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Frequently Asked Questions

What is the Constitution?

The Constitution is our founding document; it is the set of rules by which Australia is run. It lays out how Parliament works, what powers it has, how Federal and State Governments share power, and the roles of Executive Government (Ministers) and the High Court. The document came into effect in 1901, after the Australian colonies agreed to form the nation of Australia.

The resource book “Everything you need to know about the referendum to recognise Indigenous Australians”, explains that the Constitution:

- Creates lines of power in Australian society (that is, who can do what and to whom)

– Establishes the legitimacy of, and relationships between, people and institutions; and –

– Recognises national values and national aspirations.

View the full Australian Constitution here.

What does it say about Aboriginal and Torres Strait Islander peoples?

Nothing.

From 1901, Aboriginal people were only mentioned in the Constitution to discriminate against them under two clauses (Section 51 (xxvi) and Section 127), and Torres Strait Islander peoples were not mentioned at all.

The referendum in 1967 completely removed any reference to Aboriginal people and now the Constitution says nothing about Aboriginal or Torres Strait Islander peoples.

The Constitution talks about lighthouses, shipping beacons, buoys and coinage – but still includes no mention of the First Australians, and more than fifty thousand of years of Australia’s history.

What needs to be fixed?

While the Constitution has served Australia well in many ways, it does not recognise the long history of our country and its first peoples and still allows for racial discrimination.

As it stands, the nation’s founding document makes no mention of the First Australians and more than fifty thousand years of Australia’s history, prior to British colonisation.

It also includes two sections that still permit race discrimination.

Section 25 reads:

“25. Provisions as to races disqualified from voting

For the purposes of the last section, 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.”

Section 51 (xxvi) reads:

“51. Legislative powers of the Parliament

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: …. (xxvi) the people of any race for whom it is deemed necessary to make special laws;”

Professor Mick Dodson and many others have noted, s. 51(xxvi) is not limited to beneficial use and can be used to the detriment of any racial group.

You can read other recommendations made by the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples that are being examined here.

Why should the Constitution recognise Aboriginal and Torres Strait Islander peoples?

Australia’s Constitution was written more than a century ago. By then, Aboriginal and Torres Strait Islander people had lived here for more than 50,000 years, maintaining the oldest living culture on the planet. Yet the Constitution, Australia’s rule-book, doesn’t recognise this and still allows for racial discrimination.

It begins as if Australia’s national story only started with the arrival of the British.

As Harold Ludwick, a Bulgun Warra man from Cape York puts it: “If the Constitution was the birth certificate of Australia, we’re missing half the family”.

All Australians can be proud of our shared longstanding history and this should be evidenced in our highest legal document.

The Constitution also contains sections in it that allow for discrimination based on a person’s race. This can give Governments the power to make laws that apply only to a particular race. And it can allow Governments to ban people from voting based on their race.

How can we fix the Constitution?

The Australian Constitution can only be changed through a Referendum – a national vote by all Australians.

The Australian Constitution is difficult to change – and rightly so. Votes from people in the Territories only count in the overall majority. Only 8 out of Australia’s 44 referendums have been successful.

For the question to succeed there needs to be a double majority, this means more than 50 per cent of all Australians must vote ‘yes’, and a majority must also vote ‘yes’ in at least four of the six states.

When will the referendum happen?

The Referendum Council will host a nationwide series of community discussions, including Indigenous only consultations, to hear the views of Australians about the model of constitutional reform, the referendum itself and what the question should be.

A referendum can be held once there is broad agreement on a model and enough support across the community to ensure the best possible chance of success.

The Referendum Council is distinct from the RECOGNISE movement. The Prime Minister and Opposition Leader together announced the Council and worked collaboratively to appoint its members.

RECOGNISE does not design the model or set the date for the referendum – that decision is in the hands of the Government and the Parliament.

In February 2016, Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten confirmed their commitment to work towards a 2017 Referendum.

Head here for more information.

Where does the push for recognition come from?

A large number of Aboriginal and Torres Strait Islander peoples and organisations have campaigned for constitutional recognition for decades.

Some trace the history of the current movement as far back as the 1930s, when Aboriginal leaders such as William Cooper and Jack Patten began a campaign for Indigenous parliamentary representation and enfranchisement.

The work of that generation of leaders laid the foundation for a decades-long campaign for a referendum held in 1967, which deleted two racially discriminatory references from the Constitution. The grassroots community momentum for that referendum was led by FCAATSI (the Federal Council for the Advancement of Aborigines and Torres Strait Islanders).

