Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution

Report of the Expert Panel

January 2012

© Commonwealth of Australia 2012

ISBN 978-1-921975-28-8 (print)
ISBN 978-1-921975-29-5 (PDF)
ISBN 978-1-921975-30-1 (HTML)

Creative Commons licence

Except where otherwise noted, all material presented in this document is provided under a Creative Commons Attribution–Non-Commercial-NoDerivs 3.0 Australia licence (http://creativecommons.org/licenses/by-nc-nd/3.0/au). The details of the relevant licence conditions are available on the Creative Commons website (accessible using the links provided) as is the full legal code for the CC BY-NC-ND 3.0 AU licence (http://creativecommons.org/licenses/by-nc-nd/3.0/au/legalcode).

This document should be attributed as:
Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel

Disclaimer

The material contained in this document has been developed by the Expert Panel on Constitutional Recognition of Indigenous Australians. The views and opinions expressed in this document do not necessarily reflect the views of or have the endorsement of the Commonwealth Government or of any minister, or indicate the Commonwealth's commitment to a particular course of action. In addition, the members of the Expert Panel, the Commonwealth Government, and its employees, officers and agents accept no responsibility for any loss or liability (including reasonable legal costs and expenses) incurred or suffered where such loss or liability was caused by the infringement of intellectual property rights, including the moral rights, of any third person, including as a result of the publishing of the submissions.

Inquiries

Inquiries regarding the licence and any use of this document are welcome at:

Group Manager, Indigenous Policy and Engagement
Department of Families, Housing, Community Services and Indigenous Affairs\
GPO Box 7576
Canberra Mail Centre ACT 2610
Email: constitutional.recognition@fahcsia.gov.au
Telephone: 1800 836 422

This document is available online at www.youmeunity.org.au and at www.fahcsia.gov.au.

Editorial, design and artwork by Wilton Hanford Hanover

Index by Barry Howarth

Printed by Blue Star Print Canberra

Contents

Letter to the Prime Minister

Foreword from the co-chairs

Executive summary

Introduction: Expert Panel and its methodology

Background to the establishment of the Expert Panel

Membership of the Panel

Principles to guide the Panel's assessment of proposals for constitutional recognition

Consultation and community engagement

A historic opportunity

1 Historical background

1.1 The history of the Australian Constitution

1.2 'Aboriginal natives'

1.3 Colonisation and Aboriginal resistance

1.4 'White Australia'

1.5 Protection and assimilation

1.6 Aboriginal and Torres Strait Islander suffrage

1.7 Early voices for change

1.8 The 1967 referendum

1.9 The 1988 Constitutional Commission report

1.10 The impact of Mabo v Queensland (No 2)

1.11 Interpretation of the altered race power after 1967

1.12 Policy approaches since 1972

1.13 'Closing the gap'

1.14 Conclusions

2 Comparative and international recognition

2.1 Comparative recognition

2.2 International recognition

2.3 Conclusions

3 The national conversation: Themes from the consultation program

3.1 Constitutional recognition in general

3.2 A specific statement of recognition

3.3 Aboriginal and Torres Strait Islander cultures and languages

3.4 A statement of values

3.5 The 'race' provisions

3.6  A racial non-discrimination provision/equality guarantee

3.7 Governance and political participation

3.8 Agreement-making

3.9 Matters of sovereignty

3.10 The Panel's processes

3.11 Process for the referendum

3.12 Other ideas for change

3.13 Conclusions: A wide-ranging conversation

4 Forms of recognition

4.1 Recognition in the preamble to the Imperial Act

4.2 Recognition in a new preamble or in a new section of the Constitution

4.3 Placing a statement of recognition together with a new head of power

4.4 Recognition in a new preamble accompanied by a statement of values

4.5 The content of a statement of recognition

4.6 Recognition of Aboriginal and Torres Strait Islander cultures, languages and heritage in the Constitution

4.7 Conclusions in relation to a statement of recognition preceding a new head of power, 'section 51A'

4.8 Conclusions in relation to a new languages provision, 'section 127A'

4.9 Recommendations

5 The 'race' provisions

5.1 The concept of race in the Constitution

5.2 The notion of race

5.3 Conclusions in relation to section 25

5.4 Conclusions in relation to section 51(xxvi)

5.5 Recommendations

6 Racial non-discrimination

6.1 Australia's commitment to racial non-discrimination

6.2 Early calls for a prohibition against racial discrimination

6.3 International experience

6.4 Comparative experience

6.5 Conclusions

6.6 Recommendation

7 Governance and political participation

7.1 Aboriginal and Torres Strait Islander peoples and governance

7.2 Participation and representation

7.3 Aboriginal and Torres Strait Islander representative structures

7.4  Government interaction with Aboriginal and Torres Strait Islander communities

7.5 Conclusions

8 Agreement-making

8.1 Agreement-making in Australia

8.2 Comparative experience

8.3 Conclusions

9 The question of sovereignty

9.1 Historical issues

9.2 Views on sovereignty

9.3 Conclusions

10 Approaches to the referendum

10.1 Australia's referendum record

10.2 Simplicity of proposals for recognition

10.3 Timing of the referendum

10.4 Education

10.5 Conclusions: Process considerations

10.6 Recommendations

11 Draft Bill

Appendixes

A Membership of the Expert Panel

B Advertisements

C List of submissions

Acknowledgments

Bibliography