Why We Need Constitutional Reform: Recognition and Equality

- March 1, 2012

Autumn Reporter 2012

Indigenous Australians have been subject to extreme changes in the settlers’ attitudes towards them since the first ships arrived.

We have gone through the period of colonisation and deep discrimination; of massacres, and missions, of so-called ‘protection’, of ‘civilisation’ and Stolen Generations. We then took the rights and self-government approach. We had Mabo, we recognised land rights. There were pushes for cultural autonomy and self-determination. We then realised that we had inadvertently formed ‘outback ghettos’ which were drowning in booze and violence. Our reaction then was a swift swing back towards ‘practical reconciliation’ and hastily implemented intervention. Now, we champion responsibility and engagement in the real economy. Talk of ‘rights’ has these days become somewhat unfashionable.

Significantly, we heard the National Apology in 2007. The apology was an important step in the process of reconciliation. But what was the next step?

Usually, when you apologise to someone for a wrong you have done him or her, the next step in the process of reconciliation is to acknowledge a change of attitude and behaviour – and to make a steadfast guarantee that the wrong will not be repeated. After an apology, if that apology is to have any real meaning, there should come a reciprocal promise. The next step after our National Apology was for Australia to make the promise that the wrongs of the past, the racial discrimination and the related denial of personhood and peoplehood that Indigenous Australians suffered, will never happen again – to any human being.

As a sovereign state, we are yet to make that guarantee.

Today, Indigenous affairs in Australia remain fraught. Each of the political trends Australia has gone through has proven to be successful in some ways, but quite unsuccessful in others. Initial discriminatory practices which denied equal pay, denied the vote and denied Indigenous existence, excluded Indigenous people from the nation and from the real economy. These past approaches arguably began the poverty, dependency and exclusion amongst Indigenous Australians that, despite our best intentions, persist today.

But more recent ‘special treatment’ approaches, informed by politically correct ideas of cultural relativism, have often inadvertently further entrenched exclusion and poverty, and in some cases exacerbated dysfunction. The political push for Indigenous self-determination resulted in a misguided cultural sensitivity which has led to a lack of law and order in Indigenous communities, and in some cases, a discriminatory disregard for the Indigenous victims of crime and violence. Under this approach, Indigenous Australians were also denied the equal protection and benefit of the law. Whether adverse discrimination or well intentioned positive discrimination, neither approach was on the basis of equality.

Today, policies to address Indigenous disadvantage are still implemented in haste as responses to various states of emergency. Knee-jerk reactions abound, and the wellbeing of Indigenous Australians remains, as it has since colonisation, at the mercy of political fluctuations.

We have yet to agree upon the correct principles that should guide our endeavours in Indigenous affairs.

Constitutional reform – an opportunity to agree on the right principles

Last year the government put together an Expert Panel to address the complex question of how to recognise Indigenous Australians in the Constitution. This question has provided us with an opportunity to look at our failures and successes, and to decide on the correct basis for the relationship between Indigenous Australians and other Australian citizens going into the future. It is our opportunity to agree on the right approach. At Cape York Institute our thinking on this issue is evolving, but we have approached the problem in the following way.

Of the many problems Australia still faces with regards to Indigenous affairs, two problems are of utmost importance.

One, Indigenous Australians still suffer disproportionate levels of disadvantage in Australia. They do not share in Australia’s wealth, and suffer disproportionately poor health and wellbeing outcomes. Despite our best targeted efforts, Indigenous Australians still do not enjoy substantive equality in Australia. The gap is far from closed.

The second problem is just as pressing. Indigenous Australian cultures and languages continue to disappear. They are not shared with or enjoyed by other people in the world. Indigenous Australian first nations’ peoplehood is threatened. Australia’s Indigenous culture is a supressed part of our Australian identity.

The question of constitutional reform to recognise Indigenous Australians provides us with an opportunity to address these problems – or at least to agree on the right principles for tackling them.

In considering the issue we must ask: has the Australian Constitution created a structure which enables Indigenous Australians to achieve socio-economic parity in this country? And has it allowed for Indigenous Australian cultures and languages to prosper, and to be enjoyed by all Australians? The answer to both these questions is no.

Why hasn’t the Constitution enabled Indigenous socio-economic and cultural prosperity and equality within Australia? The answer is, because it was not intended to. The Constitution was drafted deliberately excluding and ignoring Indigenous Australians.

It was drafted, as Dodson has argued, “in the spirit of terra nullius.”

Australia must now attend to these constitutional deficiencies.

Why we need reform

There are two reasons why we need constitutional reform in Australia: recognition and equality.

1. Recognition

The Expert Panel’s terms of reference refer to Indigenous constitutional ‘recognition’. But what does recognition of Indigenous people actually mean?

Arguably recognition means acknowledgement of distinct identity and peoplehood. Historically, Indigenous people have been systematically excluded or ignored in Australia’s Constitution. The 1967 referendum removed the explicit exclusion of Indigenous people from the Constitution. It amended the exclusionary wording of the s51 (xxvi) ‘Race Power’, thereby including Indigenous people within its scope. It also removed s127 of the Constitution which was a provision disqualifying Indigenous people from being counted in the official Census. But the 1967 reforms did not include any positive mention of the Indigenous history preceding colonisation and federation.

