During the negotiation stage after the 2010 election, one demand from the Greens was a referendum to incorporate indigenous people in the Constitution before the 2013 election. Julia Gillard signed up.

Cartoon: Peter Nicholson

Now she has stated that the referendum will not be held, as she feels the people are not yet sufficiently in support. Whose fault is that? In essence, it is the task of a government which is seeking to change the Constitution to devote resources necessary to convince the public.

It is no easy task to get enough support to satisfy the requirement of a double majority. Only eight of the 44 referendums put to the people since 1901 have passed. Obviously, the voters need to be convinced. Apparently they haven’t been, so the promised referendum is postponed.

In its place, the Gillard government has proposed an Act of Recognition, which will acknowledge “the unique and special place of our first peoples”. This is planned to be an interim measure, which would be the first step to a referendum held sometime before the 2016 election.

That may satisfy some lobby groups, but it will not end demands for constitutional change. It would only delay a controversial referendum.

The report from an expert panel set up by the government made three key recommendations. One demanded the removal of “racist” sections in the Constitution.  About time. That should be put to a referendum as soon as possible, with strong bipartisan campaign. Sections 25 and 51(26) should be removed.

The demand to include a new clause in the Constitution which prohibits racial discrimination would be a first step to a Bill of Rights. That, alone, will engender broad and passionate debate, and will tend to divide rather than unite the people who will make the final decision – the voters.

The third recommendation is filled with potential controversy. The panel recommended that the Constitution should be amended to include a commitment to the “advancement” of Aborigines and Torres Strait Islanders, with recognition and protection of their culture.

This seems to be in conflict with the first key proposal. If all clauses which make reference to “race” should be excluded, then on what grounds is there logic in recommending that a new reference to “race” be inserted?   

One solution may be to place such in-principle commitments to the indigenous people in a Preamble. Currently, the Constitution contains very few principles. It is essentially a document about mechanics – the structures of government. Under what principles the government should work is not mentioned. It doesn’t even include a reference to the fundamental principle of responsible government.

Maybe it should do so, but can you imagine the furore of a referendum campaign based on a proposal for the insertion of “principles”?

The solution could be to set out some principles of Australian society and democracy in a Preamble. John Howard attempted this is a referendum in 1999. Over 60 per cent voted against the proposal.

But some of the opposition could have been due to the text of the proposal – it was hardly the equivalent of Abraham Lincoln’s Gettysburg Address in either content or style.  A Preamble establishing principles for Australia, written with some passion, including a section concerning indigenous people, could well receive majority support.

But the first step should be to encourage Australians to get to know their Constitution. A study in the 1994 found that 87 per cent of the respondents had a total lack of knowledge about the Constitution.

The government needs to focus on public education to deal with that problem before proposing a referendum. So, step 1: provide every elector with a free copy of the Constitution.

Most commented


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    • thatmosis says:

      07:18am | 26/09/12

      Aren’t the indigenous peoples of Australia already Australian? If so why do they need to be included in the Constitution unless its a ploy for more Government money to flow their way. More Government clap trap for no good reason. Lets us instead use the money that would be used to set up this referendum vote to do something constructive, like more beds in hospitals or better roads instead of wasting it on this crap.

    • CJ Johnson says:

      10:45am | 26/09/12

      Section 25: “For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.”

    • thatmosis says:

      03:45pm | 26/09/12

      WTF????????? What’s that got to do with the above post. Aren’t indigenous peoples allowed to vote in any election as Australian citizens. Isn’t it law that all Australians must vote????

    • Mahhrat says:

      07:44am | 26/09/12

      I understand and support the need to help out people in bad circumstances, and those indigenous people who need a hand should get that hand. 

      I do not understand, however, why “culture” requires preservation, simply because it once existed.

      Pagans do not receive (nor are they asking for) such support, nor are the Romans, Ancient Egyptians, Bedouin, Stoic Greeks…you get the idea.

      Culture, like most things, is an evolutionary process.  Should women be forced back out of the workplace to “preserve the culture” of the early 1900s?  Of course not; our culture is evolving slowly towards (I hope) some kind of egalitarian recognition of diversity and the concept of individual responsibility.

      Culture has no right to exist simply because it once did.

