Recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution

Purpose

The Royal Australian and New Zealand College of Psychiatrists (RANZCP) calls for reform of the Australian Constitution to support the mental health and human rights of Aboriginal and Torres Strait Islander peoples. We recognise the diversity of voices within Aboriginal and Torres Strait Islander communities and affirm our support of political processes which place the views of Aboriginal and Torres Strait Islander peoples front and centre in our journey towards reconciliation.

Key messages

• The RANZCP calls for substantive constitutional reform to support the mental health and human rights of Aboriginal and Torres Strait Islander peoples.
• While constitutional reform on its own will not rectify historical injustices, it represents an important step towards forging a more constructive and genuine shared national identity which will have positive effects on the self-esteem and mental health of many Aboriginal and Torres Strait Islander people.
• The RANZCP supports the establishment of an Aboriginal and Torres Strait Islander advisory body to guarantee a First Nations Voice in political decision-making.
• As a binational College, the RANZCP recognises the benefits of the signing of the Treaty of Waitangi, and encourages efforts being made towards treaty in Australia.
• The RANZCP support the establishment of a Makarrata Commission to guide the treaty process and to provide a basis for truth-telling.

Background

Whilst there have been many positive milestones in the journey towards recognition and equality, including the 2008 Apology, the Closing the Gap initiatives and above all the resilience and strength of Aboriginal and Torres Strait Islander communities, there remains much work to be done. Aboriginal and Torres Strait Islander peoples continue to experience discrimination, marginalisation and disempowerment. This inequity has run the length of the history of contact with European settlers, with the resultant trauma spanning generations. Discriminatory attitudes and policies in the broader Australian community continue into the present day, along with associated negative impacts for physical and mental health and wellbeing. The deep-seated inequality experienced by Aboriginal and Torres Strait Islander peoples is reflected in the fact that life expectancy is on average 8.6 years less for males and 7.8 years less for females than that of the broader population.[1]

Australia, as a nation, must take the necessary steps to put things right wherever possible and to provide appropriate restitution to the communities and individuals who have been injured by historical policies. Constitutional reform, including recognition of Aboriginal and Torres Strait Islander peoples as the traditional owners of the land and waters now known as Australia, is a critical step in this journey. Psychiatrists have an important role in contributing to this process and in continuing to practice and support reconciliation. Understanding the need and supporting the call for reform is part of this contribution.

Evidence

Aboriginal and Torres Strait Islander peoples are discriminated against in legal jurisdictions as they are not recognised as Australia’s First People in law.[2] In comparison with other nations with a similar colonial history, such as New Zealand, Canada and the United States, Australia has been slow in the movement towards protecting equality in law and developing policies to address historical wrongs.[3] The lack of recognition of Aboriginal and Torres Strait Islander peoples as the traditional owners of the land and waters of Australia in the Constitution impacts on identity and sense of belonging within the communities, perpetuating discrimination and eroding mental health and social and emotional wellbeing.

The loss of traditional lands after the arrival of European settlers in Australia and the ongoing, associated spiritual and cultural dispossession experienced by Aboriginal and Torres Strait Islander peoples has further contributed to much lower than average health and wellbeing outcomes. Aboriginal and Torres Strait Islander peoples possess a strong connection to the land, encapsulating spirituality, cultural practices, way of life and sense of identity.[4] The loss of sacred sites and all that is associated with this has had a disruptive effect and led to increased mental illness and other complications.[5] 

Other Australian government policies, such as those which are linked to the forced removal of Aboriginal and Torres Strait Islander children from their families and placement with white families, have also caused harm to individuals and communities across generations.[6] RANZCP Position Statement 42: Stolen Generations provides more information on this issue. Socioeconomic disadvantage, mistreatment in institutions, incarceration and lack of resources has led to low educational attainment, poor literacy levels, limited job prospects and associated repercussions which further compound negative health outcomes.[7, 8]

Importance of constitutional recognition

As a professional body of experts in the field of psychiatry, the RANZCP approaches the discourse on how the Australian Constitution should be changed from the perspective of which of the proposed changes would most benefit Aboriginal and Torres Strait Islander peoples and promote improved mental health outcomes. The RANZCP supports change to the Constitution that is substantive, sound and sensible, and developed with Aboriginal and Torres Strait Islander community ownership and input. The RANZCP believes that constitutional reform without these key factors risks falling short of its potential to effect genuine and positive change.

