Why we need constitutional reform: Indigenous recognition and equality before the 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 These beliefs are outdated and incorrect.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.