    • KH says:

      10:06am | 26/09/12

      This is something that I find very odd - why are they not evolving?  Why do they have to keep a culture that is so obviously incompatible with the 21st century?  Doesn’t this effectively keep the aboriginal people on the bottom of the ladder?  My heritage is (part) British - and that culture has been influenced by the Romans, the Angles, the Saxons, the Normans, German royalty, and now the global ‘village’.  If it hadn’t been I suppose we would still be living in the woods, hunting for food and building stone circles or something.  More likely it would simply have been overrun by someone else.

      As Darwin said, its not the strongest or even the smartest that survive, its the one most adaptable to change.

    • Achmed says:

      07:45am | 26/09/12

      Discussion around the Constitution is not as simplistic as providing every voter with a copy.  They would also need to be provided with the interpretations of the Constitution that have been the decision of the High Court.  Those proposing changes to the Constitution need to be wary that any changes will also have an impact on legal precedence.
      There is no freedom of speech imbedded in our Constitution. The High Court ruled that it is implied.  While no doubt many are familiar with the First Amendment of the American Constitution ” Congress shall make no law abridging the freedom of speech or press….”  Australia has no such clause. A change would have an impact on legal precedence and see changes to our defamation laws for example.  So its not just a case of changing the Constitution the flow on changes to Laws and the impact needs to be considered

      I am surprised that 13% know about the Constitution.  As a regular blogger I am always dismayed at the level of ignorance displayed in comments when people demand the PM should be sacked by the GG and an election should be forced.  A quick read of the Constitution would show their lack of knowledge of a foundation document.

    • antman says:

      05:47pm | 26/09/12

      Of the 13%, about half will be shocked to discover that it does not commence with the words “We, the people…” and contains no right to bear arms. Thata might explain the apparently large number.

      Handing out copies of the Constitution would be almost pointless, even with commentary on judicial interpretation, as I’d be surprised if 5% could undestand it. Most of those would be lawyers; but not every lawyer, by any means.

    • DocBud says:

      07:45am | 26/09/12

      Not holding a referendum because the people aren’t ready to vote yes sounds like the EU concept of democracy, if you vote no, we’ll keep holding referenda until you vote yes.

    • Jad Jones says:

      07:58am | 26/09/12

      And if a referendum was held, despite the government knowing it wouldn’t get up, everyone would be complaining about the cost, how unnecessary it all is, the waste of a good Saturday and blah, blah, blah.

    • Achmed says:

      08:12am | 26/09/12

      Thats what the Liberals continued to do in WA around shopping hours and continue to do around daylight saving.
      They gave up on the shopping hours and despite the rejection of the proposed changes by the people at a referendum the Liberals changed the laws anyway.

    • Stephen Douglas says:

      08:33am | 26/09/12

      And never forget that on 2 occasions the people of the ACT voted against Self Government but the ALP thought better and imposed it anyway.

    • DocBud says:

      08:36am | 26/09/12


      You hold referenda to find out what the people think about a question. To explicitly state that you will not hold a referendum because the people will not vote yes demonstrates contempt for the people and democracy. It is saying “I know the right answer and until you do too, I won’t ask you.” that a few may moan if a referendum is held and defeated is irrelevant, it is a democratic instrument of this country and should be used when appropriate.

    • Rose says:

      09:25am | 26/09/12

      DocBud, maybe, but it is not appropriate until there has been a significant education and awareness campaign so that people know what they are voting for and why. Quite rightly this has not happened as there have been other more pressing issues for the Government to concern themselves with. The Referendum should never be held unless there is a chance at least of success, otherwise it is a complete waste of time and money.
      The 1999 Referendum was a waste of time and money as Howard had loaded the dice so far in his own favour and it had no chance of success because of that, he would have served democracy better by saying that he did not support such a Referendum and that it should be held aside until such time as there was a Government which, even if t didn’t support the proposed change, was not so vehemently against it!

    • DocBud says:

      10:32am | 26/09/12

      The purpose of a referendum, Rose, is not to rubber stamp government policy, it is to guage the opinion of the people on a matter that it is considered is of such importance that their direct say is required. Finding out that the people disagree with the government is not a waste of money. I’d argue that it is more valuable than finding out that they agree with the government, provided the government then respects their view.

