Ending Constitutional Racism


This year marks 20 years since the Mabo verdict was handed down and a lot has happened in the time since. But as a nation, have we done all we can to displace the myth of Terra Nullius? While we have acknowledged the native title rights of traditional owners, our nation’s founding legal document — the Constitution of Australia — still fails to recognise the presence of Aboriginal and Torres Strait Islander people prior to British settlement.

The Constitution establishes the framework for our political and judicial institutions and sets outs the powers of the Commonwealth Parliament. However, the Constitution is also a product of a time when racial thinking dominated. It not only contains provisions that do not reflect our modern values or our obligations under international conventions to eliminate racial discrimination, but it continues to remain silent about the prior occupation of Indigenous Australians.

At the time of drafting, the only two express references to Aboriginal and Torres Strait Islander peoples in the 1901 Constitution Act both related to our exclusion. Section 127 excluded us from being counted in the Commonwealth census and section 51(xxvi) prohibited the Commonwealth parliament from making laws for us.

It was not until the 1967 Referendum, when an overwhelming majority of Australians voted in favour of amending these two sections, that the scope of the Commonwealth’s powers were extended to include Aboriginal people along with other races for whom it could make laws. While the 1967 referendum removed obstacles that denied us full citizenship of the Commonwealth of Australia, the referendum did not deal with the recognition of Indigenous peoples. Nor did the 1967 referendum eliminate the potential for laws in Australia to be racially discriminatory.

Both section 25 and section 51(xxvi) in their current form allow for the making of laws by reference to the concept of "race". Section 25 gives the states the ability to disenfranchise people on the basis of race, even though there are consequences for the state in terms of their representation in the House of Representatives were they to do so. Section 51(xxvi), otherwise known as the race power, enables the Commonwealth to pass laws relating to "the people of any race for whom it is deemed necessary to make special laws."

Significantly, there is no requirement for the laws passed under this head of power to be beneficial to a group of people. This means that laws which have an adverse or detrimental effect on a particular "race" of people can also be passed. As indicated by the High Court in 1998 in Kartinyeri v Commonwealth (The "Hindmarsh Island" case), there is nothing in section 51(xxvi) in its current form to prevent it from being applied adversely to a group of people on the basis of their race.

Without an entrenched prohibition on racial discrimination in the Constitution, there is little protection except via the Racial Discrimination Act (RDA), to prevent the Commonwealth from passing laws that adversely discriminate against a people. But, as we also saw with the NT intervention, the RDA can be suspended if certain actions constitute a special measure. This means that we still remain vulnerable to the political whims of governments in regards to what they deem to be for "our own good," even if it adversely discriminates against us.

Over the past decade, there has been renewed acknowledgement of the need to consider constitutional recognition of Indigenous Australians. Last year I had the privilege of co-chairing with Mr Mark Leibler an Expert Panel comprised of 22 Australians from diverse backgrounds and political persuasions. Our Panel was given the challenging task by Prime Minister Gillard to search for ways for the Aboriginal and Torres Strait Islander peoples of Australia to be recognised in the Australian Constitution.

The Panel had one year to report back to the Prime Minister on options that were most likely to gain widespread support across the Australian community. In that time we talked to as many Australians as we could. More than 250 meetings in 84 different locations were held across the country, and we received over 3,500 submissions. We also sought extensive advice from Indigenous leaders and constitutional law experts and gathered data through research, surveys and polling.

When formulating our recommendations, the Panel were guided by four principles. These principles were that each proposal must contribute to a more unified and reconciled nation, and be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums. In addition, they had to benefit and accord with the wishes of Aboriginal and Torres Strait Islander peoples, and be technically and legally sound.

Having deliberated on the information before us, the Expert Panel recommended five specific changes to the Constitution. These changes would entail the removal of two sections and the insertion of three sections to the body of the Constitution.

Firstly, we recommended the removal altogether of section 25 of the Constitution. This is a section which still enables the states to disenfranchise people on the basis of race.

Secondly, the Panel recommended the removal of section 51(xxvi), otherwise known as the race power.

Thirdly, the Panel recommended that a new power — section 51A — be inserted to replace s 51(xxvi). This new section 51A would give the Commonwealth parliament the power to pass laws for Aboriginal and Torres Islander peoples.

The panel also proposed that this new section incorporate a statement of recognition similar to a preamble. This statement recognises the prior occupancy of the Australian continent by Aboriginal and Torres Strait Islander peoples, and acknowledges our ongoing relationship with our land and waters. The statement also acknowledges the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.

Fourthly, the Panel recommended the insertion of a non-discrimination provision — section 116A — in the Constitution. Such a provision would prohibit the Commonwealth, States and Territories from discriminating on the basis of race, colour or ethnic or national origin. This provision would still allow for laws to address the affects of past discrimination, to overcome disadvantage among a group of people, or to protect the culture or heritage of any group.

Fifthly, we recommended the insertion of a new language provision — section 127A. This section affirms English as the national language of Australia and recognises Aboriginal and Torres Strait Islander languages as a part of our national heritage.

At the time of finalising the Report, the Expert Panel was confident the changes recommended were capable of gaining overwhelming public support at a referendum. Having said this, the difficulties and challenges that go with achieving constitutional reform cannot be underestimated.

History tells us Australians approach reforms to the Constitution with caution. Only eight out of 44 proposals to amend the Constitution have been approved by voters since federation. The circumstances and timing of the referendum will therefore be crucial factors. There must also be sufficient time to build public awareness of the proposed changes. Importantly, there must be wide spread support for the changes, of which bi-partisan support is absolutely essential.

Clearly, there is no point in going to a referendum if there is minimal chance of success. The stakes are too high, and failure would likely have disastrous consequences for reconciliation.

Our report was handed to the Prime Minister in January this year. While the Gillard Government has not formally responded to our report; the Minister of Indigenous Affairs, Jenny Macklin, has since agreed to fund a public information and community awareness campaign. This will be spear-headed by Reconciliation Australia and supported by a reference group of business and community groups, the Australian Human Rights Commission, the National Congress of Australia’s First People and members of the Expert Panel.

If we went to a referendum, we would have before us a historic opportunity to reset the relationship between indigenous people and the settler state. As a modern Australian society comprised of Australians from all walks of life, we must ask ourselves: do we have the courage to break the constitutional silence about the prior occupation of the land and waters of this continent by Aboriginal and Torres Strait Islander people? Are we fair-minded enough to eliminate racial thinking from our constitution, and recognise that the unique identity of Aboriginal and Torres Strait Islander peoples derives not from a racial identity, but from our status as Indigenous people of the continent that we now share and call Australia?

Ultimately, for any of this to occur a majority of Australians in all states and territories will need to vote in favour of constitutional reform. This is unlikely to happen if the groundwork for a successful referendum is not laid. The momentum for change must be built, and Australians should be encouraged to engage in the conversation about what constitutional recognition of Aboriginal and Torres Strait Islander people would mean for us as a nation.

This is the first of two extracts from Patrick Dodson’s Tony Fitzgerald Memorial Address.

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