A country’s constitution is a window to its past or, more specifically, a window to the discrete historical moment in which the country was forged on paper. Ironically, in that moment, Founding Fathers (and they were almost universally Fathers), be they Australian, Indian, American or otherwise, were orienting their minds to the future. Their project: to design a nation and its governing apparatuses grounded in the prevailing norms and customs of the day, but cognisant of its desired longevity.
In this way, a country’s constitution is perhaps better characterised as a vehicle for time travel through which we peer back, and its designers reach forward.
The historical moments which bore these national documents are as diverse as the documents themselves. Most notoriously the Constitution of the USA was one forged after the country dissolved its union with Britain. The scars of this revolutionary baptism are still apparent in the fraught constitutional safeguarding of the right to bear arms. Similarly, when the Indian Constitution was devised, anxieties regarding the young country’s territorial integrity vis a vis neighbouring Pakistan led to the inclusion of a constitutional power of the state to preventively detain someone without that person having committed a crime. More recently, the Dayton Peace Accords, now Bosnia i Herzegovina’s constitution, reflect (and arguably enhance) the ethnic cleavages which led to protracted violence in the Balkan region.
When I peer back along the Commonwealth Constitution of Australia, I see a comparatively banal moment of creation. Commencing on 1st January 1901, it was preceded by a number of Constitutional Conventions where men of note discussed the design of what would be the modern Australian state. Certainly the debate could be heated, particularly over how to preserve the powers of the Colonies (later to become the states of Australia). The Constitution was approved by the people of Australia via referendums from 1898 to 1900 before being passed by an Act of British Parliament.
In light of this history, one could fairly assume Australia’s constitution is of the purest form: a product of peacetime and democratic decision-making. A young Australian might also be forgiven for believing that Australia’s lands and waters were peacefully acquired from its original inhabitants.
And then again, they might not.
In truth, there was persistent resistance to the expansion of the colonial frontier. Frontier wars occurred from 1788 to the 1870s (though skirmishes still occurred well into the 1930s in the Northern Territory). In essence, less than thirty years prior to the Constitution’s signing, an effective state of war existed between European colonisers and Australia’s indigenous inhabitants. How different might the document have looked written in that moment?
As it was, the Constitution was largely silent on Indigenous Australians. One notable exception was section 127 which stated that “aboriginal natives shall not be counted” in the national census, an effective denial of citizenship. Another important section was 51 (xxvi) which gave the Commonwealth Parliament power to legislate for people of all races, excepting Indigenous Australians. This rendered them vulnerable to the overtly racist legislation of their home states (particularly Queensland and Western Australia).
In time, change came. In 1967 a referendum was passed with over 90% public approval repealing section 127 and amending section 51(xxvi) to extend the power of the Commonwealth Parliament to legislate for people of any race. Therefore, the lives of Indigenous Australians were no longer left to the purview of the States.
Since then, and in the wake of positive developments such as the Mabo land rights decision and Prime Minister Kevin Rudd’s Apology to the Stolen Generation, there has been a growing momentum to constitutionally recognise indigenous Australians. So too have negative developments signalled a need for change. In particular, the Northern Territory Intervention, a legislative package which suspended Australia’s Racial Discrimination Act, quarantined welfare payments and introduced mandatory health checks of children based on reports of child sexual abuse in remote communities is a disturbing precedent of governmental intrusion upon the lives of Indigenous people. Constitutional recognition could provide a degree of protection from such blatantly discriminatory measures.
In December 2010, Prime Minister Julia Gillard put the constitutional recognition of Indigenous Australians back on the political agenda by appointing an Expert Panel to lead a “conversation” on the topic. The proposed form that constitutional recognition may take ranges from the symbolic to substantive.
One proposal for recognition is that a statement of recognition be included in either a constitutional preamble (which does not exist currently) or the body of the Constitution itself. This statement would recognise Indigenous Australians’ “distinct cultural identities, prior ownership and custodianship of their lands and waters.” Though the legal implications of including this statement in a new preamble are unclear, arguably its inclusion in the Constitution proper could raise important questions for land rights recognition depending on its form and content. However, the real value of such a statement is symbolic. Many would criticise sending the Australian public to a referendum (which would be costly) for mere symbolism. But such a view undervalues the tangible benefits that a symbolic act offers. Like Rudd’s Apology, the act of recognition here is really the act of writing indigenous Australians into history. Of literally inscribing their place in the nation state and challenging what W.E.H. Stanner coined the “great Australian silence.” The recognition act is powerful not least because of its positive impact on how people perceive themselves.
Another proposal addresses the potential for racial discrimination and inequality that still exists in the Constitution. This would see the repeal or amendment of the race power contained in section 51(xxvi) of the Constitution (a section already amended in 1967). Currently, that section allows the Australian Parliament to make laws with respect to indigenous Australians. This power is broad and allows the enactment of legislation that both benefits and potentially discriminates. Arguments against constitutional reform in this instance are difficult to mount in light of prevailing international standards against racial discrimination captured in the Convention on the Elimination of all forms of Racial Discrimination.
A final proposal envisions an agreement-making power whereby the Australian Parliament is empowered to enter into specific agreements with Indigenous Australian communities. These agreements would have the force and effect of law. Although federal and state land rights legislation does exist, there is an obvious power imbalance in contests between indigenous and governmental interests. Such an addition to the Constitution would go a long way to redressing this power imbalance and would more accurately reflect this historical moment; a moment deeply conscious of indigenous disadvantage and inequality.
But will Australia choose to act?
In reality, changing the Australian Constitution is a very difficult task. The constitutional drafters designed it deliberately so. Section 128, which governs changes to the Constitution, requires a double majority of both the people and states to agree to the change. Indeed, of 44 referendums, only eight have passed. In this way, we are still very connected to our Founding Fathers; our document is still their document even though our society is not the society they knew.
The failure of the 1999 referendum which proposed, in addition to an Australian republic, a new preamble is a concerning litmus test. The proposed preamble stated that the Australian nation honoured “Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country.” Commentators are quick to point out that the failure in 1999 was more to do with the republic model, and the way the questions were framed, than an overwhelming opposition to constitutional recognition.
In any event, perhaps this failure was ultimately a positive outcome because it has left clear a path for more meaningful and dramatic recognition. Had the 1999 referendum passed, the pitiful recognition it offered would, I fear, have rendered Australia’s colonisation complete. The distinct cultural heritage and prior claim of Australia’s indigenous people would have been neatly subsumed into one sentence of a preamble.
Recognition must be honest but never sentimental. It should detail the historical circumstances which bore witness to the Australian nation. It should acknowledge the destruction of indigenous cultural heritage, so intimately connected to our famous landscapes. And it should point to Indigenous disadvantage which will continue to be felt for generations to come.
Recognition must recognise not just the prior existence of indigenous Australians, but the historical wrongs committed against them. It is only in these circumstances that we may begin a genuine project of nation building; this time, in partnership with the first inhabitants of this land.