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本文是法律专业的澳洲essay范例，题目是“Analysis of Australia's Constitution and Aboriginal Discrimination澳大利亚宪法与原住民歧视分析”，纪念澳大利亚宪法100周年的最好方式可能是“建立一个新的现代宪法，让这片土地上的原始人民可以发挥独特的、创造性的作用”(Daes教授在法律委员会讨论文件《对土著人民的宪法承认》中引用)。批判性地讨论提供公民身份和承认我们的第一民族。 “The best way to mark the 100th anniversary of the Australian Constitution might be “to build a new modern Constitution, in which the original people of this land can play a distinct, creative role” (Professor Daes cited in the Constitutional Recognition of Indigenous Peoples, Law Council Discussion Paper). Critically discuss the provision of citizenship and recognition of our First Peoples.
Oxford dictionary defines ‘constitution’ as “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.” These principles, or ‘rules’ are the most powerful set of laws in most democratic countries.The Australian Constitution was created and passed by the British Parliament as part of the Commonwealth of Australia Constitution Act 1900, to be put into effect January 1 1901. The Constitution was voted for in a series of national referendums. The Parliamentary Education Office states “The Australian Constitution establishes the composition of the Australian Parliament, and describes how Parliament works, what powers it has, how federal and state Parliaments share power, and the roles of the Executive Government and the High Court” (Parliamentary Education Office (PEO), 2017). The Australian Constitution explains how the country is run, keeping order within the nation. This is then again broken down into separate constitutions for each Australian state for a more applicable set of rules. From the very beginning, the Australian Constitution did not formally recognise Aboriginal and Torres Strait Islander Australians, but instead contained specific references discriminating against them. 《牛津词典》将“宪法”定义为“一个国家或其他组织被公认为受治理的基本原则或既定先例的集合”。这些原则或“规则”是大多数民主国家最强大的法律。澳大利亚宪法由英国议会制定并通过，是1900年澳大利亚联邦宪法法案的一部分，将于1901年1月1日生效。宪法是经过一系列全民公决投票通过的。议会教育办公室指出，“澳大利亚宪法确立了澳大利亚议会的组成，并描述了议会如何工作，它拥有什么权力，联邦和州议会如何分享权力，以及行政政府和高等法院的角色”(议会教育办公室(PEO)， 2017年)。澳大利亚宪法解释了国家如何运行，维持国家内部的秩序。然后，这又被分解为澳大利亚每个州的独立宪法，以获得一套更适用的规则。从一开始，澳大利亚宪法就没有正式承认土著居民和托雷斯海峡岛民澳大利亚人，而是包含了歧视他们的具体内容。 Even in today’s society, equality is not evident. Although society is heading in the right direction for harmonious living and more effort is being made to cater for people who have been excluded and discriminated against, there is still strong evidence supporting how far we are from this concept still. For example, the Indigenous peoples of Australia now have specific benefits for living and education. This can be viewed as a form of reconciliation rather than push for equality. The whole concept of ‘saying sorry’ to the Aboriginal and Torres Strait Islander peoples is the fault of the British invasion as well as the development and implementation of the Australian Constitution. Throughout the 1890’s, two constitutional conventions were arranged to create the overall rules of the country. Aboriginal and Torres Strait Islander people, women, and people of other ethnic communities were all excluded from these conventions, which evidently resulted in a strong male British heritage standpoint in the establishment of the Constitution for the Commonwealth of Australia. According to Reconciliation Australia, “It was also feared that any official recognition of Aboriginal and Torres Strait Islander Australians might lead to claims for rights to, or compensation for, land taken since European settlement”, suggesting the Australian Constitution was a legal safeguard for the European settlers to invade without any consequences (Aboriginal and Torres Strait Islander Australians and the Constitution, n.d.). The European settlers expressed their thoughts in relation to the ownership of the land and eventually drafted the Constitution of 1901 based on the ideology of Australian land to be ‘Terra Nullius’, meaning “nobody’s land”. This incorrect belief allowed for the British to take control of the land, and create laws to exclude the original owners of the land. Within the Constitution of Australia 1901, it excluded the Aboriginal and Torres Strait Islander peoples with two specific references. “Section 51 (xxvi) gave the federal government the power to make national laws for ‘the people of any race for whom it is deemed necessary to make special laws’ — the ‘race power’. But the wording excluded Aboriginal people from the power. That meant outside the Northern Territory, the States remained in control of Indigenous affairs. Section 127 said that when calculating the ‘people of the Commonwealth’ Aboriginal people were not to be counted” (Daes, 2016). The act of discrimination was a push towards eradicating any form of land ownership by the Aboriginal and Torres Strait Islander peoples. 