Twomey’s sensible pathway to practical indigenous recognition

Indigenous leaders have a choice to make. They can align themselves with Warren Mundine’s vision for purely symbolic constitutional change, or they can keep faith with calls for practical recognition that makes a difference to indigenous lives. William Cooper, King Burraga, the Yirrkala Bark Petitions and the Barunga Statement sought recognition in a practical sense.

In respect of practical recognition, there are two options: insert a racial non-discrimination clause and a symbolic preamble in the Constitution, or insert an indigenous advisory body in the Constitution and adopt a declaration of recognition outside it.

The first option risks introducing legal uncertainty and undermining the sovereignty of parliament. Introducing symbolic language is likely to have unintended and unpredictable consequences in the High Court’s interpretation of the Constitution.

Inserting a racial non-discrimination clause would unacceptably alter the balance between the High Court and parliament. The latter is elected by the people and is accountable to them, so it, rather than unelected judges, should make the difficult political decisions about what is in the best interests of indigenous people and the nation.

The second option, however, may just make recognition work for all Australians. A declaration of recognition would, poetically and powerfully, recognise the historical experience and enduring place of indigenous people in the life of the nation.

And establishing an indigenous advisory body would ensure legislators would never again be able to decide what they think is best for indigenous people without consulting them.

A successful package for recognition would unify the nation, codify existing constitutional practice relating to indigenous people, and provide for indigenous consultation in the legislative process, while upholding the essential nature and structure of the Constitution.

Section 25 of the Constitution anticipates the possibility that states might prevent people of a particular race from voting in state elections. The section is widely regarded as a dead letter and should be removed.

Section 51(xxvi) gives parliament the so-called race power. This is an anachronism. It was never used before 1967. and since then has been used only to make laws for indigenous people. It should be replaced with a power to make laws for indigenous peoples, so parliament retains the power it needs while removing the idea of race from the Constitution, and codifying existing constitutional practice.

The declaration of recognition would provide a focus for national unity. It would give expression to the nation’s aspirations for the future, and for the shared values through which we hope to realise that future. And it would do all of this without introducing any uncertainty into the Constitution.

Finally, recognition would provide for indigenous consultation in the making of laws that affect indigenous people.

Indigenous people are the only people for whom parliament makes specific laws. It needs to be able to make such laws in order to protect indigenous heritage sites and to regulate native title law. A specific power is necessary.

It is right that people should be consulted when parliament makes laws that affect them. It is only fair that the Constitution stipulates that parliament must consult indigenous people when it makes such laws.

The missing piece in the puzzle has been a means of balancing the requirement for parliament to consult indigenous people with the need to preserve the sovereignty of the federal legislature.

Frank Brennan, a priest and professor at the Australian Catholic University, was convinced that it is impossible to solve this problem. However, with her draft of a new section 60A of the Constitution, Anne Twomey proposes a solution. The University of Sydney professor has pointed us in the direction of the missing piece of the recognition puzzle.

So indigenous leaders who support practical recognition, as well as symbolic recognition, have a choice.

Do they ask Australians to choose the uncertain path of judicial review of rights clauses and symbolic constitutional statements? Or do they ask Australians to choose the political and procedural path, by guaranteeing indigenous people a voice within the political processes governing their affairs?

In my view, there is only one viable option.

With appropriate refinement, Twomey’s proposal presents us with the only option for substantive constitutional recognition that will not introduce uncertainty into the Constitution; will not undermine the sovereignty of parliament; and will not leave us with a one-clause bill of rights.

It will uphold the Constitution in all these ways.

The proposed package would unify the nation through a statement of our shared values; codify existing constitutional practice while removing racist language; and ensure indigenous people are consulted when parliament makes laws about them. Unity, codification, and consultation can only strengthen the life of our nation as we celebrate the 50th anniversary of the 1967 referendum.

But if indigenous leaders want to mark the anniversary through symbolic recognition alone, then they should rally behind Mundine.

Damien Freeman lectures on ethics and aesthetics at Pembroke College, Cambridge.