Discussion paper

Constitutional reform: Creating a nation for all of us

20 May 2011

The Aboriginal and Torres Strait Islander Social Justice Commissioner outlines the historical circumstances that left Indigenous people out of the original Australian Constitution and the arguments for rectifying this omission.

"One hundred and ten years ago years ago, Queen Victoria gave Royal Assent to the Australian Constitution, the founding document of our nation and pre-eminent source of law in the country.

Aboriginal and Torres Strait Islander peoples were noticeably absent from its drafting.

We were excluded from the discussions concerning the creation of a new nation to be situated on our ancestral lands and territories.

We were expressly discriminated against in the text of the Constitution, with provisions that prevented us from being counted as among the numbers of the new nation, and which prevented the new Australian Government from making laws that were specifically directed towards us.

As a consequence, the Constitution did not – and still does not – make adequate provision for us. It has completely failed to protect our inherent rights as the first peoples of this country.

Former Chief Justice of the High Court of Australia, Sir Anthony Mason, has referred to this as a ‘glaring omission’.

In the face of this history of exclusion, Aboriginal and Torres Strait Islander peoples have consistently and vehemently fought to have our rights recognised and acknowledged by the Australian Government and the Australian people."

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