02 Jun Our Constitution already gives First Nations a say
James Paterson — The Australian — 2 June, 2017
Indigenous Australians should be properly consulted on policies that affect them. But that can be achieved without radical constitutional change.
The full implications of the Uluru Statement from the Heart will be clear only when the Referendum Council’s final report is delivered to government at the end of the month. But one remarkable outcome is already obvious: the dismissal of symbolic recognition as a viable path forward to a referendum.
Indigenous leaders at the summit and those who participated in the consultations around Australia leading up to Uluru, in the words of Referendum Council cochairwoman Pat Anderson, “rejected totally outright having some sort of an acknowledgment in the Constitution”.
Instead, participants favoured more “substantive” changes to the Constitution. This overturns the loose Canberra consensus that recognition, perhaps in the form of a statement in a preamble, was the right proposal to put to a referendum. It’s also a spectacular repudiation of the official Recognise campaign, funded with $30 million of taxpayers’ money since 2012, and perhaps prematurely backed by much of corporate Australia.
Constitutional conservatives should be pleased with this development because of the very high risk that a symbolic statement of recognition would not remain symbolic for long. High Court justice Stephen Gageler, writing in 1996 with Mark Leeming, now a NSW Supreme Court justice, advised “extreme care” should be taken in formulating a modern preamble because the “effect of the inclusion of broad statements of contemporary values … would be highly uncertain”.
Liberals who reject the idea of treating people differently based on their race or ethnicity can be relieved that a proposal to do so in a preamble is unlikely to proceed given the obvious lack of enthusiasm for it through the summit process.
The emphasis on practical outcomes to improve the lives of indigenous Australians is also welcome given the likely limited benefits from a purely symbolic initiative.
The desire from summit participants for a greater voice and better consultation in the formulation of policy that affects them is entirely understandable, particularly given the history of failure in this area by governments of all stripes over many decades.
Where many liberals and conservatives are likely to differ with the delegates at Uluru is on the best way to do so. This is not simply because of the limited prospects of success of more ambitious proposals at a referendum but also genuine disagreement on fundamental democratic principles.
Any proposal that could impinge on parliamentary supremacy is highly unlikely to win support because it is a core foundation of our liberal democracy. A first nations’ voice, enshrined in the Constitution, runs the great risk of doing so.
There are many different ways it could be formed. But even the most modest proposal, requiring parliament to consult an elected representative body, makes conflict with the democratically elected parliament for all Australians virtually certain.
Even without an actual legal veto, the new body is likely to wield an effective political veto over policy affecting indigenous Australians that it opposes, regardless of whether it enjoys widespread support in the parliament. It also carries with it similar risks of a symbolic preamble about how a future High Court could interpret and expand its role. For example, how the court defined consultation in the event of a disagreement could have far-reaching implications.
How much time would be required for genuine consultation? Is it really consultation if none of the feedback is incorporated? At what point in the decision-making process is consultation required to take place? Further, by embedding in the Constitution a formal, extra representative body for some Australians, it violates an important principle of equality before the law regardless of race. There is even less clarity about how treaties could proceed and little certainty about their complex legal ramifications.
As many indigenous leaders have pointed out, it could not just be one treaty with all indigenous Australians but many treaties with each first nation. They would require the government to negotiate on behalf of most Australians with another group of Australians.
By their nature, treaties divide Australians into different camps. Some advocates have suggested treaties should include legally enforceable rights. Others suggest they are necessary to establish the legitimacy of the Constitution and the commonwealth, a premise no government could accept.
What is a viable path forward that addresses as much of the desires of indigenous Australians as possible while avoiding unproductive conflict? There is a high degree of consensus about removing anachronistic references to race in the Constitution, which bodes well for its prospects at a referendum, a process that could be unifying in the way 1967 was.
It is the government’s role to consult, and it is the obligation of parliamentarians to be a voice for all their constituents. Constitutional change is not necessary for the government or the parliament to establish better consultation processes on laws that directly affect indigenous Australians as sought at Uluru.
But doing so within existing constitutional frameworks will overcome many of the reservations about the risks and uncertain impacts of a referendum. These measures would represent a step towards the aspirations that were expressed at Uluru while preserving the liberal democratic values that are cherished by many Australians.
This article was originally published in The Australian