Before 1967, the Australian Constitution contained two references to Aborigines. It is no surprise that these references dating from 1901 were removed by the Australian people at referendum because they were negative and outdated.
The Founding Fathers did not see the Constitution as a means of recognising Aborigines, respecting their history and culture, or acknowledging their rights to land and the protection of their heritage. Since 1967, the Constitution has not mentioned Aborigines or Torres Strait Islanders, the two indigenous peoples for whom Australia is home.
After the High Court’s 1992 Mabo and 1996 Wik decisions, the Australian Parliament needed to recognise land rights from the Torres Strait to south-west Western Australia. Governments of all persuasions have learnt to accommodate native title. We Australians pride ourselves on extending equality under the law to all persons. Most of us accept the need for special laws recognising Aboriginal land rights, cultural heritage, and contemporary traditions. We also accept a distinctive national obligation to preserve Aboriginal languages.
Some Australians think equality under the law would be best maintained by ensuring that the Constitution is ahistorical and colour-blind, making no mention of Aborigines and Torres Strait Islanders. They think a Constitution could be drawn up using a Google template, not including anything distinctively Australian. So they see no need to amend the Australian Constitution as it has been since 1967.
Others think equality under the law can be enhanced by providing recognition of that which is uniquely and vulnerably Australian – our Aboriginal culture, heritage, traditions, and relationships with country. They think that all Australians could walk taller if their Constitution graciously acknowledged the distinctive place of Aborigines and Torres Strait Islanders.
I am a strong advocate for Indigenous recognition in the Constitution. But what might that look like? And how is it to be achieved?
We Australians have been talking about this issue for a long time now. In 1997, the issue came into focus when the Howard government was wanting to amend the Native Title Act without Aborigines enjoying the same place at the table as they enjoyed when Paul Keating first formulated the Native Title Act. At that time, the Australian Parliament also legislated to ensure that its heritage protection legislation would no longer cover the heritage claims of the women from Hindmarsh Island. Since then, Aborigines have also been understandably upset at the mode and content of law making in relation to