‘Recognising’ the Constitution, and its limits: Part II

Part I appeared on FreedomWatch yesterday, and can be seen here.


As I wrote yesterday, the recognition debate has seemingly moved away from considering minimal, albeit still problematic, symbolic constitutional change. At the Garma festival in Arnham Land last weekend, Noel Pearson acknowledged that ‘there’s no substantial constituency in Indigenous Australia for just some kind of preambular embroidery’, while Galarrwuy Yunupingu suggested that a constitutional clause outlawing racial discrimination was ‘not negotiable right from the start‘.

This follows both the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (in June 2015) and the Expert Panel on Constitutional Recognition of Indigenous Australians (in January 2012) putting forward suggestions that included the amendment of the existing race power under s. 51(xxvi) to provide for a ‘beneficial’ race power and the insertion of a new constitutional provision prohibiting racial discrimination.

There are a number of significant problems with these substantive proposals. The first is that any constitutional race power – even if it claims to be exclusively beneficial – undermines the simple proposition that nobody should be judged or discriminated against because of the colour of their skin. It is difficult to see how enshrining references to race in our Constitution could do anything other than undermine racial equality and reconciliation.

At a more practical level, the inclusion of a ‘beneficial’ race power assumes that the interests of all Aboriginal people are homogenous, that public policy can clearly labelled as either ‘beneficial’ or ‘detrimental’, and that these public policy discussions are better determined by the courts through litigation rather than the parliament through elections.

The more minimalist option of simply removing references to race from the Constitution through the removal of both sections 25 and 51(xxvi) seems to have fallen by the wayside. This is a lost opportunity. Amending our Constitution to ensure that it is not itself racist would be a small but unifying step forward that would have a realistic chance of succeeding at a constitutional referendum.

Trying to transform our Constitution into a single-clause Bill of Rights that will itself defeat racism both fails to take into account the fundamental character of our Australian Constitution, and opens up a constitutional debate that is highly likely to result in failure at a referendum.

The Recognise discussion does offer a real opportunity to contribute to a more unified and reconciled nation. But we need to be realistic about what our Constitution is, and more importantly what it is not. When the referendum is held it is not, as Professor Marcia Langton claimed recently, a choice between ‘do you want Aboriginal cultures to survive, or do you not want Aboriginal cultures to survive’. Instead it is an overdue opportunity to remove antiquated provisions that should have no continuing place in our daily governance.

The final proposal should ultimately be assessed not by any symbolic value ascribed to it, or indeed the fear of being characterised as racist for not simply agreeing sight unseen to ‘Recognise’ – regardless of what the final proposal ends up being. Instead it should be judged by the only criterion that is ever relevant when considering questions of constitutional reform, namely will these changes actually improve the practical workings of our constitutional structure?


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