Discussion Forum 2011

Constitutional Change: Recognition or Substantive Rights?

Exploring the constitutional change process and its application to create meaningful change in Australia.

On Friday 22 July 2011, the Law Council of Australia presented a Discussion Forum on Constitutional Change.

At the time of the 2010 Federal Election, the Australian Government, along with the Coalition, the Australian Greens and the Independents, committed to a referendum within the current term of Government, or at the next election, to recognise Aboriginal peoples and Torres Strait Islanders in the Australian Constitution. This has sparked an intriguing debate about whether there can be symbolic recognition without substantive reform.

In 1999, the Australian people were asked to support a statement of recognition of Indigenous Australians in a new preamble to be inserted in the Constitution. The referendum failed by a significant majority, offering a number of lessons for the present drive toward Constitutional reform.

In the 12 years since the 1999 referendum, has the national mood on this issue progressed sufficiently to ensure a "yes" vote? Three States have already amended their constitutions to recognise their Indigenous populations as the original inhabitants or custodians of their lands. Youmeunity, the Expert Panel convened by the Commonwealth Government to consult, educate and develop options for constitutional change, reports that a Newspoll survey conducted in February 2011 found that 75% of Australians already support some kind of constitutional recognition of Aboriginal and Torres Strait Islander peoples.

Former Prime Minister, the Hon Robert Menzies, once described a successful referendum to achieve constitutional reform as one of the labours of Hercules. Just eight out of 44 referenda attempted since Federation have been successful, exemplifying the challenge which lies before us. However, a successful referendum on this issue, with broad popular support from both Indigenous and non-Indigenous Australians, is critically important for reconciliation in this country.

The Discussion Forum brought together some of the leading thinkers on this topic from within Australia and overseas. Invitees include leaders within the Aboriginal and Torres Strait Islander communities and the legal profession, members of the Judiciary, Parliamentarians and academics, as well as aspiring lawyers and future leaders in the Indigenous community.

Transcripts

Transcripts of proceedings - 19 August 2011

Papers

Constitutional Law and Indigenous Australians: Challenge for a parched continent
The Hon. Michael Kirby AC CMG

Indigenous Provisions in Constitutions Around the World
Professor Bradford W. Morse

Background Documents

Constitutional Recognition of Indigenous Australians - April 2011
The Law Council's Constitutional Reform Discussion Paper