Ironically, 1967 turned explicit exclusion of Indigenous people into a constitutional silence, perpetuating a myth of Indigenous non-existence. This non-mention of the prior and continuing existence of Indigenous people can been seen as an enduring assertion of terra nullius.

Terra nullius was wrong because it denied that Indigenous people existed, or asserted that Indigenous people lacked the social and political organisation to warrant equal treatment or recognition. The Mabo decision overturned the presumption of terra nullius as a fallacy in Australia.6 It is therefore important that Australia’s Constitution is modernised to align with our social, political and legal values. We need to recognise the fact that Australia was not terra nullis when the British arrived.

This historical truth needs to be stated.

But there are also practical reasons why Indigenous constitutional recognition is necessary. Constitutional recognition will help to change the country’s attitude towards our Indigenous heritage.

Indigenous languages and cultures are fast disappearing. Before colonisation there were 250 distinct Indigenous Australian languages, and 600 dialects.7 Most of these are no longer spoken.8 While approximately 100 Indigenous languages still exist in some form,9 90% are near extinction.10 The 2009 Social Justice Report predicts that “without intervention the language knowledge will cease to exist in the next 10 to 30 years.”

Our national attitude needs to change from one of shame, to one of pride and celebration, if we are to save our Indigenous cultures and languages from extinction. This would be a loss for all people. Our Indigenous cultures and languages are the heritage of Australia, and should be recognised as such.

2. Equality

Recognising Indigenous people means recognising them as equal. Reconciliation must proceed from the understanding that Indigenous people, and all Australians, are equal – and importantly – that our discriminatory treatment of the past was wrong and will not happen again.

Why does this require constitutional reform?

The notion of ‘race’ has been entrenched in our Constitution since 1901, and has infected our legal thinking since then. The ‘race’ approach was, and remains, the wrong approach. It has not worked until now to improve the situation of Indigenous people in Australia, and it will not work in the future.

The notion of ‘race’ is a colonial construction, based on out-dated understandings of black people as inherently inferior, and white people as superior. ‘Race’ as a concept has now been discredited. Indeed, it is now widely understood that as a matter of science, there is only one race – the human race.

While the 1967 reforms reversed Indigenous exclusion from the Constitution, it did not get rid of the problematic concept of ‘race’. ‘Race’ is still the basis from which we approach Indigenous affairs.

Our Constitution still contains section 51(xxvi), the ‘Race Power’, which gives Parliament the power to pass special laws for particular races. It also still contains section 25, a provision which contemplates barring races from voting.

It is time these references to ‘race’ were removed from the Australian Constitution. It is time we guaranteed that every Australian is treated equally before the law, without distinction, preference or discrimination on the basis of ethnicity, colour or origin.

The need for a shift of focus in Indigenous affairs

The incorrect focus on ‘race’ has come to mean that policy in Indigenous affairs in this country is constantly troubled by the insidious ‘soft bigotry of low expectations’ – an approach which has come to expect and thus perpetuate welfare dependency, failure and victimhood amongst Indigenous Australians.

If we are ever to achieve substantive equality in Australia, Indigenous people need to realise their own personal responsibility. Governments cannot deliver social uplift to a passive collective. Individuals need to take responsibility to avail themselves of the opportunities Australia has to offer. The government cannot do the work for you.

Personal responsibility will never be realised if we keep treating Indigenous Australians like a differentiated collective, instead of as individuals. Indigenous Australians must be held to the same expectations and responsibilities as everybody else. They must be treated equally.

This means that as a matter of public policy and law, we need to shift the focus away from targeting ‘race’, to targeting need.

Every individual should be judged on his merits and assisted in his needs. A person’s ‘race’ should not entitle him to preferential treatment before the law, nor should it subject him to adverse treatment. Special measures for groups of people should also be based on need, not ethnicity.

Through constitutional reform, and through a successful referendum, the Australian people need to finally say in a unified, resounding voice:

‘We understand that we are all equal, and that there is no such thing as ‘race’. We understand the way Indigenous Australians were treated in the past, on the assumption that they were ‘racially’ inferior, was wrong. We now promise that this will not happen again, to any Australian. You can expect more of us and of the Government. And the corollary is, we can expect more of you. This means taking responsibility. This means no more low expectations. Indigenous people are equal, and we will treat you equally. But our expectations of you will also be equal. Equal rights will mean equal responsibilities.’

Conclusion

Constitutional reform should be pursued, and it should implement the principles of recognition and equality. Recognising Indigenous people means recognising them, and all Australians, as equal.

We have spent too long oscillating from one knee-jerk reaction to the other, trying misguidedly to choose which approach is best – rights or responsibilities, cultural difference or inclusion. We need to realise principles such as these are not contradictions, but complementary principles necessary for the realisation of Indigenous and national wellbeing within a fair post-colonial democracy. Constitutional recognition therefore needs to mean recognition of cultural heritage and inclusion on the basis of equality. Equal treatment before the law needs to mean equality in rights and equality in expectations and responsibilities.

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.

Recognition and equality represent the ‘radical centre’ in terms of constitutional reform. These are the correct principles that will enable us to become what we have for so long been trying to be: a reconciled indivisible democratic sovereign state, shared by the Non-Indigenous Australian and Indigenous Australian peoples of this land.

Click here to download the Australian Law Students’ Association Autumn Report 2012.