Arguments against constitutional recognition

A constitution refers to a legal framework that is meant to protect its citizen from adverse conditions or eventualities that may accrue in the day to day living of a citizen. In some cases, however, this can be quite contrary (depending on the structure of the leadership) (Attwood, 2007). An example includes the Australian legal framework which constitutes one of the most powerful sets of law; however, does not represent the interests of the minority communities (indigenous Australians). The Indigenous Australians are not sufficiently protected by the nation’s constitution. The Torres Strait Islander and Aboriginal people in Australia are the most vulnerable individuals due to the constitution’s failure to protect them (Kowal, 2008). The constitution’s inability to protect these individuals has resulted in poor living conditions in matters regarding health, housing, education, and property acquisition; compared to the rest of the Australians. To understand the study topic in a better manner, the essay attempts to analyze how the Australian government has marginalized the indigenous communities in Australia. The essay focuses on the constitution as a tool used by the government to advance atrocities against the minority communities.

Constitutional recognition is nothing more than a symbolic gesture

The current constitution in Australia discriminates against the indigenous people in different ways. Even though the constitution acknowledges the indigenous Australian people, there are categorical cases of discrimination. Most of the efforts to remedy such cases took places during the 1967 Federal Referendum; however, there were no major changes regarding the independence of the indigenous Australians (Tushnet, 2009). The current Australian Constitution does not specifically mention the indigenous population; it only contains sections of references majorly in section 25 and 51 allowing the state to single out against people on the basis of their races. The Aboriginal and Torres Strait Islander people have been affected severally by these references in the constitution as the government has used the power provided by section 25 and 51 to enact legislations which marginalize against the minority communities.

The discriminatory tendencies of the Australian constitution can also be seen during the formation of the Reconciliation movement in Australia which commenced with the 1967 referendum in which a significant population of the population living in Australia (90 percent of the Australians) voted to get rid of discriminatory clauses in the legal establishments that discriminated against the indigenous Australians (Tushnet, 2009). To some extent, this approach granted the indigenous communities the right to take part in elections, acquire proper citizenship status and also to be included in the census exercise (Australian Government, 2015, para.1-3). However, it is it important to note that the movement was not quite efficient in its fight against constitutional discrimination especially: because there are some sections of the constitution that still harbor certain discriminatory clauses; and in relation to this, in 2015, Australia was declared as the only democratic country in the world that had clauses in its constitution that authorized discrimination in terms of race (Moses, 2011). The international community found that the indigenous people were the most affected individuals by such constitutional provisions.

Constitutional recognition will not improve the physical and mental health of Indigenous Australians

Most of the indigenous Australians especially Aboriginals live comparatively shorter lives than the rest of the Australians population. Their life expectancy is also lower compared to the rest of the non-Aborigine people of the Australian nation (Awofeso, 2011).  This can largely be attributed to the lack of proper legal frameworks that protect and safeguards the indigenous population interests in matters regarding effective health care policies and frameworks (Larson, Gillies, Howard, & Coffin, 2007). It is known that most of the Aborigines have quite limited participation in the health care systems and where there is participation of individuals from such minority settings, most of the services offered to them are way below the required standards (Paradies, Harris, & Anderson, 2008). This is mainly due to lack of proper recognition of the Aborigines’ basic health requirements by the existing legal frameworks. This therefore means that the government and the relevant stakeholders need to integrate the necessary efforts (amending constitutions where possible) to include the Australian indigenous people into the proper health care frameworks and policies; as a way of recognizing and protecting the Aborigine’s rights to a healthy living and also as an effort meant to ensure that the existing health system provide better health care services to the minority just like the rest of the population (non-indigenous) (Moses, 2011).

Constitutional recognition will negate Indigenous Australians right to sovereignty and possible treaty negations

When it comes to matters regarding the Aboriginal Australia Constitution recognition and their sovereignty as well as the related treaties, it is quite notable that the constitutional recognition to a large extent is more likely to negate the indigenous rights to sovereignty including the related treaties (Coulthard, 2007). This is because some of the sections in the constitution harbor certain clauses that portray discriminatory tendencies. The treaty, on the other hand, is meant to promote and uphold the aborigine and the Torres Strait Islander peoples’ sovereignty. The treaty system can be used to promote a sense of equality in a way that all of the people in Australia regardless of their identities, historical backgrounds and culture can be viewed as being equal. Most of the minority communities are against constitutional recognition because they feel that it is largely flawed and this, therefore, explains why a significant number of the Australia Aborigines want a treaty and negotiation. Most of the Aborigine population feels that the constitution imposes laws on them and that it also oppresses them (what they call the law of the colonizer government) (Rudd, 2008). The only way the indigenous people think this could be addressed would be through the signing of a single pact with a supportive body of an elected board of members belonging to the indigenous communities throughout the country (Brown, 2007). The main reasons why most of the aboriginal communities are against constitutional recognition is particularly based on the fact that the different government states (Victoria, Queensland, NSW, and South Australia) have taken no major steps to address issues such as legal funding, underpayment, advisory groups and health care inequality among the first communities.

Conclusion

Even though the Australian constitution has undergone a significant amendment in a referendum to address the issues of discrimination against the indigenous people, the nation has quite a long way to achieve the much-awaited equality. The flawed legal framework has led to a perception that the indigenous people are inferior so that they suffer oppression in the hands of the government and the rest of Australians. To remedy the current situation in the most effective manner, it is quite important that the relevant authority and leaders in the nation to promote a sense of equality so that the indigenous communities can enjoy equal opportunities just like the rest of the Australian population.

References

Attwood, B. (2007). The 1967 referendum: Race, power and the Australian constitution. Aboriginal Studies Press.

Brown, A. J. (2007). Federalism, regionalism and the reshaping of Australian governance. Federalism and regionalism in Australia: new approaches, new institutions, 11-32.

Coulthard, G. S. (2007). Subjects of empire: Indigenous peoples and the ‘politics of recognition’in Canada. Contemporary political theory, 6(4), 437-460.

Kowal, E. (2008). The Politics of the Gap: Indigenous Australians, Liberal Multiculturalism, and the End of the Self‐Determination Era. American Anthropologist, 110(3), 338-348.

Larson, A., Gillies, M., Howard, P. J., & Coffin, J. (2007). It’s enough to make you sick: the impact of racism on the health of Aboriginal Australians. Australian and New Zealand journal of public health, 31(4), 322-329.

Moses, A. D. (2011). Official apologies, reconciliation, and settler colonialism: Australian indigenous alterity and political agency. Citizenship Studies, 15(02), 145-159.

Paradies, Y., Harris, R., & Anderson, I. (2008). The impact of racism on Indigenous health in Australia and Aotearoa: Towards a research agenda. Cooperative Research Centre for Aboriginal Health.Awofeso, N. (2011). Racism: a major impediment to optimal Indigenous health and health care in Australia. Australian Indigenous Health Bulletin,11(3), 1-8.

Rudd, K. (2008). Apology to Australia’s Indigenous peoples. House of Representatives Official Hansard, 1, 13.

Tushnet, M. (2009). Weak courts, strong rights: Judicial review and social welfare rights in comparative constitutional law. Princeton University Press.

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