Why I’d vote no
For many, Australia Day is a day to celebrate — to catch up with friends over a barbecue (and likely more than a few beers) and watch the cricket (or the tennis, though no Australian players are left in the tournament). But for Indigenous Australians, Australia Day is a dark reminder of their history. It marks the day that white settlers colonised what was then regarded as an empty, unowned land — terra nullius. For many of Aboriginal and Torres Strait Islander heritage, this was not settlement but an invasion.
Fast forward over two centuries later, and modern day Australia remains unsure of how to promote reconciliation between Indigenous Australians and those whose descendents have come to this continent’s shores since 1788. The latest initiative, in a report released this month, is to amend the federal constitution to — among other things — officially recognise Australia’s first peoples.
Changing the wording of the constitution requires a referendum. And the track record of referenda in Australia has not been hugely successful. The most recent referendum — held in 1999, asking whether to divorce Australia from the (British) Crown and become a republic — was just the most recent of many referenda failures. Of the 44 referenda held since 1906, only 8 have passed. So from the outset, the odds of any constitutional changes succeeding in a new referendum do not look encouraging.
The precise proposal that will ultimately be taken to voters is as yet unclear. (And no date has been set for when any referendum might take place.) But the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples has presented its preferred changes to the government. In summary, the proposed changes — if adopted — would:
- repeal section 25, which allows state governments to disqualify people of a particular race from voting
- repeal section 51, clause xxvi, which grants the federal government the right to pass laws in relation to any race
- insert a new section (51A) to officially recognise Aboriginals and Torres Strait Islanders as the original occupants of Australia
- insert a new section (116A) to explicitly prohibit racial discrimination
- insert a new section (127A) to recognise English as the ‘national language’ of Australia, while also acknowledging that Indigenous languages were the country’s ‘original languages’.
The panel has also recommended that any vote be a single ‘yes’ or ‘no’ vote, rather than a series of votes on the individual proposals.
There is much to commend in the intent of the proposed constitutional amendments. On balance though, were a referendum to reflect the expert panel’s recommendations without alteration, I would vote no.
Why amend the constitution?
As a starting point, it is useful to understand what purpose the constitution serves. For some countries, the founding articles are taken to be something of an uplifting document that binds a nation, and defines its identity. The Australian constitution is far more modest. It is a legal document that few Australians have even bothered to read. Indeed, there is seemingly widespread misunderstanding about what the constitution covers in even broad terms. Many, for instance, would be surprised to learn that the role of prime minister — the country’s political leader — is not even mentioned in the constitution.
A rather dry, dull document, the constitution establishes the basic mechanics of government, including the separation of powers between the parliament, the executive and the judiciary; and the respective responsibilities of the federal and state governments. Even in this relatively narrow regard, the constitution has shown itself to be remarkably flexible. (Or, if you prefer, those charged with interpreting the constitution have made it incredibly malleable.) Over time, elements of the document have been interpreted so broadly that the constitution’s practical application may in parts be unrecognisable from its original intent.
There is seemingly no appetite for wholesale root-and-branch constitutional reform. Hence, in the absence of comprehensive efforts to modernise the document, the best changes are likely to be the most minimal ones (limiting the potential for unforeseen knock-on effects). Some of the changes proposed by the expert panel are in keeping with this theme — those that would remove clauses that are sources (or potential sources) of discrimination against Indigenous Australians. But others are more substantial. This is not a prima facie reason for rejecting them, but it does justify somewhat greater caution. In particular, given how the constitution has been interpreted over time, active clauses that establish new rights and obligations should be carefully assessed for any unintended consequences that may emerge in future.
Removing sources of discrimination
In my mind, the two least controversial aspects of the panel’s proposed constitutional amendments relate to the ‘race powers’ of sections 25 and 51(xxvi). As noted above, the former would allow for state governments to disqualify people of a particular race from voting. The specific consequence of section 25 is that people of a disqualified race would not be contribute to the population of that state — or, in turn, the country — for the purposes of calculating the appropriate number of parliamentarians in the federal House of Representatives.
