24 Jul Radical approach to Indigenous recognition is destined to fail
James Paterson — The Age — 24 July, 2017
The Referendum Council’s narrow, take it or leave it approach to constitutional recognition is unlikely to be approved by the Australian people.
The Referendum Council’s final report to Parliament is even more remarkable than last month’s Uluru Statement from the Heart. It adopts a “take it or leave it” approach to constitutional recognition best summed up by co-chair Mark Leibler’s bold statement: “You either adopt our recommendation, or you put constitutional recognition for Aboriginal and Torres Strait Islanders on the backburner … for maybe 20 years.”
This is a high-stakes approach that risks squandering the widespread consensus in favour of positive, incremental change to the constitution. It is a divisive strategy that is unlikely to win over people who are open to constitutional reform but have principled reservations about how it should be done.
The council’s recommendations don’t just have an impact on Indigenous Australians; they have far-reaching implications for all of us.
Its surprising decision not to recommend changes to the two sections of the constitution that refer to race directly repudiates the advice of previous inquiries, which have justly argued that there is no place for race in the constitution of a modern liberal democracy.
Labor MP Linda Burney has rightly pointed out that many Australians will be “shocked to think that we are not going to deal with the archaic race powers in the constitution”, if we follow the advice of the council.
These powers don’t just affect Indigenous Australians. They give the federal government the power to make laws that target the race of any Australian. They allow the Parliament to make laws specific to, for example, Chinese, Indian, or Irish-Australians. It would be virtually unthinkable for these powers to be used by any government in the near future, but the only way to be certain they aren’t used is to remove them.
The report recommends the most radical option for recognition: a constitutionally enshrined representative body for Indigenous Australians, which the Parliament would be required to consult before passing legislation which affects them.
It remains unclear how this body would operate, how its members would be elected, and how it would be funded.
All that is clear is that this body is based on the premise that the Parliament does not represent all Australians, and that some Australians should have another representative body because of their race.
This undermines the core liberal democratic value that everyone should be treated equally before the law, regardless of race or any other individual characteristic.
Such a proposal is unlikely to succeed at a referendum in a constitutionally conservative country like Australia.
By embedding an Indigenous representative body in the constitution and requiring Parliament to consult it, we would be elevating it above all other advisory bodies governments have appropriately established in the past.
It would mean that the Parliament may have no recourse to abolish or replace it, even if it became mired in corruption or scandal like the previous Indigenous representative body, the Aboriginal and Torres Strait Islander Commission (ATSIC) – which was abolished in 2005 with bipartisan support.
Constitutional reform is important, particularly to remove references to race. But there are also non-constitutional changes which are desirable and should proceed.
It is entirely understandable that many Indigenous Australians feel they have not been well represented in and consulted by the political system in the past. Decades of bipartisan policy failure in Indigenous affairs are a powerful testament to that. But there is nothing stopping the Parliament from today establishing better mechanisms for incorporating the views of Indigenous Australians into policymaking, above and beyond the positive milestone of the record number of Aboriginal and Torres Strait Islander people serving in the Parliament today.
Another worthy non-constitutional proposal is the Referendum Council’s idea of a “declaration of recognition”. This declaration would acknowledge Aboriginal and Torres Strait Islanders as the first Australians, as well as celebrate our British institutions and our immigrant character. Drafted well, with an inclusive tone, this could be a truly unifying statement.
Largely symbolic changes like these can be important. None of this, however, should allow us to lose sight of the practical initiatives most likely to tangibly improve the lives of Indigenous Australians, initiatives like ensuring they have access to education and healthcare, and can fully participate in our prosperous economy.
The constitution is a document for all Australians, and the Referendum Council’s report is just one important input into the reform process. Parliament will now have to decide the path forward. But presenting the Australian people with a radical, take it or leave it, approach to constitutional reform is not destined for success.
This was originally published in The Age.