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Federal

Jan 20, 2012

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It’s more than 12 years since the last attempt to amend Australia’s constitution, the ill-fated republic referendum of 1999. But now another attempt is in prospect, after the Gillard government yesterday received and apparently endorsed the final report of an expert panel on the recognition of Aboriginal and Torres Strait Islander people in the constitution.

I certainly wouldn’t vote for the amendments the panel has produced, but that’s mostly for a reason quite unrelated to indigenous Australians.

The panel proposes a new section stating that English is our “national language”, apparently oblivious to the way that would be used as a lever to attack bilingual education, multiculturalism or anything else that seemed to threaten Anglo-Saxon supremacy. No doubt it’s intended as a bribe to get nativists to agree to recognising Indigenous languages as “part of our national heritage”, but that’s not much of a justification.

That’s all pretty much academic, however, since it’s almost unthinkable that the proposed changes could ever be put to a referendum in their current form. This morning’s papers show a difference of opinion on this, with The Age’snow seems certain to proceed” contrasting with The Australian’sface almost certain defeat unless significantly amended“. Much as it pains me to say it, I think News Ltd is right and Fairfax is wrong.

The central problem can be easily stated (George Williams outlined it on Wednesday, albeit in over-optimistic fashion). The constitution currently gives the federal parliament the power to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws” (s. 51 (xxvi)). The panel wants to repeal this provision, with its aura of 19th-century racism.

But to do so on its own would leave a host of current laws on indigenous matters without constitutional support, so some new provision is needed.

But that new provision then needs some limitation to ensure it can’t be used (as the original version has been) to discriminate against indigenous people. Hence the proposal for a new section 116A on “Prohibition of racial discrimination”.

The problem is even clearer with section 25, although the panel perpetuates misinformation about that section. It doesn’t “allow for” state laws to disenfranchise people of a particular race; it simply assumes (no doubt correctly) that they could, and provides a remedy to try to stop them doing so — if they do, the state’s representation in federal parliament is proportionately reduced.

So if that section were repealed, some new safeguard against discrimination would be required — hence, again, the proposed section 116A.

But hell would freeze over before the Coalition would support the panel’s 116A. Opposition to a bill of rights has become unquestioned dogma in the Coalition, and 116A — “The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin” — looks exactly as if it’s been lifted out of just such an instrument.

No surprise then that Tony Abbott yesterday expressed “reservations about anything that might turn out to be a one-clause bill of rights”.

No Liberal leader could do any less without facing a backbench revolt.

But without Abbott’s support a referendum has little chance of passing, and the panel itself emphasises that it “should only proceed when it is likely to be supported by all major political parties”. The fact that both sides support constitutional recognition of indigenous Australians isn’t enough: constitutional change requires agreement on an actual set of words, and no set of words is likely to meet the competing demands of government and opposition.

Of course, if the government is going to have to tamper with the panel’s recommendations in any case, it could choose to ignore the one recommending bipartisan support and press ahead regardless, hoping to sow dissension in Coalition ranks and discredit Abbott and crew as racists.

But for a government whose record shows it to be cautious to a fault, that’s difficult to imagine. The hard men of the Labor machine will tell Julia Gillard that a ban on racial discrimination would be poison in western Sydney, and for once they may even be right.

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15 comments

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15 thoughts on “Constitutional change unlikely, as usual

  1. Down and Out of Sài Gòn

    They lost me at ‘English is our “national language”’, and I’m an ESL teacher.

    Seriously, “focus group” these referenda before they go out to a vote. They’re hard enough to pass already, so you might as well find out what people like and don’t like. The hard men of the Labor machine may be hard or soft, but they’re clearly delusional. I’m not going to take their word on Western Sydney’s views on racial discrimination. Let’s find out.

  2. Peter Brent

    Can Charles or anyone explain why, if s.21 is repealed, “some new safeguard against discrimination would be required — hence, again, the proposed section 116A.”?

