This is a fair copy of a page from the Australian Human Rights Commission web site.
https://humanrights.gov.au/our-work/about-constitutional-recognition
I haven't copied all the link information, but include one 'Frequently asked Question' that they omit from their summary. link
Founding document of the nation
The Constitution is the founding document of our nation and is the pre-eminent source of law.
The Constitution was drafted at a time when Australia was considered a land that belonged to no one before European settlement and when Aboriginal and Torres Strait Islander peoples were considered a 'dying race' not worthy of citizenship or humanity.
Aboriginal and Torres Strait Islander peoples were excluded from the discussions about the creation of a new nation to be situated on their Ancestral lands and waters.
Recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution
Aboriginal and Torres Strait Islander peoples are not mentioned in the Constitution.
The Constitution still allows racial discrimination – not just against Aboriginal and Torres Strait Islander peoples but against anyone.
The only way we can change the Constitution is if a majority of voters in a majority of states vote YES at a referendum.
A referendum is a vote by Australians over the age of 18, just like voting in an election. Instead of voting on politicians as we do in an election, in a referendum we vote on a specific change to the Constitution.
In a 1967 referendum, over 90% of Australian voters agreed to change our Constitution to give the federal parliament the power to make laws in relation to Aboriginal and Torres Strait Islander people and to allow for Aboriginal and Torres Strait Islander people to be included in the census. But this referendum did not recognise Aboriginal and Torres Strait Islander peoples as first peoples.
The Benefits of change
Recognising Aboriginal and Torres Strait Islander peoples in the preamble of the Constitution and ensuring the Constitution does not discriminate against anyone will not give any Australians more rights than others. In fact, these changes will build stronger relationships of trust and mutual respect between Aboriginal and Torres Strait Islander peoples and other Australians.
The right time for change?
Now is the right time to create a nation for all of us.
Text of the links
What is the Australian Constitution?
The Australian Constitution is the founding document of our nation and pre-eminent source of law in the country. The Constitution sets down the powers of each of our three branches of governance – the Parliament, the Executive and the Courts. It creates the space in which all other domestic laws operate in this country. Politically, the Constitution was intended to unite Australia under the original and continuing agreement of the Australian people.
How do we amend the constitution?
The Australian Constitution can only be altered by referendum. In a referendum, all Australians of voting age vote yes or no for the proposed changes. To succeed, a majority of voters nationwide and a majority of States (four out of six) must approve the changes.
For more information visit the Australian Electoral Commission website: http://www.aec.gov.au/Elections/referendums/Referendums_Overview.htm
Do other countries recognise first peoples in their constitutions?
Yes. Other countries recognise the unique status of their first peoples within their nation’s founding documents.
The Canadian Constitution was amended in 1982 and 1983 to recognise 'aboriginal rights'. In Norway, in 1988 the Norwegian Parliament passed an amendment to the Constitution recognising Sami constitutional rights.
In addition the Queensland, NSW and Victorian state Constitutions recognise Aboriginal and Torres Strait Islander peoples.
Why reform of the Constitution is needed
Why does Australia need to recognise Aboriginal and Torres Strait Islander peoples in the Constitution?
The Australian Government honoured Aboriginal and Torres Strait Islander peoples as the ‘the oldest continuing cultures in human history’ in the National Apology to the Stolen Generations. Yet the nation’s founding document does not mention Australia’s Indigenous peoples.
The story of our nation is incomplete because our Constitution, described by the Attorney General as the ‘birth certificate of our nation’, is silent on the histories of the people who inhabited this continent before European settlement. When the 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 waters.
The Constitution ignores the presence of Aboriginal and Torres Strait Islander peoples prior to European settlement. It is time for the Australian Constitution to reflect the Australian identity and recognise our Indigenous history.
The Australian Constitution also permits the Commonwealth Parliament to validly enact laws that are racially discriminatory and contemplates disqualifying people from voting on the basis of their race. During the referendum process the nation will be called to answer whether these provisions reflect a modern Australia.
When have the discriminatory provisions in the Constitution been used?
The Australian Constitution currently contains no protections against racial discrimination and the Parliament is capable of suspending existing statutory protections. The protections under Racial Discrimination Act 1975 (Cth)– the federal legislation designed to ensure equality of treatment of all people regardless of their race, have been removed on three occasions: each time it has involved Aboriginal and Torres Strait Islander issues.
The Northern Territory Emergency Response (NTER) that affects 73 remote Indigenous communities in the Northern Territory is clear evidence of the potential discriminatory effect of the Constitution. The NTER in its original application was not subject to the Racial Discrimination Act (RDA). The government can, if they choose to do so, disregard the RDA simply through subsequent legislation. The Constitution as it currently stands did not prevent the suspension of the RDA and remains ineffective in protecting a fundamental freedom of all Australians - freedom from discrimination.
In the 1990s there was a controversial dispute over the Hindmarsh Island Bridge in South Australia. The proposed bridge crossed over a sacred site of the Ngarrindjeri people, who objected to the construction. The High Court held that the 1967 referendum did not restrict the Commonwealth Parliament from making laws to the detriment of a particular race and that the parliament was able to expressly remove the Hindmarsh Island area from the purview of the Racial Discrimination Act and the Heritage Protection Act simply by passing the Hindmarsh Island Bridge Act of 1996.
What is the relationship between constitutional reform and the UN Declaration on the Rights of Indigenous Peoples?
Australia officially endorses the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration is an important piece of international law as it sets the standards for the survival, dignity and well-being of all Indigenous peoples. The process of constitutional reform is consistent with achieving the ends of the Declaration.