      Once the question has been decided upon, the time for debate begins. In democracies, we should never consider that the voters need to be educated. We need to trust their judgement once a reasonable time for debate has been provided. Suggesting that people need education implies that they will give the ‘right’ result if only they are ‘properly educated’ whereas they will give the ‘wrong’ result if left to their own devices.

    • Shane From Melbourne says:

      10:48am | 26/09/12

      @DocBud- A plebiscite is held to determine what a the people think or feel about an issue. A referendum is held specifically to change the constitution. For example you could hold a plebiscite to determine whether a majority of Australians wanted an Australian republic then you would hold a referendum on the particular model of republic to change the constitution to.

    • DocBud says:

      11:20am | 26/09/12

      I was not aware of the distinction, Shane but the basic principle still applies, i.e. they are held to determine public opinion on changes to the constitution which is a matter considered of such importance that the opinion of the people must be established and trusted. One can argue that it is good that such a system exists as 36 times out of 44 the people have disagreed with the government’s proposals. 

      If the government wishes to change the constitution, find out whether the people agree, don’t insult them by saying “we’ll ‘educate’ you first as we don’t trust you to come to the right decision now.”

    • Rose says:

      07:26pm | 26/09/12

      DocBud, education surrounding a Referendum is absolutely imperative, otherwise how the hell would people understand the full implications of what they’re voting for or against? Education is simply letting people know what the options are, what will happen if the Constitution changes and what will happen if it doesn’t. Not everyone is an expert in Constitutional Law and they do need things explained to them, or do you prefer people to be treated like mushrooms?
      In this case it appears that many people are caught up in the argument that this change is a form of discrimination, therefore the Government needs the time and space to explain exactly what the change will mean and why they consider it important. Then, when the facts are on the table, people can make informed decisions on the way they will vote.
      The government has made the right decision to delay the Referendum, there will be time and resources available for a proper debate at another time. The worst case scenario would be to go through the expense of a Referendum half-cocked, destroying the possibility of an informed debate and therefore an informed vote.

    • Tim says:

      07:53am | 26/09/12

      It is ridiculous to even think of having any mention of any individual race in the constitution as it necessarily breeds division instead of unity.

    • Dash says:

      08:19am | 26/09/12

      Agreed! And why mention people that dont even recognise the document in the first place.

    • Mouse says:

      09:23am | 26/09/12

      Correct Tim, and, as Dean says, the first and third key recommendations conflict anyway!

    • AdamC says:

      10:15am | 26/09/12

      The apparent contradiction between the first and third proposals can be explained by the composition of the ‘expert panel’. In reality, it was an activist panel. And activists are not consistent in their advocacy. If they think a particular thing will benefit their favoured group, they will back it, even if this leads to them being inconsistent. I call it ‘equality on the upside’. A more prosaic term would be privilege.

      In this case, the privilege manifests in a straight-faced demand that the Constitution be entirely blind to race ... except where race-awareness may benefit aboriginal people. It is not dissimilar to how gay activists insist on a right to ‘marriage equality’, which they seem more than happy to deny to other minorities, such as polygamists.

    • Anna C says:

      12:03pm | 26/09/12

      Your right Tim.  We are all supposed to be equal but it appears some of us are more equal than others.  Not a good look.

    • nihonin says:

      12:13pm | 26/09/12

      Absolutely agree Tim.

    • wakeuppls says:

      12:41pm | 26/09/12


      Clearly you are just a bigot and a homophobe.

    • seanr says:

      01:22pm | 26/09/12

      agreed Tim and AdamC, the contradiction in evidence is bewildering, mainly because I can’t see how someone can logically argue that with a straight face.
      It’s also amusing that wakeuppls called you a homophobe

    • wakeuppls says:

      02:13pm | 26/09/12

      it was sarcasm

    • seanr says:

      02:31pm | 26/09/12

      Dammit I wasn’t sure and took a chance it wasn’t..got it wrong, my apologies

    • antman says:

      05:50pm | 26/09/12

      @seanr; perhaps AdamC is consumed by self-loathing.

