On 8 November 2010 the Prime Minister and the Commonwealth Attorney-General announced the Government was beginning a process to amend the Australian Constitution so as to recognise Indigenous people.
What form that amendment will take is yet to be determined. The Government has proposed appointing a panel consisting of "Indigenous and community leaders, constitutional experts, and Parliamentary members" who "will lead a national discussion and broad consultation during 2011 to build consensus on the recognition of Indigenous people in the Constitution." The Panel is to report in December 2011.
Recently the Queensland, Victorian and New South Wales State Constitutions have been amended to include references to Indigenous people. Each of these State Constitutions also stipulate that such references do not create any legal rights and do not affect the interpretation of their respective Constitutions: underscoring the point that it is only a qualified recognition which has been conceded - as opposed to rights.
As it stands the Federal Government has not ruled out the possibility of broader changes to the Constitution, including alterations which may protect Aboriginal rights from negative impact. However the role of the appointed panel as delineated by the Government is to develop "options for constitutional change which will attract broad support from the Australian community". The historical reluctance of the public to support constitutional change is likely to inform the development of options.
An amendment to the Constitution requires the support of a majority of people in a majority of States. The Australian Electoral Commission has noted that of 42 proposals to amend the Constitution only 8 have been successful1. In the absence of bi-partisan support of the Parliament, and the support of State Governments, any amendments are unlikely to succeed. Indeed, in 1999 there was a proposal to replace the existing Preamble with a wholly new Preamble acknowledging Indigenous peoples: 60.66% of voters opposed the change .
The current broad cross-party support for a Referendum recognising Indigenous people in the Constitution appears a positive step. The proposed form that acknowledgement should take will bear close observation.
Prime Minister’s Press Release: http://www.pm.gov.au/node/6997
Griffith, G., Constitutional Recognition of Aboriginal People, e-brief 11/2010, NSW Parliamentary Library Research Service, July 2010: http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/ConstitutionalRecognitionofAboriginalPeople/$File/E+Brief+Constitutional+Recognition+of+Aboriginal+People.pdf
Bills Digest No. 32 1999-2000 Constitution Alteration (Preamble) 1999 http://www.aph.gov.au/library/pubs/bd/1999-2000/2000bd032.htm
Australian Electoral Commission: 1999 Referendum Report and Statistics: http://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/index.htm
Australian Electoral Commission: Referendum Background: http://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/Referendum_Background.htm
McKenna, M., “First Words: A Brief History of Public Debate on a New Preamble to the Australian Constitution 1991-99”, Research Paper 16 1999-2000, Parliamentary Library, http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm
Department of Family, Community Services and Indigenous Affairs Website on Constitutional Recognition for Indigenous Australians: http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/constitutional_recognition.aspx
1. Australian Electoral Commission: Referendum Background: http://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/Referendum_Background.htm