A plain English introduction to the issues

Aboriginal and Torres Strait Islander peoples are the First Peoples of Australia.

Aboriginal and Torres Strait Islander peoples are also called the Indigenous peoples of Australia.

Aboriginal and Torres Strait Islander peoples have lived on the Australian continent and its islands for more than 60,000 years.

The First Peoples of Australia have a very long history and rich cultures.

They have unique traditions and speak many different languages. The British started to live in Australia in 1788, almost 230 years ago.

When the British arrived, Aboriginal and Torres Strait Islander peoples lived on the whole continent.

But the British did not think that Aboriginal and Torres Strait Islander peoples owned the land.

The British took the lands and waters without the permission of Aboriginal and Torres Strait Islander peoples.

What is the Constitution?

The Constitution is the main document for the law of Australia.

It is like a rule book, and it was written to help create the Commonwealth of Australia in 1901.

The Constitution set up the Australian Parliament and rules for the Australian government.

The Australian people vote in elections to decide who will represent them in the Parliament and run the country.

The Constitution says what types of laws the Australian government can make for the nation.

It also says what types of laws the State governments can make in their States.

The Constitution set up courts that make decisions about big legal issues.

The Constitution says something about the values of our society.

How can we change the Constitution?

If we want to change the words in the Constitution, the Parliament must decide to hold a special vote across all of Australia.

This special vote is called a referendum.

A change to the Constitution will only go ahead if a majority of Australian people vote ‘yes’ for the change.

Also, the change will only go ahead if a majority of Australian people in at least 4 of the 6 States vote ‘yes’ for the change.

Indigenous Peoples and the Constitution

The Constitution does not acknowledge the First Peoples of Australia.

Aboriginal and Torres Strait Islander peoples did not have a say when the Constitution was set up.

They were not given a voice when people were deciding what to put in the Constitution.

And most Indigenous peoples were not allowed to vote for or against the Constitution.

The Constitution had two sections that discriminated against Indigenous peoples.

In 1967, Australia had a referendum about these two sections of the Constitution:

Section 51 said that the Australian Parliament could make special laws for people of different races, but not for Aboriginal people.
Section 127 said that Aboriginal people could not be counted in the population of Australia.

In the referendum, Australians decided to change section 51. Now the Australian Parliament can make special laws for Aboriginal and Torres Strait Islander peoples.

Australians also decided to get rid of section 127 altogether. Now Aboriginal and Torres Strait Islander peoples are counted in the population.

But the Constitution still does not protect Indigenous peoples against unfair treatment.

And it still does not recognise the special place of Aboriginal and Torres Strait Islander peoples in Australia.

What is recognition?

Recognition of Indigenous peoples can happen by changing the words in the Constitution.

This document is about constitutional recognition of Aboriginal and Torres Strait Islander peoples.

The word recognise or recognition can mean different things to different people.

It can be when one group of people acknowledges that another group exists.

Recognition can be when people decide that a particular group has rights or claims, like a right to be treated fairly.

Recognition can sometimes be in the form of a written agreement between two or more groups, such as a treaty.

Other actions can be a type of recognition:

The Mabo decision in the High Court in 1992 was the start of recognising Indigenous peoples as the traditional owners of land in Australia.
The formal Apology in 2008 to members of the Stolen Generations recognised the hurt and pain of Indigenous peoples.

It is important that Aboriginal and Torres Strait Islander peoples have a say in what type of recognition they want.

Some people say that making a statement would be a big step on the way to reconciliation.

Ways to make a statement People have suggested different ways of making a statement.

One option would be to put the statement in the Constitution.

But first, Australia would have to hold a referendum to ask voters if they wanted to put the statement in the Constitution.

Another option would be for the Australian Parliament and all the State and Territory parliaments to make a Declaration in new laws.

We would not need a referendum for this option.

What about a treaty?

Many people talk about having a treaty between Indigenous people and the government.

A treaty is a type of legal agreement between two or more groups.

It can be a way of sorting out difficult problems and agreeing on the relationship between Indigenous peoples and the government.

Other countries, like the United States, Canada and New Zealand, have treaties between Indigenous peoples and governments.

In Australia, the Victorian and South Australian governments have each started talking about a treaty with Aboriginal people in those two States.

The Northern Territory government also has plans to talk about a treaty with Indigenous peoples in the Territory.

Some people think the agreement between the Noongar people and the Western Australian government is similar to a treaty.

hundreds of native title agreements now recognise the traditional Indigenous owners of lands and waters across Australia.

