Constitutional Recognition

The Issue 

The discussion about Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples has focused on three main problems with our nation’s founding document:

  1. There is no mention of Aboriginal or Torres Strait Islander Peoples in the Constitution.
  2. Section 25 contemplates laws that ban people from voting on the basis of their race. This power was last used to exclude Aboriginal people from voting in Queensland, up until 1965.
  3. Section 51(xxvi) is a ‘races power’ which allows ‘special laws’ to be directed at the people of a particular race. While this power allows laws to address disadvantage, it leaves open the possibility that future governments could unfairly target the people of any race for negative treatment.

What needs to happen 

The Federal Government appointed an Expert Panel to consult with people around the country about what changes they wanted to see to the nation’s founding document to recognise Aboriginal and Torres Strait Islander peoples.

In January 2012, the Panel presented its report to the Australian Government. It unanimously endorsed a specific proposal to amend the Constitution. If adopted, this amendment would:

  1. Recognise the prior occupation and continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander Peoples.
  2. Acknowledge the continuing relationship of Aboriginal and Torres Strait Islander Peoples to these lands and waters.
  3. Remove the ability of States and Territories to bar certain races from voting [section 25].
  4. Remove the capacity of governments to make laws to the detriment of Aboriginal and Torres Strait Islander Peoples or the people of any race [section 51(xxvi)].
  5. Insert a protection against discrimination on the basis of race, colour or ethnicity.



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