Referendum plan is misconceived

The Gillard Government’s proposal to hold a referendum with a view to recognising Indigenous Australians in the Constitution will produce nothing substantive or useful, scholar and author Dr Bede Harris says. The move gives ‘the appearance of doing the right thing without taking the risks inherent in pursuing real reform’.

Referendum plan is misconceived

By Dr Bede Harris*

The government’s announcement that it will establish a panel of experts to advise it on what form constitutional recognition of Indigenous people should take is unlikely to yield a result that is either substantive or useful.

The project is based on a misunderstanding of the function of a constitution, which is to create the institutions of government, to distribute power between them and to define the rights of the citizen.  A constitution thus consists of rules of law, not statements of fact.

A statement ‘recognising’ the existence of Indigenous people would be simply to state the obvious, and would be no more useful than adding to the constitution a statement that Australia is in the southern hemisphere or that the sky is blue. This is not to denigrate Indigenous Australians, to deny their status as the original inhabitants of Australia or to ignore the many injustices they undoubtedly suffered post-colonisation – it is simply to state that merely recognising the existence of Indigenous people would be of practical benefit to no-one, least of all to Indigenous people themselves.  To be of any use, constitutional provisions relating to Indigenous people must have a substantive impact on their rights, and an exercise the end point of which is simply recognising the existence of Indigenous people is not only useless it is dishonest, because it gives the impression that some positive outcome for Indigenous people is in the offing, whereas its impact will at most be symbolic. 

The government is no doubt aware of the above.  It is also doubtless aware of the rule of statutory interpretation that anything included in a preamble to the constitution – the likely home of a statement of recognition – will have no impact on the meaning of the constitution itself. This was one of the reasons why the preamble put to referendum by the Howard government in 1999 received short shrift from the voters, who correctly realised that the preamble would be a loud-sounding proclamation signifying nothing.

Why then is the government pursuing a project which will have no substantive effect on constitutional law?  The answer is that, as with many initiatives of the Labor government elected in 2007, the Indigenous recognition venture exists to give the appearance of doing the right thing without taking the risks inherent in pursuing real reform.  In this it is similar to the National Human Rights Consultation process, chaired by Frank Brennan, which examined the question of whether Australia should have a bill of rights, but which was hobbled by pusillanimous terms of reference which forbade it from exploring the option of a constitutional bill of rights that was binding on Parliament – the only option that would have had a meaningful impact on individual rights.

If the government has a genuine commitment to effecting constitutional change that would be of benefit to Indigenous people, then the initiative it is taking should be modified so as to investigate not just recognition of Indigenous people but constitutional protection of Indigenous rights.  This is the position in Canada, where s 35 of the Constitution Act 1982 expressly protects the rights of Indigenous people.

An initiative which invited public debate on a constitutional provision which protected the rights of Indigenous people to land, culture, language and autonomy would have real, rather than symbolic, impact, and would be worth the expense that the government is committing to the endeavour.  It would also be consistent with the principles contained in the United Nations Declaration on the Rights of Indigenous Peoples, which the Rudd government ratified in 2009.  This, rather than a statement recognising that Indigenous people exist, which we do not need the constitution to tell us, is what the government should have the courage to undertake.

*  Dr Bede Harris is a Senior Lecturer in Law at Charles Sturt University, author of A New Constitution for Australia, and a member of CLA. This article first appeared in the Canberra Times.

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