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Chapter 2: Constitutional reform: Creating a nation for all of us - Social Justice Report 2010

Social Justice Report 2010

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Chapter
2: Constitutional reform: Creating a nation for all of us


2.1 Introduction

A century ago, the Australian people engaged in a debate about creating a
nation. They held meetings...They wrote articles and letters in newspapers. Many
views were canvassed and voices were heard. The separate colonies, having
divided up the land between them, discussed ways of sharing powers in order to
achieve a vision of a united Australia. The result was the Australian
Constitution, establishing the Commonwealth of Australia in 1901.

A century ago our Constitution was drafted in the spirit of terra nullius.
Land was divided, power was shared, structures were established, on the illusion
of vacant land. When Aboriginal people showed up – which they inevitably
did – they had to be subjugated, incarcerated or eradicated: to keep the
myth of terra nullius alive.

A century after the original constitutional debate we have an opportunity to
remake our Constitution to recognise and accommodate the prior ownership of the
continent by Aboriginal and Torres Strait Islander
people.[1]

One hundred and ten years ago years ago, Queen Victoria gave Royal Assent to
the Australian Constitution, the founding document of our nation and pre-eminent
source of law in the country.

Aboriginal and Torres Strait Islander peoples were noticeably absent from its
drafting.

We were excluded from the discussions concerning the creation of a new nation
to be situated on our ancestral lands and territories.

We were expressly discriminated against in the text of the Constitution, with
provisions that prevented us from being counted as among the numbers of the new
nation, and which prevented the new Australian Government from making laws that
were specifically directed towards
us.[2]

As a consequence, the Constitution did not – and still does not –
make adequate provision for us. It has completely failed to protect our inherent
rights as the first peoples of this country.

Former Chief Justice of the High Court of Australia, Sir Anthony Mason, has
referred to this as a ‘glaring
omission’.[4]

In the face of this history of exclusion, Aboriginal and Torres Strait
Islander peoples have consistently and vehemently fought to have our rights
recognised and acknowledged by the Australian Government and the Australian
people. In 1938, two great Aboriginal warriors stated that:

You are the New Australians, but we are Old Australians. We have in our
arteries the blood of the Original Australians; we have lived in this land for
many thousands of years. You came here only recently, and you took our land away
from us by force.[6]

There is a long history of Indigenous and non-Indigenous people calling for
this recognition including:

  • 1938 – Aborigines Conference
  • 1967 – Referendum and preceding campaigns
  • 1988 – Barunga Statement
  • 1988 – Constitution Commission’s Report
  • 1995 – Social Justice Package
    submissions[5]
  • 1999 – Referendum on the preamble of the Constitution
  • 2000 – Council for Aboriginal Reconciliation Report
  • 2008 – 2020 Summit
  • 2008 – Social Justice Report
  • 2009 – Australian Human Rights Commission Submission to the National
    Human Rights Consultation.

These examples illustrate years of
advocacy for constitutional recognition.

Since the days of the Bark Petition, Aboriginal people have been aware that
the protection offered by legislation – ranging from the Aboriginal
protection ordinances to the Land Rights Act – is only as secure as the
government of the day...We have long believed that the protection of our rights
deserves a higher level of recognition and
protection.[3]

It is upon this historical foundation that Australians are increasingly
accepting the need to address this non-recognition and exclusion through
constitutional reform.

The determination of Aboriginal and Torres Strait Islander leaders to fight
to secure our future in this nation has resulted in some improvements in the
recognition of our land, cultural and social rights. This has been reflected in
advancements such as:

  • the fight of Eddie Mabo and others for the native title rights of the Mer
    people, that led to the High Court decision of Mabo (No
    2)
    [7] and the legislative
    response, the Native Title Act 1993 (Cth)
  • the work of people such as Lowitja O’Donohue, Les Malezer, Mick
    Dodson, Megan Davis and Tom Calma in the development of the United Nations
    Declaration on the Rights of Indigenous Peoples
    (Declaration)[8] and its
    subsequent endorsement by the Australian Government.

I believe the
nation is beginning to come to terms with its true, complete history. This
requires the nation, to come to terms with a history of exclusion and the
violations of the rights of Aboriginal and Torres Strait Islander peoples.

A major step in this journey was the 1967 referendum that resulted in a
critical change that allowed Aboriginal and Torres Strait Islander people to be
counted in the census. It also gave the Australian Government the power to make
laws for Aboriginal and Torres Strait Islander peoples.

Ten years ago, the Council for Aboriginal Reconciliation identified
constitutional reform as unfinished business of the reconciliation agenda,
calling for the Commonwealth Parliament to prepare legislation for a
referendum.[9]

The most recent highpoint came in 2008, when the Prime Minister, delivered
the National Apology to Australia’s Indigenous Peoples (National Apology)
for the forcible removal of Aboriginal and Torres Strait Islander peoples from
their lands and their families.[10]

There have been some further recent positive developments with Aboriginal and
Torres Strait Islander peoples being formally recognised in several state
constitutions:

  • The Queensland Constitutional Convention, held in June 1999, recommended
    that the Constitutions of each state should recognise the custodianship of the
    land by Aboriginal and Torres Strait Islander
    peoples.[11] Queensland’s
    Constitution was formally changed in
    2010.[12]
  • In 2004, Victoria became the first state to recognise the Aboriginal people
    of Victoria in their Constitution in
    2004.[13]
  • In 2010, the New South Wales (NSW) Parliament passed legislation to
    recognise Aboriginal peoples in the NSW
    Constitution.[14]

This
recognition provides a good basis on which to build the necessary consensus
within the Australian community that Aboriginal and Torres Strait Islander
peoples should be acknowledged in the nation’s foundational legal
instrument.

At the federal level, bipartisan support for amending the Constitution in
this regard has been maintained since
2007.[15] Bipartisan support was
reaffirmed by both major parties as election commitments in the federal election
held in August 2010.[16]

In this Chapter, I build on these current developments and commitments. I
seek to answer three key questions that will go to the heart of a successful
campaign:

  • Why is there a need for constitutional reform to recognise Aboriginal and
    Torres Strait Islander peoples?
  • What could reform look like?
  • What are the next steps?

In section 2 of this Chapter I discuss
the need for and significance of constitutional reform. I focus on the symbolic
and practical effects on the lives of Aboriginal and Torres Strait Islander
peoples, as well as the benefit this could bring to all Australians.

Section 3 outlines some of the possibilities for reform. It is my belief that
the nation is ready to move beyond preambular recognition to address the
provisions of our Constitution that permit and anticipate racial
discrimination.

Section 4 analyses historical lessons and contemporary practicalities to
chart some of the essential next steps to be taken, toward achieving a
successful referendum.

We have reached a critical juncture. Australians have a rare opportunity to
stand together as one people, united in recognition of the contribution of
Aboriginal and Torres Strait Islander peoples to this land and this nation, in
the past, the present and into the future. What is at stake is an inclusive
national identity and a path towards a truly reconciled nation.

History shows that constitutional reform is not easy. As with the 1967
referendum, it will require the open hearts and minds of the majority of
Australians in order to succeed.

I believe now is the right time to take up this challenge: for Australia to
come together as a nation, as in 1967, to build the consensus and momentum to
make this reform a reality.

^Top

2.2 Why does Australia as
a nation need to recognise Aboriginal and Torres Strait Islander peoples in the
Constitution?

The Constitution demarcates the powers of each of our three branches of
governance – the Parliament, the Executive and the Courts.

The current Chief Justice of the High Court of Australia, Chief Justice
Robert French has said, ‘the Constitution creates the space in which all
other domestic laws operate in this country. It defines the extent of
[Australia’s] legal
universe’.[17]

As highlighted in Chapter 1 of this Report, I am convinced that building
positive relationships based on trust and mutual respect between Aboriginal and
Torres Strait Islander peoples and the broader Australian community is critical
to overcoming Indigenous disadvantage. I believe that constitutional reform is
necessary to facilitate the building of these positive relationships.

(a) Achieving
true equality for Aboriginal and Torres Strait Islander peoples

Achieving true equality does not mean that Aboriginal and Torres Strait
Islander peoples should be assimilated or integrated into the nation’s
governance and society. The Declaration in its second preambular paragraph
affirms:

that indigenous peoples are equal to all other peoples, while recognizing the
right of all peoples to be different, to consider themselves different, and to
be respected as such.[18]

Affirming the principles of equality, non-discrimination and the right to be
different would celebrate and respect our diversity and our culture as an
integral part of the life of the nation.

In July 2010, I voiced my support for constitutional reform to recognise
Aboriginal and Torres Strait Islander peoples and our
rights.[19] A number of questions
were raised in response. Most of these questions went to the impact that
constitutional change could have on the lives of Aboriginal and Torres Strait
Islander peoples. I believe that there are a number of significant outcomes for
us as a result of constitutional reform. I will specifically address:

  • the symbolic value of constitutional reform that leads to practical
    outcomes
  • the value of constitutional reform in contributing to greater protection of
    the rights of Aboriginal and Torres Strait Islander peoples.

I will
explain each of these below.

(i) Symbolic value leading to practical effect

Over the years, there has been plenty of debate about the value of symbolism
versus practical action.[20] I do
not believe that these are mutually exclusive, nor do I believe they should be
framed as an ‘either/or’ option. Why can’t we do both?

Symbols are an important part of building nations. They are reminders of a
collective past and provide guidance towards an aspirational collective future.
They are the things upon which practical actions should be built.

The Australian flag, the national anthem, and the green and gold colours of
national sporting teams, are all symbols that connect Australians to the
nation’s identity and inspire feelings about that identity.

Recognition is particularly important for the psyche of Aboriginal and Torres
Strait Islander peoples. Academic Waleed Aly recently commented on the positive
impact of symbolic recognition of Indigenous peoples through the welcome and
acknowledgement of country protocols:

... I'm frankly astounded to hear lots of non-Indigenous people talk about
what is and is not tokenistic on an issue like this, when so much of what
happened to the Indigenous population has deep symbolic resonance. It's not just
that they were deprived materially. It's not just lack of education. It's not
just lack of economic opportunity, although those things are extremely
important. It is also the denial of the humanity that comes with that and unless
you've experience that... I think its extraordinarily difficult to say just how
profoundly important that [recognition] can be... I don't know, I'm a bit
disturbed to hear so many people prepared just to dismiss it, when it's not
their experience to have.[21]

A senior Aboriginal activist (name not provided for cultural reasons) spoke
of the personal impact achieved by the 1967 referendum:

At the time I definitely thought that the [1967] Referendum achieved
something – personally, it made me lose my inferiority complex... It made
me prouder to proclaim my
Aboriginality.[22]

Formal recognition of Aboriginal and Torres Strait Islander peoples within
the Australian Constitution would surely strengthen this sentiment as expressed
by this senior Aboriginal man.

The positive effects of symbolic recognition extend beyond Aboriginal and
Torres Strait Islander peoples to all Australians. As noted by Professor Larissa
Behrendt:

Symbolic recognition that could alter the way Australians see their history
will also affect their views on the kind of society they would like to become.
It would alter the symbols and sentiments Australians use to express their
identity and ideals. It would change the context in which debates about
Indigenous issues and rights take place. It would alter the way the relationship
between Indigenous and non-Indigenous Australia is conceptualised. These shifts
will begin to permeate them. In this way, the long term effects of symbolic
recognition could be quite
substantial.[23]

The power of symbols is that they can inspire action. This in turn can result
in positive practical effects that lead to an improved quality of life for
Aboriginal and Torres Strait Islander peoples.

The most obvious example of an event that has achieved significant symbolic
value is the National Apology.[24] On that day, Indigenous and non-Indigenous Australians sat, held each other and
cried together. The nation took a great leap forward towards reconciling with
its past. Prior to the National Apology, many argued that an apology would be
purely symbolic, and that focus should be confined to pursuing ‘practical
reconciliation’.

Text Box 2.1: The National Apology

The National Apology was a national recognition of the effects of
government policies that dispossessed and dispersed Aboriginal and Torres Strait
Islander peoples across the country. While there are people who were directly
affected by these policies, all Aboriginal and Torres Strait Islander people
have been and continue to be affected in some way.

Symbolic value
The National Apology empowered the Stolen Generations members by
acknowledging their experience and life struggle as a result of government laws
and policies. Beyond the Stolen Generations, it was a moment for all Aboriginal
and Torres Strait Islander people to seize. Many felt for the first time that
they belonged – that we were finally acknowledged as part of the
nation.

