Should the Constitution expressly recognise the indigenous peoples of Australia?

Speaking Notes for Talk at Regional Schools Constitutional Convention,
Lowther Hall Anglican Girls Grammar, Thursday 11 May 2000

• This is one of those "how long is a piece of string?" questions.  The answer is:  it depends on how and why.
• For most of the history of the Australian Federation, Aboriginal Australians were specially mentioned in the Australian Constitution until the 1967 referendum removed those references.
• That referendum was the most consensual political act ever put to the Australian people, with a total "Yes" vote of over 90% -- it was more successful than the original proposals to federate Australia.
• The reason the removal of those provisions -- that Aboriginals not be counted in the Census and that the Commonwealth could legislate for any race other than Aboriginals -- was so popular is that those provisions transgressed a very powerful Australian norm:  that there should be one set of rules for everyone.
• This norm -- one set of rules for everyone -- is, in fact, a very liberating norm.  It is hard to overstate its power.
• The position of women has improved dramatically from its power.  The position of minorities have improved greatly from its power.  The point that we are all "just people", with the same basic rights and obligations is a powerful and liberating idea.
• No reference which seriously transgresses that norm should be included in the Constitution.
• Which is just as well, since no reference which transgresses that norm will be included.  The Australian public will never vote for it.
• We should be careful not to mistake media debate and comment for public opinion.  Polling clearly indicates that constitutional matters are not a major popular concern -- not even during the recent Republic debate.  And it was particularly perverse to commentators blame Howard when he is the only PM in our history to allow a proposal he did not agree with to go to the people:  neither of his immediate predecessors, Bob Hawke and Paul Keating, would ever had done that.
• People are clearly reluctant to change the Constitution.  Of the 44 amendment proposals put to the people, only eight have passed.
• Yet, if a proposal has the support of both sides of politics, they tend to pass.  Of the 13 proposals supported by both Prime Minister and Opposition Leader of the day, eight have passed.  None have passed without such support.
• Should also be very careful about handing power over to judges, which adding claims or principles to the Constitution can easily do.  The popular support for mandatory sentencing fairly clearly comes from a distrust of judges.  The role of judges is important, but should be limited, since it is so difficult to hold them accountable.
• Indigenous Australians do confront very particular historical legacies.
• It may be appropriate to acknowledge that ancestors of indigenous Australians were the first human occupants of this land, but we are ultimately about building a common society, with common general rules, and our Constitution should reflect that.