The idea that any state government might exclude any group of people because of their background would abhor any fair Australian. For this reason, it is also something unlikely to occur in the modern age (thankfully), and therefore the consequence of repealing section 25 is limited in practical terms. On principle alone, it is a section that should probably go.
Repealing section 51(xxvi) might have somewhat greater practical effect. This clause grants the federal parliament the power to pass laws in relation to any race. An earlier referendum (one of the handful successfully passed) previously amended this clause, removing an exemption for Indigenous Australians. It should be noted that this did not mean that no laws could be passed in relation to Indigenous Australians — rather, the constitution explicitly left this responsibility to state governments.
If section 51(xxvi) were to go, it could theoretically result in various Commonwealth initiatives to combat Indigenous disadvantage falling by the wayside. But this seems unlikely.
The federal government already influences policy well outside the powers exclusively granted to it in the constitution (for example, health and education). Primarily, this is achieved through funding arrangements — handing over money to the states on the condition that they spend it in a certain way. It is improbable that state governments would voluntarily forgo the funding attached to federal Indigenous programs.
But to mitigate the potential for any friction between federal and state governments in relation to Indigenous policy matters, the expert panel also proposed that the federal power be retained — though in a more limited form — in a new section (51A, see below).
Ending the ability of parliament to pass laws in relation to any race would of course have effects beyond Indigenous outcomes. Conceivably, any federal initiative that might address the specific circumstances of those of a particular racial background would be covered by section 51(xxvi). But removing the clause would not prevent any such initiatives from existing. Some might be protected by the constitution on other grounds (for instance, clause xxvii relating to immigration). And anything else would still be achievable through a negotiation between the federal and state governments. Moreover, it is hard to imagine that any program that is regarded as beneficial — such as those targeting disadvantage — would be challenged, let alone that any challenge would actually succeed. So, once again, repealing section 51(xxvi) seems unobjectionable.
Prohibiting racial discrimination
To reinforce the initiatives to repeal the ‘race powers’ sections discussed above, the expert panel has proposed a new constitutional provision to prohibit racial discrimination. The proposed section 116A states:
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.
In principle, I am in favour of prohibiting discrimination, and have no objection to such a prohibition being expressed in the constitution. But this particular proposal raises two concerns for me.
First, racial discrimination is just one form of discrimination. Including a prohibition of racial discrimination in the constitution implies that other forms of discrimination are less significant. That seems hard to justify. Gender-based discrimination (historically against women), for instance, has the potential to affect half the country. We have legislation to protect women against such discrimination, just as we currently do to prevent discrimination on the basis of race. On what basis should the Racial Discrimination Act be regarded as insufficient?
On the other hand, religious freedoms are already enshrined in the constitution — while other ‘rights’ are not. The fact that some gaps may persists is not necessarily a reason to stop attempts to fill particular voids. Ultimately, this is a broader issue of whether Australia requires a ‘bill of rights’, along the lines of the US Constitution — a matter well beyond the remit of the expert panel in this case.
The second concern is that the effect of subsection (1) would seem to be undermined by subsection (2). The intent, quite reasonably, is to ensure that efforts to address the hardships experienced by specific racial groups are not barred by the constitution. Except that any government action could surely be packaged in such a way to meet subsection (2), even if in reality it was a deliberate attempt to discriminate against a racial group. It would simply be a question of defining the ‘purpose’ of a law or measure. The consequence is that many initiatives would be the subject of legal challenges. (The federal ‘intervention’ in the Northern Territory’s Indigenous communities would surely be a prime candidate.) Rather than clarify the rights of different racial groups, this section may in fact muddy the waters.
Of course, legal challenges are part and parcel of many government programs, regardless of whether they are constitutionally enshrined or not. Concerns that these might occur are not of themselves a reason to oppose a constitutional amendment, although they should encourage the proponents to reflect on whether their proposed amendment is the best way of achieving their goal. I don’t think that it is.
Altogether, section 116A is not a proposal I would vote for on its own. At the same time, its downsides are too modest to outweigh a package including other changes that would be broadly desirable.