In addition, it also had a positive impact for non-Indigenous Australians,
particularly how it affected their relationship with Aboriginal and Torres
Strait Islander peoples. The National Apology has enabled a wider understanding
and appreciation of the historical wrongs that had occurred, and was a necessary
and positive step forward to advance reconciliation.

Practical effect
In the political context, the National Apology has become a significant
point of reference. It has been referred to in parliamentary
debates[25] and
reports.[26]

The National Apology has also subsequently informed government policies and
programs. This has most visibly manifested in the establishment of the National
Aboriginal and Torres Strait Islander Healing Foundation and reinvigorated
discussion about options for reparations for the Stolen Generations.

In the legal context, Justice Kirby considered the impact of the National
Apology on legislative interpretation in the High Court’s Blue Mud
Bay
decision. Justice Kirby acknowledged that the National Apology had
bipartisan support and it

reflects an unusual and virtually unprecedented parliamentary initiative,
it does not, as such, have normative legal operation...Yet it is not legally
irrelevant to the task presently in hand. It constitutes part of the factual
matrix or background against which the legislation in issue in this appeal
should now be considered and interpreted. It is an element of the social context
in which such laws are to be understood and applied, where that is relevant.
Honeyed words, empty of any practical consequences, reflect neither the
language, the purpose, nor the spirit of the National
Apology.[27]

Those who argue against symbolic actions miss the fundamental linkage between
the symbolic and the practical. Actions that have real and lasting effect on a
community are both symbolic and practical.

I strongly believe that reforms to the Constitution to recognise Aboriginal
and Torres Strait Islander peoples and our rights will provide significant
symbolic value as well as have a profound practical effect.

This will of course depend on the extent of the reform, a point discussed in
greater detail later in this Chapter. How governments and the broader Australian
community respond to those reforms will also be critical to realising their full
potential.

In summary, symbolic recognition has the potential to:

  • address a history of exclusion of Aboriginal and Torres Strait Islander
    peoples in the life of the nation
  • improve the sense of self worth and social and emotional well-being of
    Aboriginal and Torres Strait Islander peoples both as individuals, communities
    and as part of the national
    identity[28]
  • change the context in which debates about the challenges faced by Aboriginal
    and Torres Strait Islander communities take place
  • improve the relationships between Indigenous and non-Indigenous
    Australians.

(ii) Will there be greater protection for the rights
of Aboriginal and Torres Strait Islander peoples?

It is occasionally argued that constitutional reform to recognise Aboriginal
and Torres Strait Islander peoples will result in more rights for one specific
group of people within the
nation.[29]

I believe this view is misconceived.

It fails to acknowledge the reality of our existing societies with their own
polities and legal systems prior to colonisation. It fails to reflect the
subsequent discrimination towards and the denial of the rights of Aboriginal and
Torres Strait Islander peoples.

It also fails to recognise that the historic
non-recognition of our peoples’ rights has continuing negative impacts
today.

There are parallels between the need for a Declaration recognising the rights
of Indigenous peoples and the need for constitutional reform.

Text Box 2.2: Why we need an Indigenous Declaration

James Anaya, the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people

By particularizing the rights of indigenous peoples, the Declaration seeks
to accomplish what should have been accomplished without it: the application of
universal human rights principles in a way that appreciates not just the
humanity of indigenous individuals but that also values the bonds of community
they form...

It is precisely because the human rights of indigenous groups have been
denied, with disregard for their character as peoples, that there is a need for
the Declaration. In other words...the Declaration exists because indigenous
peoples have been denied equality, self-determination, and related human rights. It does not create for them new substantive rights that others do not enjoy.
Rather, it recognizes for them rights that they should have enjoyed all along as
part of the human family, contextualizes those rights in light of their
particular characteristics and circumstances, and promotes measures to remedy
the rights’ historical and systemic violation
...

There should not have to be a Declaration on the Rights of Indigenous
Peoples, because it should not be needed. But it is needed. The history of
oppression against indigenous peoples cannot be erased, but the dark shadow that
history has continued to cast can and should be lightened. The Declaration is
needed for the difference it can and will make for the
future...[30]

 

Reform to the Constitution will address this position of entrenched
disadvantage and exclusion, rather than affording Aboriginal and Torres Strait
Islander peoples’ additional rights. Professor Pat Dodson, one of the
leaders of reconciliation, has aptly stated that this is a matter of
‘justice, not special
benefit’.[31]

Recognition of Aboriginal and Torres Strait Islander peoples in the
nation’s foundational document will redress a history of exclusion, and
have the concrete impact of recognising us as Australia’s indigenous
peoples within the nation’s governance.

One of the fundamental rights that most Australians take for granted is the
right to live free from discrimination. However, the Constitution currently
offers no protection of this right. While recognition of Aboriginal and Torres
Strait Islander peoples can be accommodated through inserting a new preamble
into the Constitution, change to the body of the Constitution will be required
to ensure protection against discrimination.

Aboriginal lawyer and academic Megan Davis observes that:

In Australia, Indigenous interests have been accommodated in the most
temporary way, by statute. What the state gives, the state can take away, as has
happened with the ATSIC, the Racial Discrimination Act and native
title.[32]

Relying on the benevolence of parliament to protect the rights and interests
of all Australians does not provide adequate protection against
discrimination.[33]

Aboriginal and Torres Strait Islander peoples are particularly vulnerable to
this lack of protection. The Racial Discrimination Act 1975 (Cth) (RDA)
has been compromised on three occasions: each time it has involved Aboriginal
and Torres Strait Islander issues.

There is no clearer evidence of this discriminatory effect, than the Northern
Territory Emergency Response (NTER) that affects 73 remote Indigenous
communities in the Northern Territory.

The NTER in its original application was not subject to the RDAthe federal legislation designed to ensure equality of treatment of all
people regardless of their race. The RDA as an Act of Parliament can be
disregarded simply through the passage of further legislation. The Constitution
as it currently stands did not prevent the suspension of the RDA. Therefore, it
was ineffective in protecting our peoples from the most fundamental of all
freedoms, the freedom from
discrimination.[34]

In order to address this inadequacy and the historical denial of justice,
substantive constitutional change is necessary to improve the protection of
Aboriginal and Torres Strait Islander peoples’ rights against
discrimination.

(b) Achieving a unified
nation within Australia

With the National Apology the nation has been
given a wonderful opportunity to begin to make justice possible not only for the
Aboriginal people but for all the people of this nation. Justice denied one
group within the nation is a diminishment of us all and the nation will remain
diminished until the wrong is
righted.[35]

Recognising Aboriginal and Torres Strait Islander peoples and our rights will
positively benefit all Australians. It will:

  • enrich the identity of the nation
  • improve the effectiveness of the nation’s democracy through increasing
    the protection of the rights of all Australians
  • make significant headway towards a reconciled Australia.

(i) Enriching the nation’s identity

In the National Apology the Prime Minister honoured and acknowledged
Aboriginal and Torres Strait Islander peoples as the ‘the oldest
continuing cultures in human
history’.[36] This is not
simply a matter of our identity as Aboriginal and Torres Strait Islander
peoples; it also informs the nation’s identity. Former Prime Minister Paul
Keating articulated this in his famous Redfern Speech in 1992.

Text Box 2.3: The Redfern Address: Prime Minister Paul Keating

It is a test of our self-knowledge.
Of how well we know the land we live in. How well we know our
history.
How well we recognise the fact that, complex as our contemporary identity
is, it cannot be separate from Aboriginal Australia.

The message should be that there is nothing to fear or to lose in the
recognition of historical truth, or the extension of social justice, or the
deepening of Australian social democracy to include Indigenous
Australians.

We cannot imagine that the descendants of people whose genius and
resilience maintained a culture here through fifty thousand years or more,
through cataclysmic changes to the climate and environment, and who then
survived two centuries of dispossession and abuse, will be denied their place in
the modern Australian
nation.[37]

 

Constitutional expert, Professor George Williams argues that ‘the story
of our nation is incomplete without the histories of the peoples who inhabited
the continent before white
settlement’.[38] In fact it
has been argued that in failing to acknowledge the prior presence of Aboriginal
and Torres Strait Islander peoples, the current Constitution works to perpetuate
the myth of terra nullius (no man’s
land).[39]

When the British arrived they treated the land no known as Australia as
‘no man’s land’. This characterisation was justified because
the ‘indigenous inhabitants were regarded as barbarous or unsettled and
without law’.[40] The historic
High Court decision on Mabo swept away the historical myth of terra
nullius
. The High Court decided:

The fiction by which the rights and interests of indigenous inhabitants in
land were treated as non-existent was justified by a policy which has no place
in the contemporary law of this
country.[41]

However, despite the advances made by the Mabo (No 2) decision, the
Constitution continues to overlook the prior presence of Aboriginal and Torres
Strait Islander peoples and societies.

Recognising Aboriginal and Torres Strait Islander peoples’ within the
Constitution will enrich the nation’s identity, making it an inclusive one
that reflects both the ‘old’ and the ‘new’
Australians.

(ii) Improving the effectiveness of our democracy:
Protecting the human rights of the Australian Community

Keating’s Redfern Address described the test of extending care, dignity
and hope to the Aboriginal and Torres Strait Islander peoples of Australia as
the fundamental attributes of Australia’s reputation as a first rate
social democracy.

Text Box 2.4: The Redfern Address: Prime Minister Paul Keating

[I]n truth, we cannot confidently say that we have succeeded as we would
like to have succeeded if we have not managed to extend opportunity and care,
dignity and hope to the indigenous people of Australia - the Aboriginal and
Torres Strait Island people.

This is a fundamental test of our social goals and our national will: our
ability to say to ourselves and the rest of the world that Australia is a first
rate social democracy, that we are what we should be – truly the land of
the fair go and the better
chance.[42]

 

Unfortunately, as noted by George Williams, Australia

holds the dubious distinction of being perhaps the only country in the world
whose Constitution still contains a ‘races power’ [section 51(xxvi)]
that allows the Parliament to enact racially discriminatory
laws.[43]

Section 25 of the Constitution also contemplates the exclusion of voters
based on race. It was aptly described by the 1988 Constitutional Convention as
‘odious’.[44] It has no
place in a modern democracy. This provision reflects that for decades after
Federation, Australian states denied Aboriginal and Torres Strait Islander
peoples voting rights.[45] The
potential for people to be disqualified from voting extends to all races and is
not limited to Aboriginal and Torres Strait Islander peoples. This provision,
that contemplates discrimination on the basis of race, has not been amended or
remedied.[46]

George Williams points out that Australia’s Constitution was drafted
against a backdrop of racism that led to the White Australia policy and a range
of other discriminatory laws and
practices.[47]

The drafters of the Constitution were men of their time. Their thinking was
influenced by the ‘political and social imperatives’ of the
day.[48]

Australia has long since progressed from the views of this time in other
important ways – for example women’s suffrage was achieved in the
early years of the new Federation (when all women were entitled to vote) and the
White Australia policy was ended in the early 1970s.

So why does this historical backdrop continue to inform our contemporary
legal landscape in relation to Aboriginal and Torres Strait Islander peoples?

The proposed referendum provides an opportunity to address this fundamental
flaw in the Constitution, which is incompatible with an effective social
democracy.

The Social Justice Report 2008 argued that while constitutional change
cannot be a panacea for everything, it is about ensuring that the
‘founding document sets out the ambitions and expectations for all
Australians’.[49] It argues
that the Constitution should ‘reflect a modern, twenty first century
Australia by providing a legal foundation for reconciliation, where human rights
are respected at all levels of
government’.[50]

The absence of human rights protections, particularly protection against
discrimination, from the Constitution does not only affect Aboriginal and Torres
Strait Islander peoples. This affects all Australians.

(iii) Headway towards a reconciled nation

Inaugural Co-Chair of the National Congress of Australia’s First
Peoples (National Congress), Sam Jeffries believes that:

To create a meaningful and lasting partnership, Aboriginal and Torres Strait
Islanders must be part of the Constitution - the document that defines the
nation’s soul. 

I have confidence that there is goodwill in the community to see this type of
practical reconciliation accomplished. 

