University of New South Wales Faculty of Law Research Series
Last Updated: 11 September 2012
Removing Racism from Australia's Constitutional DNA
George Williams, University of New South Wales
This paper is available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144763
This paper was published at Alternative Law
Journal, Vol.37, No.3, at 151-155. This article may also be referenced as
 UNSWLRS 40.
The idea of a referendum on recognising Aboriginal
and Torres Strait Islander peoples in the Australian Constitution was put on the
national political agenda in the aftermath of the August 2010 federal election.
This occurred without any announcement
of what form the change would take. In
effect, it was a commitment by the minority Gillard government to a referendum
at or before
the next federal election without a specific proposal for
change.This poses a major challenge. Although Indigenous peoples have long
sought recognition in Australia’s national and state Constitutions, common
ground has not yet emerged on how this should be
achieved. Hence, the task is
not simply one of convincing Australians to vote Yes, but of determining what
the amendment should be
in the first place.
The fact that the federal government has not stated what Australians will vote on has opened up debate about the nature of Australia’s Constitution and the form that the change should take. In 2011 this discussion was led by a government appointed expert panel chaired by Professor Patrick Dodson, former Chairman of the Council for Aboriginal Reconciliation, and former Reconciliation Australia co-chair Mark Leibler. The panel’s report and its recommendations for constitutional change were released publicly in early 2012. Its recommendations, which mirror those explored in this article, have helped to frame the discussion, yet significant disagreement remains. The panel’s report has not galvanised community and political support around an agreed set of changes.
In this article I return to first principles. I examine the place of race in the Australian Constitution, and the implications this has for the debate. The Constitution and its history is examined with a view to determining what changes are needed to appropriately recognise Australia’s first nations in the document.