Constitutional Confusion And The Movement For Indigenous Recognition

Constitutional recognition of Australia’s Indigenous people is a conceptual, legal, and political mess. The release of the cross-party parliamentary report last week demonstrates this beyond a doubt.

It’s been nearly a decade since Kevin Rudd’s 2020 Summit, from which the modern move towards recognition stems.

Now, in 2015, there are multiple, contradictory proposals on the table. The purpose of recognition is, if anything, getting less clear. The whole cause is, almost certainly, looking more hopeless.

It’s true that political momentum appears to be building. But momentum for what? For what specific change?

The most obvious amendments to the constitution would be the elimination of two clauses that clearly reflect the values of a previous time.

The first is section 25. This section penalises states if they remove the vote from Indigenous people by reducing those states’ population numbers for House of Representatives seats. The concern is that this section implies the states might do such an abhorrent act. But the section is basically a dead letter, just sitting there reminding us of the past. There is near universal agreement that this section should go.

The second is section 51(xxvi). This allows the Commonwealth to make laws with respect to “The people of any race for whom it is deemed necessary to make special laws”. Now section 51(xxvi) is clearly illiberal, allowing Parliament to treat people differently according to their ethnicity or origins. The section is colloquially known as the “race power”. There is also near universal agreement that it should go.

But section 51(xxvi) also happens to be the power which the Government has used to get through policies seen as beneficial to Indigenous people. To get rid of this section might undermine the constitutional foundation of, say, native title.

So the proposal is to replace 51(xxvi) with something that allows Parliament to make laws for the Aboriginal and Torres Strait Island people – perhaps specifying those laws must be for their “advancement”.

In other words, the idea is to replace one race power with another race power.

The best one could say about the proposal is that it is cosmetic. A more honest observer would have to say the race power switch is disingenuous.

Removing discriminatory language from the constitution is one of the most fundamental elements of the recognition project. But it can’t be done without risking things like native title. If constitutional recognition progresses any further, watch its advocates dance around that basic conceptual problem.

But of course a desire to slightly modify the language of the race power isn’t what’s driving the Recognise movement.

Hence the other proposals that have been lumped under the Recognise banner. For instance, a prohibition on racial discrimination by state and federal governments. The possible contradiction with a new race power would be resolved by a caveat that laws could be imposed to help overcome disadvantage, remedy past discrimination, protect Aboriginal culture so forth.

No future Parliament is going to believe it is imposing laws on Indigenous people against their best interests. Thus, the upshot of such an amendment would be to handball to the High Court the responsibility not only of deciding if law is simply constitutional, but if it is good. Tony Abbott calls this a “one clause Bill of rights”, to which he is opposed.

There are other options. All have problems. Many Indigenous leaders reject a mention of Indigenous people in the preamble as mere symbolism. Anyway, John Howard’s preamble in 1999 – which would have mentioned Indigenous people – failed to get up. Noel Pearson wants an advisory Indigenous council written into the constitution itself. Pearson’s seems like an ambit claim.

What is the goal of the recognition movement? Its advocates are clear: they don’t want symbolic change, but constitutional change that would lead to material advancement. This was the firm conclusion of last week’s parliamentary report.

Yet that dismissal of symbolism sits uneasily with the claims that the constitution is our great national document which should reflect the principles of Australian society – an assertion that is, fundamentally, about its symbolic role.

Far too much hope for material well-being has been tied up on this referendum. It is not obvious that constitutional change is the low-hanging fruit of Indigenous advancement.

The whole debate is being conducted in the shadow of the 1967 referendum, which removed two discriminatory provisions from the Australian constitution. It was the most successful referendum in Australian history. But the debate which underpinned that referendum was characterised by overstatement and confusion.

In 1967, the Yes advocates pitched the referendum as offering Indigenous people citizenship, even though the actual proposals on the table did no such thing. The long confused legacy of 1967 is so great that, in their book on constitutional recognition, Megan Davis and George Williams write that to get a Yes vote in 2015 or 2016, advocates will first have to clarify in the public mind what was agreed to five decades ago.

There is much racial goodwill here. But racial goodwill does not rewrite constitutions.