即使在今天的社会，平等也不明显。虽然社会正朝着和谐生活的正确方向前进，也正在作出更多的努力来照顾那些被排斥和歧视的人，但仍然有强有力的证据支持我们离这个概念还有多远。例如，澳大利亚的土著人民现在在生活和教育方面得到了具体的好处。这可以被看作是一种和解的形式，而不是推动平等。对土著和托雷斯海峡岛民说“对不起”的整个概念是英国入侵以及澳大利亚宪法的发展和实施的错误。整个十九世纪九十年代，安排了两次制宪会议来制定国家的总体规则。土著居民和托雷斯海峡岛民、妇女和其他族裔社区的人都被排除在这些公约之外，这显然导致了在制定澳大利亚联邦宪法时强烈的英国男性遗产立场。据澳大利亚和解协会称，“人们还担心，如果官方承认土著居民和托雷斯海峡岛民澳大利亚人，可能会导致对自欧洲人定居以来夺取的土地的权利或补偿的要求”，认为澳大利亚宪法是欧洲定居者入侵而不承担任何后果的法律保障(土著和托雷斯海峡岛民澳大利亚人和宪法，n.d.)。欧洲移民表达了他们对土地所有权的想法，并最终起草了1901年的宪法，基于澳大利亚的土地是“无主地”(Terra Nullius)的意识形态，意思是“无人的土地”。这种错误的信念使英国人得以控制这片土地，并制定法律排斥土地的原主人。在1901年的澳大利亚宪法中，它排除了土著居民和托雷斯海峡岛民，并有两个具体的提法。“第51 (xxvi)条赋予联邦政府权力，为‘任何种族的人民，凡认为有必要为其制定特别法律的人’制定国家法律，即‘种族权力’。但这一措辞将土著人排除在权力之外。这意味着在北领地之外，各州仍然控制着土著事务。第127条规定，在计算‘联邦的人民’时，土著人民不被计算在内”(Daes, 2016)。这种歧视行为是在推动土著和托雷斯海峡岛民消除任何形式的土地所有权。
After a long period of racial discrimination and eradication of basic human rights, a new referendum was held on 27 May 1967. This Federal referendum was to determine whether the previous stated sections, which directly discriminated against the Indigenous Australians, should be removed from the Constitution. The final decision agreed upon amending “section 51 (xxvi) so that federal laws under the race power could apply to Aboriginal and Torres Strait Islander people” and deleting “section 127 so that Aboriginal and Torres Strait Islander peoples could be counted in the national population”, with over 90% voting YES in favour of the changes (Daes, 2016). Although this updated referendum acknowledged the previous discrimination towards Aboriginal and Torres Strait Islander peoples, it still did not include any form of agreement of equality or recognition of their rights and culture. Although the Indigenous peoples of Australia were granted the right to vote in 1962 (except Queensland), and Queensland eventually in 1965, section 25 of the Constitution states “if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted” (History of the Indigenous vote, 2006). Ultimately, this permits inequality in the process of voting rights for any race, resulting in a continuous push by Indigenous Australians to have this section altered in favour of racial equality. 在长期的种族歧视和基本人权被消灭之后，1967年5月27日举行了一次新的公民投票。这次联邦公民投票是为了决定是否应该从《宪法》中删除之前所述的直接歧视澳大利亚土著居民的条款。最终决定同意修改“51节(第二十六章),这样联邦法律下种族权力可以适用于原住民和托雷斯海峡岛民人”和删除“section 127这样原住民和托雷斯海峡岛民是国家人口”,超过90%投赞成票的变化(拓扑,2016）. 虽然这次更新的公民投票承认以前对土著居民和托雷斯海峡岛民的歧视，但它仍然不包括任何形式的平等或承认其权利和文化的协议。虽然澳大利亚的土著居民在1962年被授予选举权(昆士兰除外),和昆士兰最终在1965年,宪法规定的25节”的法律如果任何国家任何种族的人都是不合格的在选举中投票的多家国家议会,然后,在计算州或联邦的人口数量时，居住在该州的该种族的人不应被计算在内”(土著选举的历史，2006)。最终，这导致了任何种族投票权过程中的不平等，导致澳大利亚土著居民不断推动修改这一章节，以支持种族平等。 Racial discrimination is thought to be outdated in the present time, however section 25 of the Constitution is still in place. In an effort to close the gap and unite all Australians, recognition has become a critical factor. Recognition of social, spiritual, and historical elements of Aboriginal and Torres Strait Islander culture. Two critical examples of recognition are the Mabo decision, and Kevin Rudd’s official apology. In 1992, the Mabo decision declared the land was in possession of the rightful owners, the Aboriginal and Torres Strait Islander peoples, rather than the land being announced as ‘Terra Nullius’ by the European settlers upon arrival. Again, this effort only did so much for the recognition of legitimate property rights. Former Prime Minister John Howard stated that “the wrongs committed against Indigenous people were historic and therefore not the responsibility of Australians today” (Behrendt, 2003). Following the Mabo decision was the official apology to the Aboriginal and Torres Strait Islander peoples by Prime Minister Kevin Rudd in 2008. The apology formally recognised the destruction to their culture, the negative impact of the Stolen Generations and the families inflicted, as well as a hope for a future of mutual respect and opportunity (“Apology to Australia’s Indigenous peoples“, n.d.). 