By Shireen Morris
Australia Day is a day of national pride and national unity – isn’t it?
On this day in 1788 Captain Phillip stuck his flag in the sand at Sydney Cove and declared the land British territory, ignoring the people who already lived here. Terra nullius denied Indigenous existence, or at least denied Indigenous equal humanity, warranting legal recognition of existence. In 1901 the colonies united to become a single federation. The Constitution was written and the Australian nation was born, but Indigenous people were not given a say in the drafting. They were not allowed to vote and were not treated as citizens. The Constitution said they were not to be counted.
The 1967 referendum half fixed the problem. The explicit exclusions of Indigenous people were deleted. But it did not fix everything. Two racially discriminatory clauses still remain. And the Indigenous history and heritage of this nation is still not recognised in our founding document.
We have much to feel pride and solidarity about in Australia, on Australia Day. But there is room for improvement.
Indigenous constitutional recognition
Australia is a blessed country. Our climate, our land, our people, our institutions rightly make us the envy of the earth; except for one thing – we have never fully made peace with the first Australians.
These were the words of Prime Minister Tony Abbott in his Second Reading Speech to the Act of Recognition Bill 2013, when he was Leader of the Opposition. Abbott linked the constitutional recognition of Indigenous people to a potential achievement of national unity and peace: a way to stop being an “incomplete” and “torn people”, and to become “one nation”.
We are in the midst of a political process to try to reform Australia’s Constitution to recognise Indigenous peoples. A multiparty Expert Panel was put together in 2011. The Panel recommended the insertion of Indigenous recognition provisions into the Constitution: to recognise Indigenous prior and continuing occupation, Indigenous relationships to land, as well as the importance of Indigenous heritage and languages. The Panel also recommended the removal of racially discriminatory clauses from the Constitution, ss 25 and 51(xxvi), and the adoption of a racial non-discrimination clause which would prevent racial discrimination by governments. Those recommendations were unanimous, and were supported by the Panel’s consultations, submissions and public opinion polling.
Of all the recommendations, the proposed racial non-discrimination clause polled the highest [gated] among Australians, across political divides.
There was concern amongst conservative leaders about the Panel’s racial non-discrimination proposal. The main objection was that the racial non-discrimination provision would be akin to a ‘one clause bill of rights’. The argument was that such a provision would be undemocratic, because its broad wording would need to be interpreted by the unelected judiciary, and this would to lead to uncertain outcomes. Instead these types of decisions should be left to elected representatives.
It is a familiar argument in human rights law; majority-rules parliamentary sovereignty versus increased judicial checks on parliamentary power on the basis of notions of certain basic rights. And so, predictably perhaps in the Indigenous recognition discussion, the human rights lawyers and (some) Indigenous activists support constitutional amendments that conservative constitutional academics understandably approach with extreme caution.
The objection partly arises from a sense of historical and institutional pride, and an opposition to radical change. For many, our Constitution represents the collective wisdom and tradition of our inherited British institutions. It represents our continuous, successful democracy. It is a treasured link with the past that should be protected and maintained.
The objection also arises from a concern to maintain constitutional stability and continuity, and to ensure predictability of outcomes. Resistance to constitutional entrenchment of notions such as ‘equality’ or ‘non-discrimination’ is heightened because it may be unclear what such ideals will mean in day-to-day practice. Yes, there is the problem of racial discrimination in the Constitution, but this is considered a minor imperfection by those who feel the Constitution is mostly successful. The presence of this imperfection does not justify creating uncertainty and risk in an idealistic attempt to fix it.
Australian society, it is said, has undergone an organic social evolution, through stable political processes, to overcome past racism, whilst maintaining peace and stability. Now, it is argued, ‘political and moral’ [gated], rather than constitutional constraints, ensure that past discrimination will not be repeated.
For these reasons, conservatives are more likely to support slow, organic, modest constitutional changes. Where Indigenous recognition is concerned, conservatives understandably prefer minimalistic, symbolic amendments of limited legal effect, to minimise the risk of uncertain judicial interpretations.
Finding bipartisan support
The problem is, for a successful referendum, we need bipartisan support. The amendment proposals need to be not only supported by conservative and progressives if we want to be sure of a successful referendum outcome.
Importantly, the changes need to be meaningful to Indigenous people – otherwise what would be the point? And many Indigenous people, as advocated by Indigenous leaders and reflected in the Panel’s consultations and polling, want ‘serious constitutional reform’. Indigenous leaders advocate strongly for entrenched protection against racial discrimination (for example, see here [gated], here and here [gated]). This is unsurprising.
