Why we need constitutional reform: Indigenous recognition and equality before the law

The conversation about constitutional recognition of Indigenous peoples presents us with an opportunity to establish some bipartisan consensus in Indigenous affairs. It is our opportunity to cease the trend of political polarisation and knee-jerk reactions that have characterised historical changes in national attitudes towards Indigenous peoples.

It is also an opportunity to grow as a nation. To agree, as Noel Pearson recently argued, on some big moral and philosophical questions. How should a nation be run? How should citizens be treated? How important is our Indigenous heritage and history? What is the relevance of 'race'? The conversation about constitutional reform is an opportunity to become a better, fairer democracy.

Momentum for change is gathering. In January 2012 the Expert Panel delivered itsrecommendations to government, and a public education campaign has followed. Lawyers are workshopping potential words and amendments to the Constitution. Politicians are debating what changes should occur.

To change the Constitution via a referendum, a majority of voters in a majority of states must vote yes to the proposed amendments. History shows that success can only be achieved with bipartisan support. And, if we expect Australians to vote yes, we all need to feel that the changes are necessary and important.

A good place to start is to clarify what is wrong with the Constitution as it is.

What is the problem?

The non-recognition problem

Until the historic 1967 referendum, the Constitution excluded Indigenous people in a number of ways. Section 127 excluded Indigenous people from the Census, and s 51(xxvi), the so-called "Race Power", also excluded the Indigenous population from its remit. The 1967 referendum reversed this exclusion by deleting s 127 and deleting the exclusion in s 51(xxvi).

Ironically though, the 1967 referendum turned explicit exclusion of Indigenous people into a constitutional silence, perpetuating a myth of Indigenous non-existence. TheMabo decision overturned the presumption of terra nullius as a fallacy in Australian law. But our Constitution still reads as though Indigenous people never existed.

As our founding document, our Constitution is therefore inadequate.

The 'race' problem

The Constitution also contains racially discriminatory provisions which enable governments to discriminate against Australian citizens on the basis of their race. Section 25 contemplates preventing racial groups from voting. Section 51(xxvi) enables the Commonwealth to pass racially discriminatory laws – whether positive or adverse. While the 1967 reforms reversed Indigenous exclusion from the Constitution, they did not get rid of the concept of race. Our Constitution allows and promotes racial discrimination in law.

Treating people differently on the basis of race is at odds with fundamental tenets of democracy: individual equality before the law, the rule of law (in that the same rules should apply to each individual regardless of colour or ethnicity), and the idea that each person's vote should be equal.

We now know that racial categorizations between human beings have no scientific basis. We now understand that there is only one race: the human race. Race should no longer have any legal or policy application, yet it persists in our legal system at the highest level: in the Constitution.

The Indigenous affairs problem

The incorrect focus on 'race' has come to mean that Indigenous affairs in Australia is constantly troubled by what George W Bush described as the 'soft bigotry of low expectations'. As Pearson has argued, the race-based approach has perpetuated low expectations and victimhood. By failing to hold Indigenous Australians to the same responsibilities and expectations as other Australians, it has undermined personal responsibility. Professor Marcia Langton described the problem as one of 'Indigenous exceptionalism': a legal and policy attitude that expects Indigenous inequality and failure.The 'soft bigotry of low expectations' has thus become a self-fulfilling prophecy in Indigenous affairs.

This practical failure has its roots in our colonial history, as embodied in the Constitution. Inherent in the idea of race is the notion that some races are superior and some are inferior, and that these traits are biologically or genetically preordained. These beliefs are outdated and incorrect. But because 'race' has been entrenched in our Constitution since 1901, it has infected our legal and policy thinking since then. It has significantly impacted the way in which we approach Indigenous affairs.

There is now general consensus that treating people differently on the basis of race is unjust. This is why removal of racial discrimination from the Constitution haswidespread public support. We now have the opportunity to move beyond 'race' in our approach to Indigenous affairs.

Can we find bipartisan consensus?

Indigenous Australians have been subject to extreme changes in the settlers' attitudes towards them since the first ships arrived. The story so far is one of political extremes. We went through the period of colonisation and deep discrimination; of massacres, missions, of so-called 'protection', approaches which subsequently caused the Stolen Generations. Then, governments swung the other way and began to take the rights and self-government approach. Policy-makers pushed for cultural autonomy and self-determination.

But sometime around the year 2000, governments realised that the separatist approach had its downfalls. There was talk of the 'outback ghettos' that had formed, rife with alcohol and violence. Our reaction since then has been a swift swing back towards 'practical reconciliation' and hastily implemented interventions. Now, we champion responsibility and engagement in the real economy. Talk of 'rights' has become somewhat unfashionable.

All these attempts at improving Indigenous wellbeing have succeeded in some ways, but failed in others. Indigenous Australians remain the most disadvantaged group in our population. We are yet to settle on the correct principles that should govern Indigenous affairs.

Are we forever doomed to oscillate between political extremes? From rights to responsibilities, from cultural separatism to assimilation? Or can we find a fair, democratic, inclusive middle ground that both left and right can agree upon?

The constitutional reform conversation, and the need for bipartisan support, demands that we settle these old political controversies and agree, finally, on the right approach. We must settle on the 'radical centre' position if we are to win a referendum.

What is the solution?

We should pursue constitutional reform on the basis of two principles: recognition and equality before the law. Constitutional reform is the only way to correct the undemocratic 'race' error that persists in law, policy and Indigenous affairs. And, an argument on the basis of recognition and equality is, I believe, capable of winning the required bipartisan support.

Reform for recognition requires constitutional recognition of prior and continuing Indigenous presence on this land, and recognition that Indigenous cultures, languages and heritage are an important part of Australia's national identity.

Reform for equality before the law means that the racially discriminatory s 25 should be removed. The Race Power should also be deleted. It should be replaced with a new power which would still allow laws necessary for Indigenous recognition, including Native Title and Indigenous heritage laws. However, the new Indigenous recognition power should not be used for matters of public welfare or government socio-economic assistance.

Finally, Constitutional reform should include a prohibition of racial discrimination in laws and policies. This will ensure equality before the law with respect to race, ethnicity and colour. Such a provision is necessary to overturn the racially discriminatory precedent that has built up since 1901. The Race Power and s 25 established the wrong principle in our Constitution. The new, correct principle – equality before the law – needs to be set in place. Just removing the racially discriminatory provisions is insufficient.

Conclusion

Noel Pearson has long advocated the quest for what he calls the 'radical centre': the 'dialectical synthesis' that is the correct policy position in between competing philosophical ideals, or for example, between the political left and the political right.

Those on the left have argued that we should stop the adverse discrimination against Indigenous people. Those on the right often argue we should stop the perceived preferential treatment of Indigenous people. The 'radical centre' position, and arguably the correct position in a just democracy, is to eliminate both adverse and preferential treatment on racial grounds.

Pearson is right: we should assist disadvantaged people, whether black or white. But we should do so in the basis of need, not race.

Recognition and equality are the right principles for constitutional reform. These are the principles that will enable us to become what we are trying to be: a reconciled indivisible democratic sovereign state, shared by the non-Indigenous Australian and Indigenous Australian peoples of this land.