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Australia: Referendum on Recognizing Indigenous People in Constitution Announced

(Nov. 10, 2010) On November 8, 2010, the Australian Prime Minister, Julia Gillard, announced that an expert panel will be established to lead a national discussion on recognizing indigenous people in Australia's Constitution. The panel will be tasked with undertaking consultation and providing advice by the end of 2011 on options for amending the Constitution, with a referendum on the issue to be held within the next three years. (Joint Press Release, Prime Minister, Attorney-General, and Minister for Indigenous Affairs, Recognising Aboriginal and Torres Strait Peoples in the Constitution (Nov. 8, 2010),

In announcing the panel and referendum, the Prime Minister said that following the formal apology to indigenous people issued by the government last year,

Now is the right time to take the next step and recognise in the Australian Constitution the first peoples of our nation.

And we certainly believe that constitutional recognition is an important step to building trust and respect.

It's an important step to building an acknowledgment that the first peoples of our nation have a unique and special place. (James Massola & Joe Kelly, Referendum to Be Held on Indigenous Recognition in the Constitution, THE AUSTRALIAN (Nov. 8, 2010),

The Prime Minister acknowledged that achieving nation-wide consensus on how best to amend the Constitution will be a significant challenge. Of the 44 constitutional referendums held since the federation of Australia in 1901, only eight have been successful. (Press Release, supra.) Section 128 of the Commonwealth of Australia Constitution Act requires that, in order to be successful, a referendum must gain the majority of the votes nationally, as well as a majority of votes in a majority of states. (Commonwealth of Australia Constitution Act, Parliament of Australia: Senate website, (last reviewed May 21, 2003).) “I'm certain that, if this referendum is not successful, there will not be another like it,” Gillard said. (Gillard Announces Indigenous Referendum, THE SYDNEY MORNING HERALD (Nov. 8, 2010),

Work towards constitutional recognition of indigenous people was part of the agreement between the Labor Party and the Green Party following the August 21, 2010 election. However, Gillard said that a referendum on the issue also had support across the political spectrum. (Massola & Kelly, supra.) A key part of the discussion is likely to be whether there should only be reference to indigenous people in the preamble to the Constitution, or whether there should also be a specific clause that accords more detailed recognition. One indigenous leader said that simply changing the preamble would be “paternalistic” and there should be a substantive section. On the other hand, the Deputy Leader of the Liberal Party said she was not convinced that a recognition clause should be included in the body of the Constitution, indicating that the legal implications of this would need to be carefully considered. (Patricia Karvelas & Joe Kelly, Indigenous Recognition 'Must Be Real': Marcia Langton, THE AUSTRALIAN (Nov. 9, 2010),

The panel will be made up of indigenous and community leaders, constitutional experts, and members of parliament. Nominations are currently being sought, and the panel is expected to be established by the end of this year. Gillard also said that the government wants organizations such as the Australian Human Rights Commission, Reconciliation Australia, and the National Congress of Australia's First People to be closely involved in the consultation process. (Press Release, supra; Massola & Kelly, supra.)