The Congress sees reform as a necessity to underpin a new relationship with
all Australians. This is fundamental to build a just and modern
Australia.[51]

The acknowledgement of the existence of Aboriginal and Torres Strait Islander
peoples as a unique element of the nation is something of which all Australians
can be proud.

Achieving a successful referendum will not be easy and it will require a
united effort. Australians will need to walk together and talk together in order
to achieve reform to the Constitution so that it truly reflects the heart and
soul of the nation. In this way the process of undertaking a campaign for
constitutional recognition can itself have a reconciling effect.

Larissa Behrendt has noted that throughout Australia’s history there
have been a number of significant moments when Australians have stood up and
spoken out in support of Aboriginal and Torres Strait Islander
peoples.[52] The 1967 referendum was
one such moment. More recently there was the Reconciliation March in the year
2000, and the National Apology in 2008. If it were possible to harness such
historic moments of support, constitutional reform to recognise Aboriginal and
Torres Strait Islander peoples would be more than a mere possibility. Professor
Mick Dodson has also professed his belief in the capacity of the Australian
population to embrace our recognition:

... [T]he capacity to embrace the past honestly, and acknowledge its truths,
goes to the very depths of our national identity and what we stand for as
peoples. We must rid ourselves of this psychological cloak of darkness before it
becomes our shroud.

...

It’s not a big ask.

It’s something that Australians are eminently capable of
doing.[53]

I agree with Larissa Behrendt and Mick Dodson. Constitutional reform is
something Australians are ready for.

By its very nature, the Constitution is an instrument of the people. It is
the people who have the power to change or amend it. Through this reform
process, the nation will be able to decide how it wants its first peoples
positioned in the nation and what sort of protections it wants to assure for all
its citizens.

I am confident that the nation can agree on a reform process that maximises
benefits for Aboriginal and Torres Strait Islander peoples, for the broader
Australian community and for the nation.

^Top

2.3 What
could reform look like?

To ensure this destination is reached, the nation needs to know what reform
could look like. It is essential that the proposal put to the Australian people
is sound and sensible.[54] This
requires informed debate about the various possibilities for reform.

The proposed reform should be underpinned by a real commitment to:

  • improve the lives of Aboriginal and Torres Strait Islander peoples
  • ensure adequate protection of the human rights of all Australians
  • ensure a solid foundation upon which to build a reconciled
    nation.

A reform proposal grounded in these commitments is something
that I believe Aboriginal and Torres Strait Islander peoples and the broader
Australian public can relate to and support.

The extent of reform could be limited to inserting a new preamble that
recognises Aboriginal and Torres Strait Islander peoples as the first peoples of
Australia and our unique place in the history and future of the nation.
Alternatively, the opportunity could be taken to the next level and address
issues within the body of the Constitution.

Early discussions about the extent of reform indicated a narrow focus on
‘[only] options for recognising Indigenous people in the preamble to the
Constitution’.[55]

While this appears to be the position of some, the majority of Aboriginal and
Torres Strait Islander people that I have canvassed constitutional reform with
hope to achieve broader reform that addresses the discriminatory provisions
within the Constitution.

Megan Davis and Dylan Lino observe that there are a number of key
possibilities for reform within the existing provisions of the Constitution,
some of which have been proposed over the years including:

  • inserting a new preamble recognising Aboriginal and Torres Strait Islander
    peoples
  • amending the races power (s 51 (xxvi)) – either total repeal or
    amendment so that it can only be used for beneficial purposes
  • the deletion of s 25, which contemplates electoral disqualification on the
    basis of race
  • dedicated parliamentary seats for Indigenous people
  • the entrenchment of a treaty or a treaty-making power
  • the protection of Indigenous-specific rights, such as rights to lands and
    territories
  • guarantees of equality and non-discrimination
  • changes to how federalism impacts on Indigenous people
  • the move to an Australian
    republic.[56]

Megan
Davis, in her role as Director of the Indigenous Law Centre based in the Faculty
of Law at the University of New South Wales, heads a research project on
constitutional reform and Indigenous peoples. This project is currently
considering these possibilities. [57]

Decisions on the extent of reform will require significant, detailed and
informed debate. As public representatives, parliamentarians at all levels and
across all persuasions, must be informed by the view of the broader Australian
community, garnered through public education campaigns and consultations.

(a) Preambular
reform

The preamble for the Australian Constitution is contained within the Commonwealth of Australia Constitution Act 1900 (Imp), the Act of the
British Parliament that established the Australian Commonwealth. As such it
precedes the Constitution, and is not formally part of the Constitution itself.

There is legal uncertainty as to whether the existing preamble can be altered
by referendum pursuant to s 128 of the Constitution. As a result, the 1999
referendum proposed to insert a new preamble at the beginning of the
Constitution, rather than to amend the preamble at the head of the Australia
Constitution Act 1900
(Imp).[58]

Despite not being formally part of the Constitution, the existing preamble

can be legitimately consulted for the purpose of solving an ambiguity or
fixing the connotation of words which may possibly have more than one
meaning....[b]ut the preamble cannot either restrict or extend the legislative
words, when the language is plain and not open to doubt, either as to its
meaning or scope.[59]

The existing preamble’s focus is on the federation of Australia. It
includes the following elements:

  • the agreement of the people of Australia
  • their reliance on the blessing of Almighty God
  • the purpose to unite
  • the character of the union - indissoluble
  • the form of the union - a Federal Commonwealth
  • the dependence of the union - under the Crown
  • the government of the union - under the Constitution
  • the expediency of provision for admission of other colonies as
    States.[60]

A
significant amount of work has already been progressed in suggesting appropriate
alternative wording for a new preamble. As outlined below, one of the key
lessons to be learned from the 1999 referendum on the preamble is the importance
of full and proper consultation with Aboriginal and Torres Strait Islander
peoples on the form of recognition.

It is my view that, in order to be meaningful, the recognition of Aboriginal
and Torres Strait Islander peoples in a new preamble should include
acknowledgment:

  • of our historical sovereignty, stewardship, ownership and custodianship
    prior to colonisation
  • that we are the oldest living cultures in the world and that the Australian
    nation is committed to preserving and revitalising our cultures
  • that Aboriginal and Torres Strait Islander peoples as traditional owners,
    custodians and stewards continue to make a unique and significant contribution
    to the life of the nation
  • that our cultures, identities and connections to our lands and territories
    continue.

(b) Reform to the body
of the Constitution

It would be unwise to prematurely confine this debate on constitutional
reform to preambular recognition of Aboriginal and Torres Strait Islander
peoples. Mick Dodson has suggested that:

The three key international principles of human rights I would like to see
entrenched in our Constitution are the principles of equality,
non-discrimination and the prohibition of racial
discrimination.[61]

I believe considerations for more substantive reform should address the
provisions within the body of the Constitution that permit, enable or anticipate
racial discrimination – namely ss 25 and 51(xxvi).

The races power (s 51(xxvi)) enables the Parliament to make ‘special
laws’ with regard to such groups. The problem is that the Constitution
does not stipulate that these ‘special laws’ or policies should benefit those affected, as opposed to discriminating against
them.[62]

On this basis, the current Chief Justice of the High Court has noted that the
races power is still not satisfactory despite the changes to it from the 1967
referendum:

The intention of the [1967] amendment was entirely beneficial. That however
did not turn the power generally into a beneficial one. The weight of High Court
authority supports the view that s 51(xxvi) authorises both beneficial and
adverse laws. It can properly be described as a constitutional
chimera.[63]

Section 51(xxvi) is applicable to all races within the Australian community.
For this reason, all Australians are not protected from being discriminated
against on the basis of their race.

Addressing this situation is, however, complex. My predecessor has warned
against focussing on the wording of s 51(xxvi) as providing the solution. A
focus on clarifying that this provision can only be used for beneficial purposes
could provide ineffective protection. This is because determining what actually
constitutes a benefit is essentially a complicated and subjective test:

It is also not difficult to imagine a future situation where a government
might pass particular legislation proclaiming that it was intended to improve
the welfare and wellbeing of Indigenous peoples [or other races], even though
the legislation was contrary to the consent of the
peoples.[64]

For this reason, reforms that introduce a broader protection against
discrimination may be more effective (as discussed below).

The Social Justice Report 2008 identified the need to reform the body
of the text of the Constitution including:

  • removing s 25 which anticipates people being disqualified from voting on the
    basis of their race
  • inserting a provision that guarantees, for all Australians, equality before
    the law and freedom from discrimination – with such a protection drafted
    in a way that would guide the operation of s 51(xxvi) to ensure that
    ‘special laws’ for the people of a particular race could not be
    made
    if they were
    discriminatory.[65]

Constitutional
reform processes by their nature form an integral part of building a
nation’s identity. In the 21st century I think that the
majority of Australians would be offended were they to know that their
Constitution permits the Commonwealth Parliament to validly enact laws that are
racially discriminatory. Or that contemplates that people could be disqualified
from voting simply on the basis of their race.

I do not think these provisions reflect what the nation wants in a modern
Australia. In fact, quite the opposite.

Most Australians I meet pride themselves on being part of a liberal
democratic society that does not condone discrimination or racism. However, it
can be inferred from the National Human Rights Consultation that the majority of
Australians are probably not aware these provisions are contained in the
Constitution.[66]

The presence of these provisions in the nation’s foundational document
goes to the core of Australia’s national identity and beliefs. I am a firm
believer that if Australians were aware that their Constitution did not protect
its citizens from discrimination, the nation would take collective action to
bring about reform to enshrine the principles of non-discrimination and
equality.

Making changes to the body of the Constitution will require the innovative
thinking of constitutional technicians to work through the various opportunities
and options for change in order to present clear, considered and developed
proposals to the Australian public.

For example, the research project headed by Megan Davis on constitutional
reform and Indigenous peoples, highlighted above, is examining a range of
reforms to the Constitution. The extent of reform should be informed by the
results of the research project and the views of other experts. It should also
be informed by the views and voices of Aboriginal and Torres Strait Islander
peoples, who have historically been excluded from such processes.

Potential proposals must be capable of being readily communicated to and
understood by the Australian public. Persuasive arguments, using plain-English,
must be developed to justify why reform will benefit Aboriginal and Torres
Strait Islander peoples and the broader Australian community.

Ensuring the Australian community can effectively participate in the
processes leading up to the referendum will require them to be fully informed
and educated on these issues. This will be discussed further below.

^Top

2.4 What are the next
steps to a successful referendum?

The Australian Constitution can only be altered by referendum. Section 128 of the Constitution and the Referendum (Machinery Provisions) Act 1984 (Cth) set out the procedure for amending the Constitution by referendum.

Text Box 2.5: Procedure for amending the Australian
Constitution

The key steps to holding a
referendum
[67]

  1. The proposed changes to the Constitution are set out in a Bill of
    Parliament. The Bill must be passed by an absolute majority of both houses of
    Parliament. Alternatively, if there is disagreement between the houses that has
    lasted for three months over the proposal, the referendum as originally proposed
    in either house may proceed.
  2. The referendum is held between two and six months after the Bill is passed
    by Parliament.
  3. A majority of voters nationwide, plus a majority of voters in a majority of
    States (four out of six) must approve the referendum. This is known as the
    ‘double majority’.
  4. After passage by the voters, the proposed alteration to the Constitution
    requires the Royal Assent.[68]

The referendum process
The Yes/No arguments

Within four weeks after the Bill is passed, a majority of the
Parliamentarians who voted for the proposal prepare a ‘Yes’ case
(the arguments for making the amendments); and a majority of those who voted
against it prepare a ‘No’ case (the arguments for voting against the
amendments). If there is unanimous support only a ‘Yes’ case is
prepared.

Holding the referendum

After the Bill is passed the Governor-General issues a writ for the
referendum.

The polling day, which must be on a Saturday, is set between 33 and 58 days
after the issue of the writ.

The Electoral Commissioner must provide every elector on the roll later, at
least 14 days before polling day, the following:

  • a statement outlining the proposed amendments
  • the ‘Yes’ case
  • the ‘No’ case (if there is one).

At the referendum
electors vote by writing either ‘Yes’ or ‘No’ in the box
opposite each question on the ballot paper.

The result of the referendum

If the referendum is supported by a double majority the Governor-General
gives the proposed law Royal Assent and the Constitution is altered.