  3. Liz45

    @CHARLES – I’m interested in why you wouldn’t vote for the changes.

    When I put my common sense/decency test on the current status of the constitution, I feel ashamed that there’s so much anti feeling against change. What if the two Sections referred to those of Irish or Chinese descent, how would Abbott and Co respond then? Or let’s use another test. What if it was against women or those over 50? I can’t see why they want to continue with this awful and racist part of our current ‘national pride’? Those who want the status quo to remain will no doubt be celebrating on January 26 – I won’t – as usual! I feel ashamed.

    Would it be so awful if in the future, indigenous people or others tested out the constitution in Court? If it’s done correctly, what grounds would people have? Who should have the right to single out people on the grounds of race? And why?

    Once again, Abbott is not being forced to elaborate on his ‘concerns’? Nor as the shadow attorney general? Why not? We’ll just get the 2-3 sentences tonight on the national news, and that will be the end of it! Shameful!

    What was the point of having an investigation, accepting the report if we just give in to the people who speak with forked tongues – rave on about being ‘united’ blah blah, but do the opposite!

    There will be those who will accuse aboriginal people of a ‘narrow focus’ and a negative attitude if they express anger over the responses to the report. I find it amazing, that with all the utterances of concern about aboriginal disadvantage, those in Parliament can’t find an acceptable and just way out of this. I’m amazed and disgusted. I’ll wait for someone to call me a ‘do gooder’ or ‘paternalistic’ or ‘patronising’?

  4. Charles Richardson

    @Peter: Because (assuming you mean s 25, not s 21) without it you would have gone backwards – you’d be leaving states with their unquestioned power to impose a racial qualification for voting, and removing the one penalty that’s there against them doing so. Now, granted, no state is at all likely to use that power, but the change would still be a bad look.

  5. drsmithy

    Because (assuming you mean s 25, not s 21) without it you would have gone backwards – you’d be leaving states with their unquestioned power to impose a racial qualification for voting […]

    On what basis would they be able to enact a racial qualification on voting in the first place, though ?

  6. Charles Richardson

    @Liz: As I said, I’d vote against because of the proposal to define English as our national language. I think that’s fundamentally xenophobic and could have horrible consequences in the hands of an unfriendly high court. While I’d like to get rid of s 51 (xxvi) and introduce something like the proposed s 116A, I don’t see that there’s any special urgency about that – it’s worth taking the time to get it right. (Preferably with a proper bill of rights, but that’s clearly a long way off.)

    @DrSmithy: Because the states, within their sphere of responsibility, have plenary powers – there’s nothing to stop a state defining voting rights for state or local elections in whatever way it wants. They can exclude women, or Asians, or left-handers, or anything. In practice if they did the commonwealth would probably try to pass legislation using the external affairs powers to stop them, but that’s messy.

  7. drsmithy

    When I put my common sense/decency test on the current status of the constitution, I feel ashamed that there’s so much anti feeling against change. What if the two Sections referred to those of Irish or Chinese descent, how would Abbott and Co respond then? Or let’s use another test. What if it was against women or those over 50?

    Then why would you support the proposed changes that want to put exactly that sort of language in ?

  8. drsmithy

    Because the states, within their sphere of responsibility, have plenary powers – there’s nothing to stop a state defining voting rights for state or local elections in whatever way it wants. They can exclude women, or Asians, or left-handers, or anything. In practice if they did the commonwealth would probably try to pass legislation using the external affairs powers to stop them, but that’s messy.

    Do the states not already have non-discrimination laws that would prevent this from happening ?

  9. gee jay

    Charles Richardson

    @DrSmithy: Because the states, within their sphere of responsibility, have plenary powers – there’s nothing to stop a state defining voting rights for state or local elections in whatever way it wants. They can exclude women, or Asians, or left-handers, or anything. In practice if they did the commonwealth would probably try to pass legislation using the external affairs powers to stop them, but that’s messy.

