This is our country too

, - April 14, 2015

A successful referendum on indigenous recognition requires a meeting of minds between indigenous people and constitutional conservatives. Equally, it will succeed only if it is championed by both the Left and Right.

The expert panel felt that protection against racial discrimination was of utmost importance in addressing the history of racial discrimination indigenous Australians have endured under our Constitution.

Yet conservatives say judges should not be empowered to decide what is discriminatory.

That is easy to say when one has never been subject to racially discriminatory laws. But for indigenous Australians there is a legitimate desire for real constitutional change, to put measures in place to do things in a better way. I was born a non-citizen, not counted as an Australian under the Constitution. I grew up seeing discrimination first hand. Constitutional recognition needs to provide some answer to that problem.

When conservatives have said no to the idea of constitutional recognition, I have thought: listen, this is our country too.

This is our country too.

We deserve to have our interests constitutionally recognised. We deserve to be made part of the constitutional compact from which we were excluded in 1901.

When I first engaged with Damien Freeman and Julian Leeser and their organisation of constitutional conservatives supporting indigenous recognition, there was little common ground between us. They thought the issue was just about symbolism. For us it wasn’t, and never has been. For constitutional conservatives, the Constitution is not the place for aspirations and rights clauses, which in their view would hand too much power to the judiciary. Clearly there are very important rights the Constitution does protect, but I have been largely persuaded by their broader point.

The Constitution is a rule book for government; it is the place where important national power relationships are articulated. It is not necessarily the right place for symbolism and poetry.

I have come to agree with Freeman and Leeser’s argument, but for different reasons. If we are going to have constitutional change, it needs to do more than just insert poetry into the Constitution. It needs to improve the rules governing indigenous affairs in this country, to make life practically better for our people.

Symbolic recognition of indigenous history and heritage can occur in a declaration, as one important element of a package of reforms to effect indigenous recognition. As I argued in my Quarterly Essay, poetry and symbolism can happen outside the Constitution. But practical reform needs to happen within it.

Statements of great aspirational value can help promote national cultural and political change. The Declaration of Independence had a profound impact on the American national identity, setting in place values of human equality that have had deep political influence. The Treaty of Waitangi in New Zealand is not of itself legally enforceable unless incorporated into legislation, but its principles have come to capture the nation’s imagination. These days, the treaty is taught in schools and Maori culture is celebrated as the New Zealand culture.

Equally, if the Constitution is a rule book that gives parliament its powers and incorporates rules and procedures to restrain the abuse of that power, then where are the rules and procedures governing the relationship between indigenous people and the government? This is our country too. Where are the constitutional rules and procedures ensuring indigenous Australians are heard by the majority might of parliament? Currently, the only articulation of this important relationship is through discriminatory race clauses, implying the relationship is one of exclusion. Those discriminatory clauses should be removed, and the race power replaced with an indigenous power, to support necessary laws for indigenous affairs.

The relationship between indigenous people and government should be constitutionally articulated so it is just and fair, rather than characterised by exclusion and discrimination.

This need not mean judicially adjudicated rights clauses or symbolic statements in the Constitution. But it could mean practical rules and procedures to ensure indigenous people get a fair say when parliament makes laws and policies about us.

Parliament could be required procedurally to consult with and consider the advice of an indigenous body in its lawmaking for indigenous affairs. This would address indigenous concerns to be better heard in government decisions affecting our interests, and conservative concerns to maintain the primacy of the political process.

Rather than letting unelected judges decide what is in the interests of indigenous people, it would give our people a chance to constructively engage with parliament when laws are being made about us. We would have a voice in the national system. To me this is the shining prospect.

I started this conversation asking conservatives: “If you are saying a racial non-discrimination clause in the Constitution is not the answer, then what is a better solution? What can be done to ensure things are done in a better way?” I think there is a reasonable answer to that. We can do things in a better way.

There is real goodwill in conservative Australia, and Australia at large, towards indigenous ­people. I urge Australians to engage with this question with intellectual rigour and open-heartedness.

Indigenous Australia is crucial to this process. There should be national indigenous conventions so indigenous people can grapple with these ideas and express their views on the package of reforms they would support. Any constitutional recognition package needs the endorsement of indigenous Australia.