 

The stringent requirements for ‘double majority’ indicate that
the drafters did not intend the Constitution to be easily amended. Nor has it
proved to be:

  • there have been 44 referendums held since 1901
  • only eight of these have been successful
  • the last successful referendum was held in 1977
  • the last referendum was held in
    1999.[69]

Australia’s Constitution ranks as the most difficult in the
world to amend.[70] As a
consequence, the vast majority of our Constitution remains as originally
enacted. It continues to reflect the legacy of being an instrument crafted in an
era when racial discrimination was not considered unacceptable.

Despite the apparent difficulty of the task at hand it must be remembered
that the original drafters of the Constitution in drafting s 128 (the referendum
provision), empowered the people to mould and shape the Constitution to reflect
the nature of our current
society.[71] It is we the
people
who can change our Constitution.

Aboriginal
and Torres Strait Islander peoples have been the subject of three referendums to
date (1944, 1967, and 1999), of which only one was successful (1967). The
insertion of a new preamble has been the subject of one referendum to date
(1999) and it was unsuccessful.

Text Box 2.6: The 1944, 1967 and 1999 referendums

The 1944
referendum
[72]
The 1944 referendum sought to give the federal government power over
a period of five years, to legislate on a wide variety of matters including the
ability to legislate for Indigenous
Australians.[73] It obtained
majority in two states and only obtained 45.99% of the national vote, and
therefore was not carried.[74]

The 1967 referendum
On 27 May 1967, after years of campaigning by numerous Aboriginal and
Torres Strait Islander leaders and organisations, the nation went to the polls
to decide if the Constitution should be amended to:

  • give the federal parliament the power to make laws in relation to Aboriginal
    and Torres Strait Islander people (amending s 51(xxvi))
  • allow for Aboriginal and Torres Strait Islander people to be included in the
    census (removing s 127).[75]

The result was an overwhelming 90.77% vote to support the
referendum. A majority in all states voted to support the referendum. It is the
most successful referendum result in Australian
history.[76]

The 1999 referendum
Following much public debate and a Constitutional Convention on whether
Australia should become a republic, the nation went to the polls on 6 November
1999. The referendum proposed two amendments to:

  • alter the Constitution so that Australia became a
    republic[77]
  • insert a new
    preamble.[78]

The
result was a no vote for both amendments. On the question of a republic, 54.87%
voted against the proposal and on the question of the preamble 60.7% voted no.
In no state did a majority vote yes for either
question.[79]

 

George Williams and David Hume have analysed Australia’s history of
referendums and identified some critical factors that are essential for a
successful referendum. They include:

  • bipartisan support
  • popular ownership
  • popular
    education.[80]

While
there are lessons to be learnt from all previous referendums, for the purposes
of this Chapter, I will use these key factors to compare the stark outcomes of
the 1967 and 1999 referendums. Rather than providing a comprehensive historical
analysis of these two referendums, I will draw out key lessons that can provide
guidance for the proposed referendum.

(a) Bipartisan
support

National bipartisan support is essential for the successful passage of any
referendum. While it is not a guarantee for success, no referendum has been
successful without it. Because of the ‘double majority’ needed,
bipartisan support at the state and territory level is also
essential.[81]

At the moment bipartisan support for recognition of Aboriginal and Torres
Strait Islander peoples in the Constitution has been expressed by the Labor
Party, the Coalition and the Greens. The Independents have also expressed their
support.

Maintenance of this level of bipartisan support throughout the course of the
referendum process will be critical. For instance, if there is no dissent during
the passage of the referendum Bill through both houses of parliament, only a
‘Yes’ case needs to be prepared. If this is achieved, a
‘No’ case will not be developed.

(i) The 1967 referendum

The 1967 referendum was preceded by over 30 years of advocacy by Aboriginal
and Torres Strait Islander peoples and the broader Australian population. The
years of advocacy led to an extended period of national debate. It was this
debate that helped generate a climate of consensus. This in turn helped achieve
a political consensus that garnered bipartisan
support.[82]

The strength of the parliamentary support for the referendum was reflected in
the fact that a ‘No case’ was not put to the Australian
people.[83]

Without a ‘No case’ the message to support the referendum was
communicated to the Australian people in a clear and concise way, ‘Vote
Yes for the Aborigines’. The pictures and the slogans of the Vote Yes
Campaign in the 1967 referendum captured the hearts and minds of Australian
people.

Figure 2.1: Pamphlet, 'Right Wrongs Write YES for Aborigines on May
27’[84]

Images of babies and children were frequently used in the referendum campaign.

 

(ii) The 1999 referendum

In direct contrast to the 1967 referendum, the question on the proposed
preamble in the 1999 referendum was characterised by political disunity. This
politicised the campaign and undermined its chances of success.

The question of inserting a new preamble gained momentum during the
Constitutional Convention in 1998, the Australian Government’s formal
process of consultation on the issue of whether Australia should become a
republic.[85] The Constitutional
Convention identified several elements that could be reflected in a new
preamble, including recognition of Aboriginal and Torres Strait Islander
peoples.[86]

It was during the drafting of the proposed text for the new preamble that the
process became politicised. This drafting was undertaken largely by the then
Prime Minister, working with poet Les Murray, and was done without bipartisan
support.[87] Further differences
between the political parties emerged over the proposed wording for the
recognition of Aboriginal and Torres Strait Islander peoples.

The Opposition pre-empted the Prime Minister’s version with its own
preamble. This version was subsequently supported by the Australian Democrats
and the Australian Greens. Their version recognised Indigenous Australians as
'the original occupants and custodians of our
land'.[88]

The Prime Minister's draft was released for comment on 23 March 1999. He
considered it to reflect 'a sense of who we are, a sense of what we believe in,
and a sense of what we aspire to achieve in the
future'.[89] It only referred to the
historical nature of the Aboriginal and Torres Strait Islander peoples
connection with the land, and omitted any reference to custodianship:

Since time immemorial our land has been inhabited by Aborigines and Torres
Strait Islanders, who are honoured for their ancient and continuing
cultures.[90]

Almost seven hundred submissions were received on the draft preamble. The
response was largely critical of the content of the proposed preamble including
the failure to go beyond recognition of prior occupation. In addition to the
substance of the proposed preamble, there were objections to the process by
which it was drafted.[91]

On 11 August 1999, the final version of the second preamble was released with
the introduction in the House of Representatives of the Constitution Alteration
(Preamble) Bill 1999.

(iii) Lessons learnt

The contrast between the bipartisan nature of the 1967 referendum and the
partisan politics that undermined the 1999 preambular proposal could not be more
stark.

It is essential that as this referendum campaign progresses, the current
bipartisan support is maintained. Strong and secure bipartisan support from all
levels and persuasions of government, as well as the community sector will be
critical to success.

With bipartisan support from all of the major political proponents at the
Federal level, we have achieved the first major milestone in the journey ahead.
If bipartisan support can be maintained and the referendum Bill can pass through
Parliament unanimously, we might again be in a position for another campaign
with only the ‘Yes Case’. This would be an optimal outcome.

It will also be important to secure bipartisan support at the state and
territory levels of governments. As an Australian Government priority,
constitutional reform must be placed on the COAG agenda.

(b) Popular
ownership

There is often greater support and strength for a proposal that is championed
by the people. Proposals that are perceived to be developed for political
purposes or written by a minority of people in positions of power are less
likely to be seen as relevant to people’s lives, and therefore less likely
to garner their support.

It is therefore not surprising that creating opportunities for all
Australians to participate in discussion and debates throughout the entire
referendum process are necessary. This creates popular ownership in the process.
Providing sufficient time and opportunity for comprehensive debate on the issues
has been a critical factor in successful referendums. It is important that the
referendum is not perceived as owned either by politicians or the elite, but by
the nation as a whole.[92]

Widespread involvement by the public must continue through to the development
of the proposed amendments.[93]

(i) The 1967 referendum

The success of the 1967 referendum did not happen over night. Nor did it
happen in a vacuum. A critical factor in the outcome was the years of
campaigning that preceded the vote, by both Aboriginal and Torres Strait
Islander peoples as well by members of the broader Australian public.

Many Aboriginal and Torres Strait Islander men and women fought long and
painful battles to achieve such a great victory. The battle began well over 30
years before the referendum. Activists such as William Cooper, John Patten
(sometimes known as Jack), William (Bill) Ferguson, and Charlie Perkins, Pearl
Gibbs and Joyce Clague just to name a few, all played a significant role in the
lead up to the 1967 referendum. Others like, Faith Bandler, a South Sea Islander
woman, also fought alongside our leaders.

A number of events and organisations influenced and educated the broader
Australian community about the conditions that Aboriginal and Torres Strait
Islander people were living in and the treatment they were subjected to. These
organisations and events played an important role in influencing the decision to
hold the referendum, including:

  • The bark petitions presented to the Australian Prime Ministers and
    the Commonwealth Parliament over the years in 1963 (the only one to have been
    formally recognised), 1968, 1998 and 2008. The bark petitions are considered
    'founding documents' of Australian democracy and were a catalyst for a long
    process of legislative and constitutional reform to recognise the rights of
    Aboriginal and Torres Strait Islander
    peoples.[94]
  • The establishment of the Australian Aboriginal League (AAL) founded
    by Yorta Yorta man William
    Cooper.[95]
  • The establishment of the Aboriginal Progressive Association (APA) was
    led by Fred Maynard, John Patten and William Ferguson. The APA with the AAL
    declared that ‘Australia Day’ in 1938 – coinciding with the
    150th anniversary of the landing of the colonisers – would be a
    Day of
    Mourning
    ’.[96]
  • The Federal Council for the Advancement of Aboriginal and Torres Strait
    Islanders (FCAATSI)
    – formerly the Federal Council of Aboriginal
    Advancement – was established as an overarching body for the various
    Aboriginal political organisations emerging in the late 1950s. FCAATSI focused
    on equal citizenship rights and specific rights for Aboriginal and Torres Strait
    Islander peoples. As early as 1958 FCAATSI officially decided to push for a
    referendum.[97]
  • Coinciding with the civil rights movement in the United States, students at
    the University of Sydney formed the Student Action for Aborigines (SAFA) headed by Charlie Perkins. In 1965 SAFA undertook the Freedom
    Rides
    – travelling across regional NSW towns drawing public attention
    to the treatment of Aboriginal
    people.[98]
  • In March 1962 the Commonwealth Electoral Act 1962 (Cth) belatedly
    provided for Aboriginal and Torres Strait Islander peoples the right to
    vote
    in federal elections. States and territories also amended their laws
    and by 1965 Aboriginal and Torres Strait Islander people across Australia had
    the right to vote.[99]
  • The Aboriginal Australian Fellowship (AAF) a broad coalition. One of
    the AAF’s key activities was to campaign for changes to the
    Constitution.[100]
  • The Vote Yes Campaign was launched on 2 April 1957. The campaign was
    led by Indigenous activists including Pearl Gibbs and Joyce Clague and
    non-Indigenous activists including Faith Bandler and Lady Jessie Street. The ten
    year campaign involved rallies and demonstrations across Australia. Support for
    the referendum began to grow rapidly. Petitions were repeatedly presented to
    Parliament
    House.[101]

Finally,
after years of advocacy, in February 1967 the Australian Government agreed to
hold a referendum on this issue. [102] The preceding campaigns
influenced the decision to hold the referendum, and as a consequence there was
popular ownership of it. Importantly, this ownership extended to both Aboriginal
and Torres Strait Islander peoples and the broader Australian public.

(ii) The 1999 referendum

The Australian Government undertook a formal consultation on the issue of
whether Australia should become a republic. The consultation, held in February
1998, was in the form of a Constitutional Convention.
One hundred and
fifty-two delegates from all around Australia attended the Convention. The
delegates were a combination of elected and appointed delegates.

Seventy-six delegates were appointed by the Australian Government and
included parliamentary, community, Indigenous and youth representatives from
every state and territory. The other 76 delegates were elected by the Australian
voters. Having half of the delegates elected by the Australian population was a
means of ensuring the Convention was representative.

A voluntary postal ballot was conducted by the Australian Electoral
Commission in late 1997 to elect these delegates. It was the largest national
postal ballot ever held in Australia, with the participation of 47% of eligible
voters. The 76 elected delegates were chosen from 690 nominated candidates.

The delegates met for 12 days. During this time they examined different
models for choosing a republican head of state. The options discussed included
by direct election, appointment by a Constitutional Council, and election by
Parliament. The delegates also considered issues such as the powers, title and
tenure of a new head of state, and proposals for a new preamble to the
Australian Constitution.