    • Terry2 says:

      07:57am | 26/09/12

      I think we can all agree that sections 25 and 51 (xxvi) of the Constitution are obsolete and need to go but really that’s it. We should not eliminate disciminatory provisions in one area only to build in new discriminatory provisions elsewhere.
      Perhaps we can compromise by recognising the first peoples AND the contribution of immigrants in the preamble but, even as I say that I realize that it really seems to be pandering, cosmetic and unecessary.

    • TimB says:

      08:14am | 26/09/12

      “Now she has stated that the referendum will not be held, as she feels the people are not yet sufficiently in support”

      Interesting. This was the same logic behind her promise to delay carbon pricing. We weren’t ready and she wouldn’t inflict it on us until she had electoral support. Whatever happened to that pledge?

      If this wasn’t the constitution we were talking about, I wouldn’t have put it past Gillard to just ram this thing through Parliament no matter what.

    • Borderer says:

      08:56am | 26/09/12

      Debate over the issue takes the focus off fixing actual issues that affect actual Australians. Changing the constitution might make a few indigeneous Australian’s(and supportors)  feel a slight warm and fuzzy sensation for a day or two but will do nothing for healthcare, border protection, education, defense and so on. If I was leader of the opposition, I would simply say that the topic has merit and is worthy of debate and may be worth considering when our economy is performing better and we have the funds to indulge in such things. Right now, we do not and there are many more vital programs that are crying out for the funding this would require.

    • Dash says:

      08:17am | 26/09/12

      I don’t understand. Why recognise (and more to the point single out) aboriginal people in a document, they themselves are not prepared to recognise let alone accept?

      If Aboriginals are formally “recognised”, will they then formally accept the constitution of our country? Pull down the tents?

      Has anyone bothered to ask Aboriginals what they want? Do they want to be mentioned in a document they have strived to tear up for over 100 years? Would it not be hypocritical of Aboriginals to push for recognition in such a document?. Is it only Green white lefties that seem to know what’s good for the rest of us?

      This is nothing more than a political piece of nonsense. Reconciliation is not a one sided street! The constitution of Australia does not single out any people on the basis of colour or creed. Why should it now?

      Aboriginals should be treated as equals under the law. We should not positively descriminate within our constitution. Can someone please cut through the political bullshit and explain a real reason why they should be singled out?

    • marley says:

      11:36am | 26/09/12

      I don’t know, Dash.  For reasons historical, aboriginal peoples were explicitly recognised in early versions of Canadian constitutions - and when Trudeau decided to go for a new Constitution in 1982, the indigenous peoples fought long and hard to make sure they would continue to be recognised as a founding people. 

      I don’t think what we’re discussing here is entirely comparable, but I’m not sure that aborigines here wouldn’t take a lesson from their Canadian counterparts on this and recognise that whitefellas aren’t going home, so they’d better get into the game rather than pretend it doesn’t exist.

    • iansand says:

      08:36am | 26/09/12

      I can be persuaded otherwise, but to my mind the Constitution should be a nuts and bolts document.  Principles are great, but they change.  A principle that may well have been included in, say, 1932 could have provided for a white Australia policy.  Is that something we would want now?  But there are people alive now who were alive in 1932.

    • Tim says:

      09:54am | 26/09/12


      I’m wondering how many more issues de rigueur would require change of the constitution in the future?

    • darren says:

      08:39am | 26/09/12

      If we are going to acknowledge Aboriginals in such a formal way, does that mean we also get to define what it takes to be considered an Aboriginal?

    • Robinoz says:

      08:54am | 26/09/12

      There are many more important things upon which we could waste the millions required for a referendum. One for example could be the Constitutional recognition that the only law allowed and to be practised in Australia is that promulgated by the Federal, State and Territory governments. That would prevent any religious group that supports a totalitarian system of law and politics of its own manufacture to be outlawed and ensure to some degree our protection as a free, democratic society.

    • iansand says:

      09:23am | 26/09/12

      A free, democratic society should enable its citizens to select whatever law they damn well want to regulate their civil (as opposed to criminal) relationships.  As ours presently does.  Doing anything else restricts people’s freedoms.

    • nihonin says:

      10:00am | 26/09/12

      Thanks iansand, I want Sharia Law or Law of the Mob, that way we can castrate pedophiles, hang murderers, cut the hands off thieves and lobotomize people who commit fraud.  Bugger the sanctity of our current laws, lets not keep the laws that have worked for decades and all Australians should abide by.

