More than mere symbolism

We should put aside the gloomy predictions about constitutional reform and debate the Indigenous recognition proposals on their merits, writes Paul Kildea in the Australian Financial Review • IN THE WEEKS since the Expert Panel reported to the Gillard government on the constitutional recognition of Aboriginal and Torres Strait Islander peoples, there has been a torrent of gloomy predictions from media pundits. Some say that the panel’s recommendations for reform have ‘overreached’. Others argue that they could never gain support from both main parties, and are too complex for the public to understand.This is all very premature. There is a long way to go in this process, and the true measure of the panel’s ideas will emerge over the coming months as we all take time to digest and debate them.Once the debate settles down, one of the most important questions that will need to be addressed is whether constitutional recognition is capable of making a difference to the everyday lives of Indigenous peoples. Given the massive challenges that Indigenous peoples face in areas such as health, education and housing, many Australians will be reluctant to support a costly referendum process unless it can bring about real change.This question is not as straightforward as it seems. As is often the case with constitutional change, the impact of recognition is likely to be felt in a mixture of tangible and intangible ways. Some reforms promise to have a direct impact by countering lawmaking that is racially discriminatory. But other possible consequences are hard to quantify, coming in the form of enhanced feelings of self-worth and stronger relationships. Any discussion of the possible benefits of constitutional recognition must begin with the history of the Constitution’s drafting. To say this is not to skirt the issue of whether constitutional reform can bring about real difference. Instead, it is to acknowledge that some of the advantage of pursuing that reform comes in recognising that our founding document has served as an instrument of exclusion and discrimination.Aboriginal and Torres Strait Islander peoples played very little role in the drafting of the Australian Constitution. There were no Indigenous representatives at either of the drafting Conventions, and it was only in South Australia that Aboriginal people were permitted to vote for Convention delegates. All of this is not surprising when we consider that, at the time, many Australians considered Indigenous people to be a ‘dying race’.When the Constitution came into operation on 1 January 1901, it contained just two references to Aboriginal people. One was for the purpose of excluding ‘the aboriginal race’ from the operation of section 51(26) – also known as the ‘race power’ – which gave the Commonwealth parliament power to make laws with respect to ‘the people of any race’.The second reference was found in section 127, which provided that ‘aboriginal natives’ were not to be counted in ‘reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth’. The effect of this provision was that Indigenous peoples were not to be taken into account in determining the size and distribution of electorates for the Commonwealth parliament.The making of the Australian Constitution, otherwise a proud national achievement, thus served to reinforce a history of marginalisation and exclusion for Indigenous peoples. A step towards rectifying this was taken at the 1967 referendum. More than 90 per cent of the electorate voted to delete section 127 altogether, and to expand the ‘races power’ to include Aboriginal people. This last change was made out of a strong public feeling that the Commonwealth was better placed than the States to improve the living standards of Indigenous peoples.The 1967 referendum was a huge achievement, and remains an important touchstone for many Aboriginal and Torres Strait Islander peoples. But it did not erase the possibility of racial discrimination from the Constitution, and also left the constitutional text completely silent on the existence of Indigenous peoples. This silence is now out of step with the constitutions of many other countries – such as Canada, South Africa, Finland and Norway – which give prominent recognition to their Indigenous peoples.This is where the latest push for constitutional recognition comes in. In fact, some people have described it as being about dealing with the ‘unfinished business’ of 1967.But if this reform movement is to be successful, the public will need to be convinced that it has contemporary relevance as well as historical significance. How will constitutional recognition affect the lives of Indigenous peoples now, in 2012?Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner, has spoken eloquently about some of the intangible consequences that are likely to flow from constitutional change. He has described constitutional recognition as an opportunity to for nation-building and reconciliation. For Gooda, constitutional recognition is a vehicle for increasing Indigenous self-worth and resilience, and improving the relationship of Indigenous peoples both with governments and the broader Australian community.These effects could also lead to more concrete changes in the lives of Indigenous peoples. The Royal Australian and New Zealand College of Psychiatrists has pointed out that a lack of recognition in a nation’s constitution has a major impact on an individual’s sense of identity and value to the community. It argues that constitutional recognition, far from being symbolic, is a critical step to improving Indigenous mental health. Others have made similar arguments in relation to the wider ‘close the gap’ agenda, pointing to the connection between constitutional change and achieving improvements in such areas as life expectancy, literacy and numeracy levels, and employment.The measure of any proposed constitutional reform, though, is in the detail. It is here that the Expert Panel’s report is hugely valuable – it sets out a substantive blueprint for reform and serves as a strong foundation for public debate on how best to advance constitutional recognition in a way that improves everyday lives.The panel’s report makes five recommendations for constitutional amendment. Three of these fall into the category of reforms whose main contribution will be to deliver the sort of intangible benefits that Mick Gooda has described.The first of these is the proposal to repeal section 25. This provision, which contemplates that State parliaments can disqualify certain people from voting on the basis of their race, is widely derided and is out of place in a modern constitution.The panel also recommends the removal of the ‘race power’ in section 51(26). Since the 1967 referendum this power has been used to support positive laws, such as those giving protection to Indigenous sacred sites. But there is a feeling that a law-making power framed around the outdated concept of ‘race’ is inappropriate in a 21st century constitution.The third recommendation involves the insertion of a new section 127A that would give symbolic recognition to the importance of Indigenous languages in Australian life and