The government committed to submitting the republican model that emerged from
the convention to a referendum to be held before the end of 1999. The Convention
supported an in-principle resolution that Australia should become a republic and
recommended that the 'bipartisan appointment of the President model' and other
related constitutional changes be put to the Australian people at a
referendum.[103]

The establishment of the Constitutional Convention was a representative
process. However, as the campaign continued, it became more politicised and
Australian people felt more isolated from the debates. It is critical that
Australian people not only actively participate but feel a sense of ownership of
the process.

The politicisation of the process and the focus on the republic itself
marginalised the public and diluted and confused messaging about proposed
preambular reforms. In the end, the debate about the preamble failed to capture
the public’s
imagination.[104]

Furthermore, the 1999 preamble proposal also contained several other
controversial aspects (that did not relate to recognition of Aboriginal and
Torres Strait Islander peoples), which meant that the proposal was unlikely to
obtain sufficient
support.[105]

The extent of recognition was also contentious. The Prime Minister’s
version of the preamble constrained itself to referring only to past occupation
and recognising the ‘continuing cultures’ of Aboriginal and Torres
Strait Islander peoples, but as several commentators noted at the time, it did
not extend to explicitly recognising land ownership or custodianship
prior to settlement.[106] This
isolated many Aboriginal and Torres Strait Islander peoples from supporting the
proposed preamble. This was influenced by the lack of consultation with
Aboriginal and Torres Strait Islander
peoples.[107]

(iii) Lessons learnt

Much of the success of the 1967 referendum was due to the fact that the Vote
Yes campaign built upon the momentum already generated by a series of preceding
Indigenous rights campaigns. These campaigns were driven by key Aboriginal and
Torres Strait Islander advocates and organisations who worked together with
non-Indigenous advocates for the recognition of Aboriginal and Torres Strait
Islander peoples’ rights. The widespread consensus generated by extensive
national debate over several years was fundamental to its success and
contributed to a sense of public investment and
ownership.[108]

In contrast the 1999 referendum, despite starting out as a representative
process, became a political and elitist process with the Australian population
becoming marginalised.

Referendums are the people’s opportunity to change their nation’s
governance framework. The public must be front and centre throughout the entire
process. The role of politicians is to facilitate and enable this public
voice.

Consequently, the active engagement of the Australian public must be sought
and achieved. To this end widespread consultation throughout the referendum
process is fundamental to its success. There are two aspects of an engagement
strategy that will be essential:

  • engagement with Aboriginal and Torres Strait Islander peoples
  • engagement with the broader Australian population.

In 1999, the
lack of consultation and incorporation of Indigenous views in the draft preamble
meant that it was viewed by many Aboriginal and Torres Strait Islander peoples
as ‘yet another blow to
reconciliation’.[109] Proper
engagement with Aboriginal and Torres Strait Islander peoples in the referendum
process can itself be a vehicle of reconciliation. In this way, the process of
engagement and consultation becomes as important as a positive outcome.

The consultation process will need to be undertaken with Aboriginal and
Torres Strait Islander peoples, drawing on their contributions for how best to
reflect recognition of Aboriginal and Torres Strait Islander peoples in the
Constitution.

In addition to engaging with Aboriginal and Torres Strait Islander peoples
there will need to be extensive engagement with the broader Australian
community.

This debate should focus on Australia’s national identity, belonging,
and the place of Indigenous peoples in our society to ensure the broadest
possible consensus for any proposed constitutional amendment.

As I said in my address to the National Press Club:

Yes, there will be debates, speeches, opinion pieces in the press, people
prowling the parliamentary corridors, Constitutional lawyers at 10 paces, yea
and nay sayers, documentaries, panel discussions, arguments at dinner parties,
barbecues and in front bars – all of these things.

[It is] precisely all of these things that will build awareness, focus minds
and hearts and help move us all forward as a
nation.[110]

(c) Popular
education

The 2009 National Human Rights Consultation highlighted a general lack of
knowledge and understanding by the Australian public of the nation’s
political and legal system, constitution and referendum
processes.[111]

The lack of knowledge was of such an extent that the primary recommendation
of the National Human Rights Consultation Committee was that education should be
the highest priority for improving and promoting human rights in
Australia.[112]

Consequently it is important that comprehensive and accurate information is
provided to the public to inform their vote.

Further, past referendums have demonstrated that the greater the
understanding among the Australian public of the issues being proposed, the
greater the chance the referendum will be
supported.[113]

The ‘Yes/No’ booklet often does not suffice to provide the
balanced and credible information that is
required.[114]

(i) The 1967 referendum

The advocacy that led up to the 1967 referendum was essential in raising
awareness of the conditions faced by Aboriginal and Torres Strait Islander
peoples in Australia at the time. This was an educative function in its own
right.

However, a necessary part of any formal education campaign must be clear and
concise messaging as to what the referendum is actually proposing to
achieve.

The 1967 referendum evidenced the importance of ensuring that the Yes
argument is clear and concise. Despite the technical nature of the amendments,
it was the clarity of message that mobilised the Australian population in record
numbers to vote yes.

There is an inherent tension at play between a clear articulation of the
precise legal effect of the referendum and the need for a simple and concise
message to garner majority support.

(ii) The 1999 referendum

The 1999 referendum witnessed the establishment of a ‘neutral
campaign’ as well as the ‘Yes’ and ‘No’
Committees. The Referendum (Machinery Provision) Act 1984 (Cth) was
amended to allow for the ‘Yes’ and ‘No’ Committees to be
allocated campaign funds of $7.5 million each and the 'neutral' campaign was
allocated a further $4.5
million.[115]

The 39 page ‘Yes/No’ booklet published by the Australian
Electoral Commission became the main source of information during the formal
campaign.

The information provided in the booklet was drafted by the corresponding
members of Parliament who either supported or opposed the amendments. As a
consequence, the booklet presented information to the public in a largely
polarised manner. This did not necessarily assist in increasing the
public’s understanding of the issues in a clear and coherent manner.

Text Box 2.7: The ‘Yes/No’ booklet for the 1999
referendum

The ‘Yes/No’ booklet for the insertion of a new preamble noted
the following reasons in support of the preamble.

In summary, a ‘YES’ vote on the preamble for our Constitution
would:

  • enable the Australian people to highlight the values and aspirations which
    unite us in support of our Constitution
  • contribute importantly to the process of national reconciliation between
    indigenous and non-indigenous Australians
  • recognise at the end of our first century of federation the enduring
    priorities and influences that uniquely shape Australia’s sense of
    nationhood.[116]

In
contrast the reasons for opposing the insertion of a new preamble provided in
the pamphlet included:

  • It’s Premature – it is absurd to introduce a new Preamble until
    we know whether Australia will become a Republic.
  • It’s a Rush Job – we should not be tacking these words onto our
    Constitution without more work and much more public consultation.
  • It’s a Politicians’ Preamble – the people haven’t
    had a say on what should be included in their Preamble.
  • It’s Part of a Political Game – while the Labor Party voted
    against the Preamble in Parliament, they will not campaign against it.
  • It’s a Deliberate Diversion – the Preamble is an unnecessary
    diversion from the most important issue at stake - the Republic model.
  • It’s Got Legal Problems – the Preamble referendum question is
    misleading and there is much debate about what the legal effect of the Preamble
    will be.
  • Its Content is Defective – the proposed Preamble is far more likely to
    divide rather than unite
    Australians.[117]

 

In a review of the machinery of referendums, the Standing Committee on Legal
and Constitutional Affairs noted that the 1999 ‘Yes/No’ booklet
provided voters with only the minimum information needed to make an informed
decision at a referendum. It was necessary to supplement it with more targeted
and contextual information. The Committee recommended that for future
referendums, a bipartisan Referendum Panel be appointed for the purposes of
promoting and educating voters about the proposed
arguments.[118]

In addition to the ‘Yes/No’ booklet, the 1999 referendum campaign
included a public education kit for
voters.[119] The kit included
information on the current system of government, referendum processes, and
background information on the referendum questions
themselves.[120]

(iii) Lessons learnt

The 1999 referendum had an extensive education campaign that was compromised
by polarised messaging.

Like the 1967 referendum, I believe a tension between simplicity of messaging
and a clear articulation of what will be the effect of the referendum will arise
in the lead-up to the proposed referendum. This tension will need to be
discussed, managed and resolved prior to the official launch of the future
campaign.

The proposed constitutional amendments should be:

  • targeted and accessible
  • readily translated into plain English (and other languages)
  • able to garner the widespread level of support to be successful.

The public education campaign accompanying a referendum necessarily
needs to be broad enough to be a component of the process from its very
inception and should extend to the development and drafting of the proposals.
All consultation on a proposed referendum topic needs to:

  • include a public education component
  • explain the Constitution
  • explain the legal and political system of Australia
  • explain the process of referendums
  • explain the impact proposed reforms will have on peoples rights
  • identify and address any other specific issue/s at hand.

It is
essential that public education campaigns are accessible and appropriate for all
elements of the Australian public, in particular, marginalised groups who may
not ordinarily have access to such information, or be able to participate in
mainstream democratic processes. Information may need to be targeted for
specific groups such as Indigenous peoples, women, children and youth, elderly
people, culturally and linguistically diverse groups, and people with
disabilities. Internet and social networking sites could be utilised to expand
the reach and access of the information.

Informing any referendum process with a comprehensive and proper public
education program is vital to ensuring that the participation of all
Australians, and particularly Aboriginal and Torres Strait Islander peoples,
comes from an informed perspective.

(d) Ensuring a
successful referendum strategy

The success of the 1967 referendum reflects over 30 years of advocacy
resulting in a clear and concise message calling for reform. It also reflects
the high level of Aboriginal and Torres Strait Islander and non-Indigenous
involvement in the process leading up to the referendum in 1967.

In contrast, the failure of the 1999 referendum reflects a process that
resulted in confused and complicated messaging. It also reflects the fact that
despite extensive consultative processes early on in the campaign, the lack of
engagement by Aboriginal and Torres Strait Islander people and the broader
Australian community in the development of the reform proposal fostered a
politicised process and ultimately an unsuccessful result.

The lessons learnt from these and other referendums provide significant
guidance for developing a successful referendum strategy.

We must learn from past successes and mistakes if we are to progress the
proposed referendum to a successful outcome.

The Australian Government has committed to progress the recognition of
Aboriginal and Torres Strait Islander peoples in the Constitution. It is
incumbent on the Australian Government to ensure that adequate resources are
committed to engage the public in the reform process. It is now time to harness
the bipartisan support for change, and truly make this a process of the people.

(i) Expert Panel on Constitutional Recognition of
Indigenous Australians

As this Report was being finalised the Australian Government established an
Expert Panel on Constitutional Recognition of Indigenous Australians (Expert
Panel).

The Expert Panel will report to the Australian Government on potential
options for constitutional recognition of Aboriginal and Torres Strait Islander
peoples, and will advise on the level of support for these options by December
2011.[121] The Terms of Reference
are set out in Text Box 2.8 below.

Text Box 2.8: Expert Panel on Constitutional Recognition of Indigenous
Australians: Terms of
Reference[122]

In performing [its] role, the Expert Panel will:

  • lead a broad national consultation and community engagement program to seek
    the views of a wide spectrum of the community, including from those who live in
    rural and regional areas;
  • work closely with organisations, such as the Australian Human Rights
    Commission, the National Congress of Australia's First Peoples and
    Reconciliation Australia who have existing expertise and engagement in relation
    to the issue and
  • raise awareness about the importance of Indigenous constitutional
    recognition including by identifying and supporting ambassadors who will
    generate broad public awareness and discussion.

In performing this
role, the Expert Panel will have regard to:

  • key issues raised by the community in relation to Indigenous constitutional
    recognition
  • the form of constitutional change and approach to a referendum likely to
    obtain widespread support
  • the implications of any proposed changes to the Constitution and
  • advice from constitutional law experts.

 

The Expert Panel will be central to ensuring that the journey to achieve a
successful referendum is community-led – by both Aboriginal and Torres
Strait Islander people, and non-Indigenous Australians. To better reflect this,
I am of the view that the name of the Expert Panel should be changed to the
‘Consultative Committee on Constitutional Recognition of Indigenous
Australians’.