在马博的决定之后，澳大利亚总理陆克文于2008年正式向土著居民和托雷斯海峡岛民道歉。道歉正式承认对他们的文化的破坏，被偷走的一代和家庭造成的负面影响，以及对相互尊重和机会的未来的希望(“向澳大利亚土著人民道歉”，n.d。) Both efforts of recognition are of great value to the nation’s history, as cultural recognition must be supported by the Aboriginal and Torres Strait Islander peoples. For this to occur, more involvement by Indigenous Australians is advocated to ensure meaningful and appropriate steps are being taken to close the gap and recognise respectfully. With a higher demand for Aboriginal and Torres Strait Islander peoples’ involvement in the political world, it has been discussed over many years, to give Indigenous people a Parliamentary position. This idea has gained support from both Indigenous and non-Indigenous Australians as it allows the selected people to deal with matters directly affecting or relating to the Aboriginal culture. With Parliamentary power, Indigenous Australians will have the chance to express their voice in an equal manner. The latest information from the Australian Bureau of Statistics affirms that “Australia’s Aboriginal and Torres Strait Islander population has reached 669,900”, only constituting to 3% of the national population (Australian Bureau of Statistics, 2013). Due to this minor percentage of the whole nation’s population, it is integral for the Indigenous peoples to advocate for equal representation for their voices to be heard and culture to be respected appropriately. Providing a fairer political system introduces opportunity in attaining better policies in conjunction with preventing discriminatory laws being enforced. 由于对土著居民和托雷斯海峡岛民参与政治世界的要求较高，多年来一直讨论给土著人民一个议会席位的问题。这一想法得到了土著和非土著澳大利亚人的支持，因为它允许选定的人处理直接影响或与土著文化有关的事务。有了议会的权力，土著澳大利亚人将有机会以平等的方式表达他们的声音。澳大利亚统计局的最新信息确认“澳大利亚的土著和托雷斯海峡岛民人口已达669,900人”，仅占全国人口的3%(澳大利亚统计局，2013)。由于土著人民在全国人口中所占的比例很小，因此他们必须倡导平等代表权，让他们的声音得到倾听，并适当尊重他们的文化。提供一个更公平的政治制度，就有机会在防止执行歧视性法律的同时实现更好的政策。 There is a strong need for motivational change from the Indigenous peoples as many Australians are led to believe the referendum of 1967 cured all problems in relation to Aboriginal heritage. This is not the case. Even today, “many Aboriginal and Torres Strait Islander peoples still struggle to enjoy full citizenship in Australia”, Dr Paula Gerber stated. This is because of the struggle Indigenous Australians encounter when trying to obtain a birth certificate and/or other legal documents to confirm their identity. By being unable to register their birth, these people are then unable to gain a driver’s license, tax file number, or open a bank account, classifying these people as legally invisible (Gerber, 2012). Denying full citizenship to the original custodians of Australian land is a modern example of racial discrimination. Having such laws still in place supports the demand for motivational change from the Indigenous community. The most recent record of motivational change was in 2012. An Expert Panel set up by former Prime Minister Julia Gillard, comprised of Indigenous and community leaders, constitutional experts and parliamentarians (Aboriginal and Torres Strait Islander Australians and the Constitution, n.d.). The panel reported back to the government with recommendations for racial chance and human equality. The changes submitted to the government possess objectives to guarantee racial discrimination to be banished. The following was asked of the government: 最近一次动机改变发生在2012年。由前总理茱莉亚·吉拉德设立的一个专家小组，由土著和社区领导人、宪法专家和议员组成(澳大利亚土著居民和托雷斯海峡岛民与澳大利亚宪法)。小组向政府报告了关于种族机会和人类平等的建议。提交给政府的修改的目的是保证消除种族歧视。