Constitutional Recognition Panel Discussion with Aden Ridgeway and Jody Bruan

Release Date: 
20 May 2014

Topics: Constitutional recognition

CARLA McGRATH: Why is constitutional recognition is so important for this country?

ALAN TUDGE: Thanks Carla and thank you Catherine. Thanks to Uncle Chicka and the traditional owners.

Constitutional change, as you mentioned, is very difficult. Probably very few of us in this room remember constitutional change occurring. You might remember some referenda, but the last one that passed was in 1977. Only eight out of 44 referenda have passed so it is a very difficult challenge and you must have bipartisan support.  You need to have a very large consensus across the community in order to get a referendum up – that’s the very nature of it.

We’ve got a great constitution. It provides a good legal framework which outlines roles and responsibilities and has enabled Australia to be a very stable, well-functioning democracy. However, there are two areas where we think the constitution could be improved. The first is recognising Indigenous people in the constitution, and the second is to remove or at least amend, some of the clauses which contemplate racial discrimination.

Now to the first point, in some respects it’s as simple as wanting to recognise the truth of our history that this land was indeed occupied by Aboriginal people before the British arrived and there’s a continuing culture among the Aboriginal people today.  We recognise our British heritage in our constitution implicitly through the very language in which the constitution is written, through the structures in which the constitution creates and indeed through the monarch being the head of state.  But we don’t recognise the Indigenous heritage which is a very important part of Australia and is of course one of the things which makes Australia unique in the world. So we think that this should be rectified.

It’s interesting when you reflect back to pre 1967; Indigenous people were mentioned in the constitution but from an exclusionary basis. Excluded in Section 127 from participating in the consensus, excluded in section 51(xxvi) from the operation of what’s known as the race power. Now the ‘67 referendum got rid of those exclusionary clauses but now the constitution is silent in relation to Aboriginal people, so we think that should be rectified.

On the second element.  There are clauses in the constitution which contemplate discriminatory laws based on race – Section 25 which is largely a redundant clause now because it refers to excluding people from voting on the basis of race. That’s not going to be used now but we could get rid of it. Section 51(xxvi) which is a head of power; in Section 51 it lays out all the heads of power for the federal parliament.  Section 51(xxvi) allows laws on the basis of race.  It’s a complex one to change but ideally we wouldn’t have such a clause in our constitution.

So they’re the two where we think the constitution could be improved: recognising Indigenous people and recognising our historical truth, and secondly amending the laws so we don’t have provisions that contemplate discrimination on the basis of race. We’re absolutely determined to ensure that we can get a consensus in society, in our community, and see a referendum through.