Earlier this year, the Expert Panel on Constitutional Recognition of Indigenous Australians gave its final recommendations to the government.
Recognition would acknowledge the unique place of Aboriginal and Torres Strait Islander peoples in Australian history and culture, as the basis for a future involving mutual respect and trust, transcending the legacies of the past.
The panel had a challenging task – to advise on a form of recognition that would be comprehensive enough to be worthwhile but also acceptable to Australian voters in order to pass at referendum.
The race power
A key question for the expert panel was whether to recommend the removal of the “race power” in section 51(xxvi) of the Constitution. As it originally appeared in the Constitution in 1901, this section gave power to the Commonwealth Parliament to make laws 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”.
Discussion of this clause in the constitutional conventions of the 1890s, shows that the framers of the Constitution anticipated that it might be used either to the detriment of particular racial groups or for their benefit.
In its original form, the power was never used as the sole basis for a Commonwealth law and it is unthinkable that it would be so used now. The reasons for the exclusion of the “aboriginal race” from the power were either based on indifference or an assumption that this was a matter for State rather than Commonwealth law.
In any case, the exclusion was itself deleted in the referendum of 1967, together with section 127, which prohibited the “counting” of aboriginal people for such constitutional purposes as the allocation of the number of Members of Parliament between States and the distribution of Commonwealth funds. The referendum had unprecedented support, with more than 90% of the national vote cast in favour of it.
A law to discriminate
The 1967 referendum had two goals: to extend Commonwealth power to make laws for Aboriginal people and to remove discriminatory references to them from the Constitution. Accomplishing the former through the latter was the easy way out, taken at considerable cost.
Aboriginal people fell within the scope of the new power only if they were categorised as a “race”; the historical provenance of the power created a risk that it could be used to their detriment as well as for their benefit; and the change confirmed what previously had not been entirely clear, that the race powers section could be used by the Parliament to discriminate between Australian citizens on racial grounds.
With this new application, the power was used more extensively. The race powers section is not the only source of Commonwealth power to legislate for Indigenous Australians. But it is probably the only source of power for legislation operating outside the territories dealing with, for example, native title, aboriginal heritage and indigenous organisations.
Partly in consequence of increased use, the meaning of the power was raised in a series of significant High Court cases, including the unsuccessful challenge to the validity of the suspension of the Aboriginal heritage legislation in relation to Hindmarsh Island in Kartinyeri.
While aspects of the provision remain unclear, it is now settled that Aboriginal people are a “race”‘; that the power is not confined to beneficial use; and that whether a law is “necessary” is not a justiciable question.
Notwithstanding the symbolism of the 1967 referendum, retention of the race power as a basis for Commonwealth legislation for Indigenous Australians is not compatible with constitutional recognition. Even leaving recognition aside, the power is out of place in the constitution of 21st century Australia. It was likely that the expert panel would recommend its removal and it has done so.
Resolution of this issue, however, left others to be decided and helped to shape the form that they took. Two were particularly difficult and are briefly mentioned here.
The first was whether a new Commonwealth power to legislate for Indigenous Australians should be added to the Constitution and, if so, how it should be circumscribed so as to prevent the possibility of misuse.
The panel’s response to this issue manages also to overcome the problem of where to place a formal statement of recognition in a Constitution that, unusually, lacks a preamble that would be the natural home for a statement of this kind.
The report recommends the addition of a new power to make laws for Aboriginal and Torres Strait Islander peoples, preceded by a statement of recognition that is part of the section itself and thus available for consideration in determining its scope.
The second difficult issue remaining stemmed from the possibility that other powers, notably the territories power, might nevertheless be used to the disadvantage of Indigenous Australians, impeding the achievement of the purposes of recognition.
The panel’s response is to recommend an additional section to prohibit discrimination on the grounds of race in the exercise of either Commonwealth or State power. While this proposal has attracted some adverse comment, the prohibition of discrimination is a familiar concept in the Constitution in other contexts and there is no reason why it should not be employed for this purpose as well.
Be wary of the politics
If recognition is attempted it is essential that it succeed. Failure would be worse than not trying at all. It will be tempting in these circumstances to water down the proposals, in the potentially misguided belief that if they are sufficiently anodyne they will pass.
But if the goals of recognition are thereby missed, this is no solution. It is better to craft a set of proposals that are suitable for the purpose and to allow plenty of time for public discussion and public understanding of them.
A referendum should be held only when it is tolerably clear that it will pass. And even then it should be a standalone vote that does not run the risk of being hijacked by the politics of a general election or, even, by other proposals for constitutional change.