Importantly, constitutional reform is not just about addressing past wrongs, it is also about celebrating and valuing the diversity of Australia as a nation, and recognising the contribution of Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait Islander communities have produced many great leaders who have long worked tirelessly towards self-determination, as well as achieving excellence in their chosen fields, including sports, design, arts, culture, agriculture, land, water & fire management, fauna & flora care, engineering, education, linguistics, health, law and politics. Aboriginal and Torres Strait Islander communities’ deep, spiritual connection to the land has persevered, despite adversity, and this continues to be passed down through the generations. Australian society is also beginning to take note of the importance of this body of knowledge, with guidance increasingly being sought from Aboriginal and Torres Strait Islander elders to inform land and water care. Aboriginal and Torres Strait Islander communities continue to use traditional artistic methods, preserving Dreamtime stories and cultural knowledge through this practice. In the broader artistic community, some of the country’s greatest and most original artists have been of Aboriginal or Torres Strait Islander background, achieving local and international acclaim in arenas including visual arts, theatre, dance, filmmaking, music and poetry, with this creative output regularly showcased at international film festivals, galleries and theatres worldwide.

Such important contributions across all these areas enrich the fabric of Australian society. Acknowledging Aboriginal and Torres Strait Islander peoples in the Constitution would allow Australia to move forward in the spirit of partnership and unity and to fully embrace the uniqueness and diversity that is the essence of Australia.

The RANZCP celebrates the fact that some moves have already been made in Australia to begin to address historic deficiencies in human rights and recognise the value of Aboriginal and Torres Strait Islander contributions, however there remains much more to be done. While constitutional reform on its own will not rectify historical injustices, it does represent an important step towards forging a more constructive and genuine shared national identity. Recognition would have a positive effect on the self-esteem of Aboriginal and Torres Strait Islander peoples. It would also benefit all Australians and work to reinforce the collective national pride in the longevity of Aboriginal and Torres Strait Islander heritage, culture and history. As well as addressing a national wound, it would make a significant contribution to the lives, health and wellbeing of many individuals, families and communities.

First Nations Voice

The RANZCP supports the establishment of an Aboriginal and Torres Strait Islander advisory body to guarantee an Indigenous voice in political decision-making, as recommended in the Uluru Statement from the Heart.[9] Democratically electing this body would present significant benefits in ensuring the broader Aboriginal and Torres Strait Islander population have input into political decision-making processes. Such a body could also monitor the use of the constitutional head of power that allows the Commonwealth government to make laws for Aboriginal and Torres Strait Islander peoples. 

The RANZCP supports the establishment of such a body based on evidence which shows that self-determination and supportive societal structures can be a protective factor against negative mental health outcomes.[10, 11] In the case of Aboriginal and Torres Strait Islander peoples, much of the trauma has its roots in colonial history but continues to repeat and impact into the present day. It is crucial, therefore, that a safe and just environment is created, one where political processes accommodate self-determination principles, recognising the cultural identity, practices, customs and histories of Aboriginal and Torres Strait Islander peoples, and provide protection from discrimination and associated ongoing trauma. Self-determination is only one part of the overall healing process yet it is an essential part, and one that cannot be underestimated.

