Unracistifying Australia’s Constitution

By PAUL KILDEA

Amending the text of the Australian Constitution has been described as a ‘labour of Hercules’. It has been changed just eight times since Federation in 1901 (out of 44 attempts) and has remained unaltered for more than three decades. But a thawing of our famously ‘frozen’ Constitution may be just around the corner. On 19 January 2012 a government-appointed panel of experts recommended that the Constitution be amended to give recognition to Aboriginal and Torres Strait Islander peoples. It is likely that a referendum will be held on the subject some time in 2013.

Whether this referendum succeeds or not will depend on whether the government can put together a package of reforms capable of attracting broad support, and how well it addresses perennial process challenges around public education and engagement. In this post I outline the recommendations made by the panel in its report, and then suggest some steps that should be taken to strengthen Australia’s approach to constitutional reform process – the ‘how’ question, as Tom Hickman put it so neatly in his recent post on this blog.

The need to give constitutional recognition to Aboriginal and Torres Strait Islander peoples has been debated on and off for decades. The most recent push began in August 2010 when the Gillard Labor government pledged to hold a referendum on the subject as part of a political deal with the Greens and Independent MPs, whose support enabled the government to retain power. In December 2010 the government appointed a panel of experts to conduct a community consultation process on the issue, and to report on options for reform. The panel had a diverse membership, featuring representatives from all major political parties as well as Indigenous, business and community leaders. After releasing a discussion paper, the panel conducted a public engagement program that included 250 consultations across urban, rural and remote locations (including targeted consultations in Indigenous communities), the collection of 3,500 submissions and the maintenance of an online presence through its website, Facebook and Twitter. After analysing public input and seeking legal advice on its draft proposals, the panel compiled its report.

In the report the panel makes four recommendations for constitutional amendment: the removal of two ‘race’ provisions; the creation of a new head of power with respect to Aboriginal and Torres Strait Islander peoples; the inclusion of a prohibition on racial discrimination; and the insertion of a provision recognising Aboriginal and Torres Strait Islander languages.

The first of these is the least contentious, and currently holds cross-party support. It is widely felt that part of giving constitutional recognition to Indigenous peoples is removing those provisions that contemplate discrimination against them (as well as other peoples captured by …