Constitutional reform is in the headlines again. This time it’s not the republic, but how to recognise indigenous Australians in our founding document. All the major political parties, and 75% of Australians, agree it should be done. But the question of how to achieve it is a divisive and complicated one.

To help understand the debate, here’s The Power Index‘s guide to indigenous constitutional recognition …

Why is the constitution being amended?

There is currently no reference to Aboriginal or Torres Strait Islander peoples in the Australian constitution. Furthermore, the constitution retains elements that can uncontroversially be described as racist. Section 25, for example, states that people can be disqualified from voting in state elections due to their race. Section 51 gives the federal government the power to make special laws for the people “of any race” — a problematic term given race is increasingly recognised as a social construct rather than a biological reality.

Why is reform on the agenda now?

The issue of indigenous constitutional recognition is not new. At the 1999 referendum, Australians were asked two questions: whether they wanted a parliamentary republic and whether they supported a preamble honouring “the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country”. This proposal, drafted by John Howard and poet Les Murray, did even worse than the republic: over 60% of Australians voted against it.

The issue lay dormant until, in the dying days of his prime ministership, Howard promised to hold a referendum to recognise indigenous Australians in the constitution if elected. Both Julia Gillard and Tony Abbott went to the last election promising the same thing. But, like the carbon tax, the hung parliament helps explain why the issue is on the agenda: in her agreement with the Greens, Gillard promised to hold referendums by the next election on constitutional recognition for Indigenous Australians and local government.

Who are the key players?

A 19-member expert panel appointed by the government has been meeting throughout the year to develop options for constitutional reform and build community support. WA Aboriginal elder Patrick Dodson is co-chair alongside tax lawyer Mark Liebler. Other prominent panel members include Rob Oakeshott, Noel Pearson, Marcia Langton, former Business Council of Australia and Liberal MP Ken Wyatt, the first Aborigine elected to the House of Representatives. Well-known activist and indigenous law professor Larissa Behrendt is a notable omission.

What options are on the table?

The expert panel is expected to recommend more extensive – and controversial – changes than John Howard, and perhaps Julia Gillard, had in mind. As well as deleting racist sections of the constitution and inserting a preamble, the panel will reportedly push for constitutional protection against racial discrimination and a new clause allowing the federal government to make laws for the “advancement” of indigenous Australians.

Noel Pearson has publicly backed these proposals, but many observers are outraged. Former ALP president Warren Mundine has decried the changes as a “dogs breakfast” and “a hundred steps too far”; right-wing columnist Janet Albrechtsen fears we are heading for “yet another battle between elites and the rest of Australia”; law professor James Allan has argued the proposals are “anti-democratic”.

Liberal MP Ken Wyatt has previously argued that constitutional change should be restricted to the preamble. Opposition spokesman for Indigenous Affairs Nigel Scullion said last week that that the government shouldn’t take Coalition support for changes to the body of the constitution for granted.

*Read the full story at The Power Index

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey

JOIN NOW