Confusion of Tongues: Constitutional Recognition of Languages and Language Rights in Australia
| Author | Alexander Reilly |
| Date | 01 June 2013 |
| Published date | 01 June 2013 |
| DOI | 10.22145/flr.41.2.5 |
| Subject Matter | Article |
CONFUSION OF TONGUES: CONSTITUTIONAL
RECOGNITION OF LANGUAGES AND LANGUAGE RIGHTS
IN AUSTRALIA
Alexander Reilly*
ABSTRACT
This article considers the YouMeUnity Report proposal for the inclusion of new
language pr ovisions in the Australian Constitution as part of a package of reforms for
the constitutional recognition of Aboriginal and Torres Strait Islander people. The
article outlines the important symbolic and substantive effects of recognising language
rights in the Constitution. The article explains how the recognition of a national
language and the recognition of minority languages are conceptually distinct —
promoting a national language is aimed at promoting national unity and enhancing the
political and economic participation of individuals i n the state, whereas protecting
minority languages is aimed at recognising l inguistic diversity, enriching the cultural
life of the State, maintaining connections with other nations, and recognising language
choice as a basic human right. The article argues that there is a strong case for minority
language recognition, and in particular, the recognition of Aboriginal and Torres Strait
Islander languages, in the Australian Constitution, but warns a gainst the recognition of
English as the national language.
INTRODUCTION
The 2012 YouMeU nity Report into the recognition of Aboriginal and Torres Strait
Islander peoples in the Australia n Constitution recommended including a languages
provision, in the following terms:
Section 127A
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian
languages, a part of our national heritage.
This is the first time since Federation that there has been a proposal for the
recognition of the English language in the Constitution. For the Expert Panel, the
recognition of English was incidental to its main aim of recognising Indigenous
_____________________________________________________________________________________
* Associate Professor, Law School, University of Adelaide. My sincere thanks to Gabrielle
Appleby, Peter Burdon, George Williams and Andrew Lyn ch for their insightful comments
on an earlier version of this paper.
334 Federal Law Review Volume 41
____________________________________________________________________________________
languages. The Report did not discuss the significance of constitutionalising English,
viewing the change simply as a formal acknowledgement of the 'existing and
undisputed position' of English in Austra lia.
1
The Panel concluded that the re cognition
of English would satisfy two of its principle s for constitutional recognit ion, namely;
that it would 'c ontribute to a more unified and reconciled nation' a nd that it wo uld 'be
capable of being supported by an overwhel ming majority of Australians from across
the political and social spectrums '.
2
Beyond this, the Report d id not consider the
substantive and symbolic effects of the constitutional recognitio n of English, and there
has been little academic or other commentary on the language recognition clauses in
the Report since.
3
Although originally promised for 2013,
4
the Referendum on the recognition of
Aboriginal and Torres Strait Islander peoples in the Constitution has been delayed. In
its place Parliament passed the Aboriginal and Torres Strait Islander Recognition Act 2013
(Cth).
5
The Act makes its own recognition of Aboriginal and Torres Strait Islander
peoples and requires a Ministerial Review of issues relating to holding a referendum
on recognition. The Review is charged, among other things, with 'taking into account
the work of the Expert Panel on Co nstitutional Recognition … ';
6
and considering
which of the proposals put forward by the Expert Panel 'would be most likely to obtain
the support of the Australian people'.
7
The expectation is that the Review will lead to a
referendum proposal in the next few years.
The Expert Panel conducted two Newspoll surveys in relation to its languages
proposals in September and October 2011. The September Poll found that the level of
support for recognising Indigenous culture and languages with or without recognising
_____________________________________________________________________________________
1
Expert Panel Report, Commonwealth of Australia, Recognising Aboriginal and Torres Strait
Islander Peoples in the Constitution: Report of the Expert Panel (2012) 131 ('YouMeUnity Report').
In September 2012, in a report into Indigenous language learning in Indigenous
communities, the House of Representatives Standing Committee on Aboriginal and Torres
Strait Islander Affairs supported the Recommendation of the Expert Panel. House of
Representatives Standing Committee on Aborigin al and Torres Strait Islander Affairs,
Commonwealth Parliament, Our Land Our Languages: Language Learning in Indigenous
Communities (2012) 74, Recommendation 8.
2
YouMeUnity Report, above n 1, 132.
3
One exception is concern expressed in Asmi Wood's article considering the Expert Panel's
reports more generally, that the provision further privileges English without advancing the
protection of Aboriginal languages and that the provision might 'even be harmful to
Indigenous interests if governments sought to rely on that provision to prevent the use,
teaching and support of other languages, including Indigenous languages'. See Asmi
Wood, 'Constitutional Reform 2013: What Are We Trying to Achieve?' (2012) 37 Alternative
Law Journal 156, 160.
4
Agreement between the Australian Greens and the Australian Labor Party, 1 September
2010, para 3(f) and The Hon Julia Gillard and Mr Andrew Wilkie Agreement, 2 September
2010, para 3.2(f). The Coalition Parties had also earlier promised a Referendum on
Indigenous recognition at the 2013 Election. See Patricia Karvelas and Lex Hall, 'Coalition
to put Aboriginal Recognition to a Referendum', The Australian, 10 August 2010, 1.
5
('Recognition Act').
6
Ibid s 4(2)(b)(i).
7
Ibid s 4(2)(c).
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