Australia’s history calls into question the efficacy of relying on majority-rules democratic processes alone to protect the rights of Australia’s most excluded minority. Indigenous people at varying times have been excluded from being counted as citizens, have been excluded from voting, and have been denied equal wages. Most accept that Australia’s democracy probably cannot, historically at least, be said to have treated Indigenous Australians fairly and equally. Nonetheless, there remains deep disagreement about the correct solution to this problem.
It is hoped, therefore, that conservative constitutional lawyers might be persuaded to approach this conversation in reconciliatory spirit, and with Indigenous views in mind. It is, after all, easy to minimise the significance of the racial discrimination present in our Constitution when such powers and references to ‘race’ will probably never be and have never been directed at you or your ancestors. For Indigenous Australians, the problem cannot be so minimised. This conversation is one that therefore requires us all to ask, as Paul Keating urged in his Redfern speech: “how would I feel if this were done to me?”
Answering the objections
With this in mind, I argue that the conservative ‘undemocratic’ objections to the proposed constitutional racial non-discrimination clause are not sufficient in the Australian context, given that Australia’s Constitution currently contains two explicitly racially discriminatory provisions. With respect to only race, our Constitution, which sets up our democratic processes, cannot currently be said to be democratically neutral. Therefore, our democratic system and procedures cannot be said to be sufficient to ensure that Australian citizens are not subject to unfair racial discrimination by governments through laws and policies. This is the problem to which constitutional experts should try to find the most certain and democratic solution.
Careful and precise drafting will be important. But it is not enough to say that inserting a racial non-discrimination clause would be undemocratic because it would be interpreted by an unelected judiciary. Our existing Constitution is already interpreted by an unelected judiciary. Judicial ‘activism’ in constitutional interpretation is already a concern for many conservatives. And our judiciary already interprets the morality-laden race provisions.
The conservative objection that the proposed racial non-discrimination clause is ‘undemocratic’ is arguably outweighed by the fact that the treatment of race in our Constitution is itself undemocratic. The race clauses can be considered an undemocratic error – an explicit undermining of the democratic principle of individual equality before the law. Indeed, the Constitution even talks about banning citizens from voting – the most fundamental democratic right – on account of race.
Therefore, without advocating for a broader bill of rights, there is demonstrable need to do something about the race problem in our Constitution. A reasonable solution would be to remove the race clauses and establish a non-discrimination principle, or to put it differently an ‘equality before the law with respect to race’ rule.
What is the conservative argument for reform?
Tony Abbott’s argument on the basis of national loyalty and national unity is a good starting point.
Conservatism usually opposes differential treatment of citizens based on group membership. It prefers individualism to collectivism. It should therefore also oppose differential treatment of citizens of the basis of race. Conservative leaders should therefore support the removal of the race clauses and the adoption of a racial non-discrimination or equality before the law clause, or something like it. Individual citizenship should matter, not race.
This shift in thinking is also important in addressing the challenges we face in Indigenous affairs. The flawed race-based approach to Indigenous policy has led to what Professor Marcia Langton terms ‘Indigenous exceptionalism’, what Noel Pearson calls Indigenous ‘victimhood’ driven by contemporary ‘white guilt’, or what George W Bush called the ‘soft bigotry of low expectations’. The disabling mindset that views Indigenous people as an inferior, incapable so-called ‘race’ has its philosophical roots in incorrect attitudes about ‘coloured and inferior’ peoples which are still embedded in our Constitution. As Langton argued, the race provisions in our Constitution “set up the conditions so that Indigenous people could be treated not only as different, but exceptional, and as being inherently incapable of joining the Australian polity and society.”
This is why we need to move away from the race-based approach. Indeed, the racial non-discrimination clause would confirm that symbolic recognition of the nation’s Indigenous history and heritage need not mean ‘special treatment’ or ‘cultural relativism’: it would confirm, as Noel Pearson has argued, that “the same rules should apply to all Australians”.
Conservatives should be leading the campaign to get rid of ‘race’ from the Constitution. This would not be a radical change. It is only through slow social and cultural evolution that the Australian population has moved on from the concept of race as a legitimate category for differential legal treatment and democratic exclusion. A stable society must move with the times.
Rising above racial divides is important for national unity and social cohesion. It is important for individualised justice and fairness. We need to figure out the the most certain and democratic solution to the problem of racial discrimination in our Constitution. And we need the help of conservative constitutional experts and leaders to do it.
Australia day provides an opportunity for revisiting our national beginnings, our constitutional foundations, and asking how we might be better. How might we become, as Abbott urged, “our best selves”? How might we perfect our national union?
We should remember that in a liberal democracy like ours, it is our equal status as citizens that should matter – not the illusory and out-dated concept and category of race.
Shireen Morris is a PhD Candidate at Monash University, and a policy advisor, constitutional reform research fellow at Cape York Institute for Policy and Leadership. A footnoted version of this article is available on request.