Indigenous Recognition and the future of constitutional reform in Australia

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David Donovan looks at the proposed referendum on indigenous recognition and considers what failure would mean for future Constitutional reform in Australia.

THE FEDERAL Government recently announced a process leading to a referendum on indigenous recognition in the Australian Constitution. In 2013 a referendum will be held. Before then consideration and public debate on whether this recognition will be a minimal change – perhaps a change to the preamble – or a more substantial recognition in the body of the Constitution.

On the face of it, a referendum on this issue should stand a good chance of success. In a poll taken earlier this year, as part of Griffith University Law School’s Constitutional Values Survey, Newspoll reported an overwhelming 75 per cent of Australians as being in favour of Indigenous Australians being appropriately recognized in the Australian Constitution.
Professor AJ Brown

The man behind the Survey, Professor AJ Brown, speaking at an Australian Republican Movement event in Brisbane last month, said that the failure of this referendum – given its provisional popularity – would have a devastating effect on future proposals for Constitutional change.

“If this referendum fails with the support it has, it is difficult to see any proposal for constitutional change being put forward by any Government for a very long time. It might be that we will limp along with our present Constitution for the next 30 or 40 years until we find that the way our Constitution actually works has become so far removed from the actual written Constitution that we decide to scrap the lot of it and start again.”

Professor Brown went on to say that for referendums to succeed, what is normally required is strong community sentiment in favour of the propsal, bipartisan support and no significant organised opposition.

As mentioned, when Newspoll did its research in February, only 25% were opposed or unsure. However, if you can judge the depth of opposition by the tone and the number of comments on discussion boards, then there is an ardent minority eager for this proposal to be defeated. It was shown in the comment after my own story on this issue on the ABC’s The Drum Unleashed—whilst many believe indigenous recognition to be a good thing, many others are adamantly opposed. If the comments are any guide, it appears that many believe that there is a rent-seeking motivation, or that Aboriginals already gain greater entitlements than other Australians, or that it will be nothing more than symbolic change that will have no practical benefit to Indigenous Australians. Encouragingly, my reading on that matter shows that a vocal minority said much the same things before the 1967 referendum, which in the end was passed with a pleasingly resounding majority.

Some people may think that, as an Australian republican, I might be envious of the First Australians having the Government give priority to their issue over ours. On the contrary, I believe I speak for the Movement as a whole when I say we have nothing but fervent support for this vital and long overdue reform. In fact, we feel that an Australian Republic would help in the same goal, by turning the page on colonial wrongs and helping us all to start afresh as a united republic, where all the threads of our national story are placed in proper prominence. Surely Aboriginal Australians, with their more than 40,000 years of connection this land, deserve to be recognized most prominently in the Constitution.

The ARM policy is explicit about the importance we place on Indigenous recognition. The 2nd paragrah reads (with my emboldening):

“An Australian republic will embrace our egalitarianism and the concept of a fair go. It will honour and acknowledge our Aboriginal and Torres Strait Islander heritage and cherish its culture, with its timeless connection to the Australian land and sea. It will recognise our British heritage and acknowledge its gifts, including our political and legal institutions. An Australian republic will celebrate our immigrant heritage of opportunity and endeavour and its contribution to our national identity. It will unite all Australians behind an Australian Head of State.”

Therefore, republicans will stand united, I’m sure, in helping to actively promote the success of this referendum. The republic issue will be dealt with one day, but before then we must properly recognize the First Australians in our Constitution—Australia’s most important document.

Moreover, as Professor Brown said, if this vital and seemingly popular measure is not passed in 2013, it may also have dire repercussions for future constitutional reform in Australia. For a Government to have confidence to put forward a proposal in future, it might be that an issue would need 85 per cent or 90 per cent support going into the process, something that might be difficult to achieve with the republic issue due to the 15 or 20 per cent of Australians who are rusted on monarchists. It is equally difficult to see any other issue gaining this degree of support either, apart from perhaps the most banal and trivial change.

Equally as concerning is the other issue alluded to by Professor Brown—that is, if the measure doesn’t succeed it will effectively sign the death warrant for our current Constitution. As the Constitution becomes increasingly out of step with modern Australia – and much of the text of our Constitution is already redundant, or altered by Conventions or case law – then in a few decades we may be forced to rewrite the whole thing, something that is likely to cause significant disruption to Australian governance through the far-reaching changes this is likely to engender. Of course, we will also be stuck with the present faulty Constitution until then.

Aboriginal recognition deserves to be included in the Constitution and, for several reasons, I sincerely hope it is passed by the people in 2013.

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