Arguments against constitutional recognition

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Arguments against constitutional recognition

The constitution refers to a legal framework that protects its citizen from adverse conditions or eventualities that may accrue in the day to day living. In some cases, however, this can be quite contrary (depending on the structure of the leadership) (Attwood, 2007). The Australian legal framework constitutes one of the most powerful sets of law; however, according to certain legal representatives, it does not represent the interests of the minority communities (indigenous Australians). According to these legal representatives, 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 perception of these personalities is that 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

In the Australian constitution, there are categorical cases of discrimination against the indigenous Australian people. 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). However, to address the situation in the most effective manner, it is quite important that the government recognize the indigenous in the constitution. Even though the majority of the indigenous communities might see the constitutional recognition as nothing more than a symbolic gesture with no substance, the constitutional recognition is meant to have significant legal and symbolic effects the lives of the Australian indigenous communities. The constitutional recognition is meant to address some of the disadvantages experienced by the indigenous people of Australia such as low life expectancy, poverty, underemployment, poor living conditions and so on (Moses, 2011). To function effectively, the legal framework will address the current situation by integrating multiple approaches. This involves identifying and addressing instances of discrimination (which is the main issue). The constitutional recognition of the Torres Islander Strait and the Aboriginal people in the preamble of the nation’s constitution will be one major step towards ensuring that there are effective changes and means to build stronger bonds and relationships as well as mutual respect between the various indigenous communities and the rest of the Australians.

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

Most of the indigenous Australians especially the 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 essentially be ascribed to the lack of proper legal frameworks that protect and safeguard the indigenous population’s 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). Contrary to the perception of the most of the people that the Constitutional recognition will not improve the physical and mental health of Indigenous Australians, the constitutional recognition of the indigenous people will cater for the basic health requirements. This will be achieved by involving 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 to ensure that the existing health system provides better health care services to the minority just like the rest of the population (Moses, 2011). According to the existing research, the constitutional recognition is also meant to address the existing health care exclusion and discrimination among the indigenous communities; an issue that often impacts on the physical and mental wellbeing of the indigenous Australian communities (the thought of being treated as an outsider in one’s own land).

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 current constitution negates 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 the Constitutional recognition because they feel as though it will negate Indigenous Australians right to sovereignty and possible treaty negations. One thing that most of these people fail to understand is that the constitutional recognition of the indigenous people of Australia is meant to promote a constitutional change that is geared towards promoting a positive living environment that extends far beyond the legal framework (Rudd, 2008). The constitutional recognition refers to that platform that will be used to provide means through which they can sign treaty negotiations; as a means for acknowledging their sovereignty (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. To remedy such situations, it would be proper if the Aboriginals and the Torres Islander Strait communities supported the constitutional recognition. This is because it portrays the best of interest in negotiating their sovereignty in a better way.


The essay has played a role or two in demonstrating the benefits of the constitutional recognition of the indigenous communities. The introductory part of the essay outlines the perceptions regarding the flawed constitutional framework’s discriminatory tendencies against the minority communities. The rest of the essay outlines the need for constitutional recognition; as a way of mending the broken state of the current constitution.






















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 theory6(4), 437-460.

Kowal, E. (2008). The Politics of the Gap: Indigenous Australians, Liberal Multiculturalism, and the End of the Self‐Determination Era. American Anthropologist110(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 health31(4), 322-329.

Moses, A. D. (2011). Official apologies, reconciliation, and settler colonialism: Australian indigenous alterity and political agency. Citizenship Studies15(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 Hansard1, 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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