Indigenous Law Bulletin
by John Chesterman
When Prime Minister Kevin Rudd apologised to the Stolen Generations of Indigenous Australians, he addressed one piece of unfinished business between Indigenous and non-Indigenous Australians. In doing so however, he flagged another unfinished project via the proposal for a bipartisan ‘joint policy commission’ to work on Indigenous issues, initially dealing with housing. He continued:
If this commission operates well, I then propose that it work on the further task of constitutional recognition of the first Australians, consistent with the longstanding platform commitments of my party and the pre-election position of the opposition. This would probably be desirable in any event because unless such a proposition were absolutely bipartisan it would fail at a referendum.
The purpose of this article is to look at the range of words that might be used to incorporate a reference to Indigenous Australians in the Australian Constitution. To do this, the article canvasses the words used in the various attempts to date in relation to including references to Indigenous peoples in state and federal constitutions and other significant pieces of legislation. After examining a variety of different prefatory references to Indigenous people, the article concludes by suggesting a form of words that might be used in a future referendum so that the Australian Constitution’s silence regarding Indigenous Australians may be remedied.
Victoria is the only Australian jurisdiction to contain a specific prefatory reference to Indigenous peoples in its Constitution. Amended in 2004 without the need for referendum, the Constitution Act 1975 (Vic) (‘Victorian Constitution’) now provides that:
The Parliament recognises that Victoria’s Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established-
have a unique status as the descendants of Australia’s first people; and
have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and
have made a unique and irreplaceable contribution to the identity and well-being of Victoria.
While Victoria was in the process of adopting its recognition of Indigenous people, Queensland was considering doing likewise. But despite initial support for the proposal, the State’s Legal, Constitutional and Administrative Review Committee decided in 2004 not to support the introduction of a preamble in the Queensland Constitution. The chair of the Committee stated:
The committee is of the view that the Queensland Constitution, in its present form, should not contain a preamble at this stage. Reasons for this conclusion ... include: insufficient public support and consensus; concerns about the legal effect of a preamble; queries as to whether the extensive consultation required to develop the form and text of a preamble is an effective use of resources; and the likelihood of having to revisit any preamble if there is a change to a republican system of government.
While Victoria is the only state with a prefatory reference to Indigenous people in its Constitution, it is worth noting that the first state and territory bills of rights contain similar references. The ACT’s Human Rights Act 2004 contains this statement:
Although human rights belong to all individuals, they have special significance for Indigenous people—the first owners of this land, members of its most enduring cultures, and individuals for whom the issue of rights protection has great and continuing importance.
Victoria’s Charter of Human Rights and Responsibilities Act 2006, meanwhile, speaks of its foundational principles and adds that:
[H]uman rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.
The most well-known attempt to incorporate a reference to Indigenous Australians was the failed referendum of 1999, when Australians, in addition to voting on whether Australia should become a republic, voted on whether to adopt a new preamble to the Australian Constitution.
One suggested preamble was drafted by Prime Minister Howard with the help of other people including, initially, poet Les Murray; though Murray later withdrew from the process. Its reference to Indigenous Australians was:
Since time immemorial our land has been inhabited by Aborigines and Torres Strait Islanders, who are honoured for their ancient and continuing cultures.
Senator Aden Ridgeway, the second ever Indigenous member of Federal Parliament, played a role in preparing the final proposal that went to referendum. That proposal’s reference to Indigenous Australians read:
We the Australian people commit ourselves to this Constitution … honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country …
The failure of that referendum – which achieved a national ‘yes’ vote of only 39 per cent, and failed in every state and territory jurisdiction – was so complete that it would require a considerably changed political environment before an amendment would again be attempted. Arguably, though, such change has come about with the election of the Rudd Government in November 2007.
Attacked on many fronts, the defeated preamble’s reference to Indigenous people was criticised for only referring to past occupation, and for refusing to use the word or concept of ‘custodianship’. Many of the numerous preambles suggested in the lead-up to the referendum referred directly to this concept. For instance, the ALP’s Gareth Evans suggested: ‘We the people of Australia … Recognising indigenous Australians as the original occupants and custodians of our land …’ This phrase made its way into the combined ALP, Greens and Democrats proposal of April 1999: ‘Recognising Indigenous Australians as the original occupants and custodians of our land’. Marion Sawer proposed: ‘We respect and cherish our ancient land and recognise Indigenous Australians as its original occupants and custodians’, while Mark McKenna suggested: ‘In a spirit of reconciliation, we acknowledge Aboriginal peoples and Torres Strait Islanders, Australia’s indigenous people, as the original occupants and custodians of our land.’ Victorian Premier Jeff Kennett also contributed a proposal that contained the sentence: ‘We celebrate difference, and are united by the heritage of a harmonious indigenous and international culture, and the custodianship of this ancient, fragile land.’ George Winterton had earlier opted for trusteeship in suggesting: ‘Whereas the original, Indigenous Australians held in trust this continent of which all Australians are now trustees’.