Truth-telling

The Uluru Statement from the Heart recommended a Makarrata Commission ‘to supervise a process of agreement-making between governments and First Nations and truth-telling about our history’.[9] Makaratta is a Yolngu term for a process of conflict resolution, peacemaking and justice. While peacemaking and negotiation is only one aspect of the concept, it has long been used to describe a suitable process to establishing a foundation upon which treaties or agreements may be formed.[12] 

Truth-telling is essential to this process, as reconciliation cannot occur until Australians come to understand the truth of who Aboriginal and Torres Strait Islander people are, and what they have lived through[13] Truth-telling can also assist people by supporting recovery and healing from atrocities and strengthening resilience, and this potential has been used to justify truth and reconciliation commissions across the world.[14] 

Treaty

As a bi-national College, the RANZCP has had the benefit of learning from the experience of New Zealand, gaining guidance about the importance of treaty. The signing of the Treaty of Waitangi by over 500 Māori chiefs (representing most tribes) and the British Crown in 1840 was a seminal event with important national consequences. Firstly, the treaty is embedded in the way of life of the nation. Secondly, it has transformed New Zealand society; Māori have faith in the treaty as a confirmation of rights and an affirmation of Indigenous status and respect. Lastly and fundamentally, the treaty is a clear demonstration of the value New Zealand has for its Indigenous peoples and their participation in society. The Treaty of Waitangi has given the Māori population a strong base from which to speak. It has not led to equality of health outcomes in New Zealand, but it has given Māori a better position from which to advocate for their communities and for what is needed to bring about positive and meaningful change[15]. For more information please see Position Statement 107: Recognising the significance of Te Tiriti o Waitangi.

Although no binding treaties were ever signed in Australia, some progress has been made towards a treaty within the states and territories. Most notably, the Victorian government has established the First Peoples’ Assembly of Victoria, a democratically elected Aboriginal Representative Body which will be responsible for establishing a treaty negotiation framework and begun the process of truth telling through the Yoorrook Justice Commission. The RANZCP supports this process and encourages other state and territory governments to initiate a treaty process with all Aboriginal and Torres Strait Islander peoples living within their respective jurisdictions, while noting the benefits of a national treaty-making process.

Recommendations

The RANZCP has made several contributions to the Australian Senate and other stakeholders regarding models for constitutional change (RANZCP, 2017; RANZCP, 2015; RANZCP, 2014). However, the RANZCP recognises the opposition of many Aboriginal and Torres Strait Islander peoples to previous models of constitutional reform in favour of more substantive changes, and the imperative that constitutional reforms have the broad support of Aboriginal and Torres Strait Islander communities across the country. The RANZCP therefore supports the following reforms, subject to community support:

• Establish a First Nations Voice to represent Aboriginal and Torres Strait Islander views in political decision-making processes.
• Recognise Aboriginal and Torres Strait Islanders as the traditional owners and first peoples of the land and waters now known as Australia and paying respect to the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.
• Remove Section 25 of the Constitution which allows States to ban people from voting based on their race.
• Remove Section 51 (xxvi) of the Constitution which can be used to pass laws that discriminate against people based on their race.
• Insert a new Section 51 into the Constitution allowing the Parliament to make laws for the benefit of Aboriginal and Torres Strait Islander peoples.
• Insert a new Section 116 into the Constitution which expressly prohibits racial discrimination by the Commonwealth, States and Territories.

Additionally, the RANZCP supports efforts towards establishing treaties and truth-telling processes with Aboriginal and Torres Strait Islander communities.

The RANZCP also encourages its members to engage with the issue. Psychiatrists may stay informed and contribute to the debate on constitutional recognition of Aboriginal and Torres Strait Islander peoples by visiting the website: http://www.reconciliation.org.au. 

Additional resources

RANZCP Reconciliation Action Plan 2016–2018
Position Statement 42: Stolen generations (2015)
Position Statement 50: Aboriginal and Torres Strait Islander mental health workers (2016)
Ethical Guideline 11: Principles and guidelines for Aboriginal and Torres Strait Islander mental health (2014)
Position Statement 104: Cultural Safety (2021)