    • iansand says:

      10:24am | 26/09/12

      I blame his teachers for his reduced comprehension skills.  Or native prejudice.

      There would be very few cross border contracts written in this country without a choice of law clause. They are enforceable and they should be.

      If a divorcing couple wish to divide their property as provided by Jewish or Muslim law, adjudicated by an expert in that law, why can’t they make that choice?

      The Rugby League, or AFL, judiciaries should be able to enforce the rules of their games, and impose sanctions.

      Etc, etc, etc.

    • nihonin says:

      06:08pm | 26/09/12

      ‘I blame his teachers for his reduced comprehension skills.  Or native prejudice.’

      lol iansand, I think you just have your head stuck up your wink  So you believe, you’re not prejudiced, high horse long fall.  If you agree with ‘enable its citizens to select whatever law they damn well want to regulate their civil (as opposed to criminal) relationships’.  How long do you think there would be before there was a push to allow them to ‘regulate’ their criminal punishments?  Of course people like you would say yes let them as it works within confines of Australian Laws.

    • Alfie says:

      09:12am | 26/09/12

      Take two of the recommendations by the panel:

      One demanded the removal of “racist” sections in the Constitution.

      Another recommended that the Constitution should be amended to include a commitment to the “advancement” of Aborigines and Torres Strait Islanders.

      I might be cynical, but the two seem to contradict each other.

    • centurion48 says:

      09:59am | 26/09/12

      Tax laws demonstrate amply that there are smart people who exploit any law passed by any government. As soon as a provision in the Constitution ‘advances’ the cause of one group over the rest there will be open slather to qualify as a member of that group.
      Being an indigenous person is not the sole reason for poor health, lack of financial success or social circumstance - there are plenty of disadvantaged non-indigenous Australians and plenty of successful aboriginal Australians. The majority of Australians, by supporting governments of all types for generations, has paid conscience money to aboriginal people who ‘choose’ to live and die in pathetic, third-world circumstances in town camps and outstations. Conditions that have become worse in the past 100 years instead of better. And the worst of it is that they are still allowed to condemn their children to the same fate.
      I do not want to be responsible, in any way, for perpetuating the pitiful circumstances currently experienced by many aborigines yet this is exactly the result if we allow ‘preservation of culture’ to be given a higher priority than education and health of any Australian. If the choice is between preserving aboriginal art, history and language on one hand and the future of aboriginal children as equal members of Australian society by enabling their future through a healthy lifestyle and a complete education then it is goodbye culture. How many dot paintings or manufactured representations of the dreamtime does the world really need if the creators of those cultural items spend their days sitting in the dirt in poor health while their kids miss out on an education and learning to speak, live and survive in a modern society?
      We have been content to sit back and allow yet another generation of aboriginal kids to grow up disadvantaged, where we create a few artificial jobs (CDEP jobs and the ubiquitous ranger jobs) where it doesn’t really matter if they do anything as long as it has the appearance of keeping them busy so that they don’t create a fuss. But it does nobody any favours and certainly does not advance them anywhere.
      Amend the Constitution to make all Australians equal but don’t perpetuate the myth that aboriginals are incapable of being the equal of any other Australian.

    • Babylon says:

      10:04am | 26/09/12

      Gillard Government policies in the NT have been described by Aboriginal Leaders and Amnesty International as ‘Ethnic Cleaning’ in the past.

      More scary was released documents showed the Gillard Government did not formally respond to United Nations concerns about its plans to extend a Northern Territory intervention program until the legislation had passed parliament.

      The Gillard Government’s “Stronger Futures” legislation, which passed in late June, extended the Governments ‘New and Improved and more far human right breaching’ version of the Howard era intervention, into Aboriginal communities for another decade.

      The UN repeatedly expressed concerns that discrimination and stigmatisation of Aboriginal people could be exacerbated under the Stronger Futures laws.

      The UN also expressed concerns the government’s consultation process with remote communities had failed to take into account literacy and education deficits.

      There was no response from the Gillard Government till after the Parliamentary session.

      The Gillard Government declined to have an independent review of the human rights aspects of it’s legislation by the UN.