The Expert Panel is made up of Indigenous and community leaders, legal
experts and parliamentary members, who bring together a wide range of
expertise.[123] I have been
appointed as an ex offico member of the Expert Panel in my capacity as the
Aboriginal and Torres Strait Islander Social Justice Commissioner. The Co-Chairs
of the National Congress have also been appointed as ex offico members.

The presence of representatives from the Australian Labor Party, the
Australian Greens, the Coalition and an Independent should help ensure that the
Expert Panel builds on the early bipartisan support for the reform process.
While the Expert Panel contains representatives from across the Parliament, it
is heartening to see that it has been structured in a way that minimises
perceptions that it is a political body. Only four of the 20 members are
parliamentarians.

To strengthen the role of the Expert Panel, I consider that it should be
empowered to make recommendations for reform based on the results of the
consultation process and its research findings. It should not simply be tasked
with suggesting options.

I encourage the Australian Government and the Opposition to make a public
commitment to act on the recommendations of the Expert Panel.

I am pleased to have been appointed to the Expert Panel and look forward to
being a part of the national conversation with Aboriginal and Torres Strait
Islanders and the broader community towards a successful referendum.

Drawing on the analysis of past referendums that I outline earlier in this
Chapter, I offer the following observations about issues that could be
considered as the Expert Panel begins to frame its approach.

(ii) Advice and outreach to complement the work of
the Expert Panel

In order for a referendum to succeed, it is critical that the reform options
are sound and that they resonate with the wider Australian community.

To assist developing these options and to meet its Terms of Reference, the
Expert Panel could be complemented by advice and assistance regarding:

  • leadership and engagement
  • ambassadorial outreach
  • technical issues.

Leadership and
engagement

Independent advice and assessment of the options under consideration by the
Expert Panel would strengthen the work of the Expert Panel and would assist in
the design of meaningful and effective consultation mechanisms.

Advice could be provided by representatives of:

  • national peak Aboriginal and Torres Strait Islander organisations
  • Indigenous and non-Indigenous statutory office holders
  • peak business and industry groups
  • faith-based organisations
  • major non-governmental organisations such as ANTaR, Oxfam Australia, Amnesty
    International Australia and Reconciliation Australia
  • the Australian Council of Trade Unions.

Too often, consultation
processes are imposed upon Aboriginal and Torres Strait Islander peoples. To
enhance the legitimacy of the constitutional reform process, and in line with
the Declaration, Aboriginal and Torres Strait Islander peoples need to be
involved in the design and implementation of the consultation process from the
earliest stage. These organisations would have a fundamental role to play in
this regard.

The Expert Panel could work with these organisations, harnessing their advice
flexibly and responsively to reach the widest possible range of people. For
instance:

  • peak bodies may be able to conduct devolved consultations or conduct
    surveys, with the results fed up to the Expert Panel
  • peak bodies may identify ‘local champions’ that can assist to
    facilitate consultations in communities (but not necessarily act as
    representatives of the community)
  • communities may wish to make their views known through existing structures,
    networks or events, such as at land council meetings
  • communities may wish to participate in more traditional workshops or
    sessions run by the Expert Panel.

There is also a need to ensure
that the wider Australian community is able to be part of the journey. These
organisations could help ensure that a diverse range of community groups are
engaged in the consultation process.

They could commit to publicising the reform process through their networks,
and to facilitate the participation of their stakeholders and members.

These organisations may also be able to provide frank, high-level advice to
inform and test options under consideration by the Expert Panel. In particular,
they may be able to provide advice on how the options would be received by their
membership, constituents and supporters.

Ambassadorial
outreach

The Australian Government has charged the Expert Panel with raising awareness
of the importance of constitutional recognition ‘including by identifying
and supporting ambassadors who will generate broad public awareness and
discussion’.[124]

The Expert Panel has 12 months to conduct its consultations. There is a risk
that public enthusiasm for constitutional reform and media attention may wane
over this time.

High-profile ambassadors can play a role in keeping the constitutional reform
process in the public spotlight, to educate the wider community, and to promote
popular ownership of the process.

They will be critical to raising and maintaining the profile of the
consultation and reform process, including by:

  • delivering public addresses
  • engaging with the media
  • participating in education and advertising campaigns.

The
ambassadors should come from a diverse range of backgrounds, including for
example:

  • prominent Aboriginal and Torres Strait Islander leaders
  • leaders of faith-based groups
  • prominent non-Indigenous figures, such as former politicians, judges and
    Australians of the Year
  • artists
  • sporting identities
  • television personalities.
Technical advice

Any reform proposal recommended by the Expert Panel will need to be legally
sound and able to be implemented.

Constitutional experts have been appointed to the Expert
Panel.[125] However, the Expert
Panel would benefit from the advice of a wider range of people with policy,
legal and constitutional expertise. Such experts could include Aboriginal and
Torres Strait Islander and non-Indigenous constitutional law scholars and
lawyers.

These experts could provide independent, expert advice and assist the Expert
Panel to test the options for reform that have been suggested during the
consultations and assist in framing recommendations.

(iii) Engagement with the Australian
community

In addition to consulting about options for
constitutional reform, the Expert Panel must be resourced to conduct public
education. The fundamental importance of education campaigns has been
highlighted earlier in this Chapter.

The consultation process represents an opportunity to educate the wider
Australian community about the Constitution, the human rights of Aboriginal and
Torres Strait Islander peoples and the importance of recognising Aboriginal and
Torres Strait Islander peoples in the Constitution. This process itself could
build relationships and promote reconciliation. The ambassadors, as discussed
above, will have an important role to play in public education activities.

(iv) The role of the Australian Government

The Australian Government is well placed to resource, facilitate and enable a
referendum strategy that meets the above criteria and ensures the best possible
outcome for Aboriginal and Torres Strait Islander peoples, the broader
Australian population and the nation.

^Top

2.5 Conclusion

In this Chapter, I have addressed three key questions:

  • Why is there a need for constitutional reform to recognise Aboriginal and
    Torres Strait Islander peoples and our rights?
  • What could reform look like?
  • What are the next steps?

I have outlined a possible process for
achieving a successful referendum, building on lessons learnt from previous
referendums. This analysis shows that bipartisan support and effective
engagement, involving active participation and education, with Aboriginal and
Torres Strait Islander peoples and the broader Australian public are essential
ingredients for success.

In conclusion I want to return to what this process, the recognition of
Aboriginal and Torres Strait Islander peoples in the foundational legal
document, is all about. At its core it is about nation-building. Building a
nation based on respect for the dignity and humanity of the first peoples of
this land is something for all Australians to strive for.

Pat Dodson suggests the nation needs to be bold, have leadership and courage
for the constitutional reform process to advance the journey towards
reconciliation:

If we face our history with courage, and if we pledge the integrity of our
improving relationship firmly within our Constitution, then a real dialogue
between us can proceed secure in the knowledge of our shared commitment
to the nation and its future. Not incidentally, we can also address the task of
ensuring that education, economic and health outcomes for Indigenous people
reach parity with all other Australians

... If, as a nation, we are able to conduct ourselves with courage, love and
integrity in the dialogue before us, then the nation will be well served and
future generations will not be left wondering why our courage was so lacking
that we were unable to confront the truth of our history and to deal with that
truth accordingly.[126]

Opportunities for nation-building are rare moments in time when we, the
people rather than elected representatives, direct the transformation of the
nation and its identity.

The National Apology was a poignant moment for this nation. Yes, it was a
moment of reflection on past wrongs. But it was also much more than that. The
National Apology was a transformative moment where the Parliament of Australia
set about building a future for the nation, that has reconciled with its past
and is ready to move forward, walking with its first peoples.

My predecessor Tom Calma, had the honour of giving the formal response to
Parliament on behalf of the Stolen Generations and their families:

It’s the day our leaders – across the political spectrum –
have chosen dignity, hope and respect as the guiding principles for the
relationship with our first nations’ peoples. Through one direct act,
Parliament has acknowledged the existence and the impacts of the past policies
and practices of forcibly removing Indigenous children from their families. And
by doing so, has paid respect to the Stolen Generations.  For their
suffering and their loss. For their resilience. And ultimately, for their
dignity.

...

This is not about black armbands and guilt.  It never was. It is about
belonging. The introductory words of the 1997 Bringing them home report
remind us of this.  It reads:

...the past is very much with us today, in the continuing devastation of
the lives of Indigenous Australians. That devastation cannot be addressed unless
the whole community listens with an open heart and mind to the stories of what
has happened in the past and, having listened and understood, commits itself to
reconciliation.

By acknowledging and paying respect, Parliament has now laid the foundations
for healing to take place and for a reconciled Australia in which everyone
belongs.   

...

Let your healing, and the healing of the nation,
begin.[127]

The National Apology marked an opportunity for Parliament to acknowledge the
past and build towards a reconciled future in Australia.

I believe the current opportunity for constitutional reform to recognise
Aboriginal and Torres Strait Islander peoples as part of this nation, offers the
Australian population this same opportunity.

I believe Australians are ready to confront the past and to move forward
towards a reconciled nation.

The nation needs to be open and honest and ask the hard questions. Does the
nation want to live under a Constitution which permits and anticipates actions
that are racially discriminatory? After all, this is the document the current
Chief Justice has said defines the extent of Australia’s legal
universe.[128]

I believe an informed and engaged Australian population will not accept that
racial discrimination should be permitted anywhere near its legal universe. I
believe Australians are ready to vote yes for change.

In contemplating the enormity of the task, I am heartened by the fact that
much of the work to inform Australians about the history of exclusion of
Aboriginal and Torres Strait Islanders in this country has been done over the
past 60 years. The campaigns that led up to the 1967 referendum and the
significant efforts since have laid a solid foundation on which to build.

This will be a long hard journey. But it’s the journey that will mark
the maturity of the nation, not just the destination – as important as
that will be.

The opportunity to actively participate in an act of nation-building and true
reconciliation is rare and should be cherished. This is an opportunity that I
believe will be seized by the people of Australia.

Recommendations

  • 2.1 That all Australian political parties commit to and participate in the
    constitutional reform process in good faith to progress recognition of the
    unique place and the rights of Aboriginal and Torres Strait Islander
    peoples.
  • 2.2 That the Australian Government place constitutional reform on the
    Council of Australian Governments agenda as a national priority.
  • 2.3 That the Australian Government establishes and fully resources a formal
    process to guide progress towards a referendum that :

    • (i) Includes a commitment to:
      • improve the lives of Aboriginal and Torres Strait Islander peoples
      • ensure the adequate protection of human rights for all Australians
      • ensure a solid foundation upon which to build a reconciled
        nation.
    • (ii) Seeks to achieve and maintain bipartisan support, and has a strong
      focus on public education and facilitating popular ownership of the issues.
    • (iii) Includes a strategy that facilitates engagement with Aboriginal and
      Torres Strait Islander peoples and the broader Australian
      community.
  • 2.4 That the Australian Government adequately resource the provision of
    advice and assistance to the Expert Panel on Constitutional Recognition of
    Indigenous Australians including in relation to leadership and engagement,
    ambassadorial outreach, and technical advice.