Recognising history and culture
My greatest reservations about the expert panel’s recommendations relate to the proposals to explicitly recognise Aboriginals and Torres Strait Islanders and the role of English and Indigenous languages.
Taking the former first, the proposed section 51A states:
Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;
the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.
As mentioned above, section 51A would in effect replace section 51(xxvi), although limited to Indigenous Australians rather than all races.
But unlike the existing clause, section 51A may also impose specific obligations. In particular, the fourth provision relating to the ‘need to secure the advancement of Aboriginal and Torres Strait Islander peoples’ is not restricted exclusively to the disadvantage experienced by those groups. Indeed, conceivably, it suggests that their interests be advanced even if they were generally the most wealthy racial or social group in the country. This, plainly, is not a situation that is likely to present itself any time soon given the profound disadvantage that they currently endure. But a constitution is a long-term document that is difficult to change, and should be drafted with all possible eventualities kept firmly in mind. This proposed section fails that test.
More broadly, I am not sure that the constitution is a document that should establish ‘recognition’ of specific groups. This is not a ‘mechanics of government’ issue. Nor are we establishing an ‘unalienable right’ that ought to be protected from the passing whims of legislators. As the heading to this section states, this proposal relates to the ‘Recognition of Aboriginal and Torres Strait Islander peoples’.
At the 1999 referendum, it was proposed that a new preamble to the constitution be introduced, which (among other things) would have given recognition to the history of Indigenous Australians. Although that proposal, along with the effort to make Australia a republic, failed, to my mind the preamble seems a more suitable place to ‘recognise’ Aboriginals and Torres Strait Islanders than a specific section or clause in the constitution proper — which may impose some legal obligations above and beyond mere recognition.
As there are no clear responsibilities to be established here (except to the extent that it enshrines the right of the federal government to make laws in this area), and while there are practical uncertainties about how this section could be interpreted, I am not inclined to support section 51A.
I have greater concerns still about section 127A, in relation to the recognition of languages.
(1) The national language of the Commonwealth of Australia is English.
(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.
Australia does not have an ‘official’ language, even though in practical terms Australians are English speakers. This is not unusual. Neither Britain nor the united States have an officially recognised language. By contrast, New Zealand recognises English, Maori and New Zealand Sign Language. Essentially, it would seem that this proposal is modelled on New Zealand’s recognition of languages.
It is not in any way clear to me what benefit would be obtained from recognising a national language. In fact, as a proudly multicultural society, one of our features is that a great many Australians from migrant backgrounds speak languages other than English in their homes and communities. In a liberal democratic society, that is their right.
This provision does not of itself deny that right. (Of course, in legal terms, no such right exists. I use ‘right’ in a de facto sense rather than de jure.) But it has the capacity to undermine it. It suggests a supremacy of English over other languages — including Indigenous tongues, though to a lesser degree given their secondary recognition in subsection (2). I’m uncomfortable with this notion. I worry about what it means for the diversity of different language-speakers within this country, and the potential for those with poor English skills to feel excluded by such a measure.
Perversely, the reason for including subsection (1) — recognising English — is to facilitate the inclusion of subsection (2). Simply put, the constitution would look a bit odd referring to Indigenous tongues without any reference to the main language spoken in Australia. But it is for this reason that the whole section seems gratuitous.
Given the potentially divisive nature of recognising English over other languages, and the lack of clear reason for recognising languages at all in the constitution, I would most certainly vote against this proposal.
The prospect of ‘yes’
As it stands, my best guess is that a referendum on this suite of constitutional amendments would fail. Aside from the concerns I’ve outlined above, it is unclear that the opposition would support the referendum — and, historically, constitutional changes flounder without bipartisan support. Recognising this, the panel recommended that the government work with all parties and independents in the parliament to craft a proposal with their full backing. That will be no easy feat (and the outcome of any such process might not look much like what has been offered up so far).
