Articles

The case for indigenous constitutional recognition

11-June-2015

The Australian:

Greg Sheridan provides a seductively simple argument why indigenous people should not be recognised in the constitution: we are all equal citizens and no one should be recognised constitutionally because of their race or heritage. We must move beyond race and treat people as individuals.

Sheridan’s argument is based on important liberal principles, but he makes the incorrect assumption that any indigenous recognition will necessarily contravene them. The starting point for constitutional change is, in fact, to remove the two clauses that already do contravene liberal principles.

There is near universal agreement that section 25 of the constitution, which refers to disqualification from voting because of race, should be deleted. The section is effectively redundant but any constitutional proposal will undoubtedly include its removal. Section 51 (xxvi), the so-called race power, also allows laws on the basis of race. Ideally, this section would also be removed, as Sheridan acknowledges, although he suggests that the way it is used today does no harm.

The section provides the parliamentary head of power for many existing programs which assist Aboriginal people. Its removal would force the parliament to make laws based on need, rather than indigeneity, which would be a positive. It would send the message that being an indigenous person does not necessarily equate with being disadvantaged (although on average it does). It would reduce victimhood and focus on individual requirements.

The only sticking point is what to do about land and heritage. Native title is, by definition, based on indigenous lineage. Remove s51 (xxvi) without a replacement and the native title system would fall apart. This is why many argue a small change that allows laws for “Aboriginal and Torres Strait Islander people” or for “native title and heritage” rather than race should be made. It would get closer to the liberal principles that Sheridan articulates and would have other benefits.

These changes would improve our Constitution, but the substantive reason most indigenous people seek change is to be recognised. Recognition is not an all or nothing proposition but a continuum. It need not involve any special laws or privileges, but is an acknowledgment of the existence of a people. No more and no less.

For most of the last 227 years since European settlement, the existence of Aboriginal people has been acknowledged in the negative or ignored altogether. We had close to an annihilation of Aboriginal people in Tasmania, lower wages until the late 60s, and assimilation policies in recent times.

It is only in the last decade or two that we have acknowledged the nation’s heritage in a neutral or positive way. Today we see indigenous names being used for streets and locations, Aboriginal history being taught in school, and formal ceremonies include a traditional welcome.

This has finally contributed to a broader mainstream recognition that Aboriginal people have been in Australia for thousands of years and that their existence as a people still continues. It is their homeland in the same way as Israel is the homeland for Jews.

Our aim is to now take a further step by acknowledging indigenous people in the founding document of the nation.

This could be done while maintaining the liberal principle that all citizens are treated equally under law. In fact, strict adherence to this principle would probably be the only way a referendum would succeed.

For example, an acknowledgment in the Constitution’s preamble that Australia has an indigenous heritage, British foundation and multicultural character could provide a way of recognition, but also a summary of what is unique about our nation. This could be complemented by a longer passage that could be framed outside of the Constitution. It could be the type of document taught in schools, but because it was not constitutional, it could be more poetic.

The addition of such recognition would be important to many, but the referendum process would also provide an opportunity to engage the nation about our heritage.

There are proposals for constitutional change that go further and these will be debated in the months ahead. Proponents would need to make the case that their ideas are consistent with liberal principles to gain broad support.

Will further recognition make a practical difference to the health and wellbeing of indigenous people? Perhaps on the margins if people feel prouder of their background and more included in mainstream society. But this is not the objective.

The objective would be to acknowledge our heritage and in doing so, include the Aboriginal face in our national family portrait. There need be nothing illiberal about this.

Alan Tudge is a Parliamentary Secretary to the Prime Minister


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