 

^Top


[1] P Dodson, Welcoming speech (Speech delivered at the Position of Indigenous People in National
Constitutions Conference, Canberra, 4 June 1993) quoted in B Attwood and A
Markus, The 1967 Referendum: Race, Power and the Australian Constitution (2nd ed, 2007), pp
146-147.
[2] The 1967 Referendum
removed these exclusions: see T Blackshield and G Williams, Australian
Constitutional Law and Theory: Commentary and Materials
(5th ed,
2010), p 154.
[3] J Daley on behalf
of G Yunupingu, Northern Territory Statehood and Constitutional protections:
issues and implications for future Aboriginal governance
(Speech delivered
at the Indigenous Governance Conference, Jabiru, 4 – 7 November 2003), p
1.
[4] Sir A Mason, ‘The
Australian Constitution in retrospect and prospect’ in G Lindell (ed), The Sir Anthony Mason Papers (2007) 144, p
148.
[5] Aboriginal and Torres
Strait Islander Commission, Recognition, Rights and Reform: Report to
Government on Native Title Social Justice Measures
(1995); Council for
Aboriginal Reconciliation, Going Forward – Social Justice For The First
Australians
(1995). At http://www.austlii.edu.au/au/other/IndigLRes/car/1995/2/ (viewed 14 December 2010); M Dodson, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Indigenous Social Justice: A Submission
to the Parliament of the Commonwealth of Australia on the Social Justice
Package
(1995), volume 1 of this submission Strategies and
Recommendations
is largely reproduced in M Dodson, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 1995,
Human Rights and Equal Opportunity Commission (1995), ch 4. At http://www.humanrights.gov.au/word/social_justice/sj_report_95.doc (viewed 14 December 2010).
[6] J
Patten and W Ferguson quoted in S Bennett, Aborigines and Political Power (1989), p 5.
[7] Mabo v
Queensland (No. 2)
(1992) 175 CLR
1.
[8] GA Resolution 61/295
(Annex), UN Doc A/RES/61/295 (2007). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
19 October 2010).
[9] Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge (2000), Recommendation 3. At http://www.austlii.edu.au/au/other/IndigLRes/car/2000/16/text10.htm (viewed 12 July 2010).
[10] Commonwealth, Parliamentary Debates, House of Representatives, 13
February 2008, pp 167-173 (The Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 10 November 2010).
[11] G
Griffith, Constitutional Recognition of Aboriginal People, e-brief
11/2010, NSW Parliamentary Service (2010), p 5. At http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/ConstitutionalRecognitionofAboriginalPeople/$File/E+Brief+Constitutional+Recognition+of+Aboriginal+People.pdf (viewed 13 September 2010).
[12] Constitution (Preamble) Amendment Act 2010 (Qld). This Act inserted a new
preamble and s 3A into the Constitution of Queensland 2001 (Qld).
[13] Constitution
(Recognition of Aboriginal People) Act 2004
(Vic). This Act inserted a new s
1A into the Constitution Act 1975 (Vic).
[14] Constitution
Amendment (Recognition of Aboriginal People) Act 2010
(NSW). This Act
inserted a new s 2 into the Constitution Act 1902 (NSW).
[15] In his 2007
pre-election commitments former Prime Minister John Howard committed to a
referendum to recognise Aboriginal and Torres Strait Islander peoples: The Hon J
Howard MP, Prime Minister, The Right Time: Constitutional Recognition for
Indigenous Australians
(Speech delivered at the Sydney Institute, Sydney, 11
October 2007). At www.abc.net.au/news/opinion/speeches/files/20071011_howard.pdf (viewed 13 September 2010). His successor Kevin Rudd referred to the need to
work on constitutional recognition in the National Apology: Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p
172 (The Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 10 November 2010). This position was further affirmed at the Community
Cabinet meeting in Yirrkala, July 2008: L Murdoch, ‘Place for Aborigines
in the constitution’, Sydney Morning Herald, 24 July 2008, At http://www.smh.com.au/news/national/place-for-aborigines-in-the-constitution/2008/07/23/1216492541163.html (viewed 13 September 2010).
[16] The Australian Labor Party, The Australian Greens & The Australian Labor
Party Agreement
(2010), p 2. At www.alp.org.au/getattachment/255f5397-f9da.../government-agreements/ (viewed 25 October 2010). Coalition, Coalition Election Policy 2010: The
Coalition’s plan for real action for Indigenous Australians
(2010), p
4. At http://www.liberal.org.au/~/media/Files/Policies%20and%20Media/Community/Indigenous%20Australians%20Policy.ashx (viewed 13 September
2010).

