Rudd Said Sorry, Will Gillard Go Further?


Fellow political junkies, are you jaded, dispirited, angry and/or just plain bored with Australian politics?

Is there any prospect that we can avoid listening to "usual-suspect" politicians droning on and on and on for the rest of the year in excruciating promotion or opposition to a carbon tax or a regional processing centre?

There may just be one small opportunity to be roused from our torpor. That arises from the deliberations of Julia Gillard’s Expert Panel, tasked last December with reporting at the end of this year on how Indigenous Australians should be recognised in our federal Constitution.

As you may know, there is no mention whatsoever of Aboriginal or Torres Strait Islander Australians in the constitution.

It should not be too difficult for the panel to come up with a form of words for an Indigenous preamble to the constitution much like those that the Victorian, Queensland and NSW parliaments have added to their state constitutions in the past few years. Such a preamble would at least record the Indigenous presence on the continent, now and prior to European settlement and summarise in a few elegant sentences their contribution, past and present.

Nevertheless, while a preamble would be more than a gesture, it would not be much more.

Going further than the expected preamble will be the real test for our political class because changing the constitution to correct its several racially discriminatory provisions will be much more difficult. If the politicians disagree about the content of the necessary referendum, it will fail.

The first problem with the constitution is section 25.

That section effectively provides that if a state excludes a race from voting in lower-house state elections, then the excluded race is not counted when determining the numbers of federal House of Representatives seats in the particular state concerned. (The number of seats that each state gets depends on its relative population). Of course, for a state parliament to exclude a race from voting is now highly unlikely, but the point is that a rogue state government could do it under our constitution.

The second and more important provision in the constitution under which the federal parliament appears to be able to pass legislation detrimental to a particular race is the Race (or Races) Power: section 51(26), which allows the parliament to make laws with respect to "the people of any race, for whom it is deemed necessary to make special laws"

Section 51(26) was inserted in the constitution by our founders to give the federal parliament power to pass legislation to restrict the rights of non-Indigenous racial groups resident in Australia, particularly the Chinese, and Pacific Islanders.

You might think that more than a century later the High Court of Australia, the interpreter of the constitution, might have re-interpreted the vague language of the section, to ban the parliament from passing racially discriminatory legislation, but alas no.

The last time the court said much on the topic was in 1998 in what is often referred to as the Hindmarsh Island Bridge case (Kartinyeri v The Commonwealth). This was the case which made the term "secret women’s business" famous. A group of Indigenous women exercised certain legal rights to persuade the Federal Court to prevent the building of a bridge to Hindmarsh Island, because it would impede the practice of attending to secret women’s business there.

The Howard government then passed an Act that overturned that decision and a challenge to the amending Act on constitutional grounds was made to the High Court.

Three of the six justices sitting said that the section does allow the parliament to pass laws that discriminate against a race. Two others avoided the issue and only one, Michael Kirby, interpreted the section to exclude detrimental racial discrimination.

So in 2007 the Howard government, as part of its Northern Territory Intervention, felt secure in passing legislation that clearly discriminated against Territory Indigenous people in many respects. One example of this discrimination was that Indigenous social security recipients were "income managed". Under that regime, 50 per cent of an Indigenous person’s welfare income was quarantined for food and necessities. An unemployed doctor or engineer was subject to that indignity, but not if he or she was white, whatever the circumstances.

Given the High Court’s view on section 51(26) there was no point in challenging the legislation in the courts — nothing could be done.

What do we think of this? Australia ratified the International Convention on the Elimination of all Forms of Racial Discrimination in 1975 — one of 174 nations that have now adopted it. That treaty is one of the most important international laws of all time — intended once and for all to rid the world of the Nazi legacy of racial bigotry and hatred. Our Constitution, in the two sections referred to above, breaches it.

How do we fix this? The Law Council of Australia, the peak body of the legal profession, proposes that after Indigenous Australia has been consulted and approves, a referendum be drafted and put to the people. Consistent with the Law Council’s recommendations, the referendum might propose to: insert a preamble drafted by the Expert Panel, repeal Section 25 and reword Section 51(26) to allow laws to be made with respect to "the Aboriginal and Torres Strait Islander peoples". Following the Law Council’s recommendations might also lead to the insertion of a new Section 127, which might read as follows (this is my draft, not the Law Council’s):

"In the laws of the Commonwealth, States and Territories, racial equality and racial non-discrimination are guaranteed principles. However no laws made, and which remain necessary for the benefit of the people of any race, to reduce or eliminate the impact of past racial inequality or discrimination, shall infringe these principles."

There is no section 127 at present because the original section was removed in the 1967 Referendum. The old section excluded "aboriginal natives" from being counted as part of the "people of the Commonwealth".

It is wholly appropriate that this removed racist provision be replaced with one that implements our obligations under international law not to discriminate against any race, including our original inhabitants — but permits beneficial laws to be legislated by the parliament, to apply for so long as necessary to redress the effect of past racism. The general effect of proposed new section 127 has been part of our Racial Discrimination Act 1975 for decades — the referendum would entrench it in our law, preventing a government from later overriding it, except by further referendum.

What are the chances of putting our constitution right in these crucial respects? Apart from introducing some anodyne preamble, you would have to be pessimistic.

The Expert Panel and our federal politicians should now be pressed hard to take a public lead on this, which they have not done, so far. Otherwise, we are no better than the founders. They sought to restrict Chinese and Pacific Islander employment and ignore Indigenous Australia. We, by our inaction, continue to exclude from equal status the prior custodians of this continent over 40,000 years. Of course, it is not only them we leave open to legislative bigotry, but other racial minorities as well.

It will fall to all of us, but to our politicians in particular, to reach agreement to redress this obvious injustice. Great leaders would try to do it, would fight tooth and nail for the appropriate referendum and seek to exert a moral force of logic and passion, to see it succeed.

Will they do it — and will we do it?


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Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.