Constitutional Recognition

Discussions about constitutional recognition, treaty and sovereignty are important on the road to reconciliation. The NSW Reconciliation Council believes that constitutional reform is integral to the fight for appropriate respect and acknowledgment of Aboriginal and Torres Strait Islander peoples. We also encourage further conversations about sovereignty, and treaty or treaties, across NSW and Australia.

Constitutional Recognition

The Constitution is the governing document of Australia. It outlines the rules by which government holds power, and the principles by which legislation should be created.

The main aim of the current campaign for constitutional reform is to have the Constitution amended to include an acknowledgement of Indigenous peoples as the traditional custodians of the land, and as its First Peoples. This is known as “constitutional recognition”. The campaign also aims to remove several sections of the Constitution that allow the government to create legislation that can be applied to groups specifically on the basis of race – provisions that can be (and previously have been) used to create discriminatory legislation.

The Constitution can only be amended by a national referendum. A date for a referendum on the above issues has not yet been set, but the government has previously suggested that it may be held in May 2017, to coincide with the 50th anniversary of the 1967 referendum. At the referendum, the Australian people will be asked to vote on a particular model for constitutional reform. The exact model has yet to be determined, although an expert panel released a report and recommendations on recognising Aboriginal and Torres Strait Islander peoples in the Constitution in 2012. In the lead up to a referendum, it is important that everyone across Australia is involved in the discussion about the proposed reforms. In particular, it is vital that there is wide and comprehensive consultation with Aboriginal and Torres Strait Islander peoples.

Currently, the campaign for constitutional reform is being led by RECOGNISE, an organisation working around the country to educate people about constitutional recognition and encourage them to vote for it when the referendum takes place. RECOGNISE is a part of Reconciliation Australia and funded by the Australian government.

According to RECOGNISE:

“Constitutional recognition is about telling our country’s whole story and dealing with the racial discrimination in our highest legal document. Australia’s Constitution was written more than a century ago. By then, Aboriginal and Torres Strait Islander people had lived here for more than 40,000 years, maintaining the oldest living culture on the planet. Yet the Constitution, Australia’s rule-book, doesn’t recognise this and still allows for racial discrimination. It begins as if Australia’s national story only started with the arrival of the British.”

The NSW Reconciliation Council supports the campaign for constitutional recognition and reform. However, our full endorsement will be conditional on the exact wording of the final proposal. We also emphasise our commitment to Indigenous self-determination, sovereignty and treaty-based outcomes alongside constitutional reform.

It is important to remember that there is still ongoing debate as to whether constitutional recognition is a step in the right direction for Aboriginal and Torres Strait Islander peoples. Many people are understandably concerned that constitutional recognition is a tokenistic gesture with no real power to address the discrimination and disadvantage Aboriginal and Torres Strait Islander peoples experience today. There is also concern that if Aboriginal and Torres Strait Islander peoples were to accept inclusion in the Constitution, they would be accepting inclusion in a document, and recognition by a government body, they do not recognise as having authority.

Sovereignty

Indigenous sovereignty is grounded in the fact that Indigenous peoples did not surrender their sovereignty rights when Australia was invaded by the British, and that they therefore retain the right to govern their lives and communities as they see fit. The claim to sovereignty includes the rights to autonomy, cultural respect and self-governance.

Sovereignty has been at the heart of the debate around constitutional recognition reforms. The issue of whether these reforms would serve to undermine a campaign for sovereignty-based options in the future has caused many members of the Aboriginal community and the wider community to be hesitant in their support of the constitutional reform options.

However, legal experts generally believe constitutional recognition is an important step towards the acknowledgement of Indigenous sovereignty and the establishment of treaties. You can read Professor George Williams AO’s analysis of the relationship between constitutional recognition and Indigenous sovereignty here.

Treaty

Australia is the only Commonwealth nation without a treaty with its First Peoples. A treaty would be a legally binding agreement between the government and Aboriginal and Torres Strait Islander peoples, with clauses regarding sovereignty, self-determination, customary law and land rights. Ideally, a treaty would ensure that any laws government attempts to create and implement exclusively for Aboriginal and Torres Strait Islander peoples would have to occur in consultation with these peoples. Treaty is widely viewed as a way to foster empowerment, healing and self-determination, and is widely supported by Aboriginal and Torres Strait Islander peoples.

Many prominent Aboriginal and Torres Strait Islander people have been speaking out about the need for a treaty for many years. However, calls for a treaty have largely gone unacknowledged by various Australian governments. Recently, however, Opposition Leader Bill Shorten has said that a Labor government would consider signing a treaty with Aboriginal and Torres Strait Islander peoples, while the Victorian government has entered into historic talks about establishing a treaty within the next few years.