In particular, Article 15 outlines the rights of Indigenous peoples to have their dignity and diversity of cultures respected and imposes obligations on States to take action in conjunction with Indigenous peoples to combat prejudice and to promote tolerance, understanding and good relations. Constitutional Reform as a nation-building process can help achieve this.
The benefits of reforming the Constitution
How will constitutional reform benefit non-Indigenous Australia?
There is nothing to be afraid of in extending recognition to the first peoples of this land, there is in fact a lot to be gained. Recognising Aboriginal and Torres Strait Islander peoples in the Constitution will:
Constitutional reform will affect all Australians. At its core, recognising Aboriginal and Torres Strait Islander peoples in the Constitution 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. This process will encourage all Australians to examine what it means to be Australian and what place Aboriginal and Torres Strait Islander peoples have in that collective identity.
How will constitutional reform improve the lives of Aboriginal and Torres Strait Islander people?
Recognition of Aboriginal and Torres Strait Islander peoples in the Constitution has the potential to:
These benefits will make significant progress towards overcoming Indigenous disadvantage and move Australia closer to Reconciliation.
How will constitutional reform advance Reconciliation?
Building a nation based on respect for the dignity and humanity of the first peoples of this land will form an integral part of moving towards a reconciled Australia. Mick Dodson notes that
There has never really been a moment in the history of our country where there’s been a formal recognition or acknowledgment of the Aboriginal and Torres Strait Islander peoples as the first peoples of this country.
The changes that occur in the strengthening of relationships between Indigenous and non-Indigenous Australians during the referendum process will be just as important as the changes that occur on the pages of the Constitution.
Achieving a successful referendum will require a united effort. Australians will need to walk together and talk together in order to create a constitution that truly reflects the heart and soul of the nation. In essence, constitutional reform is about reconciling our past, building a solid foundation for the Indigenous and non-Indigenous relationship and looking ahead to a collective future.
Is constitutional change just symbolic with no practical outcomes?
No. Removing the discriminatory provisions from our Constitution will have lasting practical affects through the protection of human rights. Recognising Aboriginal and Torres Strait Islander people in a preamble is largely symbolic, but that does not diminish its importance in any way.
Symbolic and practical outcomes are not mutually exclusive. 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. Symbols are also an important part of building nations. They are reminders of a collective past and provide guidance towards a future all Australians can aspire to together. 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 and actions about that identity.
The positive effects of symbolic recognition extend beyond Aboriginal and Torres Strait Islander peoples to all Australians and a shared identity. 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.
Is Australia ready to vote yes?
Current interest in constitutional reform builds on the growing awareness around Aboriginal and Torres Strait Islander peoples and issues by all Australians. Ten years ago, the Council for Aboriginal Reconciliation identified constitutional reform as unfinished business of the reconciliation agenda, calling for a referendum.
Recent events like the Reconciliation March in the year 2000, the National Apology in 2008, the Australian Government support for the UN Declaration on the Rights of Indigenous Peoples, the formal recognition of Aboriginal and Torres Strait Islander peoples in several state constitutions, and widespread campaigns on Indigenous health have shown that Australians are standing up in support of Aboriginal and Torres Strait Islander peoples.
At the federal level, bipartisan support for amending the Constitution has been maintained since 2007. Bipartisan support was reaffirmed by both major parties as election commitments in the federal election held in August 2010.
Australians are increasingly supportive of the opportunity to build positive relationships through constitutional reform. Key findings of Reconciliation Australia’s recent Reconciliation Barometer indicate over 85% of Australians believe the Indigenous and non-Indigenous relationship is important. Further, a newspoll survey found that 75 per cent of Australians support constitutional reform to recognise Aboriginal and Torres Strait Islander Australians.
Despite this, the 2009 National Human Rights Consultation highlighted a general lack of understanding by the Australian public of the nation’s political and legal system, constitution and referendum processes. Because of this, a widespread education and consultation campaign will be imperative to achieving a successful referendum.
What can be learned from past referendums?
There have been 44 referendums held since 1901 and only eight of these have been successful. The most successful referendum in Australia’s history was in 1967 where 90.77% of the nation came together in support of Indigenous rights. This is in stark contrast to the 1999 referendum which proposed to alter the Constitution so that Australia became a republic and insert a new preamble. The debate was characterised by political disunity and failed to capture the public’s imagination, the result was a no vote for both amendments. The history of referendums in Australia shows that the Expert Panel must work to ensure that:
What is the Expert Panel on Constitutional recognition of Indigenous Australians?
The Australian Government has established the Expert Panel on Constitutional recognition of Indigenous Australians. The Expert Panel consists of a range of respected and accomplished individuals, including Indigenous and community leaders, constitutional experts and parliamentary members. The Panel will be co-chaired by Professor Patrick Dodson and Mr Mark Leibler AC. The Aboriginal and Torres Strait Islander Social Justice Commission, Mick Gooda, is a member of the Expert Panel.
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 and will report its findings to the Australian Government by December 2011.
For more information on the Expert Panel see http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/constitutional_recognition.aspx
Will constitutional reform give Aboriginal and Torres Strait Islander people more rights than other Australians?
No. Changing the preamble does not confer any new rights. Changing the body of the Constitution to include protection from discrimination would give all Australians the benefit of having their rights protected.
The push for constitutional reform is not about giving Aboriginal and Torres Strait Islander peoples more rights, or advantaging them over the rest of the community. It’s about recognising their special place in the history of the nation, and ensuring that the Constitution doesn’t allow government to actively discriminate against any Australian on the basis of race.
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