    Well given that the UK Parliament has always had the power to ‘murder all blue-eyed babies’, you can probably untwist your panties. But even then, psssstttt…ever heard of s.109 of the Constitution? You know Mabo [1] the Commonwealth Race Discrimination Act (1975) and all that?

    Jesus. This stuff is not rocket scientist. It has been shoved down every school kids throat for nearly a generation now, yet the woeful ignorance of basic Australian civics continues to be peddled by our journalists.

  10. Charles Richardson

    @DrSmithy: Yes, they do, but they’re just laws of their parliaments, they’re not constitutional, so they can be repealed by the parliaments that passed them.

    @Gee: As I just said, “the commonwealth would probably try to pass legislation using the external affairs powers”, which is what it used to justify the Race Discrimination Act, but that assumes that the commonwealth government at the time is on your side on the issue. When you draft constitutions you try to avoid making assumptions like that – if you think the good people are always going to be in power, you don’t need much in the way of safeguards at all. That’s why I’d rather there was an anti-discrimination provision in the constitution itself.

  11. gee jay

    Can anybody provide a link to the identity of these so-called “experts” who made up this panel? Who paid for them? Who appointed them? This just stinks so much of Rule by the Faceless [men] People[s]” of Old Labor.

  12. gee jay

    OK, I found this info from Charles’ link, where it states:

    In December 2010, following nominations by the public, the Australian Government announced the membership of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples.

    Does anybody actually remember this? Is it mere coincidence that the announcements of both the “Expert Panel’s” formation AND its final report were both announced during the Christmas period when the media, the Parliament, and most Australians are tuned out, or overseas?

  13. Liz45

    @CHARLES – How much time do we need? We’ve already had well over 100 years, if you only count back to Federation/Constitution. I find it hard to believe that with all the legal minds in a population of over 22 million, and in communication with all peoples, but particularly indigenous people as they’re the ones being treated as inferior(still)the people of this country can’t come up with a decent and all embracing alternative to the shameful clauses in the Constitution. If we’re not capable of doing it, then we should just admit to how inadequate we are, and also confess to the lack of desire to restore justice.

    No wonder many indigenous people are so angry. If I was excluded I would be too. In fact, I’d suggest that the Constitution is probably sexist also. Those who were responsible for the initial one were all men, with pretty misogynist attitudes! Perhaps its time to promote, agitate for a Bill of Rights, and do the job properly. It’s a bit rich for Govts to read the riot act to members of the country who aren’t even recognised as being members of the country – the constant ‘stern’ warnings by the PM and Ministers to aboriginal people in the NT for example!

    The people of Venezuela did it in the last 8 years or so. Perhaps we could take a look at theirs. It was available on line some time ago, I’m sure it still is.

    @GEE JAY – One of the people on the panel is Patrick Dodson – an indigenous man with lots of experience in many facets of life, but particularly indigenous issues. I stand corrected on this, but my impression is that most if not all were not members of the Labor Party. If I was an indigenous person, I wouldn’t join either major political party. In fact, I’d go so far as to assert, that both major parties are responsible for the situations that indigenous peoples find themselves in at this time – sold out by both Labor and the NO-alition!

  14. Charles Richardson

    @Liz: “Perhaps its time to promote, agitate for a Bill of Rights, and do the job properly.” I couldn’t agree more. I’m just warning you that, with the faction that controls both major parties dead against the idea, it’s not going to be easy.

  15. Liz45

    @CHARLES – Just one more reason why I refuse to give the ALP my first vote. I’ve never voted for the No-alition! My arm would drop off in the polling booth.

    If we want to claim that we’re ‘all grown up’ and a player on the world stage etc, then we should start acting that way. I’m ashamed with the racist clauses in the Constitution, and as I said before, I find it difficult to accept, that people of good faith would/could not find a decent, just and sensible outcome. Sad really! Perhaps those in Parlt need a lesson in how it feels to be discriminated against on a daily level. Or have your kids come home bashed and bloodied due to racist taunts etc!

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