Constitutional Recognition and the fight for justice


Working towards healing racial divisions

Rebekah Lisciandro is donating her payment for this article to Black Rainbow, who supports LGBTQIA+ Indigenous Australians

Post-election, Minister for Indigenous Affairs Ken Wyatt (the first Indigenous person to fill this role) announced a plan to introduce a referendum on Indigenous Constitutional Recognition within the next three years. This announcement created conflict within the Liberal Party almost immediately, with hard right Liberal MPs like Craig Kelly opposing anything more than symbolic change. However, Scott Morrison has voiced support and recognition has bipartisan support between parties. So, what does this all mean?

Before I start, I want to introduce myself to you using Indigenous Standpoint Theory (and here I want to briefly rep IA3012 – Introduction to Indigenous Research, which is perhaps one of the most important classes I took my entire undergraduate degree and I believe should be mandatory for anyone doing any kind of research. I learned more in that class about research than in my entire degree, which was literally tailored towards learning how to conduct research). I am Rebekah, a non-Indigenous, white woman, born and raised on the land that traditionally belongs to the Yuwi peoples (Mackay) and now live and learn on the lands that belong to the Bindal and Wulgurukaba peoples (Townsville) and have done so since 2015. I want to acknowledge the privileges I have had as a result of simply being a white, and specifically non-Indigenous, person, such as the fact that I am the one writing this piece. I want to make my whiteness visible, and to make clear that I do not speak for Indigenous people. My goal in this article is to give other non-Indigenous people an understanding of what is happening, because it’s an important issue.

What is the constitution and why is it important?

The Australian Constitution is the governing document of Australia, and decides how our country is run, from law making to how Australia is governed. In Australia, our constitution can only be changed by a referendum, in which, similar to an election, all eligible people are required to vote for or against. Basically, it’s about asking if everyone in Australia is on board with the changes Parliament intends to introduce. If the majority agree, its changed, and if the majority disagree, nothing happens. Of the 19 referendums held since the Constitution was adopted in 1901, only 8 have been successful, including the 1967 referendum.

What was the 1967 referendum?

In 1967, Australia voted on whether the constitution should be changed to repeal Section 127, in which it was stated that Indigenous peoples were not to be counted on the census, effectively meaning they weren’t seen as Australian citizens, and change Section 51 which prohibited the Federal Government from making laws regarding Indigenous people and leaving them to the states, meaning that each state had different laws regarding Indigenous peoples (such as Queensland’s infamous Protection of Aboriginals and Restriction of the Sale of Opium Amendment Act). In 1967, 91% of Australia voted yes to have these changes, meaning that Indigenous people were seen as citizens for the first time.

So, what will this new referendum propose to change?

Constitutionally recognizing and enshrining a voice for Indigenous Australian’s, though how this will happen is contested.

The proposed changes have been discussed for a long time, but its current re-emergence is inspired by the monumental 2017 Uluru Statement from the Heart. The Uluru Statement, designed and agreed upon by 250 Aboriginal and Torres Strait Islander delegates, is a powerful statement that outlines three key elements for Australia to achieve Makarrata, the coming together of parties after a dispute: constitutional change, legislative change, and a Makarrata Commission. While the 1967 referendum achieved the right for Indigenous people to be counted in the census and as citizens, it did not provide any voice or recognition for Indigenous peoples. Many countries have implemented ways to give their First Nation people’s more voice at the decision-making level (Australia, incidentally, is the only Commonwealth country that does not have a treaty with its First Nations peoples). Giving Indigenous Australians a voice in decision making, especially about issues affecting them, is vital to making positive and effective changes and is a foundational part of closing the gap and beginning the Makarrata process.

This is especially important regarding the constitution: Section 51 allows the government to make special laws for Indigenous peoples but is worded that the government may make special laws for any race. One recommendation is to remove the word race from the section, and to re-word it be more specific to Aboriginal and Torres Strait Islander peoples. Additionally, Section 25 of our Constitution states that States can ban certain races from voting. It’s considered a dead letter, because preventing groups from voting based on race is illegal under the Racial Discrimination Act. So not only is it grossly racist, it’s useless, so it’s time to get it out of the constitution.