Other notable suggestions have referred directly or indirectly to the distinct ‘rights’ status of Indigenous Australians. Lowitja O’Donoghue, the former Chairwoman of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), proposed a simple recognition of Indigenous peoples: ‘Australia recognises the Aboriginal peoples and Torres Strait Islanders as its indigenous peoples with continuing rights by virtue of that status.’
ATSIC itself, meanwhile, suggested the following lengthy preambular reference to Indigenous Australians:
Whereas the territory of Australia has long been occupied by Aboriginal peoples and Torres Strait Islanders whose ancestors inhabited Australia and maintained traditional titles to the land for thousands of years before British settlement;
And whereas many Aboriginal people and Torres Strait Islanders suffered dispossession and dispersal upon exclusion from their traditional lands by the authority of the Crown;
And whereas Aboriginal people and Torres Strait Islanders, whose traditional laws, customs and ways of life have evolved over thousands of years, have a distinct cultural status as indigenous peoples …
The failure of the 1999 proposal, especially insofar as it promised to be a reconciliatory gesture between Indigenous and non-Indigenous Australians, has been blamed both on insufficient consultation prior to the vote, and on the proposal’s failure to recognise Indigenous peoples' relationship to the land. But there were many controversial aspects to the preamble that did not concern its reference to Indigenous Australians. The referendum’s failure could not then be taken as a rejection of the proposition that Indigenous Australians should be mentioned in a new preamble.
The failure of the 1999 preamble referendum meant that the Australian Constitution contains, as it has since the 1967 referendum, no reference to Indigenous Australians. Those who wish to see Commonwealth statutory acknowledgment of Indigenous peoples' historical presence need to refer back to the original ‘long title’ to the Native Title Act 1993, which held in part that:
The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands. As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.
The central debate about the inclusion of Indigenous people in constitutional preambles tends to be about whether such references should be rights-neutral, or whether they should suggest – in a moral if not strictly legal sense – the existence of Indigenous peoples' ongoing rights.
Few commentators have argued that a preamble, of its own accord, should give rise to new rights or entitlements. But the fear of some is that even a suggestion of rights in a preamble could be drawn upon in future years to support rights claims.
Fear that an explicit mention of Indigenous peoples could give rise to new entitlements was the reason the 1999 referendum proposal contained a new section 125A of the Australian Constitution, which would have provided that the new preamble had ‘no legal force’ and that it could ‘not be considered in interpreting this Constitution or the law in force in the Commonwealth’.
Despite the existence of such disclaimers, arguments have still been made that a preambular reference to Indigenous Australians could play a background role in legislative and constitutional interpretation, even if it would not have a direct effect on rights recognition.
Prime Minister Howard clearly sought rights-neutrality in deciding not to refer to custodianship, but only to Indigenous people being ‘honoured for their ancient and continuing cultures’. In contrast, and as mentioned above, Lowitja O’Donoghue’s proposed reference to the ‘continuing rights’ of Indigenous people, and ATSIC’s reference to the ‘distinct cultural status’ of Indigenous people, directly engaged the question of Indigenous peoples' rights.
Victoria’s constitutional recognition speaks of Indigenous peoples' ‘unique status’ and their ‘spiritual, social, cultural and economic relationship with their traditional lands and waters’. The notably missing adjective there to describe that relationship is ‘legal’, but in any case Victoria’s Constitution now contains the quite explicit disclaimer that in recognising Indigenous Victorians, Parliament never intended ‘to create in any person any legal right’ or ‘to affect in any way the interpretation of this Act or of any other law’.
The question then remains: should any future Commonwealth constitutional preamble be suggestive of rights recognition, or remain neutral on this score? If one accepts the proposition that the recognition of Indigenous Australians in such a provision should not alone create new rights entitlements, then this becomes a debate about symbols and not about legal rights. But as we saw in the ten-year debate about the need for the apology to the Stolen Generations, such a debate can be just as vigorous as one that directly engages rights.
Indeed the analogy with the Stolen Generations apology is quite stark. One reason often stated by the Howard Government as to why it would not apologise was the same as its reason for not referring to custodianship in the preamble: it might give rise to new entitlements. But just as the Rudd Government’s apology carried no legal effect – indeed the possibility of compensation being paid to those people who suffered has been rejected – so too a preambular reference to custodianship, with an added disclaimer, would constitute an important acknowledgment without unintentionally giving rise to future claims.
Prime Minister Rudd’s commission will need to engage in vigorous consultation with Indigenous and non-Indigenous people about all aspects of a new preamble, and a preferred preamble will need to be adopted and provided to the public well before any vote is taken on it. It will also need to gain the support of all major parliamentary parties, as the Prime Minister has already acknowledged, if it is to have any chance of success at referendum. The preferred preamble may well end up proposing that Australians ‘recognise Indigenous Australians as the original occupants and custodians’ of Australia, as many of the quoted suggestions in this article have proposed, and as this author would recommend.
John Chesterman is a Senior Lecturer in the School of Political Science, Criminology and Sociology at the University of Melbourne. His most recent book is Civil Rights: How Indigenous Australians Won Formal Equality, published through UQP.
 Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, 172 (Kevin Rudd, Prime Minister).