Treaty issues and the Constitution

What is the relationship between the idea of a treaty and the idea of recognising Aboriginal and Torres Strait Islander peoples in the Constitution?

Do we have to choose between one idea or the other?

No, we do not have to choose because the two ideas can support each other.

Changing the Constitution would not mean that we cannot make progress toward a treaty.

And discussing a treaty does not rule out making changes to the Constitution to recognise Aboriginal and Torres Strait Islander peoples.

What would recognition look like?

We have identified 5 main ideas for recognition.

The 5 ideas are:

1. adding a statement to the Constitution, or making a Declaration, that says Aboriginal and Torres Strait Islander peoples are the First Australians

2. removing or changing the power of the Australian Parliament to make specific laws for Indigenous peoples

3. changing the Constitution to help stop racial discrimination

4. providing a stronger Indigenous voice to Parliament

5. getting rid of section 25 from the Constitution.

We will now explain each of these 5 ideas.

We will also ask you some questions about these ideas.

1. A statement about the First Peoples of Australia

A statement about the First Peoples could acknowledge that Aboriginal and Torres Strait Islander peoples lived on the continent and its islands before the British arrived.

It could also say that Aboriginal and Torres Strait Islander peoples still have a relationship with their lands and waters.

It could talk about the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

Some people have suggested making a broader statement that acknowledges:

Australia’s ancient Indigenous heritage
the rules and form of government that we inherited from the British
Australia’s multicultural achievements.

Some people say that making a statement would be a big step on the way to reconciliation.

Ways to make a statement

People have suggested different ways of making a statement.

One option would be to put the statement in the Constitution.

But first, Australia would have to hold a referendum to ask voters if they wanted to put the statement in the Constitution.

Another option would be for the Australian Parliament and all the State and Territory parliaments to make a Declaration in new laws.

We would not need a referendum for this option.

2. Power to make laws for Aboriginal and Torres Strait Islander peoples

Section 51 is the part of the Constitution that lets the Australian Parliament make national laws about different matters, like tax and welfare.

Some words in section 51 give the Australian Parliament the power to make special laws for the people of any race.

This is called the race power.

The race power lets the Australian Parliament make special laws about Aboriginal and Torres Strait Islander peoples.

The race power is important because it means the Australian Parliament can make laws on things like native title and protecting Indigenous heritage.

Options for change

One idea is to get rid of the race power from section 51 and put new words in a different section of the Constitution.

The new words would give the Australian Parliament the power to make specific laws for Aboriginal and Torres Strait Islander peoples.

Another similar idea is to get rid of the word race from section 51.

The word race is often used to refer to a group of people who have things in common, like similar physical features, or sharing the same language, culture and traditions.

But this idea about race is an old one and many people think it is not right to use the word this way anymore.

New words could then be added to section 51 to give the Australian Parliament the power to make laws for Aboriginal and Torres Strait Islander peoples.

The new words would not be based on race, but on the unique status of Aboriginal and Torres Strait Islander peoples.

The new words might also list some things that Indigenous communities would like to see in the future, such as:

a stronger Indigenous voice to Parliament
a process for making agreements with Indigenous peoples.

3. Changing the Constitution to stop racial discrimination

Racial discrimination is when a person or a group of people is singled out and treated unfairly because of their race.

All of the States and Territories have laws and policies to stop racial discrimination.

Also, a national law called the Racial Discrimination Act makes it against the law to discriminate against someone because of their race, colour or where they come from.

But the Constitution does not stop the Australian Parliament from making laws that discriminate against Indigenous people.

Ideas for change

One idea is to put a new section in the Constitution to stop the Australian Parliament from discriminating against people of any race or culture.

Another idea is to include words about discrimination in a new power for the Australian Parliament to make laws about Indigenous peoples.

Either way, the result would be to make sure that the Australian Parliament’s laws do not discriminate against Aboriginal and Torres Strait Islander peoples.

4. An Indigenous voice

Aboriginal and Torres Strait Islander peoples are the First Peoples, but today they are less than 3% of the Australian population.

In Australia’s system of democracy, that can make it hard for Indigenous Australians to have their voices heard in elections for the Parliament.

It can also make it hard for Indigenous Australians to influence any law that is made about them in the Parliament.

It is vital that Indigenous peoples have a real say in the laws, policies and programs that affect Indigenous peoples and their rights.

A strong Indigenous voice would help achieve better results for Indigenous peoples.