[17] The Hon Chief
Justice R French, Theories of Everything and Constitutional
Interpretation
(Speech delivered at the Gilbert & Tobin Centre of Public
Law, UNSW, 2010 Constitutional Law Conference Dinner, Sydney, 19 February 2010),
p 4. At http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/644_RobertFrench.pdf (viewed 28 September 2010).
[18] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), preambular para 2. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
19 October 2010).
[19] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner,
‘Indigenous inclusion is good for our Constitution’, Sydney
Morning Herald,
9 July 2010, p 13. At http://www.smh.com.au/opinion/society-and-culture/indigenous-inclusion-is-good-for-our-constitution-20100708-10275.html (viewed 22 July 2010).
[20] See H
McRae et al, Indigenous Legal Issues: Commentary and Materials (4th ed,
2009), pp 53-60.
[21] W Aly, ABC
Television, Q&A, 15 March 2010, http://www.abc.net.au/tv/qanda/txt/s2840015.htm (viewed 10 August 2010).
[22] Quoted in B Attwood and A Markus, The 1967 Referendum: Race, Power and the
Australian Constitution
(2nd ed, 2007), p
159.
[23] L Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (2003), pp 144-145.
[24] Commonwealth, Parliamentary Debates, House of Representatives, 13
February 2008, pp 167-173 (The Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 10 November 2010).
[25] Commonwealth, Parliamentary Debates, House of Representatives, 8 February
2009, p 715 (The Hon Tony Abbott MP, Leader of the Opposition). At http://www.aph.gov.au/hansard/reps/dailys/dr080210.pdf (viewed 10 November 2010).
[26] The Hon Kevin Rudd, Prime Minister, Closing the Gap – Prime
Minister’s Report
(2010), p 1. At http://www.fahcsia.gov.au/sa/indigenous/pubs/general/Pages/closing_the_gap_2010.aspx (viewed 10 November 2010).
[27] Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24,
70 (Kirby J).
[28] See The Royal
Australian and New Zealand College of Psychiatrists, ‘Constitution changes
would improve Indigenous mental health’ (Media Release, 12 October 2010).
At http://www.ranzcp.org/media/constitution-changes-would-improve-indigenous-mental-health.html (viewed 24 November 2010).
[29] See blog comments in response to M Gooda, Aboriginal and Torres Strait Islander
Social Justice Commissioner, ‘Indigenous inclusion is good for our
Constitution’, Sydney Morning Herald, 9 July 2010. At http://www.smh.com.au/opinion/society-and-culture/indigenous-inclusion-is-good-for-our-constitution-20100708-10275.html (viewed 22 July 2010).
[30] S J
Anaya, ‘Why there Should Not Have to Be a Declaration on the Rights of
Indigenous People’, in S J Anaya, International Human Rights and
Indigenous Peoples
(2009) 58, p 63 (emphasis
added).
[31] P Dodson, Can
Australia Afford Not to be Reconciled
(Speech delivered at the National
Indigenous Policy and Dialogue Conference, UNSW, Sydney, 19 November 2010), p 3.
At http://ipdru.arts.unsw.edu.au/media/File/Dodson_keynote.rtf (viewed 24 November 2010).
[32] M
Davis, ‘A woman’s place...’ (2009) 24 Griffith Review 156, p 157. At http://www.griffithreview.com/edition-24-participation-society/222-essay/643.html (viewed 13 September 2010).
[33] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, 40 years on: What does the ‘Yes’ vote mean for Indigenous
Australians?
(Speech delivered at the Anglicare Tasmania Annual Social
Justice Lecture, Hobart, 22 August, 2007). At http://www.humanrights.gov.au/about/media/speeches/social_justice/2007/40_years_on20070822.html (viewed 10 November 2010).
[34] The Australian Government have gone some way to lifting the suspension of the
RDA with the passage of the Social Security and Other Legislation Amendment
(Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010
(Cth). Race Discrimination Commissioner Innes and I welcomed this as a
‘first step’: See Australian Human Rights Commission, ‘Passage
of NTER Amendments a step in the right direction’ (Media Release, 22 June
2010). At http://www.humanrights.gov.au/about/media/media_releases/2010/61_10.html (viewed 10 November 2010).
[35] P
Dodson, In Search of Change, Robed in Justice (Speech delivered upon
acceptance of the Sydney Peace Prize, Sydney, 5 November
2008).
[36] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p
167 (The Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 10 November 2010).
[37] The Hon P Keating MP, Prime Minister, Redfern Speech: Year of the
world’s Indigenous people
(Speech delivered at Redfern, 10 December
1992). At http://www.keating.org.au/main.cfm (viewed 23 September 2010).
[38] G Williams, ‘Old-style racism still in constitution’, Sydney
Morning Herald,
14 September 2010. At http://www.smh.com.au/action/printArticle?id=1924860 (viewed 14 September 2010).
[39] G Winterton, ‘A New Constitutional Preamble’ (1997) 8 Public Law
Review
186, p 187.
[40] Mabo v Queensland (No 2) (1992) 175 CLR 1, 37-38 (Brennan
J).
[41] Mabo v Queensland (No
2)
(1992) 175 CLR 1, 42 (Brennan
J).
[42] The Hon P Keating MP,
Prime Minister, Redfern Speech: Year of the world’s Indigenous people (Speech delivered at Redfern, 10 December 1992). At http://www.keating.org.au/main.cfm (viewed 23 September 2010).
[43] G Williams, ‘The Races Power and the 1967 Reference’, unpublished
article developed from ‘Race and the Australian Constitution: From
Federation to Reconciliation’ (2000) 38 Osgoode Hall Law Journal 643.
[44] Constitutional
Commission, Final Report of the Constitutional Commission (1988), p
16.
[45] G Williams,
‘Old-style racism still in constitution’, Sydney Morning Herald, 14 September 2010. At http://www.smh.com.au/action/printArticle?id=1924860 (viewed 14 September 2010).
[46] I note, however, that there are no current state laws which do discriminate on
the basis of race in allocating voting rights. Whether new laws that denied
particular racial groups the right to vote could be validly enacted is unclear
– due to the operation of the RDA and the Constitution, s
109.
[47] G Williams,
‘Old-style racism still in constitution’, Sydney Morning Herald, 14 September 2010. At http://www.smh.com.au/action/printArticle?id=1924860 (viewed 14 September 2010).
[48] P Dodson, Can Australia Afford Not to be Reconciled (Speech delivered at
the National Indigenous Policy and Dialogue Conference, UNSW, Sydney, 19
November 2010), p 10. At http://ipdru.arts.unsw.edu.au/media/File/Dodson_keynote.rtf (viewed 24 November 2010).
[49] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission (2009), p
64. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 13 September 2010.
[50] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission (2009), pp
64-65. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 13 September 2010).
[51] Australian Human Rights Commission and the National Congress of
Australia’s First Peoples, Calls for Constitutional recognition on
National Aboriginal and Islanders Day
(Joint Media Release, 9 July 2010). At http://www.humanrights.gov.au/about/media/media_releases/2010/72_10.html (viewed 10 December 2010).
[52] L
Behrendt, ‘A Constitution For All’, Big Ideas, 3 August 2010, http://www.abc.net.au/tv/bigideas/stories/2010/08/03/2971171.htm (viewed 22 November 2010).
[53] M
Dodson, Corroboree 2000 speech (Speech delivered at Corroboree 2000:
Towards Reconciliation, Sydney, 27 May-3 June 2010). At http://www.antar.org.au/issues_and_campaigns/native_title/mick_dodson_corroboree_speech (viewed 23 September 2010).
[54] G Williams and D Hume, People Power: The History and Future of the Referendum
in Australia
(2010), pp
254-260.
[55] The Hon J Macklin,
Minister for Families, Housing, Community Services and Indigenous Affairs, Address to the Garma Festival (Speech delivered at the Garma Festival,
Yirrkala, 8 August 2010). At http://www.alp.org.au/federal-government/news/speech--jenny-macklin,-address-to-the-garma-festiv/ (viewed 10 November 2010).
[56] M
Davis and D Lino, ‘Constitutional Reform and Indigenous Peoples’
(2010) 7(19) Indigenous Law Bulletin 3, pp
3-4.
[57] Further information
about this project can be found at Indigenous Law Centre, UNSW, ILC Home, http://www.ilc.unsw.edu.au (viewed 13
September 2010).
[58] See T
Blackshield and G Williams, Australian Constitutional Law and Theory:
Commentary and Materials
(5th ed, 2010), p
1354.
[59] J Quick and R R
Garran, The Annotated Constitution of the Australian Commonwealth 1901 (1976) cited in Parliament of Australia, Parliamentary Bills
Digest 32:
Constitution Alteration (Preamble) 1999 (1999-2000). At http://www.aph.gov.au/LIBRARY/pubs/bd/1999-2000/2000bd032.htm (viewed 13 September 2010).
[60] J Quick and R R Garran, The Annotated Constitution of the Australian
Commonwealth
1901 (1976) cited in G Griffith, Constitutional
Recognition of Aboriginal People
, e-brief 11/2010, NSW Parliamentary Service
(2010), p 3. At http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/ConstitutionalRecognitionofAboriginalPeople/$File/E+Brief+Constitutional+Recognition+of+Aboriginal+People.pdf (viewed 13 September 2010).
[61] M Dodson, The continuing relevance of the Constitution for Indigenous
peoples
(Speech delivered at National Archives of Australia, Canberra, 13
July 2008). At http://www.naa.gov.au/collection/explore/federation/talks/dodson.aspx (viewed 15 October 2010).
[62] See Kartinyeri v Commonwealth (1998) 195 CLR
337.
[63] The Hon Chief Justice R
French, Dolores Umbridge and the Concept of Policy as Legal Magic (Speech
delivered at the Australian Law Teachers’ Association National
Conference, Perth, 24 September 2007). At http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_frenchj29.html (viewed 10 November 2010).
[64] See T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission (2009), p
72. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 10 November 2010).
[65] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Australian Human Rights Commission (2009), pp
62-76. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 13 September 2010).
[66] See National Human Rights Consultation Committee, National Human Rights
Consultation Report
, Attorney-General’s Department (2009), p
17. At http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads (viewed 13 September 2010).
[67] This information is sourced from the Australian Electoral Commission website:
Australian Electoral Commission, Referendums Overview, http://www.aec.gov.au/Elections/referendums/Referendums_Overview.htm (viewed 13 September 2010).
[68] The rules governing a referendum are contained in the Referendum (Machinery
Provisions) Act 1984
(Cth).
[69] T Blackshield and G
Williams, Australian Constitutional Law and Theory: Commentary and
Materials
(5th ed, 2010), pp 1340,
1399-1404.
[70] G Williams and D
Hume, People Power: The History and Future of the Referendum in Australia (2010), p 11.
[71] P Dodson, Can Australia Afford Not to be Reconciled (Speech delivered at the
National Indigenous Policy and Dialogue Conference, UNSW, Sydney 19 November
2010), p 10. At http://ipdru.arts.unsw.edu.au/media/File/Dodson_keynote.rtf (viewed 24 November 2010).
[72] The 1944 referendum will not be considered here for comparative analysis in this
Chapter.
[73] Constitution
Alteration (Post-War Reconstruction and Democratic Rights) Bill 1944
(Cth).
[74] The Australian
Electoral Commission, Referendum Dates and Results 1906 – Present, http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm (viewed 1 November 2010).
[75] Constitution Alteration (Aboriginals) Bill 1967
(Cth).
[76] The Australian
Electoral Commission, Referendum Dates and Results 1906 – Present, http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm (viewed 1 November 2010).
[77] Constitution Alteration (Establishment of Republic) Bill 1999
(Cth).
[78] Constitution
Alteration (Preamble) Bill 1999
(Cth).
[79] Australia Electoral
Commission, 1999 Referendum Report and Statistics, http://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/Key_Results.htm (viewed 1 November 2010).
[80] G
Williams and D Hume, People Power: The History and Future of the Referendum
in Australia
(2010), ch 7. Three of the five factors they identify are
discussed here.
[81] G Williams
and D Hume, People Power: The History and Future of the Referendum in
Australia
(2010), p 244.
[82] G Williams and D Hume, People Power: The History and Future of the Referendum
in Australia
(2010), p
232.
[83] The only other time
there was not a ‘No case’ run was the 1977 referendum (retirement of
judges), which was the third most successful referendum in history: G Williams
and D Hume, People Power: The History and Future of the Referendum in
Australia
(2010), p 232.
[84] Right Wrongs Write Yes for Aborigines - photograph, Box 175, Gordon Bryant
Papers, 1917-1991, MS8256/11, National Library of Australia.
[85] During the there had been
discussions around changing the preamble: See M McKenna, First Words: A Brief
History of Public Debate on a New Preamble to the Australian Constitution
1991-99
, Parliamentary Library Research Paper 16 (2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September 2010).
[86] Commonwealth, Constitutional Convention, 13 February 1998, p 949. At http://www.aph.gov.au/hansard/conv/hancon.htm (viewed 13 September 2010).
[87] M McKenna, First Words: A Brief History of Public Debate on a New Preamble to
the Australian Constitution 1991-99
, Parliamentary Library Research Paper 16
(2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September 2010)
[88] M
McKenna, First Words: A Brief History of Public Debate on a New Preamble to
the Australian Constitution 1991-99
, Parliamentary Library Research Paper 16
(2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September 2010).
[89] M McKenna, First Words: A Brief History of Public Debate on a New Preamble to
the Australian Constitution 1991-99
, Parliamentary Library Research Paper 16
(2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September 2010).
[90] M McKenna, First Words: A Brief History of Public Debate on a New Preamble to
the Australian Constitution 1991-99
, Parliamentary Library Research Paper 16
(2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September 2010).
[91] M McKenna, First Words: A Brief History of Public Debate on a New Preamble to
the Australian Constitution 1991-99
, Parliamentary Library Research Paper 16
(2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September 2010).
[92] G Williams and D Hume, People Power: The History and Future of the Referendum
in Australia
(2010), p
246.
[93] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), p 247.
[94] Australian
Government, Bark petitions: Indigenous art and reform for the rights of
Indigenous Australians
, http://www.cultureandrecreation.gov.au/articles/indigenous/barkpetitions/ (viewed 24 September 2010).
[95] National Museum of Australia, William Cooper, http://www.indigenousrights.net.au/person.asp?pID=962 (viewed 13 September 2010).
[96] Australian Institute of Aboriginal and Torres Strait Islander Studies, The
Little Red Yellow Black Book, An introduction to Indigenous Australia
(2nd
ed, 2008), p 103.
[97] Australian Institute of Aboriginal and Torres Strait Islander Studies, The
Little Red Yellow Black Book, An introduction to Indigenous Australia
(2nd
ed, 2008), p 107.
[98] Australian Institute of Aboriginal and Torres Strait Islander Studies, Library
Online, Commemorating 40 Years of the Freedom Ride - Freedom Riders, http://www1.aiatsis.gov.au/exhibitions/freedomride/start.htm (viewed 8 December 2010).
[99] Australian Electoral Commission, History of the Indigenous Vote (2006), p
8. At http://www.aec.gov.au/pdf/education/resources/history_indigenous_vote.pdf (viewed 13 September
2010).
[100] S Taffe, Black
and White Together FCAATSI: The Federal Council for the Advancement of
Aboriginal and Torres Strait Islanders, 1958- 1972
(2005), p
4.
[101] See B Attwood and A
Markus, The 1967 Referendum: Race, Power and the Australian Constitution (2nd ed, 2007).
[102] National
Museum of Australia, Cabinet decision 1967, http://www.indigenousrights.net.au/subsection.asp?ssID=27 (viewed 13 September
2010).
[103] M McKenna, First Words: A Brief History of Public Debate on a New Preamble to the
Australian Constitution 1991-99
, Parliamentary Library Research Paper 16
(2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September
2010).
[104] M McKenna, First Words: A Brief History of Public Debate on a New Preamble to the
Australian Constitution 1991-99
, Parliamentary Library Research Paper 16
(2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September
2010).
[105] J Chesterman,
‘Toward Indigenous Recognition in the Australian Constitution: Getting the
Words Right’ (2008) 7(4) Indigenous Law Bulletin 10. At http://www.austlii.edu.au/au/journals/ILB/2008/12.html#fn22#fn22 (viewed 13 September
2010).
[106] G Bird and L
Kelly, ‘Women Speak Out: Critical Perspectives on the Preamble to the
Constitution’ (2000) 6(1) Australian Journal of Human Rights 265.
At http://www.austlii.edu.au/au/journals/AJHR/2000/13.html#Heading144 (viewed 13 September
2010).
[107] J Chesterman,
‘Toward Indigenous Recognition in the Australian Constitution: Getting the
Words Right’ (2008) 7(4) Indigenous Law Bulletin 10. At http://www.austlii.edu.au/au/journals/ILB/2008/12.html#fn22#fn22 (viewed 13 September
2010).
[108] G Williams and D
Hume, People Power: The History and Future of the Referendum in Australia (2010), p 232.
[109] L
O’Donoghue quoted in M Saunders, ‘Aborigines “insulted”
by PM’s draft’, The Age, 21 February 1999, p
2.
[110] M Gooda, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Towards a Reconciled
Australia
(Speech delivered at the National Press Club, Canberra, 3 November
2010). At http://www.humanrights.gov.au/about/media/speeches/social_justice/2010/20101103_npc.html (viewed 20 November
2010).
[111] National Human
Rights Consultation Committee, National Human Rights Consultation
Report
, Attorney-General’s Department (2009), p 17. At http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads (viewed 13 September
2010).
[112] National Human
Rights Consultation Committee, National Human Rights Consultation Report,
Attorney-General’s Department (2009) p xxix. At http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads (viewed 13 September
2010).
[113] G Williams and D
Hume, People Power: The History and Future of the Referendum in Australia (2010), pp 252-254.
[114] G
Williams and D Hume, People Power: The History and Future of the Referendum
in Australia
(2010), pp
261-263.
[115] G Williams and D
Hume, People Power: The History and Future of the Referendum in Australia (2010), p 64, 66.
[116] Australian Electoral Commission, Public Information Campaign, http://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/Public_Information_Campaign.htm (viewed 13 September
2010).
[117] Australian
Electoral Commission, Public Information Campaign, http://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/Public_Information_Campaign.htm (viewed 13 September
2010).
[118] House Standing
Committee on Legal and Constitutional Affairs, Parliament of Australia, A
Time for Change: Yes/No?: Report on the Inquiry into the machinery of
referendums
(2009), p 61. At http://www.aph.gov.au/house/committee/laca/referendums/report.htm (viewed 13 September
2010).
[119] In the 1999
referendum the Australian Electoral Commission (AEC) conducted a significant
public education campaign, which focused on encouraging enrolment and providing
information on the voting services and how to vote formally. The AEC spent $7.5
million on the public education campaign, which included media coverage through
television, radio and print media. The information was translated into ethnic
and Indigenous languages, as well as provided in Braille and large print. The
AEC also ran a phone service for people to ask questions about the referendum:
See G Williams and D Hume, People Power: The History and Future of the
Referendum in Australia
(2010), p
68.
[120] House Standing
Committee on Legal and Constitutional Affairs, Parliament of Australia, A
Time for Change: Yes/No?: Report on the Inquiry into the machinery of
referendums
(2009). At http://www.aph.gov.au/house/committee/laca/referendums/report.htm (viewed 13 September
2010).
[121] Department of
Families, Housing, Community Services and Indigenous Affairs, Expert Panel
Terms of Reference
(2010). At http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/ExpertPanel.aspx (viewed 12 January 2011).
[122] Department of Families, Housing, Community Services and Indigenous Affairs, Expert Panel Terms of Reference (2010). At http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/ExpertPanel.aspx (viewed 12 January 2011).
[123] Department of Families, Housing, Community Services and Indigenous Affairs, Membership of the Expert Panel, http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/membership_expert_panel.aspx (viewed 12 January 2011).
[124] Department of Families, Housing, Communities Services and Indigenous Affairs, The Role of the Expert Panel (2010). At http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/Role_ExpertPanel.aspx (viewed 12 November 2010).
[125] Department of Families,
Housing, Community Services and Indigenous Affairs, Membership of the Expert
Panel
, http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/membership_expert_panel.aspx (viewed 12 January 2011).
[126] P Dodson, Can Australia Afford Not to be Reconciled (Speech delivered at
the National Indigenous Policy and Dialogue Conference, UNSW, Sydney 19 November
2010), pp 3, 11. At http://ipdru.arts.unsw.edu.au/media/File/Dodson_keynote.rtf (viewed 24 November
2010).
[127] T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Let the
healing begin
(Speech delivered in response to the National Apology,
Canberra, 13 February 2008). At: http://www.humanrights.gov.au/about/media/speeches/social_justice/2008/20080213let_the_healing_begin.html (viewed 8 October 2010).
[128] The Hon Chief Justice R French, Theories of Everything and Constitutional
Interpretation
(Speech delivered at Gilbert & Tobin Centre of Public
Law, UNSW, 2010 Constitutional Law Conference Dinner, Sydney, 19 February 2010),
p 4. At http://www.gtcentre.unsw.edu.au/publications/papers/docs/2010/644_RobertFrench.pdf (viewed 28 September 2010).