Half a century ago, 30 students boarded a bus and journeyed through rural NSW to draw attention to discrimination against Indigenous people. It's time we changed the Australian Constitution to finish the work they began, write George Williams and Megan Davis.
OPINION: Half a century ago, 30 University of Sydney students boarded a bus and journeyed through rural New South Wales to draw attention to discrimination against Indigenous people.
Their landmark action plus the determined advocacy or Aboriginal and Torres Strait Islander campaigners generated overwhelming support for removing discrimination against Aboriginal people from the constitution. At the 1967 referendum more than nine in 10 Australians voted yes, making it the most successful in Australia's history.
Since then, many people – including a long list of Aboriginal and Torres Strait Islanders and successive prime ministers – have agitated for further changes as it became clear that the 1967 referendum had left unfinished business.
The 1967 referendum deleted discriminatory references specific to Aboriginal people, but put nothing in their place. Torres Strait Islanders have never been referred to in the constitution. As a result, rather than recognising Indigenous people, the referendum left a silence at the heart of the constitution.
The document reflects Australia's history of British settlement, but fails to mention the much longer occupation of the continent by Aboriginal and Torres Strait Islander peoples. It is as if their history does not matter, and is not part of the nation's story.
That referendum also failed to deal with clauses in the constitution that permit racial discrimination generally. As the group in the community that has most often been subjected to discrimination under the law – such as in regard to voting rights – Aboriginal people have spoken strongly about their desire to see such clauses removed. Doing this would help modernise the Australian constitution and bring it into line with contemporary values. Indeed, Australia is now the only democratic nation in the world that has a constitution with clauses that still authorise discrimination on the basis of race.
Each of Australia's major parties have committed to hold a referendum to change the constitution to recognise Aboriginal and Torres Strait Islander peoples.
However, leaders have yet to agree on the model for change, and so the words of the change to the constitution remain uncertain.
The federal government has yet to announce a timetable for the referendum, though it has indicated that a referendum will be held no later than May 27, 2017. This is the 50th anniversary of the 1967 referendum.
Changing the constitution could have an important symbolic and legal effect. However, some people find it hard to see why this change should be given attention when so much else needs to be done to address Aboriginal disadvantage such as is manifest in poor life expectancy and high unemployment. But addressing disadvantage requires multiple approaches. Recognition and addressing discrimination in the constitution is one of the things that could be done to improve the situation.
We think of Aunty Beryl Gambrill, of Cherbourg, who had been arrested for protesting in 1967 in support of the referendum. When the Gillard government's expert panel on constitutional recognition came to town in 2011, Cherbourg conducted its discussions on the verandah of the old Ration Shed, the dwelling where small rations of tea, salt, sugar, peas, porridge and flour had been given out at the designated Aboriginal settlement weekly until 1968.
The symbolism was obvious. In 1901, as Australia embarked on its journey as a new nation with a new constitution, Aboriginal people were forcibly removed from their country and placed on reserves and missions. Federation meant a loss of rights and freedom for Aboriginal people as they bore the burden of discrimination imposed by law. They were denied the vote, had their children removed, were prevented from marrying, were told where they could live and had their wages confiscated. But a year after the 1967 referendum, the Ration Shed was closed. To Cherbourg residents, this illustrated the power of constitutional reform.
Aunty Beryl participated again in 2011 at age 80 in the national discussions about constitutional change. She asked, "Why wasn't a preamble put in the constitution in recognition of Aboriginal and Torres Strait Islander people as Australians?" Aunty Beryl made a submission to the panel, handwritten in pencil. She argued that recognition is "important to us", and that it should happen "as soon as possible". One year later she died. Her contribution to equal rights and the community at large was so significant that a condolence motion was passed in the Queensland Parliament.
Aunty Beryl is a good example of how Aboriginal and Torres Strait Islander people have themselves identified the need for this reform. They have argued for change since the early years after Federation, in response to their firsthand experience of how the constitution has negatively affected their lives.
They have done so because the constitution excluded them from the political settlement that brought about the new Australian nation. Rather than being treated as equal citizens, they were cast as a "dying race" not expected to survive British settlement. As a result, they were described as a "problem" and as a people lacking any future in the nation. This was reflected in the fact that they were immediately denied the vote in federal elections, and the constitution even said they could not be included in counts of the Australian population.
The constitution can seem distant from people's lives, but it is always there, in the background, shaping the work of parliaments, governments and courts. Its influence is rarely felt in a day-to-day sense, but has a long-term, profound effect upon the direction of the nation and its laws.
In particular, the constitution is a "rule book" for the nation that creates lines of power in Australian society (that is, who can do what and to whom); establishes the legitimacy of, and relationships between, people and institutions; and recognises national values and national aspirations. In each of these ways, the constitution affects Aboriginal and Torres Strait Islander people and their place within the community.
So constitutional change could have broad, positive effects that extend far beyond the law. For example, the referendum could unite Australians around a sense of their shared history which, for the first time in the constitution, would include the long habitation of the continent by Indigenous peoples. As in other nations, these words in the founding document could be used in schools to educate young people.
Constitutional recognition could also have positive health effects. Medical research shows how legal discrimination and exclusion can have a negative impact on mental and physical wellbeing. Indeed, it is hard to underestimate the emotional and other costs of being cast as an outsider in your own land.
Experts have recognised this. For example, the Royal Australian and New Zealand College of Psychiatrists has said: "The lack of acknowledgement of a people's existence in a country's constitution has a major impact on their sense of identity and value within the community, and perpetuates discrimination and prejudice which further erodes the hope of Indigenous people." The college concluded: "Recognition in the constitution ... is an important step to support and improve the lives and mental health of Indigenous Australians."
Examples from other countries such as Canada, New Zealand and the United States highlight how the right legal settings can help to produce comparatively better health outcomes. The hope is that changing the Australian constitution to recognise Aboriginal and Torres Strait Islander peoples would contribute in the same way.
This is an edited extract from Everything You Need to Know about the Referendum to Recognise Indigenous Australians (NewSouth Publishing, 2015) by Megan Davis and George Williams, from UNSW Law. The extract first appeared in The Sydney Morning Herald.
1. Insert symbolic words of recognition that do not create any new rights or obligations, but provide national recognition of Aboriginal and Torres Strait Islanders as the first peoples of Australia.
2. Delete two sections that permit Australia's parliaments to make laws according to a person's race: section 25, which recognises that people can be denied the vote in state elections because of their race; and section 51(xxvi), which empowers the Federal Parliament to make laws that discriminate for or against a group on the basis of their race.
3. Replace the races power in section 51(xxvi) with a new power to enable the Federal Parliament to make laws for Aboriginal and Torres Strait Islander peoples.
4. Insert a new limitation that prevents the Federal Parliament, and perhaps also the state and territory parliaments, from passing laws that discriminate against any person, or perhaps just Indigenous peoples, on the basis of their race.
5. Require the Federal Parliament to consult with Aboriginal and Torres Strait Islander peoples before passing any law that affects them.