Published online by Cambridge University Press: 24 January 2025
This article considers the YouMeUnity Report proposal for the inclusion of new language provisions 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 in the state, whereas protecting minority languages is aimed at recognising linguistic 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 against the recognition of English as the national language.
My sincere thanks to Gabrielle Appleby, Peter Burdon, George Williams and Andrew Lynch for their insightful comments on an earlier version of this paper.
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 Aboriginal 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 Wood, Asmi, ‘Constitutional Reform 2013: What Are We Trying to Achieve?’ (2012) 37 Alternative Law Journal 156, 160.CrossRefGoogle Scholar
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).
8 YouMeUnity Report, above n 1, 80.
9 Ibid 81.
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15 Inglehart and Woodward, above n 14, 27.
16 Hobsbawm, above n 14, ch 6.
17 See, eg, Constitution of Brazil 1988 art 13; Constitution of Bulgaria 1991 art 3; Constitution of Columbia 1991 art 10; La Constitution du 4 Octobre 1958 [French Constitution of 4 October 1958] art 2.
18 Canada Act 1982 (UK) c 11, sch B ('Constitution Act 1982’); Constitution Act 1867 (Imp), 30 & 31 Vict, c 3 ('Constitution Act 1867’).
19 Interestingly, the Canadian Constitution makes no provision for the protection of other minority languages. Section 25 provides an implied protection for Indigenous languages through the protection of Aboriginal rights in general, and s 27 requires the Charter to be interpreted ‘in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians'. Section 27 has been used to block legislation constraining religious freedom (R v Big M Drug Mart Ltd [1985] 1 SCR 295; R v Edwards Books and Art Ltd [1986] 2 SCR 713) and to support legislation prohibiting hate speech (Canada (Human Rights Commission) v Taylor [1990] 3 SCR 892) but has not been used to support a positive right to minority language use and instruction.
20 Albanian Constitution 1998 art 20. See also, the Constitutions of Armenia, Belarus, Columbia and Croatia, among others.
21 Constitution of the Republic of China art 19.
22 Ibid art 4.
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25 Ibid 27.
26 Grundgesetz fir die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany].
27 See below n 145.
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32 Australian Bureau of Statistics, 2071.0 - Reflecting a Nation: Stories from the 2011 Census, 2012–2013 (21 June 2012) Australian Bureau of Statistics <http://www.abs.gov.au/ausstats/abs@.nsf/mf/2071.0>.
33 YouMeUnity Report, above n 1, 132.
34 Australian Government, Department of Immigration and Citizenship, Australian Values Statement – Provisional and Permanent Department of Immigration and Citizenship <http://www.immi.gov.au/living-in-australia/values/statement/long/>.
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45 In a survey of the top ten reasons for coming to Australia by a migration company, Entity Solutions, the fourth reason was ‘Culture: … the acceptance and tolerance for people of all walks of life’. Laura Magnano, Top 10 Reasons to Migrate to Australia (3 May 2011) Entity Solutions <http://blog.entitysolutions.com.au/top-10-reasons-to-migrate-to-australia>.
46 Walzer, above n 43, 67.
47 Hardt and Negri, above n 13, xi.
48 Irabinna-Rigney, Lester, ‘Sharing Australian Language Space: Reforms for Linguistic Pluralism – Towards the Stabilisation of Indigenous Languages’ in Worby, Gus and Rigney, Lester-Irabinna (eds), Sharing Spaces: Indigenous and Non-Indigenous Responses to Story, Country and Rights (API Network, 2006) 390–391.Google Scholar
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50 At different times, the absolute freedom of trade in s 92 of the Constitution has been interpreted to mean an absence of protectionism, and at other times to mean a more extensive individual right to trade free of regulation. The connotation of foreign power has expanded to include the United Kingdom: Sue v Hill (1999) 199 CLR 462.
51 Diego Castellanos, ‘Polyglot Nation’ in Crawford, Language Loyalties, above n 12,, 16.
52 Ibid 17–18.
53 Baron, above n 12, 1–2.
54 Crawford, At War With Diversity, above n 12, 12–13.
55 Crawford, above n 12, 52.
56 This hostility to non-English languages is reflected in a letter written by Theodore Roosevelt on 3 January 1919, three days before his death: ‘We have room for but one language here and that is the English language, for we intend to see that the crucible turns our people out as Americans … and not as dwellers of a polyglot boarding house.'
57 John Higham, ‘Crusade for Americanization’ in Crawford, above n 12, 72–84.
58 Ibid 83.
59 Meyer v Nebraska, 262 US 390 (1923).
60 Crawford, above n 12, 8.
61 Australian Bureau of Statistics, ‘Census Shows Asian Languages on the Rise in Australian Households’ (Media Release, CO/60, 21 June 2012) <http://www.abs.gov.au/websitedbs/censushome.nsf/home/CO-60?opendocument&navpos=620>.
