A Path Forward On Constitutional Recognition

Written by:
14 February 2020
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Originally Appeared In

This week’s decision in the High Court to invent a new category of personhood for people on the basis of their race is a devastating blow to the movement for the constitutional recognition of indigenous Australians.

On Tuesday the High Court handed down a decision in relation to how non-citizens who identified as Aboriginal would be treated under the Constitution, and in particular if they were subject to the commonwealth’s migration laws.

By a narrow majority of 4-3, the justices decided that non-citizens who were descended from and claimed membership of indigenous Australians could not fall within the scope of the commonwealth’s power to make laws with regards to “aliens” under section 51 (xix) of the Australian Constitution.

This is the most radical decision in the history of the Australian High Court. The court has effectively created a new class of person on the basis of racial identity.

It is a fundamental challenge to the idea of racial equality as well as the sovereignty of parliament to decide who can be members of our shared political community.

This extraordinary decision has significant implications for proposed constitutional recognition of indigenous Australians.

This week the High Court demonstrated that it was prepared to make out of whole cloth a race-based exception to migration laws and the commonwealth’s constitutional power to decide who aliens are.

It demolishes the idea from supposed constitutional conservatives that there is a form of minimalist constitutional change that would have minimal consequences in the law and the Constitution.

Proponents of constitutional recognition — in the form of either a symbolic preamble or the establishment of an indigenous body to advise the parliament — referred to as the Voice — have been insistent that these ideas are simply about recognising the place and history of indigenous Australians and would be treated with restraint by the courts.

In light of the High Court’s decision this week such an assertion is no longer credible. Having now created a new category of people beyond the scope of Australia’s migration laws, what would it be prepared to do with a preamble? Or how would it interpret the role and functions of a Voice body?

However, there is a path forward for achieving constitutional recognition that properly recognises the equal dignity of indigenous Australians and which would not give the High Court another opportunity for unbridled activism.

Credible recognition would mean amending the Australian Constitution to remove the remaining references to race, not adding more references to race.

The first of the two references to race in the Australian Constitution is section 25, which pretends to penalise a state if its parliament restricts an entire race from voting. The provision is now defunct and should be deleted.

The second is the race power, which gives the commonwealth parliament the ability to pass laws with respect to the people of any race for whom it is deemed necessary to make special laws.

There is no legal or moral justification for retaining the race power. The basic needs of all Australians are not culturally contingent. A power to legislate for specific races can never be a beneficial power because it rests on the flawed presumption that different groups need to be treated differently under the law. The policies that promote a successful life and human flourishing are the same regardless of one’s race or colour.

Few pieces of legislation rely on the race power. The legislation regulating native title is frequently cited as being at risk of invalidation if the race power were to be removed. This would be extremely unlikely.

Native title is the settled law of the land and has been recognised since 1992 by the High Court as existing as part of the common law. If tested in a court, the Native Title Act would not rely solely on the races power for validation.

To retain the law, the commonwealth could rely on the external affairs power which gives the federal government the power to implement international agree­ments, such as the UN Declaration on the Rights of Indigenous Peoples.

Additionally, the commonwealth could rely on the nationhood power or ask the states to refer the power to regulate native title to the federal sphere.

A new poll conducted by Dynata and commissioned by the IPA found that more Australians agreed (45 per cent) than disagreed (16 per cent) with the idea that all references to race should be removed from the Australian Constitution.

Moreover, this was consistent across all age groups surveyed.

Indigenous recognition means recognising that indigenous Australians are the moral and legal equals to all other Australians. And equal recognition of human dignity between races demands the removal of divisive reference to race in Australia’s constitution.

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