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Australia: Panel Recommends Changes to Constitution to Recognize Indigenous Peoples

(Jan. 24, 2012) On January 19, 2012, the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (Expert Panel) presented its final report to the Australian government. (Press Release, Prime Minister & Minister for Indigenous Affairs, Towards Constitutional Recognition of Indigenous Australians (Jan. 19, 2012).) The report recommends that a referendum be held on changes to the Australian Constitution in order to “recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, to affirm their full and equal citizenship, and to remove the last vestiges of racial discrimination from the Constitution.” (Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution –Report of the Expert Panel, atxi (Jan. 2012) [Report].)

In particular, the panel recommended the following amendments to the Constitution (Commonwealth of Australia Constitution Act, COMLAW (Australian government website) (compiled July 25, 2003)):

  • The repeal of section 25, which provides for the possibility for state laws to exist that disqualify people from voting in state elections on the basis of race. (Report, supra, at xviii.
  • The repeal of section 51(xxvi) of the Constitution and its replacement with a new section 51A. Section 51(xxvi) provides for the power of the Commonwealth (i.e., federal) parliament to make special laws with respect to the people of any race.

The proposed new provision includes language that recognizes Aboriginal and Torres Strait Islander peoples as the first people to occupy Australia; acknowledges their continued relationship with their traditional land and waters; respects their cultures, language, and heritage; acknowledges the need to secure advancement of the indigenous peoples; and provides for the power of the federal parliament to make laws “for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.” (Id.)

  • Insertion of a new section 116A that prohibits the Commonwealth or any State or Territory from discriminating on the basis of race, color, or ethnic or national origin, but allows the making of laws “for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.” (Id.)

  • Insertion of a new section 127A that recognizes that, while the official language of Australia is English, indigenous languages are part of Australia's national heritage. (Id.)

The Expert Panel, made up of 19 high-profile indigenous and community leaders, legal experts, and Members of Parliament from different parties, was established by the Australian government in December 2010 to “lead a wide-ranging national public consultation and engagement program throughout 2011 to build consensus on the recognition of Indigenous people in the Constitution.” (Press Release, Prime Minister, Minister for Indigenous Affairs, Attorney-General, Expert Panel on Constitutional Recognition of Indigenous Australians Appointed (Dec. 23, 2010), see also Membership of the Panel, YOU ME UNITY (last visited Jan. 20, 2012).) At that time, as a result of an agreement with the Australian Greens party, the government stated that it was committed to holding a national referendum on amending the Constitution “during the current term of government or at the next Federal election.” (Expert Panel on Constitutional Recognition of Indigenous Australians Appointed, supra.) The next federal election is to be held in 2013.

The Australian Constitution can only be amended if both Houses of Parliament pass the amendments by absolute majority and then a majority of Australian voters (and a majority of voters in a majority of states) approve the proposed changes. (Commonwealth of Australia Constitution Act, § 128.)

The Expert Panel's report was completed following a process involving talking to more than 4,600 people in at least 250 meetings in 84 locations and the receipt of more than 3,500 submissions. The government indicated that it will now “carefully consider the panel's recommendations before determining the best way forward.” (Towards Constitutional Recognition of Indigenous Australians, supra.)

The Prime Minister, Julia Gillard, stated: “[a]s a nation we are big enough and it is the right time to say yes to an understanding of our past, to say yes to constitutional change, and to say yes to a future more united and more reconciled than we have ever been before.” (Patricia Karvelas, Historic Constitution Vote over Indigenous Recognition Facing Hurdles, THE AUSTRALIAN (Jan. 20, 2012); Dan Harrison, High Hopes for Unity on Indigenous Referendum, THE AGE (Jan. 20, 2012).)