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.

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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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Peter Fray
Peter Fray
Editor-in-chief
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