62 US Department of Commerce, Population: Ancestry, Language Spoken At Home, United States Census Bureau, <http://www.census.gov/compendia/statab/cats/population/ancestry_language_spoken_at_home.html>.
63 Crawford, above n 12.
64 Baron, above n 12, 18.
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66 Baron, above n 12, 177.
67 Australian Bureau of Statistics, above n 32.
68 Baron above n 12, 8.
69 Crawford, above n 12, 4.
70 Ibid 3.
71 Ibid.
72 There were official language resolutions before the Congress in 1983, 1987, and 1989.
73 English Language Unity Act of 2013, HR 997, 113th Congress (2013). The Bill states in part:
Sec. 161. Official language of the United States
1. The official language of the United States is English.
Sec. 162. Preserving and enhancing the role of the official language
Representatives of the Federal Government shall have an affirmative obligation to preserve and enhance the role of English as the official language of the Federal Government. Such obligation shall include encouraging greater opportunities for individuals to learn the English language.
Sec. 163. Official functions of Government to be conducted in English
(a) Official Functions- The official functions of the Government of the United States shall be conducted in English.
74 The Bill was most recently discussed before a subcommittee of the Committee for the Judiciary in the 112th Congress on 12 February 2012.
75 Those states are Nebraska (1920), California (1986), Colorado (1988), Florida (1988), Alabama (1990), Arizona (2006), Missouri (2008) and Oklahoma (2010). Discussed in Faingold, Eduardo D, ‘Official English in the Constitutions and Statutes of the Fifty States in the United States’ (2012) 36 Language Problems and Language Planning 136, 137.CrossRefGoogle Scholar
76 Ibid 137.
77 Yniguez v Mofford, 730 F Supp 309 (D Ariz, 1990), affirmed in Yniguez v Arizonans for Official English, 69 F 3d 920 (9th Cir, 1995).
78 Joshua Fisherman, ‘The Displaced Anxieties of Anglo-Americans’ in Crawford, above n 12, 165–71.
79 See generally Crawford, above n 12.
80 Ibid 44 (emphasis in original), citing Bender, Steven W, ‘Direct Democracy and Distrust: The Relationship Between Language Law Rhetoric and the Language Vigilantism Experience’ (1997) 2 Harvard Latino Law Review 145.Google Scholar
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85 Djité, Paulin, ‘Language Policy in Australia: What Goes Up Must Come Down?’ in Norrby, Catrin and Hajek, John (eds), Uniformity and Diversity in Language Policy: Global Perspectives (Multilingual Matters, 2011) 56.Google Scholar
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87 Commonwealth, Australia's Language: The Australian Language and Literacy Policy, White Paper (1991) iii–iv.
88 Lo Bianco, above n 10, 4.
89 Ibid 5. See also McKay, Graham, ‘Policy and Indigenous Languages in Australia’ (2011) 34 Australian Review of Applied Linguistics 297, 301.CrossRefGoogle Scholar
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91 Ibid 60.
92 Ibid.
93 The Government committed funding of $62.15 million over four years (2008/09 to 2011/12) for the National Asian Languages and Studies in Schools Program. <http://www.deewr.gov.au/schooling/NALSSP/Pages/default.aspx>.
94 Djité, above n 85, 62.
95 Ibid 61.
96 McKay, above n 89, 301. This is evident in the controversy over the Northern Territory government's decision to abandon bilingual education in remote Aboriginal communities in 2008, discussed below.
97 Australian Government, Department of Immigration and Citizenship, Migration Program Report 2011/12 (2012) Department of Immigration and Citizenship <http://www.immi.gov.au/media/statistics/statistical-info/visa-grants/>.
98 See generally Australian Government, Department of Immigration and Citizenship, , Migrant Labour Market Outcomes Department of Immigration and Citizenship <http://www.immi.gov.au/media/fact-sheets/14labour.htm#c>; Australian Government, Department of Education, Employment and Workplace Relations, The Impact of English Language Proficiency and Workplace Readiness on the Employment Outcomes of Tertiary International Students (2009).
99 Ibid.
100 See Australian Government, Department of Immigration and Citizenship, Citizenship Test Department of Immigration and Citizenship <http://www.citizenship.gov.au/learn/cit_test/>.
101 See, eg, Fozdar, Farida and Spittles, Brian, ‘The Australian Citizenship Test: Process and Rhetoric’ (2009) 55 Australian Journal of Politics and History 496CrossRefGoogle Scholar; Bennett, Sarah-Jane and Tait, Meghan, ‘The Australian Citizenship Test’ (2008) 1 Queensland Law Student Review 76.Google Scholar
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103 Commonwealth, Australia in the Asian Century, White Paper (2012) 170.
