Questions remain over constitutional change for Australia’s indigenous people

Isabel Stewart and Lea Stevens talk to representatives of the Aboriginal and Torres Strait Islander community to find out where they stand.  

Photo credit: Tim McRae (Flickr)

Over the past two decades, there has been a growing campaign to recognise Indigenous peoples in the constitution.

The constitution was drafted in a time when Australia was considered to be terra nullius, a land owned by nobody. However, when the British colonised Australia, Indigenous people had been living on the land for over 40,000 years.

Following colonisation, the sovereignty of Indigenous people was unacknowledged and Australia’s first peoples became second class citizens in their own country, excluded from discussions about the development of what we see as Australia today.

In 2016, there is still no mention of Aboriginal and Torres Strait Islander Australians in the constitution. Australia’s founding document also contains sections that allow for discrimination based on race. The constitution gives power to governments to create laws that apply to specific races, meaning that the government could exclude a particular race from their right to vote.

The Recognise movement was established in 2012 following calls by the Expert Panel to have a “properly resourced education and awareness program”. The primary objective of the Recognise movement is to raise awareness of the need to recognise Aboriginal and Torres Strait Islander people in the constitution and to reform the acts within the constitution which are racially discriminatory. The Expert panel included parliamentarians, Indigenous and community leaders and constitutional experts and was set up to provide advice to the Prime Minister.  

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Currently, there is wide reaching support for a referendum to change the constitution to include Aboriginal and Torres Strait Islander people, with prominent Indigenous Australians and parliamentarians pledging their commitment to the Recognise movement. However, recently there has been a growing critique of the movement and its ability to provide substantive reform for Indigenous peoples.

Jill Gallagher, CEO of the Victorian Aboriginal Community Controlled Health Organisation (VACCHO), is one of the prominent Indigenous figures not in favour of the proposed constitutional recognition.

“I don’t support constitutional recognition at this time, at this stage. I believe in this country there needs to be a treaty with first nations peoples before any reforms to the constitution,” she says.

Once a supporter of the Recognise movement, Ms Gallagher is concerned that constitutional recognition may end up being only a symbolic reform and not something that will have a substantive effect on the Aboriginal and Torres Strait Islander community in Australia. Ms Gallagher argues that a treaty would be preferable because it could actually provide positive outcomes for Aboriginal people whilst also recognising the injustices of the past.

I believe a treaty will provide the outcomes that we need – our rightful place in history, our recognition

“There’s going to be a lot of money spent on changing something that’s not going to have a lot of outcome, where I believe a treaty will provide the outcomes that we need – our rightful place in history, our recognition. I believe a treaty between the Indigenous people of any country and the government is more than symbolic recognition of the past injustices that have happened,” she says.

Ms Gallagher also fears that constitutional recognition might weaken the Aboriginal people’s chance of a treaty with the State and Commonwealth Governments.

“There’s nothing legally stopping us from having both, but if we have constitutional recognition before a treaty, it weakens our argument for a treaty,” she says.

Aileen Traynor, Program Manager at Reconciliation Victoria, says that their position on constitutional reform is conditional on the proposal of a model that is supported by the majority of Aboriginal and Torres Strait Islander peoples.

“Many Aboriginal and Torres Strait Islander peoples have legitimate concerns and understandable skepticism about the constitutional reform agenda. These concerns must be better understood in the community conversation about constitutional change,” she says.

Ms Traynor explains that criticism about constitutional recognition within the Aboriginal and Torres Strait Islander community has also stemmed from the perception of the Recognise movement as a non-grassroots campaign.

“For some, Recognise has not been seen as a true grassroots movement, as it has been funded by government, while during some of this time funding for Aboriginal services and programs has been cut”, says Ms Traynor.

Ms Traynor also attributes some of the skepticism about the Recognise movement to the lack of community consultation over the duration of the movement.  

“Recognise marketing has been fantastic – perhaps in some ways it’s been almost too good and perhaps shifted too quickly into this phase before locking in broad support from grassroots community,” she says.

So what about a treaty?

Since the establishment of the Recognise movement in 2012, Aboriginal and Torres Strait Islander peoples have become more vocal in their calls for a treaty between Indigenous Australians and the Commonwealth and State Governments  Such an agreement would not only recognise the first peoples of the land, but lay down a structure for the improvement of Aboriginal communities.

Australia is the only Western country in the world that has not entered in a formal agreement with its Indigenous people. Many countries, including New Zealand and Canada, have a treaty or proclamation that recognises Indigenous sovereignty and grants them rights to both land ownership and equal treatment.

“A treaty should cover a recognition of what happened, the reparation for what happened, the return of some lands and treaty should also try to restore the damage that the past has done,”  Ms Gallagher said.

Many in the Aboriginal community believe a treaty would return the focus to rebuilding Indigenous culture, which has been lost through the trials of the past. Before invasion, there were over 250 Aboriginals languages, and of this over 600 dialects. Today only 60 languages are considered to be ‘alive’.

Ms Gallagher also attributes many of the problems existing within the Aboriginal and Torres Strait Islander community today, as being the result of a transgenerational trauma that stems from from the time of colonisation.

“The impact that it had on Aboriginal people, families and clans ripped apart, that still manifests today when you see all these social issues that our communities suffer,” Ms Gallagher said.

“We have to be culturally strong and our kids need to be culturally resilience so they can handle whatever life throws at them”.