In recent decades, Aboriginal and Torres Strait Islander organisations and individuals have urged the nation to complete the task begun in 1967 – by including recognition and ensuring there is no place for race discrimination in the nation’s rule book.

In the Aboriginal and Torres Strait Islander Commission’s (ATSIC) 1995 report “Recognition, Rights and Reform” it listed “constitutional reform and recognition” as a priority. It reported that an extensive national consultation process with communities across the country found “overwhelming support for the reform of the Constitution especially in relation to recognition of Indigenous peoples”.

To read a timeline of some of the many voices calling for recognition, click here.

What is proposed?

Since 2010 there has been two expert committees, The Expert Panel and the Referendum Council which have consulted and reported on constitutional recognition, and the process to the Parliament.

The Expert Panel – which included Indigenous and community leaders, constitutional experts and parliamentarians – consulted extensively across the nation and reported to the Prime Minister in January 2012.

The Panel recommended that Australians should vote in a referendum to:

  • 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; and
  • 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.

To read the full Expert Panel report click here

The Referendum Council

In December 2015, Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten announced the Referendum Council.

The Referendum Council, which is distinct from RECOGNISE, will advise the Prime Minister and Opposition Leader on the progress and next steps towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution – including outcomes of the consultation process, options for a referendum proposal and possible timing for a referendum.

In May 2016 the Council announced that these proposals will form the discussion:

  • Addressing the sections of the Constitution, including section 25 and section 51(xxvi), that are based on the outdated notion of ‘race’,
  • Ensuring continued capacity for the Commonwealth Government to make beneficial laws for Aboriginal and Torres Strait Islander peoples,
  • Formally acknowledging Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia,
  • Providing an Aboriginal and Torres Strait Islander body to advise Parliament about matters affecting Indigenous peoples,
  • and providing a constitutional prohibition on racial discrimination.

In August, the Council announced changes to the consultation timeline. Click here to read the communiqué from this meeting.

In October, the Council announced the location of 12 First Nations dialogues which will commence in November and December 2016 and continue into early 2017 and will culminate in a national convention of Indigenous leaders at Uluru. Click here to read more about the Council’s consultation process.

Is there multi-party political support?

There is wide support from across the political spectrum for constitutional recognition of Aboriginal and Torres Strait Islander peoples. The Liberal and National Coalition, the Labor Party, the Greens and Independent MPs have all given in-principle backing to constitutional recognition. Click here to see who supports constitutional reform.

Is there strong support from Aboriginal and Torres Strait Islander peoples for this?

There is strong support from the overwhelming majority of Aboriginal and Torres Strait Islander peoples for constitutional recognition – and has been for a very long time.

In 1995, an extensive national consultation undertaken by ATSIC (Aboriginal and Torres Strait Islander Commission) found strong community support for recognition. Since then, support to fix the Constitution has remained high.

The most recently released Polity Research study of 750 Aboriginal and Torres Strait Islander peoples showed 85 per cent support for voting YES if a referendum were held today.

A 2016 member survey by National Congress of Australia’s First Peoples also showed strong support for constitutional change and for a treaty.

Similar strong support levels and sentiments are reflected in the hundreds of grassroots community events RECOGNISE has held across the nation in recent years. Many Aboriginal and Torres Strait Islander supporters tell us they think constitutional recognition will help bring Australians together and finish the job started in 1967. Many parents and grandparents have spoken of the need to secure recognition and eliminate discrimination so that their children and grandchildren don’t face the exclusions and discriminations that they have known.

But of course as with any other issue in Australia, there is a diversity of opinion. Aboriginal and Torres Strait Islander peoples have a diversity of views and opinions and don’t agree on everything, and shouldn’t be expected to. It is important to have these discussions about the range of views.

As former RECOGNISE Joint Campaign Director Tanya Hosch said; “For some reason, there’s an expectation that for Aboriginal and Torres Strait Islander peoples to move forward on our aspirations we have to be in furious agreement; to be of one voice. Show me another group in society for whom the bar is set so high.”

Does the wider Australian community support the movement?

Yes. Twelve consecutive polls by different organisations over a number of years show consistently high levels of support for changing the Constitution to recognise the First Australians and ending racial discrimination.

Since 2012 polling research into constitutional reform from Fairfax-Ipsos, ANU, ABC Vote Compass, JWS Research, the National Congress of Australia’s First Peoples as well as eight consecutive polls for Recognise by Polity Research continues to show high levels of support for constitutional reform.