 Constitution Act 1975 (Vic) (‘Victorian Constitution’).
 Constitution Act 1975 (Vic), s 1A(2). There also exists a preamble in the Victorian Constitution of which s 1A is not part. Section 1A is now ‘entrenched’ by s 18 and requires a parliamentary majority of three-fifths to be changed. See Richard Hewett, ‘Incorporating Recognition of Indigenous Peoples into the Victorian Constitution: The Constitution (Recognition of Aboriginal People) Bill 2004’ (2004) Victorian Parliamentary Internship Report 8-9.
 Legal Constitutional and Administrative Review Committee, Parliament of Queensland, Hands on Parliament: A Parliamentary Committee Inquiry into Aboriginal and Torres Strait Islander Peoples’ Participation in Queensland’s Democratic Processes (2003) Recommendation 2, <http://www.parliament.qld.gov.au/view/committees/documents/lcarc/reports/LCARCR043.pdf> at 15 April 2008. See also, Anti-Discrimination Commission Queensland, ‘Response to Legal Constitutional and Administrative Review Committee “Hands on Parliament” Report No 42, Preamble to Queensland Constitution’ (2004),
<http://www.adcq.qld.gov.au/docs/Hands%20on%20Parliament..rtf> at 15 April 2008.
 Legal Constitutional and Administrative Review Committee, Parliament of Queensland, A Preamble for the Queensland Constitution? (2004) v, <http://www.parliament.qld.gov.au/view/committees/documents/lcarc/reports/LCAR046.pdf> at 15 April 2008.
 Human Rights Act 2004 (ACT) preamble.
 Charter of Human Rights and Responsibilities Act 2006 (Vic) preamble.
 The proposal would actually have seen two preambles in the Constitution, the original one and the introduced one: see Mark McKenna, Amelia Simpson and George Williams, ‘With Hope in God, The Prime Minister and the Poet: Lessons from the 1999 Referendum on the Preamble’ (2001) 24(2) University of NSW Law Journal , -, <http://www.austlii.edu.au/au/journals/UNSWLJ/2001/29.html> at 15 April 2008.
 Ibid -.
 Ibid .
 Australian Electoral Commission, ‘1999 Referendum Report and Statistics’ (1999), <http://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/Leading_Up_to_The_1999_Refferendum.htm> at 15 April 2008.
 Australian Electoral Commission, ‘1999 Referendum Reports and Statistics’ (1999), <http://www.aec.gov.au/Elections/referendums/1999_Referendum_Reports_Statistics/summary_preamble.htm> at 15 April 2008.
 McKenna, Simpson and Williams, above n 9, . See also Anne Winckel, ‘A 21st Century Constitutional Preamble – An Opportunity For Unity Rather Than Partisan Politics’ (2001) University of NSW Law Journal , <http://www.austlii.edu.au/au/journals/UNSWLJ/2001/51.html> at 15 April 2008; Greg Gardiner, ‘Constitution (Recognition of Aboriginal People) Bill 2004’ (2004) 6 D-Brief (Victorian Parliament) 5-6.
 Iain Stewart, ‘The 1999 Referendum’ (2000), <http://www.law.mq.edu.au/Units/law314/referendum99.htm#24%20March%201999> at 15 April 2008.
 McKenna, Simpson and Williams, above n 9, .
 See Mark McKenna, ‘First Words: A Brief History of Public Debate on a New Preamble to the Australian Constitution 1991-99’, (Research Paper No 16, 1999-2000), Commonwealth Parliamentary Library, Appendix 2, <http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm> at 15 April 2008.
 Stewart, above n 15.
 See George Winterton, ‘Constitutional Preamble’ (Paper prepared for the Australian Reconciliation Convention, Canberra, 26 May 1997), <http://www.austlii.edu.au/au/other/IndigLRes/car/1997/4/winterto.html> at 15 April 2008.
 Constitutional Centenary Foundation, ‘The Indigenous Peoples of Australia and the Constitution’, (2000) Fact Sheet 8.1, <http://cccs.law.unimelb.edu.au/go/resources/about-the-constitution/> at 17 April 2008.
 Native Title Act 1993 (Cth) long title.
 McKenna, Simpson and Williams, above n 9 -.
 Ibid -; Winckel, above n 14, -. See also, Mark McKenna, ‘The Need for a New Preamble to the Australian Constitution and/or a Bill of Rights’ (Research Paper No 12, 1996/1997), Commonwealth Parliamentary Library, 12, <http://www.aph.gov.au/library/pubs/rp/1996-97/97rp12.htm> at 15 April 2008; Mark McKenna, Amelia Simpson and George Williams, ‘First Words: The Preamble to the Australian Constitution’ (2001) 24(2) University of NSW Law Journal -, <http://www.austlii.edu.au/au/journals/UNSWLJ/2001/28.html> at 15 April 2008.
 Interestingly, one criticism of the amended Victorian Constitution is that its reference to Indigenous people’s custodianship of the land did not go far enough, and that it should have referred to ‘ownership’. See Hewett, above n 4, 37-40.
 Constitution Act 1975 (Vic), section 1A (3).