These are some avenues to make changes. We can change our Constitution to recognize that Indigenous Australian’s are the traditional owners, who never ceded sovereignty, and therefore should have direct and meaningful input to government on issues which fall under section 51. By putting this in the constitution, we are saying that this cannot be removed by any law or government, only by referendum, making it a fundamental part of our governing process.

Does everyone agree on this?

Politically, almost everyone is on board with some kind of change to the constitution, but it’s the amount and significance of these changes that are contested. Some are okay with Indigenous Australian’s being referred to in the constitution, as long as this remains solely a symbolic gesture with no fundamental changes to the way in which we govern things (this the position of aforementioned Liberal MP Craig Kelly, who will likely lead the ‘no’ charge unless the changes are, as he was quoted in the Guardian, “words that mean nothing”). Labour’s Shadow Minister of Indigenous Affairs Linda Burney supports a full implementation of the Uluru Statement which calls for a constitutionally guaranteed voice to permanently give voice to those who have often been rendered silent. Ken Wyatt, who is introducing the changes, seems to be attempting to reach a middle ground, suggesting that an advisory group may be legislated rather than made part of the constitution, and current processes be strengthened at state and territory level. So, different ideas but a start.

Combat misinformation by staying informed

Some misinformation is already occurring, seeming from within the Liberal Party itself. It has been suggested that the advisory board would become a third chamber of parliament. However, even if it is enshrined in the constitution, the proposed voice would have no power to push through laws itself, rather to provide advice to the government on laws affecting Indigenous people.

There also seems to be a fear that this would create more division and that people will be divided on racial bounds rather than united through Australian citizenship. This is bizarre given that we literally have a part of our constitution that enshrines states’ rights to just ban racial groups from voting and no one, even after it became illegal, was like ‘oh shit, we still have section 25, the part of the founding document of our country that is dedicated to letting us divide people on race, we should get rid of that.” Or even that we are still having this discussion 27 years after the Mabo Decision voided the idea of terra nullius, that the land on which we live was unoccupied on Cook’s arrival, and this land belongs to its original owners. Everyone hates the person who takes all the credit for a successful group project, so maybe Australia could not be that person.

It seems silly to pretend that constitutional recognition will definitely be what creates racial division rather than help fix it, especially when our country’s history literally had (has!) multiple laws and constitutional sections dedicated to dividing us by race. One of the solutions to preventing division is to, you know, listen to the voices who we ignored previously. Indigenous people have been telling us for a long time that the ways we traditionally give voice to our citizens is failing them and always failed them, and that we need to make better systems so they can be formally involved in government decision making. They’re also telling us that this the first step to healing from the racial divisions of the past, so maybe we should just listen.

Can’t we just focus on closing the gap?

Giving Indigenous Australians’ a constitutional voice won’t prevent us from providing resources or working towards closing the gap. They aren’t mutually exclusive, in which constitutional recognition can only exist if we ignore the gap, or vice versa. In fact, it’s likely to help close the gap by helping to create meaningful input into laws that will be better tailored for Indigenous people, rather than having things adapted from the dominant culture and hoping it fits after trial and error and error and error. In fact, part of Closing the Gap policies has highlighted the importance of self-determination as a requirement of our UN commitments, of which the enshrinement of a constitutional voice would be. Additionally, the Bringing Them Home Report’s (the report published at the conclusion of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families) recommendations for healing and reconciliation include 43A-C Self Determination, which actively encourages negotiations between the government and Indigenous people regarding the well-being of Indigenous children.

We have the evidence to say that this is a strong solution that can create strong positive and practical outcomes. Multiple sources, both within Australia and around the globe, point to the importance of self-determination for First Nation’s people. We have the ability to make these changes to help end systemic racism. So why don’t we?

What Can You Do?
Watch the video about the Uluru Statement
Read the Imagination Declaration of the Youth Forum
Read about the ideas and recommendations behind constitutional changes regarding Indigenous Australians
Contact your MP and express your support for constitutional recognition. For example, in the Herbert electorate, Phillip Thompson and Warren Entsch
Have conversations with your friends and family about the importance of constitutional recognition (all successful referendums have been helped by educating everyone on the issues!)
Donate to Indigenous led organisations such as Reconciliation Australia or the Healing Foundation or donate to the Yes campaign during the referendum
Rebekah Lisciandro
Bachelor of Social Science and completing BA Honours | Archive

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