All of this research and polling shows that there is a clear majority of Australians who support constitutional recognition and dealing with the racial discrimination in the Constitution.

In May 2016 research undertaken by independent research company, Polity Research showed 77% of non-indigenous and 87% of Indigenous Australians saying they would vote yes in a referendum to recognise First Australians in the Constitution if the referendum was held at the time of the survey.

During the 2016 Federal Election Campaign, the ABC Vote Compass asked participants if the Australian Constitution should recognise Indigenous people as Australia’s first inhabitants. 77 per cent of the 200,000 people that took part in the survey agreed with 14 per cent disagreeing.

This ongoing and robust research shows that Australians are remaining strong in their support to fix the Constitution.

What will this achieve?

While constitutional recognition won’t solve every issue in every Aboriginal and Torres Strait Islander community, it will go some of the way to help repair the gap between Indigenous and non-Indigenous Australians and bring us closer together as a nation.

As Professor Lester-Irabinna Rigney (Professor of Education, University of South Australia) explains:

 

“When our nation’s founding document was written more than 100 years ago, it left us with a view of our country seen from the arriving ships, not from the shore. Ever since, the exclusion of that view from the shore has played a part in cutting short the span of time that we think of as Australia’s history.

 

We need to correct that exclusion because this glaring omission is lived daily. When it remains silent on the long first chapter of our national story, we do too, in the playground, in the workplace, at our dinner tables. Just think of how often we still hear Australia referred to as a “young” country. It’s only possible to think of us as a “young” country if you exclude all that came before British arrival. This silence in Australia’s Constitution is deafening and it’s time we fixed it.”

 

Constitutional recognition can help us to turn a corner on a past we have struggled with. Its immediate impact would be to fix the historical exclusion of Aboriginal and Torres Strait Islander peoples from the Constitution and the lingering racial discrimination in the legal framework of the nation.

In 2015 more than 117 of the nation’s leading health bodies, now known as RECOGNISE Health, joined and collectively argued that constitutional recognition would help improve Aboriginal and Torres Strait Islander health and wellbeing, and the work to make inroads on disadvantage.

Constitutional recognition will also unite Australians, giving us greater shared pride and deeper connection with our country’s impressive Indigenous heritage and cultures, which are the foundation layer of Australia’s unique national identity in the world.

Isn’t it unfair or racist to only recognise Aboriginal and Torres Strait Islander Peoples when other groups are not mentioned?

In fact, all Australians are acknowledged in the Constitution as “the people of the Commonwealth”. By the Constitution remaining silent on Australia’s long and impressive Aboriginal and Torres Strait Islander history before 1901, our founding document implies the first chapter of our national story either didn’t happen or isn’t important. Aboriginal and Torres Strait Islander peoples have lived in this land for tens of thousands of years. Recognition would acknowledge that first chapter of our shared story.

This reform is focused on recognising the First Peoples of this nation for their unique place in our history; not about race.

Aren’t these changes unequal and racist because they favour one race?

As it is currently written, our Constitution actually allows for racial discrimination against any race. The movement for constitutional recognition is about fixing that.

We should all have equal rights. It’s important to understand that we don’t all have equal rights at the moment. Right now, our Constitution allows for people to be treated unequally based on race. For example, it still has a section (Section 25) that says that people can be banned from voting based on race. So supporting constitutional recognition means supporting equal rights.

What does this mean for Indigenous sovereignty?

Recognising Aboriginal and Torres Strait Islander peoples in the Constitution would not take away anyone’s sovereignty.

Sovereignty has been and continues to be important for Aboriginal and Torres Strait Islander peoples. It is very important to remember that Indigenous Australians do not have to choose between constitutional reform and sovereignty – this is not an either/or choice. Sovereignty is unique and inherent within each individual, and no change to the Australian Constitution would change that.

It is equally important that the processes to recognise Aboriginal and Torres Strait Islander peoples in the Constitution and the issue of sovereignty are very different.

At the same time as calls for constitutional reform, Aboriginal and Torres Strait Islander peoples have campaigned for Australia to make a treaty with the First Peoples and to acknowledge sovereignty. This is an important and proud part of Australia’s history of activism.

Many constitutional lawyers have looked at the proposals for constitutional change and have determined that constitutional recognition would not take away Aboriginal and Torres Strait Islander peoples’ sovereignty.