向政府提出下列问题: “Remove Section 25 – which says the States can ban people from voting based on their race; Remove Section 51(xxvi) – which can be used to pass laws that discriminate against people based on their race Insert a new section 51A – to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples Insert a new section 116A, banning racial discrimination by government Insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were this country’s first tongues, while confirming that English is Australia’s national language.” (Aboriginal and Torres Strait Islander Australians and the Constitution, n.d.) The overall outcome of this political movement is largely supporting and improving social, political and cultural recognition, continuing to close the gap as Australia as a nation, and vanquishing the disadvantage of the Indigenous community. Professor Daes claims the best way to mark the 100th anniversary of the Australian Constitution might be “to build a new modern Constitution, in which the original people of this land can play a distinct, creative role”. Daes concept of reform supports the Expert Panel in which is making progress in the political world for Indigenous Australians. Acknowledging Aboriginal and Torres Strait Islander peoples by making changes or ‘building a new’ Constitution will indeed protect them from discrimination as well as assure their culture to be a valued element in Australia’s history. Granting these rights exempts equality across all Australians. In no way does it extend more rights to any group. Aboriginal and Torres Strait Islander peoples will benefit from improved rights in addition to correct recognition of culture and history. In order to make such changes, or create a new ‘modern’ Constitution of Australia, first a referendum must be held. This comprises all voting aged Australians are called to vote ‘yes’ or ‘no’ to the proposed Constitutional change. The change relies on a majority ‘yes’ vote from the voters. Since the original Australian Constitution in 1901, 44 Constitutional referendums have been held to propose changes, however only 8 of the 44 referendums were passed in favour of the amendments (Aboriginal and Torres Strait Islander Australians and the Constitution, n.d.). The most successful being the 1967 referendum which removed several discriminatory references to racial affairs within Australia. The reason it was so successful was due to the campaigns and education offered to the people of Australia to inform them about the importance of these changes to the nation, it’s people and its identity. A positive result of creating a new Constitution, if passed, is the stability and guarantee Indigenous Australians will attain. The stability comes from the regulation that the government cannot change, overlook or suspend the Constitution in any way, but can only create laws in accordance with it. This reassures the Indigenous Australians in a way that majority vote is needed to change any aspect of the laws. In most recent times, education is wider spread throughout the nation, ensuring easier access. As a result, Australians can educate themselves about racial and cultural awareness, and continue to grow together as a community. By educating the people, the creation of a modern rights framework in which protects the rights of all Australians will have a greater chance. By protecting all Australians and their rights, vulnerable groups and cultures among the country are to be protected with the same equitable policy (Behrendt, 2003). The Aboriginal and Torres Strait Islander peoples have fought for over 200 years for their land back. Although times will never be the same as they were before the European settlement, progress has been made in recognising the culture and removing historical ignorance surrounding the experiences of Aboriginal and Torres Strait Islander peoples and the Stolen Generation. Indigenous peoples are still being denied full citizenship in the forms of birth certificates and drivers licences, suggesting the push for an updated Constitution of Australia could benefit all Australians. The act of appropriate recognition and closing the gap will potentially give every Australian the same level of human rights. It is indicative that Aboriginal culture deserves the correct value and place in Australian history, just as much as all people deserve the same basic human rights without any form of discrimination. 原住民和托雷斯海峡岛民为夺回他们的土地已经战斗了200多年。虽然时代永远不会回到欧洲人定居之前，但在承认土著和托雷斯海峡岛民以及被偷走的一代的文化和消除历史无知方面已经取得了进展。土著居民仍然无法获得出生证明和驾照等形式的完全公民身份，这表明推动更新的澳大利亚宪法可能会让所有澳大利亚人受益。适当的承认和缩小差距的行为将潜在地给予每个澳大利亚人同等的人权水平。这表明土著文化在澳大利亚的历史中应该得到正确的价值和地位，就像所有人都应该不受任何形式的歧视地享有同样的基本人权一样。 References参考文献
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