Time to change our racist constitution


Last week the expert panel chaired by Indigenous leader Patrick Dodson and national reconciliation advocate Mark Leibler presented Prime Minister Julia Gillard with its report titled Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution. 

The panel proposes recognition of the prior occupation of Australia by Aboriginal and Torres Strait Islander peoples, and acknowledging their continuing relationship with their traditional lands and waters, and their cultures, languages and heritage. 

The report reveals that many Australians do not even realise that explicit racism is among the principles and ideals in the Constitution, and how significant this is because they continue to provide the foundation for the work of our lawmakers. 

Aside from the pointedly scant acknowledgement to the Indigenous Australians that were regarded as a 'doomed race', the most blatant example of racism in the Constitution — the exclusion of 'Aboriginal natives' from the census — was removed in the 1967 referendum.

But racism remains elsewhere, such as in the part of section 51 that gives Parliament the power to make laws for 'peace, order, and good government' with respect to 'the people of any race'.

Other traces of racism in the Constitution are more symbolic than practical, but this is significant because symbol can be as potent as practical possibility. There is section 25, which says people who are excluded from voting based on race cannot be included in the tally when seats in the Lower House are divided up. Removing that would have no practical effect, because nobody is excluded from voting on racial grounds any more. 

It seems that those who've been aware of racism in the Constitution and prepared to tolerate it, have taken the same 'if it ain't broke, don't fix it' approach that is commonly used to justify maintaining the monarchy. This effectively blesses the attitude that it's acceptable to regard Indigenous Australians as second class citizens in theory as long as we treat them as equals in practice. 

Perhaps we allow this because of a not always well placed pride in the pragmatism that we often think of as a laudable national characteristic. But it is racism.

Surely the right thing to do is to consult Indigenous Australians, as the expert panel itself has done.

As a sample of Indigenous opinion, last week's media release from the  National Aboriginal & Torres Strait Islander Catholic Council (NATSICC) suggests the constitutional status quo does not even pass the pragmatism test. Chair Thelma Parker says justice for Indigenous Australians will be subject to political whim until their rights are enshrined in the Constitution.

'Currently we feel as if the goal posts are constantly shifting due to the ability to change Statute Law and legislation relatively easily via Parliament and often without consultation with Indigenous people. The Constitution, however cannot be changed without the will of the Australian people. That is the strong foundation that we are talking about.'

Unfortunately the implementation of the proposals of the expert panel will itself be subject to political whim, and opposition leader Tony Abbott has already indicated that, in broadly welcoming the report, he has 'some reservations about anything that might turn out to be a one clause bill of rights'.

Michael MullinsMichael Mullins is editor of Eureka Street.

Topic tags: Michael Mullins, Constitution, indigenous rights, justice, YouMeUnity, The National Conversation



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Existing comments

Any recognition of Indigenous people in our outdated British owned Constitution, today, will be as empty as the rather painful 'recognition of country' moments we have to endure at every PC gathering. Let's be honest, few if any of us know anything about the traditional owners of the land on which we perch and none of us has any intention of giving it back, so precisely what use is this activity? Public gloating is so unseemly. As for the mooted changes, what material benefit will this bring to the displaced and land-culture robbed Indigenous people? It's about as laughable as expecting the Israelis to honour the Palestinians for the land they stole, in the Israeli constitution. It's true that our Constitution needs upgrading, and do let's get the racism out, but let us also rid ourselves of the pernicious place granted, by both ommission and High Court meddling, of the parallel nature of the religios state that cohabits within the borders of our nation-state. That's right, real reform, not window dressing such as is proposed, with a s.116 with teeth, applying to the Commonwealth and each state/territory; a 'wall of separation' such that no religious bigot can climb over it and infect public life with their privileges currently enjoyed. Should Constitutional changes put land rights so far squeezed from a greedy white nation? Not at all but let us do it without this revolting paternalism that seems to be on offer.
janice wallace | 23 January 2012

I have absolutely no objection to removing ALL current racist references from the Constitution. The sooner the better; should have happened years ago. What I do object to, however, and object most strongly, is the proposal by Prime Minister Gillard's expert committee then to insert back into the Constitution a new, specifically racist clause. What good would be done (practically and/or symbolically, in Michael Mullins' terminology) by removing the power of the Commonwealth to make laws for 'peace, order, and good government' with respect to 'the people of any race' and then to add back a specific power for the Commonwealth to legislate for the "advancement of Aborigines and Torres Strait Islanders and the protection of their language and culture". Wow! then our Constitution really would be racist; no doubt about it.
John R. Sabine | 23 January 2012

Maybe the most racist issue with the current constitution is the fact that Australia remains a monarchy. The monarchy is the example of discrimination based on race, ethnic background and religion. It is impossible to talk about a fair constitution as long we have a discrimination based monarchy. Only a constitution which provides full equality for all citizens can be regarded as democratic. In a monarchy, a person of Aboriginal descent can never be the head of state in the country of his ancestors!
Beat Odermatt | 23 January 2012

A change to the Constitution to recognise the rights of indigenous Australians is long overdue. Unfortunately, not many referendums (on any issue) have resulted in change. This one needs to though and it is the task of the government (and opposition) to take a bipartisan approach and campaign actively for its implementation. We've said 'sorry', now let's put those words into action.
Pam | 23 January 2012

Janice, I'm unsure of the basis on which you suggest that our constitution is 'British owned', particularly in respect of racist or indigenous issues. Our constitution is very much 'Australian-made'; those who asked the Brits to legislate it into law made that very point several times.
Ginger Meggs | 23 January 2012

Ginger seems to think our constitution endows some Australianness on us - it does no such thing. There is no such thing even as a constitutional Australian citizen - only by statute written in 1949 that excluded everyone but white people.
Marilyn Shepherd | 23 January 2012

No, you've missed my point Marilyn, or perhaps I've not made it clear. I wasn't praising or lauding the Constitution, but saying that we cannot, as I thought Janice was doing, blame others for its faults. I agree that it has many faults but, warts and all, it was drafted by Australians and endorsed by Australians. It reflected the views (including the racist views) of Australians c.1900. The deletion of Section 51 (xxvi) should have been put at the 1967 referendum, but it wasn't. Perhaps its deletion wouldn't have got up then? Now it's up to us to fix it.
Ginger Meggs | 24 January 2012

I think the example of New Zealand's racial troubles should be enough to put anyone off changing the constitution to give any race in Australia special rights. We need to absorb the spirituality of Australia as it has developed over the 50 000 or so of human habitation and relate to our Aboriginal heritage . We need to ensure that all Australians have equal opportunity. But supporting racial divides between Aboriginal people and the rest of the Australian people is a disastrous approach,
Ken Fuller | 27 January 2012


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