In her Brisbane Peace Prize lecture in September 2014, Professor of Law and Eualeyai/Kamillaroi woman Larissa Behrendt set out the facts:

“The arguments that constitutional recognition will impact on the sovereignty of Aboriginal people or a treaty is not legally correct. The sovereignty that Aboriginal claim as inherent is just that and it cannot be taken by anything the Australian Constitution says. There is nothing so far proposed as part of the current constitutional reform agenda that would take away or undermine the ability for Aboriginal and Torres Strait Islander people to enter into a treaty.”

Constitutional law expert George Williams also says constitutional recognition would not negate sovereignty. His article can be found here.

What about calls for a treaty?

Calls for a treaty and proposals to recognise Aboriginal and Torres Strait Islander peoples in the Constitution are two separate issues that require two separate processes.

Importantly, this is not an either / or choice.

Working towards constitutional recognition doesn’t stop us working for a treaty; repeated legal advice makes that clear. It’s a separate issue and a separate process.

Treaties require negotiated agreements with Government.

Recognition and dealing with racial discrimination in our Constitution can only be achieved through a referendum. Suggestions that there are other ways to take racism out of the Constitution without a referendum are wrong.

Many people support both and many people are working towards both. Many Aboriginal and Torres Strait Islander leaders and activists have supported work towards constitutional recognition and treaty simultaneously. This includes Prof Mick Dodson, Pat Turner, Noel Pearson, The Hon. Linda Burney, Prof Larissa Behrendt, Dr Lowitja O’Donoghue, Mick Gooda and many others.

CEO of the National Aboriginal Community Controlled Health Organisation (NACCHO) Pat Turner explains treaty and constitutional recognition here.

Why pursue this when we also have so much work to close the gap?

We must do both. While constitutional recognition will not be a cure-all for the disadvantage and exclusion faced by many Aboriginal and Torres Strait Islander peoples, experts on the frontline believe it will help to close the gap in Indigenous disadvantage.

In March 2015, 117 of the nation’s leading health bodies declared their support for RECOGNISE, noting the link between constitutional recognition and improved health and wellbeing. Many health experts and organisations have urged Australians to support constitutional recognition, saying it will help to improve the health and wellbeing of Aboriginal and Torres Strait Islander peoples.

Referendum Council Co-chair Pat Anderson, who also chairs the Lowitja Institute – Australia’s National Institute for Aboriginal and Torres Strait Islander Health Research, says:

“I think the fact that Aboriginal and Torres Strait Islander peoples once and for all are included in the foundation document will go a long way towards a healing process.”

Read more here about the RECOGNISE Health Initiative.

Which countries already recognise their indigenous peoples?

In a submission to the Expert Panel, the Royal Australian and New Zealand College of Psychiatrists noted that ‘comparable countries, New Zealand, Canada and the United States of America, with the same British colonial history, have recognised their Indigenous populations in law’, and that ‘Australia has been left behind on the recognition of its Indigenous peoples in law’.

Along with New Zealand, Canada and the United States of America, Indigenous peoples and groups are also recognised in the constitutions of Norway, Sweden, Finland, Russia, South Africa, the Philippines Venezuela, Ecuador, Colombia, Mexico, Brazil and Bolivia.

You can read more information about international recognition here.

What Is RECOGNISE?

RECOGNISE is the movement to raise awareness and support of the need to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution and to deal with the racial discrimination in it. The only way this change can happen is through a referendum.

RECOGNISE has a very specific focus – to raise awareness of the need to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution and deal with the racial discrimination within it. RECOGNISE also has a goal of leaving a legacy of campaigning experience for Aboriginal and Torres Strait Islander peoples. This will build skills and capacity for ongoing campaigning work in Indigenous Affairs and social justice.

RECOGNISE does not design the model nor set the date for the referendum – that decision is in the hands of the Government and the Parliament. RECOGNISE was established in 2012 after the Expert Panel (consisting of a majority of Indigenous members) called for the establishment of a “properly resourced public education and awareness program“.

This mirrored a similar call by the Aboriginal and Torres Strait Islander Commission in 1995 for “a major public awareness program to create an environment for change and understanding of Indigenous Constitutional perspectives“.

RECOGNISE was established on the advice that early awareness is the best way to ensure a great change doesn’t fall victim to the “don’t know, vote no” scare campaigns that have defeated so many referendums in the past.

