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Frank Brennan: the case for modest constitutional change

We need to determine if there is any point in maintaining the concept of ‘race’ in the Constitution. AAP Image/NEWZULU/Wayne E Jansson

Frank Brennan: the case for modest constitutional change

Australians are increasingly aware and dissatisfied that the Australian Constitution does not mention Aborigines and Torres Strait Islanders. In 1967, Australians voted overwhelmingly in favour of constitutional amendments to remove two negative and outdated references to Aborigines.

John Howard when prime minister was committed to a constitutional amendment that would make positive reference to Indigenous Australians and their place in the nation’s history and in national life. His successors Kevin Rudd and Julia Gillard repeated the commitment.

Meanwhile, some Indigenous leaders were dissatisfied with court decisions and government policies, which they thought operated unjustifiably in a racially discriminatory way only towards Aborigines and Torres Strait Islanders.

They wanted a constitutional guarantee that neither the Commonwealth nor the states could enact unacceptable laws or policies impacting only on Aborigines. They were upset at Commonwealth measures like income management, the “federal intervention” on Aboriginal communities in the Northern Territory and state policies restricting access to alcohol on Aboriginal communities in areas like Cape York.

On New Year’s Day 2014, Prime Minister Tony Abbott said:

I will […] start the conversation about a constitutional referendum to recognise the first Australians. This would complete our Constitution rather than change it.

Will completing the Constitution without making any substantive changes satisfy Indigenous Australians or make any real difference to their lives? Will proposing a change to the Constitution to the satisfaction of key Indigenous leaders satisfy the majority of Australians who are mistrustful of constitutional change?

Many voters would be happy to sign on to a timely completion of the Constitution, making honourable mention of Aborigines and Torres Strait Islanders, bringing it into line with contemporary views but without making substantive changes. These are challenging issues requiring deep thought in the community and clear bipartisan leadership from our elected leaders.

No one-liners

The Australian Constitution is a fairly prosaic, legalistic document. It does not contain any great one-liners that could be readily learned by schoolchildren or repeated on talkback radio programs. Though democratically supported by the Australian people at Federation on January 1 1901, the Constitution is simply an attachment to an act of the British Parliament.

It sets out the basic structure of the Australian federation, bringing six former British colonies together as a Commonwealth. It sets down the relationships between the states and territories and the Commonwealth. It provides for a Commonwealth Parliament (House of Representatives and Senate), a Commonwealth Executive (the governor-general as the Queen’s representative and the Queen’s ministers of state), and a Commonwealth judiciary (the High Court and such other federal courts as the parliament establishes).

The Constitution specifies that the Commonwealth Parliament has the exclusive power to make laws with respect to customs and excise, which are the taxes placed on goods, especially when they cross a border from one jurisdiction to another. It specifies that most of the other law-making powers of the Commonwealth Parliament cover fields that can also be legislated by the states.

These concurrent areas of legislative power are set down in section 51. Prior to 1967, section 51(26) provided that the parliament had power to make laws for the peace, order and good government of the Commonwealth with respect to “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”.

In 1967, the Australian people voted to amend that provision, taking out the words of exclusion “other than the aboriginal race in any State”, thereby granting the Commonwealth as well as the states power to legislate with respect to Aborigines within their jurisdictions.

Super-majorities

The High Court has made clear that the Commonwealth Parliament’s legislative power in relation to Aborigines, though usually exercised for the benefit of Aborigines, extends to the making of laws adverse to Aboriginal interests or to laws that affected Aborigines might not want.

Should there be a conflict between a valid Commonwealth law and a valid state law, the Constitution provides in section 109 that the Commonwealth law prevails and the state law to the extent of any inconsistency is invalid or inoperative.

The Constitution provides for amendment by a super-majority of voters  –  a majority of all voters and a majority of voters in at least four of the six states voting in favour of an amendment proposed by both houses of parliament. Amendment does not come easily.

Only eight out of 44 referendum proposals have been passed since Federation. Since 1967, the Constitution contains no reference whatever to Aborigines and Torres Strait Islanders or to their presence prior to the assertion of British sovereignty.

The Constitution uses the concept “race” only in section 51(26) and in section 25, which is a completely outdated provision. Section 25 relates to the calculation of the number of seats from each state in the House of Representatives.

Were a state to disqualify people of a particular race from voting in their parliamentary elections, those persons would not be counted in reckoning the number of seats to be allocated in the House of Representatives.

No state does or is likely to disqualify people of any particular race from voting. Even if they did, such a racist action should not be permitted to affect the equitable distribution of seats in the House of Representatives. It is time for section 25 to go. When considering any reworking of section 51(26), we need to determine if there is any point in maintaining the concept of “race” in the Constitution.

Recognition

Australians are now being asked to consider how best to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, which presently does not mention them, their history or their aspirations.

Prime Minister Abbott’s talk of completion without substantive change might quieten community apprehension and mistrust; it might also serve to modify the aspirations of some Indigenous leaders who, though they would like to see more substantive constitutional change, know that in politics the perfect is the enemy of the good.

