Constitutional recognition of Indigenous people

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Constitutional recognition of Indigenous people

Posted 23/11/2010 by Pauline Downing

During the course of the election campaign both major parties made announcements about constitutional recognition of Indigenous people. The Coalition promised to hold a referendum at the 2013 election on the wording of a preamble in the Constitution to recognise Indigenous Australians, and the ALP promised to set up an expert panel to build support for the constitutional recognition of Indigenous people.  
The agreement reached between the Greens and the Government following the election outlined that they would work together and with other parliamentarians to ‘hold referenda during the 43rd Parliament or at the next election on Indigenous constitutional recognition and recognition of local government in the Constitution’. The Greens announced that they would be consulting widely with Indigenous organisations and constitutional experts on the nature of the constitutional recognition.
Amendment to the preamble of the Constitution is different from amending the Constitution itself, although it is generally accepted that the same process of holding a referendum would be necessary under section 128 of the Constitution. The way the agreement above is couched suggests that amendment to the preamble is the intended approach in relation to Indigenous recognition, and amendment to the actual Constitution is the intended approach in relation to local government recognition.
During the 42nd Parliament, the House Standing Committee on Legal and Constitutional Affairs conducted an Inquiry into Constitutional Reform, one chapter of its report was devoted to Indigenous recognition and nation building through a new preamble. 
Recognition of Aboriginal and Torres Strait Islanders in the preamble was put to a referendum in 1999. The Constitution Alteration (Preamble) 1999 proposed a whole new preamble which included that the Australian people commit to ‘honouring 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’. The referendum was unsuccessful. In accordance with tradition, a short title to a Bill altering the Constitution does not contain the word ‘Bill’ to reflect the fact that it is a proposal for constitutional alteration rather than an ordinary Bill.
A preamble does not have direct legal effect or give rise to substantive rights and obligations but may be used as an aid to interpretation or to resolve ambiguities. To remove any doubt, in 1999 the proposal of amending the preamble included the insertion of a new section, section 125A, into the Constitution to make it clear that the preamble has no legal effect and shall not be used to interpret the Constitution or any laws of the Commonwealth.
Victoria and Queensland have similar recognition in their Constitutions, and New South Wales is in the process of doing so as well.
There are strong views that the racist and redundant section 25 of the Constitution should be repealed at the same time as any referendum on these issues. This provision has reference to disqualification from voting of a person on the basis of his or her race.


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