Only 8 out of 44 referendums have succeeded and some of the worst results occurred when there has been no attempt to raise public awareness of the need for a change. That’s why RECOGNISE has driven a strong national awareness campaign for the past four years. Over this time:

  • Awareness of the issue has almost doubled;
  • Nearly 300,000 Australians have signed up to support a referendum and support has held steady;
  • More than 77% of the general community support a change as does 87% of Aboriginal and Torres Strait Islander peoples; and
  • The Journey to Recognition has travelled more than 39,000kms across the country, engaging with 273 communities through 365 events attended by 27,240 people.

RECOGNISE is part of Reconciliation Australia, a not-for-profit organisation.

Why doesn’t RECOGNISE advocate on all of the other Aboriginal and Torres Strait Islander issues?

RECOGNISE has a very specific task and focus. Our role is to raise awareness of the need to end the exclusion of Aboriginal and Torres Strait Islander people from the Australian Constitution and deal with the racial discrimination within it.

There are many other organisations campaigning on wider issues of importance to the First Australians. Many of these organisations also bring a specific focus to their work. It is the job of RECOGNISE to provide the focus and work towards constitutional change, to build supporters across the country and to keep our support base aware of progress on the campaign.

Aboriginal and Torres Strait Islander leaders will continue to work hard to protect the interests, survival and wellbeing of their communities, and many other Australians support this crucial work. As they navigate other challenges, it is compelling that our many campaign partners, leaders and community people also find time and energy to offer strong support and leadership in the movement towards constitutional change.

Shouldn’t the campaign wait until there is a final model before raising public awareness?

The history of referendums in Australia shows that if the public is not aware of an issue they are more likely to vote against it (for example in the 1999 Republic referendum the successful no case ran the slogan “Don’t Know, Vote No” based on a lack of awareness). Professors George Williams and Megan Davis (in their book Everything you need to know about the referendum to recognise Indigenous Australians) state:

“Overall, the record shows that when voters do not understand or have no opinion on a proposal, they tend to vote No. Polls from the 1999 referendum showed that many people had not read the official pamphlet distributed by the Commonwealth to explain the proposals and that people who had not read the pamphlet were far more likely to vote no.” On the other hand, the successful 1967 referendum saw almost a decade of campaigning before a final model was delivered.

The final model will be settled very close to a referendum. Under section 128 of the Constitution once a final referendum proposal has passed the Parliament it must be put to the people in no less than two months and no more than six months.

It was on this basis that the 2012 Expert Panel recommended that “before the referendum is held, there should be a properly resourced public education and awareness program” and that resources be allocated “to maintain the momentum for recognition, including widespread public support”.

RECOGNISE has the sole focus to raise awareness and support of the need to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution and deal with racial discrimination in it before the referendum.

The Referendum Council will advise the Prime Minister and Opposition Leader on the progress and next steps towards a referendum – including outcomes of the consultation process, options for a referendum proposal and possible timing for a referendum.

What is the Referendum Council?

The Referendum Council was established in December 2015 to advise the Prime Minister and Leader of the Opposition on progress and next steps towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution.

The Council is leading national consultations and community engagement on constitutional recognition, including a series of Indigenous-designed and led consultations.
The Council is made up of 16 Aboriginal and Torres Strait Islanders and non Indigenous members. It is Co-Chaired by Ms Pat Anderson AO and Mr Mark Leibler AC. The other members of the Referendum Council are Professor Megan Davis, Mr Andrew Demetriou, Mr Murray Gleeson AC, Mr Mick Gooda, Mr Stan Grant, Ms Tanya Hosch, Professor Kristina Keneally, Ms Jane McAloon, Mr Michael Rose, Ms Natasha Stott Despoja AM, Mr Noel Pearson, Ms Amanda Vanstone, Ms Dalassa Yorkston and Dr Galarrwuy Yunupingu AM.

You can read more about the work of the Referendum Council here.

How can I get involved?

Almost 300,000 Australians are now signed-on grassroots supporters of the RECOGNISE movement. This is a powerful sign of the breadth of support across the Australian community. Even so, the Australian Constitution is one of the hardest in the world to change, so we need to keep building awareness and maintain crucial momentum. People are saying this is the right thing to do, the decent thing to do, and we should fix it. If we all play a part, everyone of us can help to bring about this next step in the life of our nation and leave a legacy for our children. Here’s how you can help:

What is the difference between the Referendum Council and Recognise?

The Referendum Council’s role is to advise the Prime Minister and Leader of the Opposition on progress and next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. This includes recommending, to the Prime Minister and Opposition Leader, a model for an amendment to the Constitution. Recognise’s role is to raise awareness across Australia of the need to fix the constitution and build support for a change. See here for more detailed information on the work of the Referendum Council and RECOGNISE.