culture.In addition, the panel has suggested the insertion of a statement in the body of the Constitution that, among other things, recognises Indigenous peoples as the first occupants of Australia, and acknowledges their continuing relationship with traditional lands and waters. This statement is part of a new section 51A, discussed further below. Each of these proposals are aimed at updating our Constitution to reflect contemporary attitudes, and laying the basis for a stronger and more respectful relationship between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians. They are also about enhancing individual dignity in a way that could have tangible flow-on effects in everyday lives.The panel’s two remaining recommendations are different in that they promise more substantive change, especially to the process of law making. One involves the insertion of a new section 51A that would give the national Parliament the power to make laws ‘with respect to Aboriginal and Torres Strait Islander peoples’. In effect, this replaces the ‘race power’ with a head of power specific to Indigenous peoples.This is, in part, a matter of necessity: if the ‘race power’ were simply removed, certain laws that are currently supported by it (including native title and heritage protection laws) would have no constitutional basis and the subjects of those laws would revert to the States.But some controversy has emerged around the panel’s decision to include a preamble to section 51A that acknowledges ‘the need to secure the advancement of Aboriginal and Torres Strait Islander peoples’. This has been widely misunderstood as giving Indigenous peoples some form of ‘special treatment’ in the Constitution. On the contrary, these words have been included to guard against the possibility that the Commonwealth Parliament might use the new legislative power to pass laws that are detrimental to Indigenous peoples. The need to do this arises from a 1998 High Court decision that left open the prospect that the existing ‘race power’ could be used to support both beneficial and detrimental laws.The intention of the policy’s proposal is therefore far more benign – and practical –than critics have suggested. It is there to remove current constitutional uncertainty by reducing the scope for future parliaments to take away existing rights and entitlements.For all the attention that section 51A has received, by far the most contentious of the panel’s recommendations is the insertion of a new section 116A that would prohibit discrimination on the grounds of ‘race, colour or ethnic or national origin’. Protection against racial discrimination already exists in national and State legislation, but the panel’s proposal would strengthen this protection by giving it constitutional status. It would not apply to positive laws or measures – such as programs that allow for accelerated university entry – that are designed to redress disadvantage.Notably, the panel’s proposed clause would protect all Australians from racial discrimination, although it would have a special significance for Aboriginal and Torres Strait Islander peoples.The key practical effect of this proposal would be in the area of lawmaking. Over the last decade we have seen how straightforward it is for the Commonwealth parliament to suspend the operation of the Racial Discrimination Act when it suits its policy program. This occurred in relation to both the native title amendments in 1998, and the Northern Territory intervention legislation in 2007.With a racial discrimination prohibition in place, the parliament could no longer do this. This is not to say that it would have to abandon its policy program altogether. What is more likely is that it would have to take more care in its approach and ensure that its policy aims are achieved in ways that do not adversely discriminate on racial grounds.The passage of the 2007 Northern Territory laws provides a perfect example of why this is needed. Despite being complex package of five bills, totalling 480 pages, it was debated for only a few hours before being passed by the House of Representatives. There was barely a mention of race discrimination in the parliamentary debates.A prohibition on racial discrimination would not have stopped the intervention proceeding. But it would have forced parliament to reconcile the intervention laws with the general principle of non-discrimination. In practice, this would have required that politicians consult more widely with affected communities, and make a more genuine attempt to justify the laws as measures for redressing disadvantage.In 2012, when there is such strong community opposition to racial discrimination, it makes sense for our lawmaking process to be guided in this way. And it would bring our Constitution into line with those of other countries – including Canada, South Africa and India – where constitutional guarantees against racial discrimination are commonplace. Of course, if we are to push ahead with constitutional recognition in any form, we need to be sure that the actual wording of the reforms matches our intentions. Poor drafting could undermine the sound ideas behind the changes.This is why some lawyers have queried the precise wording of the panel’s proposals. Some object to the term ‘advancement’, wondering whether it is too vague; others wonder how the power to make laws for Indigenous advancement will interact with the non-discrimination clause.A few commentators have interpreted this difference of opinion as evidence that the panel’s more substantive proposals are unworkable and should be abandoned. This ignores the fact that debates about wording are part-and-parcel of constitutional reform.In fact, free and vigorous debate is essential to ensuring that lingering problems can be addressed, and that any amendments are legally and technically sound. Rather than close off options from the very start, the better approach is to allow both experts and the general public to subject them to deep scrutiny. That way, when the time comes to settle on some firm proposals, we can do so with confidence.In the end, each and every Australian will make their own judgment about whether constitutional recognition promises enough real difference to warrant a Yes vote on polling day.In reflecting on the impact that change might bring, it may help to recall the legacy of the 1967 referendum. Even though the constitutional amendments were modest, Aboriginal and Torres Strait Islander peoples continue to look back on that day with a huge sense of pride and achievement.The latest push for constitutional recognition has the potential to have an even bigger impact. Not only could it be a moment of nation-building and reconciliation, but there is scope for the actual constitutional changes to go further than the 1967 amendments in making a real difference in people’s everyday lives. If only for this reason, we should put aside the gloomy predictions and give the expert panel’s recommendations the detailed debate and analysis they deserve. •Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law. This is a longer version of an article that first appeared in the Australian Financial Review on 10 February 2012