In 2012, Parliament passed a law requiring the minister for Indigenous affairs to appoint a review panel to consider the various proposals for constitutional amendment. That panel, headed by John Anderson, who had been leader of the National Party and deputy prime minister to John Howard, has recommended that the Abbott Government proceed slowly, cautiously and incrementally. In Anderson’s words:

we risk a terrible, terrible disaster if we go too early, if people are not ready and something put to the Australian people was knocked out.

Aboriginal panel member Tanya Hosch, who is deputy campaign director for Recognise, the community-based movement to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, said in 2014 that:

Every big moment like this in our country’s history has been preceded by scare campaigns and mistruths. I trust the good judgment of the Australian people. In the meantime, we’ll continue rolling out the thousands of conversations across the country as part of the Journey to Recognition.

In September 2014, this review panel recommended that a referendum be held “no later than the first half of 2017”.

The parliament has also set up a committee of members from both houses to recommend the way forward. The committee is led by Aboriginal parliamentarians Ken Wyatt, a Liberal member of the House of Representatives from Western Australia, and Nova Peris, a Labor senator from the Northern Territory.

A good start

Never before has there been Aboriginal representation on both sides of the parliament. This heralds a good start to the process. They are consulting Australians about the recommendations for change that were put forward by the Expert Panel on Constitutional Recognition, which had been set up by Prime Minister Julia Gillard and was co-chaired by the nation’s father of reconciliation, Patrick Dodson, and lawyer Mark Leibler during 2011.

In their foreword to the Expert Panel’s report, Dodson and Leibler say:

The logical next step is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.

This next step should commend itself to most voters and all members of parliament. The first proposed means for taking the step –  the removal of the outdated section 25, which permitted a racially discriminatory determination of electorates  – is already common ground in our parliament.

Other proposed means for the removal of race will be strongly debated. Do we remove the notion of race by not mentioning the word “race” at all, and by not mentioning any particular race in the Constitution? Or do we remove the notion of race ironically by constitutionally entrenching a guarantee against discrimination on the basis of race?

The Australian people will be invited to vote on measures that will have gained a broad cross-section of support in the parliament once the parliament has heard the findings of the joint parliamentary committee, which produced an interim report in July 2014 and will produce its final report in June 2015.

In its interim report, the all-party committee agreed that any successful referendum proposal would need to meet three primary objectives. It must:

recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia; preserve the Commonwealth’s power to make laws with respect to Aboriginal and Torres Strait Islander peoples; and in making laws under such a power, prevent the Commonwealth from discriminating against Aboriginal and Torres Strait Islander peoples.

I agree with the first two objectives. I argue that the third objective is presently unachievable and unworkable.

Effecting modest change

For a modest constitutional change, I argue three aspects need to be considered: inserting a factual acknowledgment of Aboriginal history, culture, languages and land rights; deleting the racially discriminatory section 25; and amending section 51(26) to allow the Commonwealth Parliament to make laws with respect to the distinctive Aboriginal matters listed in the acknowledgment.

I argue against a constitutional ban on racial discrimination. I think such a ban has no prospect of winning community endorsement at this time. Such a ban would also be unworkable and too uncertain in its application.

Should Indigenous leaders see such a ban as a necessary precondition for their endorsement of any referendum proposal, I would argue that no referendum should proceed unless and until the nation is ready to vote for a fully-fledged constitutional bill of rights (including a ban on all adverse discrimination) or at least for a comprehensive ban on all adverse discrimination, not just on the basis of race, but also on the basis of gender, age, religion, sexual orientation or disability.

If we are to make a substantive constitutional change, why should there be a constitutional ban on racial discrimination but not on sex discrimination? Why should there be a constitutional ban on racial discrimination only against Aborigines but not against newly-arrived migrants?

To place a ban on racial discrimination in the Constitution without a ban on other forms of adverse discrimination would be to put our constitutional arrangements out of kilter. To place a ban on racial discrimination against Aborigines and Torres Strait Islanders but not against other Australians would itself be an act of racial discrimination.

Neither of these proposals would complete the Constitution in its present form. They would change it substantially.

A constitutional ban on racial discrimination would require the High Court to second-guess every piece of legislation relating to Aborigines coming before the Commonwealth Parliament. The joint parliamentary committee has been advised by Neil Young, a leading barrister, that such a ban “is likely to have wide-reading application and be heavily litigated”.

Nineteen years ago, I did propose a constitutional ban on discrimination on the ground of race, colour, ethnic or national origin. I have since reversed that position and will argue strongly for the reversal. Only a modest referendum proposal will have the prospect of being carried, of being workable and of being sufficiently certain in its future application.

The lesson from the 1967 referendum is that a modest proposal overwhelmingly carried by the people provides the political imperative for governments to act.



This is an edited extract from No Small Change: The Road to Recognition for Indigenous Australia by Frank Brennan, published by University of Queensland Press.

Frank Brennan will be appearing at the Sydney Writers’ Festival today.