Simplicity is the key in referendum to moving forward on Indigenous recognition, ANU expert says

25 May 2017

One of the University's top academics believes a successful referendum on recognising Indigenous people in the Australian Constitution will be reliant on posing an uncomplicated question to voters.

Associate Professor Asmi Wood, whose expertise includes Aboriginal and Torres Strait Islander people and the Law at the ANU College of Law, says the next step of formal Indigenous recognition will complete the loop and fill a gap created when the country voted to count Aboriginal people as people in the census in 1967 and their recognition in the common law in the Mabo case.

27 May 2017, the beginning of Reconciliation Week, marks 50 years since more than 90 per cent of the population voted yes in including Indigenous people in the census. But the vote also allowed the government to make detrimental laws for Aboriginal and Torres Strait Islander people.

"We were invisible to the law, and the law is only now beginning to see us" says Associate Professor Asmi Wood.

1967 was almost like turning on a light in a dark room and saying 'oh gosh, there are these Aboriginal people here as well,' he says.

Recognition in the common law and better education among Aboriginal people also paved the way for Indigenous people to begin a process of litigation where they felt empowered to do things, Associate Professor Wood says.

One of the biggest landmark cases of litigation involved that of Eddie Mabo, who 25 years after, in 1992 helped lead a campaign that saw the High Court of Australia overturn a legal doctrine known as terra nullius. The overturn meant Indigenous people had the ability to re-claim traditional rights to land for the first time in 200 years.

"What the Mabo case also did was recognise Aboriginal people in the Common Law. What we haven't done yet is to recognise Aboriginal people in the Constitution which creates dissonance in Australian law.

"So the constitution, as a document that has come from those times, still carries that shadow of Aboriginal invisibility ... the common law has removed the invisibility but the Constitution still hasn't had that positive statement of recognition that could have happened in 1967, but is now a possibility in 2017."

Associate Professor Wood says a referendum should also push for the removal of a clause that gives parliament the power to make laws based on race but applied only in respect to Aboriginal people.

But to deal with these important issues, the referendum questions need to be simple to achieve success, he says.

"I think some of the referendum questions that have been put to the public are so complicated that people don't understand it and if they don't understand it then they won't vote for it.

"The complex way in which the problem was framed in various parliamentary reports, also diminished the public enthusiasm for change."

Associate Professor Wood says two simple questions should be posed in a referendum.

One, should we recognise Aboriginal people as a first people of this nation? And two should we presume racial equality among all Australian citizens, (thus removing Parliament's power to make race based laws)?

"Two simple questions and I'm sure we'll have 91 per cent (as we did in 1967) of people saying yes to those two questions and I think we'll be able to address the fundamental legal barriers that we have to overcoming these problems."