Recognising Aboriginal and Torres Strait Islander people in the Australian Constitution
Formation of the Australian Constitution
The Australian Constitution came into effect on 1 January 1901, having been passed as a British Act of Parliament and given royal assent by Queen Victoria in 1900. It unites the colonies of New South Wales, Victoria, South Australia, Queensland, Tasmania and later, Western Australia as a federation known as the Commonwealth of Australia. Its establishment followed a period of nationwide debate, through a series of constitutional conventions, and a successful referendum vote on the draft Constitution in each colony.
The Australian Constitution demarcates the powers and roles of each of our three branches of governance; the Parliament, the Executive and the Courts. Chief Justice Robert French of the High Court 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’
In addition to its legal function, the Australian Constitution has a symbolic value as the ‘birth certificate’ of this nation and our identity as Australians.
Changing the Australian Constitution through referendum
The Australian Constitution can only be changed by referendum. A referendum is a vote by Australians over the age of 18 on a specific change to the text of the Australian Constitution.
Section 128 of the Constitution and the Referendum (Machinery Provisions) Act 1984 (Cth) set out the procedure for amending the Australian Constitution by referendum.
The key steps to holding a referendum 
- The proposed changes to the Australian 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.
- The referendum is held between two and six months after the Bill is passed by Parliament.
- A majority of voters nationwide, plus a majority of voters in a majority of States (four out of six) must approve the changes in a referendum. This is known as the ‘double majority’.
- If the referendum is successful ,the proposed changes to the Australian Constitution requires the Royal Assent.
Aboriginal and Torres Strait Islander Peoples and the Constitution
The Australian Constitution was intended to unite Australia under the original and continuing agreement of the Australian people, but the first peoples of Australia were not included in this agreement.
When the Australian Constitution was being drafted Aboriginal and Torres Strait Islander peoples were excluded from the discussions concerning the creation of a new nation to be situated on their ancestral lands and territories. The Australian Constitution also expressly discriminated against Aboriginal and Torres Strait Islander peoples. The Australian Constitution did not – and still does not – make adequate provision for Australia’s first peoples.
The Australian Constitution has failed to protect Aboriginal and Torres Strait Islander rights as the first peoples of this country. For example, the Racial Discrimination Act 1975 (Cth) (RDA) has been compromised on three occasions: each time it has involved Aboriginal and Torres Strait Islander issues. Most recently, the Constitution did not prevent the suspension of the RDA for the Northern Territory Emergency Response. Therefore, it was ineffective in protecting our peoples from the most fundamental of all freedoms, the freedom from discrimination.
Aboriginal and Torres Strait Islander peoples have consistently fought to have their rights recognised and acknowledged by the Australian Government and the Australian people. Throughout Australia’s history, many Australians have supported Aboriginal and Torres Strait Islander peoples in these struggles. It is upon this historical foundation that Australians are now realising the need for constitutional change to address the lack of recognition and exclusion of Aboriginal and Torres Strait Islander peoples in our nation’s birth certificate.
At the federal level, bipartisan support for amending the Australian Constitution in this regard has been maintained since 2007. Bipartisan support was reaffirmed by both major parties as election commitments in the federal election held in August 2010.
For more information on constitutional reform see Constitutional reform: Creating a nation for all of us or download PDF
 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).
 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).
 The rules governing a referendum are contained in the Referendum (Machinery Provisions) Act 1984 (Cth).
 Former Chief Justice of the High Court of Australia, Sir Anthony Mason, has referred to this as a ‘glaring omission’: Sir A Mason, ‘The Australian Constitution in retrospect and prospect’ in G Lindell (ed), The Sir Anthony Mason Papers (2007) 144, p 148.
 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).
 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).
 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).