104 Ibid.
105 See Tucker, James Thomas, The Battle Over Bilingual Ballots: Language Minorities and Political Access under the Voting Rights Act (Ashgate, 2009).Google Scholar
106 2 Cal 3d 223 (1970) ('Castro’).
107 42 USC §§ 1973–1973a (1965).
108 Ibid 243.
109 (1975) 135 CLR 1, 36 (McTiernan and Jacobs JJ).
110 Commonwealth Electoral Act 1918 (Cth) s 93(8AA).
111 Roach v Electoral Commissioner (2007) 233 CLR 162, 174 (Gleeson CJ).
112 Ibid.
113 John Trasviña, ‘Bilingual Ballots: Their History and a Look Forward’ in Crawford, above n 52, 262–3.
114 Australian Electoral Commission, Translated Information and Telephone Interpreter Service (2013) <http://www.aec.gov.au/About_AEC/Translated_information/>.
115 (2010) 243 CLR 1 ('Rowe’).
116 Roach v Electoral Commissioner (2007) 233 CLR 162, 174 (Gleeson CJ).
117 Sandra Hale, Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals: A National Survey (2011) Australasian Institute of Judicial Administration <http://www.aija.org.au/online/Pub%20no89.pdf>.
118 (1991) 172 CLR 460, 496 (Gaudron J).
119 (1998) 193 CLR 173, 208 (Gaudron J).
120 434 F 2d 386, [12] (2nd Cir, 1970).
121 Ibid.
122 See, eg, Constitution of Albania 1998 ss 28 and 31; Constitution of Antigua and Barbuda 1981 art 15; Constitution of Croatia 1990 art 24.
123 See, eg, Constitution of the People's Republic of China 1982 art 134.
124 See, eg, Dietrich v The Queen (1992) 177 CLR 292.
125 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 662 (Gibbs CJ); 675 (Deane J).
126 Hale, above n 117.
127 Administrative Appeals Tribunal, Agency Multicultural Plan 2013–2015 (2013) <http://www.aat.gov.au/AboutTheAAT/OurCommitmentToYou/AgencyMulticulturalPlan.htm>.
128 Soberal-Perez v Heckler, 717 F 2d 36 (2nd Cir, 1983).
129 Ibid [35].
130 Ibid [38].
131 See NSW Department of Education and Training, Bilingual Schools Program <http://www.curriculumsupport.education.nsw.gov.au/secondary/languages/bilingual/schools_1.htm>.
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134 See, eg, Lisa Waller, ‘Learning in Both Worlds', Inside Story (online), 27 October 2011, <http://inside.org.au/learning-in-both-worlds>; Tom Calma, ‘They Are Our Children, This Is Our Community’ (Speech delivered at the AIATSIS Research Symposium on Bilingual Education, Canberra, 26 June 2009) <http://www.hreoc.gov.au/about/media/speeches/social_justice/2009/20090626_bilingual.html>.
135 The only legislative protection of relevance might be the prohibition against discrimination on the grounds of ‘race, colour, descent or national or ethnic origin’ in s 9 of the Racial Discrimination Act 1975 (Cth) ('RDA’). However the RDA makes no reference to language discrimination and, in any case, the dismantling of a special program is unlikely to be in breach of s 9. See, eg, Kartinyeri v Commonwealth (1998) 195 CLR 337, in which Brennan CJ, Gaudron and McHugh JJ held that a law taking away a benefit conferred on a group could not be interpreted as a law to that group's particular detriment.
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139 See Davis v Commonwealth (1988) 166 CLR 79.
140 ‘An act relating to the teaching of foreign languages in the State of Nebraska', approved 9 April 1919 [Laws 1919, c 249] s 2.
141 Meyer v Nebraska, 262 US 390, 399 (1923).
142 Ibid.
143 Ibid 397–8.
144 Constitution of the Republic of Hungary 1949 s68(2).
145 McKay, above n 89 297; Our Land Our Languages, above n 1.
146 AIATSIS and FATSIL, National Indigenous Languages Survey Report (2005) 3.
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149 For this categorisation, see McKay, above n 89, 298–9.
150 Australian Government, Department of Regional Australia, Local Government, Arts and Sport, National Indigenous Languages Policy (2009) Department of Regional Australia, Local Government, Arts and Sport <http://www.arts.gov.au/indigenous/languages>.
151 McKay, above n 90, 298–9.
152 Our Land Our Languages, above n 1, 8–20.
153 Ibid.
154 YouMeUnity Report, above n 1, 105.
155 Ibid.
156 McKay, above n 89, 304.
157 Ibid.
158 Constitution of Brazil 1988 art 210.
159 Constitution of the Republic of South Africa Act 1996 s 6(2).
160 YouMeUnity Report, above n 1, 131. See also Our Land Our Languages, above n 1, 74. 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..
161 YouMeUnity Report, above n 1, 132.
162 Ibid 80–1.