It would also help achieve a fairer relationship between Indigenous peoples and government.

An idea for change

Some people think that Australia should set up a new group of Indigenous people who can give advice to the Parliament about Indigenous issues.

The Constitution could be changed to set up this new group.

The group would make sure that the Parliament hears Indigenous voices when the Parliament makes new laws about Aboriginal and Torres Strait Islander peoples.

This could help the Parliament to make better and more effective laws for Aboriginal and Torres Strait Islander peoples.

5. Getting rid of section 25

Section 25 of the Constitution talks about the States banning people of any race from voting in State elections.

This section says that if a State chooses to ban a racial group from voting, it would have an effect on the Australian Parliament.

The number of seats a State has in the House of Representatives is based on the number of people in that State.

Section 25 says that if the State chooses to ban a racial group from voting, the people in that racial group would not be counted when working out the number of seats for that State in the House of Representatives.

What can we do?

The Racial Discrimination Act already stops States from banning a racial group at State elections.

This means that section 25 is called a dead letter, because it cannot be used anymore.

The problem is that the Constitution still contains a section that talks about States having the power to ban a race from voting at State elections.

There is a lot of support for getting rid of section 25 from the Constitution.

What happens next?

We are talking to many Indigenous and non-Indigenous Australians about recognising

Aboriginal and Torres Strait Islander peoples in the Constitution.

We are also reading the comments that people send us.

When we finish listening to people and reading their comments, we will write a report for the government and the opposition on what people say.

Our report will say how the Constitution might best be changed.

The Australian Parliament may decide to hold a referendum on changing the Constitution.

We would then all have a chance to vote on changing the Constitution through the referendum.

The meanings of key words in this document

Word or term	Meaning
Australian Parliament	A big meeting place in Canberra where people make laws about national issues. The two main parts of the Parliament are (1) the House of Representatives, and (2) the Senate. See also ‘House of Representatives’ and ‘Senate’ in this list.
Commonwealth of Australia	All the Australian States and Territories united into a single country. The Commonwealth of Australia was formed in 1901.
Constitution	The main rule book for the law of Australia. Go to page 5 of this document for more information about the Constitution.
Declaration	An important, formal statement on a big issue.
discriminate (or discrimination)	When a person or group of people is treated differently from everyone else. It can mean treating a person or group of people unfairly. It can also mean something positive, like taking special measures to improve conditions for a particular group of people. See also ‘racial discrimination’ in this list.
discriminate (or discrimination)	When a person or group of people is treated differently from everyone else. It can mean treating a person or group of people unfairly. It can also mean something positive, like taking special measures to improve conditions for a particular group of people. See also ‘racial discrimination’ in this list.
First Peoples	Another way of saying Aboriginal and Torres Strait Islander peoples. The First Peoples have lived on the Australian continent and its islands for more than 60,000 years. See also ‘Indigenous peoples’ in this list.
House of Representatives	One of two main parts of the Australian Parliament. The House has 150 representatives elected by the Australian people. It is the House in which the Australian government is formed. See also ‘Australian Parliament’ in this list.
Indigenous peoples	Another way of saying Aboriginal and Torres Strait Islander peoples. Indigenous peoples keep alive the culture and traditions of their ancestors. See also ‘First Peoples’ in this list.
native title	Where Australian law recognises the Indigenous traditional owners of land or water. Native title means that Indigenous peoples have maintained their connection to the land or water.
race	An old idea used to define a group of people who have things in common, like similar physical features or sharing the same language, culture and traditions. Go to page 14 of this document for more information.
race power	The words in section 51 of the Constitution that give the Australian Parliament the power to make special laws for the people of any race. See also ‘race’ in this list.
racial discrimination	When a person or a group of people is singled out and treated unfairly because of their race. See also ‘race’ and ‘discriminate’ in this list.
recognise (or recognition)	When one group of people acknowledges that another group exists, or when people decide that a particular group has rights or claims. Go to page 7 of this document for more information.
reconciliation	The process where Indigenous and non-Indigenous people show each other respect and sort out their differences.
referendum	A special vote across the whole country to change the Constitution.
Senate	One of two main parts of the Australian Parliament. The Senate consists of 76 senators elected by the Australian people, 12 from each of the six states and two from each of the mainland territories. It shares the power to make laws with the House of Representatives. See also ‘Australian Parliament’ in this list.
treaty	A type of legal agreement between two or more groups. A treaty can be a way to sort out difficult problems or agree on the relationship between two or more groups.