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.