Race-based provisions should have no place in our constitution

FOR all the high hopes of bipartisanship, there are signs we are headed for yet another battle between elites and the rest of Australia.

This time the elites are those that comprise the panel of experts advising the government on indigenous recognition in the Australian Constitution. There are reports the panel will suggest the repeal of two outdated, race-based provisions of the Constitution: section 25 and section 51(xxvi). This makes sense.

Unfortunately, there are also suggestions from the panel that we ought to amend our Constitution to include a new and better race power. This raises one obvious question: have we not yet moved beyond race-based laws? If we haven't, then surely we should work harder to do so rather than perpetuating further difference and division with new laws based on race.

The race power in section 51(xxvi) has come to voters for constitutional change before. On May 22, 1967, Sydney's Daily Mirror newspaper declared that it was "time to make amends" to Aboriginal people by voting "yes" to the federal referendum.

Five days later, 90.77 per cent of Australians voted in favour of amending section 51 (xxvi) so that the race power would include power to make laws for Aborigines. The 1967 amendment correctly captured the spirit of the times. Special laws for special groups had taken hold within academe, human rights arenas, bureaucracies and, of course, within government. The entitlement era had begun.

It took five years before the first laws were passed under the amended section. Since then we have seen a plethora of race-based laws providing for housing, education, special tertiary allowances, special legal services and so on.

While many applauded the new section 51(xxvi) for enabling the federal government to assume responsibility for indigenous policies, the results don't warrant resounding applause. More than three decades of special laws for indigenous people cemented a toxic culture of welfare dependency into indigenous lives. Yet the appetite for race-based laws remains embedded in the academic psyche.

That said, support for the present wording of section 51(xxvi) changed after the 1998 Hindmarsh Island Bridge case, when the High Court failed to assert that the section could be used only to the benefit of Aboriginal people.

After the Northern Territory intervention, the race-based power in the Constitution became downright noxious among well-educated activists who knew nothing of life in the squalor of remote indigenous communities but opposed the Howard government policy vehemently.

We are told by clever academics that providing for a new race power is unfinished business arising from the 1967 referendum. We should make it clear, they say, that the Constitution may be used only for race-based laws that benefit Aboriginal people. Inevitably, they will claim NT intervention-style laws continued under Labor are invalid. Many will disagree. A lawyers' feast will follow, which is exactly what legal academics and activists crave.

That's why we should expect claims that it is time to make further amends. We should expect to be lectured to and hectored about voting "yes" to a new race-based power as the only morally correct action. It won't be the first time this has happened. Well-heeled and smartly educated elites try that game whenever they can, be it about climate change, immigration policy or a republic.

Usually they don't confront the inconvenience of having to convince a double majority of voters: a majority of voters in a majority of states and a nationwide affirmative vote. When they last faced this steep constitutional hurdle during the republic referendum, not even a concerted campaign by politicians, the Australian media and rich businessmen convinced Australians to become a republic.

Already there are signs of constitutional overreach and moral hijack by those clamouring to change the Constitution again. Not content with a preamble recognising indigenous people, the panel will submit a report to the federal government in the next few weeks that demands more substantive race-based provisions. With Julia Gillard promising that a referendum will be put to the people at or before the next election, co-chairman of the panel, Pat Dodson, said last week: "The country will do itself proud if it (is) able to support the referendum when it is put."

The report still under wraps, we are already being warned that we will heap shame on ourselves should we vote "no" to whatever details are agreed by the panel and the parliament.

Eagerness by elites to change our Constitution ignores history. Of the 44 referendums, the Australian people have approved only eight amendments to our Constitution, all sensible ones. The latest suggestion for change is not sensible. You don't eliminate racism by embedding in our Constitution laws predicated on race.

Panel member Noel Pearson argues we ought not talk about race. The focus ought to be on Aboriginal and Torres Strait Islanders as indigenous people, he says. The problem with Pearson's distinction is it still perpetuates a group-rights mentality and a politics of difference.

As Alison Anderson, a Northern Territory MP, has written on these pages, difference is a double-edged sword in indigenous communities: "The survival of my people's law, culture and language is maintained through the constant affirmation of difference. Yet the tragedy of our poverty, passivity and dysfunction is a direct result of accepting different standards; of playing by different rules; of developing different programs and different systems to those operating effectively in the rest of the world."

Forty-four years since the 1967 referendum and after billions of dollars have been spent for very little tangible improvement in many communities, race-based laws ought to be rejected as anachronistic and harmful. Legal experts say we need a new race-based law to support existing laws for indigenous people. Then let these laws lapse. Need, not race or indigenous status, should determine the application of all welfare-based laws whether they are for providing housing, additional education services, special health measures and so on. As an astute letter writer to The Australian wrote last week, the focus ought to be on the problems, not the group.

Last week, Mark Leibler, the other co-chairman of the panel told The Australian the panel had agreed to its submissions by consensus. "We have not had a vote on a single issue," he said.

It's nice that a group of well-meaning men and women who are well-educated and live in fine and safe houses are able to agree among themselves about changing our Constitution. That consensus is unlikely to be echoed beyond panel meetings. Even former prime minister Malcolm Fraser has chosen not to jump completely on board the latest "rights" bandwagon, saying he would prefer a Constitution "that makes no mention of race of any kind". Surely, after nearly 40 years of dismal results, rejecting race-based laws is not a radical proposition.