Indigenous Recognition: 50 Years Along the Path from 1967

Wednesday 24 May 2017 @ 11.11 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

It is reported that more than 250 Indigenous leaders are to meet at Uluru this week for a "First Nations" convention that will seek to present the priorities identified by the "12 First Nation dialogues" on the question of "constitutional recognition for Indigenous Australians". The convention comes a week before the 50 year anniversary of the 1967 Referendum which marked the first actual recognition of Indigenous people as Australians on 27 May 2017. An anniversary that will also occur around the same time as 20 years having passed since the "Bringing Them Home report" and 25th year since the Mabo judgment. Listing these events reveal how long the path has been to get to the appropriate recognition of Indigenous Australians and how much more work is required ahead.

What the Uluru Convention is About

Essentially, the Uluru convention will see 12 Indigenous delegations representing First Nations from across Australia presenting their positions on constitutional recognition and associated reform. The aim of which is to reach a proposal for " . . . a potential referendum to acknowledge Indigenous history in the constitution, and to potentially introduce other reforms". The delegations are looking for the middle ground in their final proposal. Some of the options for proposed change said to include:

Drafting a statement acknowledging Aboriginal and Torres Strait Islander peoples as the First Australians;
Amending or deleting the "race power" [Constitution, section 51 which allows the Federal Government to make special laws for Indigenous people];
Inserting a constitutional prohibition against racial discrimination into the constitution;
Establishing an Indigenous body of representatives to be consulted by Parliament;
Deleting section 25, a redundant clause which says state governments can exclude people from voting in on the basis of their race.

As the above list indicates the aim is to go beyond symbolic change and to achieve substantive reform. This view is reflected in the reported comments of Indigenous Leader Noel Pearson who is a key member of the government appointed "Referendum Council", and who has said he:

". . . expects the Uluru delegates will reject a referendum that appears symbolic. . . It is crucially important I think that we achieve this, but it must be substantive, . . ."

Recognition Not a New Issue - Uluru Just the Next Step

It is a common misconception that Indigenous Australians gained voting rights through the 1967 Referendum. The 1967 Referendum did not give Aboriginal and Torres Strait Islander peoples the right to vote. Voting rights at Commonwealth elections had been legislated for in 1962 when the Menzies Government amended the federal electoral Act for that purpose. The states had progressively all granted voting rights to Indigenous people, with the last State to provide for Indigenous voting rights being Queensland in 1965. In fact the the 1967 Referendum made technical changes along the path to full recognition in the Constitution; a path that continues this week at Uluru.

Essentially, the 1967 Referendum made two technical changes to the Constitution, being:

(1) removing section 127* the provision that excluded Aboriginal people from the "counting of the people of the Commonwealth" (the Census); and

[*deleted 127. read - In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted.]
(2) amending section 51(xxvi)* of the Constitution to remove an exclusion of Aboriginal people from the power to make special laws for people of any race. Prior to the 1967 Referendum, the states had sole responsibility for making laws for Aboriginal people.

[*old 51. read - 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, "other than the aboriginal people in any State", for whom it is necessary to make special laws.]

Comments, Views and Expectations

The changes must be meaningful not just symbolic

Indigenous Labor frontbencher Linda Burney, a longtime supporter of recognition, is reported as having the view that a high priority should be:

" . . . removing the glaring omission of First Nations people in the constitution. I don't have a preferred proposal in my mind - I think the most important thing is that it is a meaningful change, not just for Aboriginal people, but for everyone in Australia, . . . ".

In a similar vain the Federal Indigenous Health Minister, Mr Ken Wyatt is reported as wanting any change to be meaningful, but with the proviso that any referendum proposal must be "realistic":

"Constitutional propositions are not readily accepted by Australians — we can see that with the low level of success for referenda, . . ." When Federal Governments have put up propositions that people have seen as too ambitious and slightly overreaching then they tend to vote no."

Pressing for Wider Reforms and Compensation

Tasmanian writer and activist Michael Mansell is reported as saying that the Uluru Convention is a rare opportunity to press for "bolder" reforms going beyond "recognition" and including issues such as land settlement, a national Aboriginal body with legislative powers, designated seats in Parliament, and 3 percent of GDP for compensation to Aboriginal people for the last 200 years.

Indigenous Leader Noel Pearson has been a key advocate of using the referendum proposal to create an Aboriginal and Torres Strait Islander "voice to Parliament"; a body proposed by Mr Pearson and having substantial support. Mr Pearson further argues that this body could be added to the constitution and be consulted on laws and policies regarding Indigenous people.

A Treaty

Greens senator Nick McKim is reported as saying that what was needed was a treaty with Australia's first people:

"The way that we move towards that [a treaty] needs to come out of a broad consultation between the Aboriginal communities in this country so that they can come to a position that can then be considered by parliamentarians and by the government, . . . But ultimately there's unfinished business in Australia and until we've got a treaty, there'll always be unfinished business."

Even from the above short catalogue of views it can be seen there is much yet to discuss, resolve and agree upon before the journey along the path to full Indigenous recognition is completed - the "recognition referendum" is likely to be just another part of it.

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