis – Indigenous Constitutional Recognition

September 24, 2019


In January 2012 the Prime Minister’s
expert panel on the recognition of Aboriginal
and Torres Strait Islander peoples in the constitution
handed its final report to the Prime Minister.   This expert panel
had been established in 2011.   The panel was established
because of the hung parliament in 2010 and the Greens and
the Independent Rob Oakeshott held Julia Gillard to an agreement
that she would finally move on the three decades
of advocacy by both the State and by indigenous peoples
for more recognition of Aboriginal and Torres Strait Islander people
in the Australian Constitution.   The expert panel was constituted
by quite a broad group of people from across the Australian political
and social spectrums.   It included Indigenous leaders
as well as non-Indigenous leaders. It included politicians,
so representatives from the Liberal Party, the Labour Party,
the Greens and the Independents and had representatives
from organisations such as the Business Council of Australia
and the Law Council of Australia and Indigenous leaders such as
Pat Dodson, Marcia Langton and Noel Pearson
and I was also a member of the panel.  The task of the expert panel
was to address this notion of recognition in
the Australian Constitution and in doing that,
the panel decided that there were essentially two elements
we needed to look at.   The first was to address
the outdated notion of race in the Australian Constitution
and the second one was to insert some recognition of Aboriginal
and Torres Strait Islander peoples, their culture, their heritage
and their languages.   So the five recommendations
that the panel made were, first; that Section 25 be repealed.
Section 25 essentially recognises that the States can ban a people
of any race from voting.   The second recommendation
was for the repeal of Section 51/26.   This provision in the Constitution
permits the Federal Parliament to discriminate against
a people of any race.   The last three recommendations
were for the insertion of new provisions in the Constitution.  
So the first is for the insertion of a new Head of Power
for the Commonwealth to make laws for Aboriginal
and Torres Strait Islander peoples but the importance of this section,
Section 51A, is that it provides recognition,
so recognition of the continuing cultures of Aboriginal and
Torres Strait Islander peoples.   The fourth recommendation
is for a non-discrimination clause.   So this is a racial equality commitment
in the constitution and what it does is prevents the Federal Parliament
from passing discriminatory laws.   And the final recommendation
is a declaratory recommendation which essentially recognises that Aboriginal
and Torres Strait Islander languages are an important part
of the Australian nation.  The Australian Constitution
that was enacted in 1901, expressly excluded Aboriginal people
from the powers of the Federal Parliament.  
So one of the significant aspects of the 1967 referendum
was that it gave the Federal Parliament powers to make laws for Aboriginal people.
  Part of the reason
that Aboriginal people were expressly excluded
from the powers of the Federal Parliament in 1901 was that they were thought
to be a dying race.   So what do these changes
to the Australian Constitution mean for Aboriginal and
Torres Strait Islander people and the Australian people?
Well really what it does is address the historical legacy
of racial discrimination in Australia and contemporary racial discrimination.  
So what it is, is a joint commitment by all Australians to racial equality
and to that extent, I think it will contribute to
reconciliation in Australia. 

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