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National Affairs

The parliamentary route to Indigenous recognition

17 January 2016

There’s a way to recognise Indigenous Australians that bypasses our cantankerous founding document, says Peter Brent


David Moir/AAP Image

David Moir/AAP Image

Australians don’t have a visceral connection with the constitution. Unless those 12,000 words, organised in eight chapters and 128 sections, happen to be in the news – invariably because a (usually) doomed referendum is in the offing – most of us are unaware of its very existence.

The obvious contrast is with the United States, on whose citizens’ psyches the national constitution, as an idea, has a resilient grip. To them it is wrapped up in the very meaning of their nation, what it stands for and the example it sets the world. Achieving independence through armed struggle and acquiring the feeling of exceptionalism that comes from being the world’s chief superpower can do that to you. Some clauses (most of them amendments) – particularly those covering free speech and the right to bear arms – are common in the public lexicon. And television viewers the world over are aware, from countless legal dramas, of the value of invoking the fifth amendment.

Australia’s constitution couldn’t be more different. It’s distant from the people and of interest only to those who deal with it professionally. Most Australians would find it a challenge to summarise, let alone quote, any part of it. This is one reason why attempts to change it by popular vote are met with scepticism: they seem to come out of nowhere; they are gratuitous.

Yet culturally, for better or worse, the nation we ape most is the United States, and when Australians are riled up to defend the constitutional status quo they can resort to American clichés about “founding fathers,” the “genius” of our document and the fact that it is the “envy of the world.”

Most democratic countries have a single, codified constitution that sets out the principles on which they are governed. But not all of them. The United Kingdom is one of those exceptions: its constitution takes the form of various statutes, legal precedents, customs and conventions. Many authoritarian and totalitarian nations, on the other hand, possess constitutions that are observed largely in the breach; others’ are regularly suspended by armed forces.

Ours was written in the 1890s, voted on by the colonies (twice: once unsuccessfully, once without Western Australia’s participation), passed by Westminster in 1900 and brought into operation the following year. Contrary to how most people conceive of it today, it didn’t represent a quantum leap in independence from the mother country. It was largely about amalgamating a bunch of colonies into a new colony – or, as they considered themselves, six countries joining to become one. Real independence evolved slowly.

Many of the clauses were based on the American version, but one critical element came from the Swiss: amendment would only be by popular vote. Most countries’ constitutions can be altered by legislative super-majorities (in America’s case, Congress and the states). An earlier, 1891 draft of the Australian document had each state electing representatives to attend conventions that would decide a proposal’s fate, but that system was ditched for what would become the very last section, 128. Popular control seemed a good idea at the time, before political parties as we know them came into being, and certainly before the evolution of arguably the most rigid, disciplined two-party system in the democratic world.

The first amendment, in 1906, was carried overwhelmingly. In 1910 another one passed and one narrowly failed (49 per cent nationally, majorities in three states). That was also the year when the two-party system, Labor against non-Labor, is generally agreed to have come into being, and since then positions on Australian constitutional reform have fallen, like so much else, along party lines. If a Labor government proposes an alteration, the conservative opposition opposes. If a conservative government puts one up, Labor in opposition usually supports.

From 1911 to 1919 nine constitutional referendums, some of them quite radical, were put in three batches. All fell, though most quite narrowly, but perhaps more importantly a clear pattern could now be discerned: questions put at the same time, regardless of topic, received almost identical support. Australians were voting, it seemed, on anything other than the actual content of proposals.

For a long time, reforming the constitution was a Labor Thing to Do, up there with aspirations for a Bill of Rights. Labor yearned to “modernise” the document, and more importantly to make the process of alteration commonplace, to shake Australians out of their negative disposition. Both the Hawke and Whitlam governments put six proposals in two batches. Need we note that none succeeded? By the time of the Keating, Rudd and Gillard governments, amendment for the sake of amendment was out of favour.

The most spectacularly unsuccessful set of questions in history, in 1988, was probably the least ambitious. Who could possibly object to a proposal to “alter the constitution to provide for fair and democratic parliamentary elections throughout Australia”? Almost two-thirds of the country, as it turned out. All four questions received “yes” votes in the 30s.

This is the background for the campaign to recognise Indigenous people in the constitution. The immediate question is: why? What’s the point of devoting so much time, energy and resources to changing a dusty old manifesto which, for all its legal standing, has no emotional hold on Australians? The process seems particularly incongruous if the mooted change is to be merely “symbolic” – in a document that wields close to zero symbolic power for the bulk of our citizens.

Some Indigenous leaders, such as academic lawyer Megan Davis, want to see a constitutional alteration with teeth – a racial non-discrimination clause, for example. “A model that provides only preambular recognition, deletes section 25 (provision for disqualification of races from voting) and moderates the race power does not go far enough,” Davis wrote recently, “and would not be acceptable to Aboriginal and Torres Strait Islander peoples.” Noel Pearson has suggested creating a body to advise parliament on matters affecting Indigenous people.

Yet only symbolic change has any chance of attracting the support of the Liberal party room, and that support would be a necessary, though far from sufficient, condition for eventual ballot box success.

The referendum process, with its yes–no question, entrenches incentives for parliamentarians to contribute to its failure. Politicians adore being on the winning side of a popular vote – it shows how in touch they are – and opposing change is always easier than promoting it.

If we, like most countries, could achieve Indigenous recognition through the country’s legislatures, say with two-thirds majorities of both federal chambers and something similar in the states, the space would at least be created for more dignified rhetorical contributions to constitutional matters. After all, our representatives also like boasting about their willingness to take difficult yet necessary decisions for the good of the nation.

We’re stuck with the referendum process, but perhaps we should take a route that is less ambitious and hence more likely to succeed. This would involve making any referendum unashamedly minimal, by simply taking out references to “race” – in Davis’s formulation, by deleting section 25 and moderating the race power. This referendum would preferably be held with a general election (as, ideally, they all would be).

In other words, forget about the idea of constitutional recognition. Instead, pursue recognition, a treaty, Pearson’s advisory body and other aspirations through the nation’s parliaments. High sights could be set, better angels appealed to, positions taken and negotiations entered into without the self-fulfilling expectation of yet another failed popular vote.

That cantankerous, brittle remnant of the horse and buggy era we call the constitution is not worth all this effort. Let’s create something else. •

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