    • MBeech says:

      10:04am | 26/09/12

      Irrespective of the rights and wrongs of delaying the matter, imagine the screeching if a Coalition government had done so.

    • Ash says:

      10:37am | 26/09/12

      I don’t know who it was that created the idea that “hey, any reference to any minority is racist and holding the white man down!” but whoever it was deserves a punch in the face.

      If this referendum is racist, then give me a KKK hood and call me Billy Ray Jethro. Of course there’s a long way to go when it comes to reconciliation. But there’s no appetite amongst the wider electorate for actual policies that would uplift indigenous Australians - again because of this weird victim obsession that seems to be spreading throughout white people that started in America and made it’s way here. Therefore, until the mood of the electorate changes, symbolic moves such as this are all that can be done and hopefully people will begin to open their eyes (and hearts) just a little more.

      *awaits flood of abuse calling me an evil Labor lefty socialist communist Nazi Abo lover who should have his head on a pike*

    • Tim says:

      11:10am | 26/09/12

      “again because of this weird victim obsession that seems to be spreading throughout white people”

      This has got to be the most ironic post on this issue I’ve ever seen.

      Victim mentality is any minority or activist group’s go to tactic. It works a treat in breeding groups of disgruntled “victims” who require special help/money because of who or what they are instead of help being given on the basis of need.

      Seems you think it’s OK to be racist, as long as the racism is only going one way.

    • Ash says:

      11:39am | 26/09/12

      Tim - if you had read my post properly, you would have figured out that I am calling for assistance to be given to those in need. Unfortunately the needy in our society are not outer-suburban bogan breeders seeking a middle class welfare fix.

      Unfortunately, if a politician calls for real solutions to the problems facing the Indigenous community you get the Bolt brigade calling them racist.

      I hear you when you say that the victim mentality is wrong amongst any group. I was merely pointing out that the mostly white middle class have caught on to what you said - by claiming that they are victims, they can get benefits (baby bonus, first home buyer grant, private health insurance rebate, private school govt. funding, etc etc etc) with money that should be going to those who actually need it such as struggling indigenous communities, kids in crappy public schools who don’t have a chance at a decent education, sick people forced to wait for months to get surgery on Medicare to name but three examples.

    • Tim says:

      12:34pm | 26/09/12

      OK Ash,
      sorry I misread your post.

      I agree with you.

    • Unaddressed Issues says:

      11:40am | 26/09/12

      Australia has not ever had to address racism.

      After the terrible events that Germany was involved in WWII it had to confront its terrible deeds.  Now, it is perhaps more morally attuned to racism than many other countries. Austria the birthplace of Hitler and Germany’s silent ally got off Scot free. Austria is somewhat like Australia in that the psyche of the older population sees nothing wrong with racism.

      South Africa previously the home of extreme racism had the truth and reconciliation commission and is finally able to move on. Australia was the proud exporter of the notorious pass-book laws to South Africa, after being successfully used here to subjugate the pesky Indigenous population. After all we proudly, legally had a White Australia until as recently as 1973.

      Try opening up a debate here and the typical response is. We are not racist, it is not my responsibility or please don’t guilt trip me, I am just a nice person.

      Australia which was built on the farcical legal construct of “Terra Nullius” has not had to address its history head on. Until it does so it will be stuck on the international arena as a racist backwater with
      zero moral capital.

    • Jed says:

      06:25pm | 26/09/12

      Let us not forget that the Constitution was written to exclusively protect the British Empire. By its very design and language it subtly gives one race preference over another.

      Not saying this is good or bad, but it has to be noted.

    • Swamp Thing says:

      03:37pm | 26/09/12

      Racism, “Racist” - terms that have been bandied around so much that they are (thankfully) losing any impact or real meaning. When the term has been completely rendered as ‘white noise’ (no pun intended), perhaps then meaningful discussion can occur. This will happen within a generation. Until that time I reckon this country has bigger things to worry about….

    • azzure says:

      04:15pm | 26/09/12

      This change would get very little support from the wider population, the government knows this and won’t risk the embarrassment.

      I would love to see the betting odds for the referendum if ever it was to go ahead, my money would be on in-excess of 80% of the population being against this change.


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