Discrimination clause could rein in powers: Tim Soutphommasane

Tim Soutphommasane says recognition of indigenous people by way of a non-discrimination clause may limit legal powers.

The Race Discrimination Commissioner has acknowledged constitutional recognition of indigenous people by way of a non-discrimination clause might limit the power of governments to make laws in a range of policy areas.

Speaking at the National Press Club in Canberra, Tim Soutphommasane said the emphatic preference of indigenous Australians was for substantive constitutional change. He defended the inclusion of a non-discrimination clause in the Constitution, one of the options canvassed by a parliamentary committee that reported last month on the recognition of indigenous Australians.

Amid new warnings that such a proposal could see boat turnbacks and other policies overturned in the High Court, Dr Soutphommasane said the concept should be subjected to a “sober” and “calm” debate.

“My view is that, ideally, there should be attention paid to non-discrimination,” he said. “I understand there are concerns about a non-discrimination clause in the Constitution, but if we are a society that’s committed to equality and to combating racial discrimination, I think the onus is on those expressing concerns or reservations to elaborate or explain fully what the concerns are.”

Constitutional conservatives are warning that a referendum on the inclusion of an anti-discrimination clause in the Constitution would fail. If implemented, they are worried it would throw other government policies such as boat turnbacks into legal jeopardy.

Australian Catholic University vice-chancellor and constitutional lawyer Greg Craven has warned that such a proposal would become a “one-line bill of rights”.

“It would immediately be attacked on the issue of what does that law mean in relation to turning back the boats and border security — because by definition those things are factually going to turn on issues of race,” he said.

Dr Soutphommasane acknowledged the proposal could place a new limitation on government, but questioned how this was objectionable if it prevented racial discrimination. He said other democracies, including Canada, New Zealand and South Africa, had anti-discrimination clauses in their foundational legal documents. He expected a similar proposal in Australia to receive “great support”.