The panel has almost certainly crafted these proposals with the knowledge that there might be doubts about the merits of some of them. They have recommended that all the amendments be voted on as part of a single referendum question. My assessment is that this has been driven by a view that support for the least contentious measures will overwhelm concerns about other amendments. I suspect that this is a mistake, given Australians’ historic conservatism (not in a political sense, but in a change-averse sense) when it comes to altering the constitution. In reality, the doubts will likely cause voters to reject the package entirely — as has occurred so many times before.
Assuming these proposals are put up in a referendum, my preference would be that they are voted on in separate questions rather than rolled into one question only. Notwithstanding the possible interaction between repealing section 51(xxvi) and inserting sections 51A and, to a lesser extent, 116A(2), there is no reason to presume that the failure of any single measure would fatally undermine any other measures that might succeed. The two measures most likely to succeed independently — that is, repealing both of the ‘race powers’ sections (25 and 51(xxvi)) — could certainly stand on their own without fundamentally altering laws and programs currently in place. At the same time, they would limit the scope for discrimination against Indigenous Australians (or indeed people of other races) to ever occur in future. (The only uncertainty relates to what would happen if introducing section 116A succeeded, while repealing section 25 — which is clearly discriminatory — failed. I suspect section 116A would preclude states from passing any laws that would trigger section 25. But I am not a legal expert.)
The meaning of ‘no’
If there is one vote on the whole package, as the panel has recommended, it is useful to examine what the consequences of an overall ‘no’ vote would be. In practical terms, very little. Although Indigenous Australians in general suffer high levels of disadvantage on many metrics, there is no clear evidence that they are being discriminated against. This is a credit to past efforts to break down the legislative and cultural barriers that Aboriginals and Torres Strait Islanders have historically faced.
But many — quite reasonably — regard this as insufficient. The symbolism attached to reconciliation efforts is very powerful. In the eyes of many, these kinds of initiatives are a way of atoning for past sins. As such, a ‘no’ vote would inevitably be regarded by many Indigenous Australians as a slap in the face. It would be a setback for the reconciliation agenda — of which constitutional reform is just one step on the road, rather than the endpoint. Setting aside the practical effects (or lack thereof), a rejection would clearly ‘look bad’.
While it is easy to dismiss symbolism, perceptions matter enormously. The refusal of John Howard’s government through the 1990s and 2000s to say ‘sorry’ to Indigenous Australians for past injustices engendered much hostility. When the then Prime Minister Kevin Rudd apologised in 2008, there was an emotional outpouring by many Australians — Indigenous and non-Indigenous alike. Many regarded that apology as an important first step in a ‘healing process’. And despite fears that the apology would be used as a basis for initiating legal proceedings to claim compensation from the government (a concern that I shared), this threat does not appear to have materialised.
No one ever suggested that ‘sorry’ was all that needed to be said or done — after all, four years later, Indigenous disadvantage sadly persists. But many saw it as a necessary offering in order for Australia to one day achieve complete reconciliation. At the time of the apology (and the years leading up to it), the significance of symbolic measures is something that I overlooked. But I now realise that these gestures are integral to building confidence and support for other concrete steps to improve outcomes.
A referendum rejection would produce deeply unfortunate symbolic consequences — perhaps more severe than the symbolic value of them passing. This is why I sincerely hope that this package is not put to the electorate.
Symbolism, important though it is, is not a strong enough reason to vote ‘yes’ in a referendum. These are lasting changes, which may have wider consequences than the expert panel has envisaged. The public debate in the months, even years, ahead should seek to bring these to the fore, and work out the best ways for them to be overcome. In some cases, this may mean that a constitutional amendment is not the best option. In other cases, it may require wording changes to the current proposals. Whatever the outcome, this is an important process that should invite the participation of all Australians — including, importantly, the ongoing involvement of Indigenous communities.
There is much to admire about this country. But the plight of Aboriginals and Torres Strait Islanders is not one of them. Recognising the historic role of the first Australians will make little tangible difference on the ground in highly disadvantaged Indigenous communities today. But the intangible matters too. And now that the process has been started, the idea that we mightn’t follow through on any constitutional changes is too damaging to contemplate. This proposal isn’t the right one. But there is scope now to craft a successful path forward.
