Stick to indigenous recognition or risk rejection: Ruddock

Philip Ruddock has weighed into the debate over a broad anti-discrimination clause to recognise indigenous Australians.

Former attorney-general Philip Ruddock. ‘I’m very positive about recognition in the Constitution.’

Former attorney-general Philip Ruddock warns that a broad anti-discrimination clause to recognise indigenous Australians in the Constitution will prompt a persuasive “no” campaign to defeat a referendum.

Mr Ruddock said supporters of substantive constitutional change should be counselled on the ­dangers of attempting to insert provisions upholding indigenous rights in the Constitution.

Such an approach could allow the courts to limit parliament’s ­capacity to legislate in some areas, a point acknowledged this week by Race Discrimination Commissioner Tim Soutphommasane.

“My own view is that the people who are developing the proposal and strongly support indigenous recognition — and I am one of those — want to see it succeed and not be derailed by potentially unforeseen issues,” Mr Ruddock said.

“The issue involving potential provisions entrenching non-­discrimination is an area which could potentially lead to unforeseen consequences in terms of the development of jurisprudence.

“I think there are people … who would be happier if it did include what they would regard as indig­enous rights, but I think they need to be counselled on the potential adverse impacts.”

Mr Ruddock has discussed his concerns with Tony Abbott, indig­enous leader Noel Pearson and Ken Wyatt, the Liberal chairman of the joint select committee that delivered a report into the recognition of indigenous Australians.

One option in the report was for a constitutional ban on the ­ability of governments to discrim­inate on the grounds of “race, colour or ethnic or national origin”.

Several Liberal MPs have ­expressed concerns that indigenous leaders, in pushing for a broad anti-discrimination clause, are mis­reading the political landscape and the public mood.

“I’m very positive about recognition in the Constitution. However, I think we have to be very cautious with major changes ... particularly changes that start to look like establishing a bill of rights,” said NSW’s Angus Taylor.

Tasmanian MP Andrew Niko­lic said indigenous Australians should be recognised in the ­Constitution, but warned an anti-discrimination prohibition would transfer power from the parliament and executive to the courts. “I don’t believe we should be transferring additional authority to what some see as an unelected ­judicial aristocracy. I’ve been a vocal opponent of a bill of rights because it actually reduces the right of our people to determine and control their own future.”

NSW MP Alex Hawke said many Liberal MPs felt a more minimal approach would have the best chance of success.

“I guess the concern is that some of these broader proposals to insert matters into the Constitution ... will inevitably mean any referendum would be widely opposed,” he said.

“If the issue is indigenous recognition, we should confine it to indigenous recognition”.

Mr Ruddock said it was appropriate such concerns were aired.

“I don’t think there are any ­difficulties in relation to simply ­recognising, either in the preamble or even in the content, that there were indigenous people in Australia and that they played a role in ­relation to our development and settlement,” he said.