Leadership is key to breaking the impasse on constitutional recognition | Law

Leadership is key to breaking the impasse on constitutional recognition

OPINION: Dr Paul Kildea, The Conversation, 26 June 2015.

On Thursday, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples tabled its final report. The report recommends that a referendum on the recognition of Indigenous Australians be held; sets out three reform models; and suggests a pathway ahead.

While the report is detailed and wide-ranging, it is unlikely to provide the circuit-breaker that the issue needs. If anything, it further highlights the deep division between those who want to advance recognition through minimal constitutional change and those who seek more substantive reform.

If a way ahead is to be forged, it must be through political leadership and genuine public consultation.

What the report said

In his foreword to the report, committee chair Ken Wyatt outlines the twin concerns of constitutional recognition: to address the Constitution’s silence on Australia’s first peoples; and to remove its capacity to permit racial discrimination.

In line with these two objectives, the committee recommends the repeal of Section 25(which contemplates race-based voting exclusions in the states) of the Constitution and the insertion of a statement of recognition.

It also recommends recasting the so-called “races power” in Section 51(xxvi) as a power to make laws with respect to Aboriginal and Torres Strait Islander peoples. Most proponents of “minimalist” reform would support these measures, or some variation of them.

However, the committee’s strong view is that any proposal for constitutional recognition must include more substantive change. All three of its suggested models would insert a constitutional protection against racial discrimination. This would limit the Commonwealth’s ability to discriminate on the basis of race and, depending on how it was drafted, could offer protection to all Australians or just to Indigenous peoples.

In this report, the committee gives its strongest defence yet of the need for a non-discrimination clause. Many Indigenous Australians gave evidence at public consultations about their frequent experiences of racism. The committee notes the Aboriginal and Torres Strait Islander peoples' “deep desire” for a constitutional protection against discrimination.

Significantly, the report’s recommendations are unanimous. This shows that this substantive measure attracted cross-party support within the committee.

Advocates of substantive reform will applaud the committee for holding the line on non-discrimination. But it is unclear if this proposal is capable of attracting broad support within parliament. Prime Minister Tony Abbott has previously dismissed such a measure as a “one-clause bill of rights”. It is understood to have little support in the Coalition partyroom.

What next?

There is now a clear divide between supporters of minimal and substantive recognition. In recent months, Indigenous leader Noel Pearson has sought to bridge that divide by proposing the creation of an Indigenous advisory body – with constitutional status – which would give advice to the government on laws and policies affecting Aboriginal and Torres Strait Islander peoples.

The committee was unwilling to endorse this proposal. It said that such a body’s support within the community was uncertain and that further consultation – especially with Indigenous peoples – was needed.

We are at an impasse. There is broad public and parliamentary support for the idea of recognition, but no consensus on the best way of achieving it. The risk is that the debate will fracture into a three-way split (reminiscent of the republic referendum) between opponents of recognition, minimalists and supporters of substantive recognition – with no model capable of attracting majority support.

What, then, is the way forward? Here, the committee offers three sensible and practical suggestions. The first is to hold the referendum at a time:

… when it has the highest chance of success.

The focus, it says, should not be on holding it at the 2016 election, or in 2017 to coincide with the 50th anniversary of the 1967 referendum, but on laying the groundwork for a successful poll.

To help do that, the committee again recommends devoting a day of parliamentary sittings to debating the different reform models. This would focus public attention on the issue and allow MPs to voice their different viewpoints.

Finally, the committee recommends that the government hold a series of constitutional conventions to help build support for a referendum and to engage a wide cross-section of the community. It says that these conventions, some comprised of Indigenous delegates only, should culminate in the holding of a national convention.

The committee’s view is in line with recent calls for constitutional recognition conventions, including by Marcia Langton and a recent gathering of Indigenous leaders at Port Douglas.

The Abbott government is likely to endorse the first two process recommendations but may baulk at the third. Conventions are always a risky measure for governments: there is no way of knowing which model they will endorse.

Abbott has only a short period to digest the committee’s recommendations before he and Opposition Leader Bill Shorten meet to discuss the referendum with 40 key Indigenous community representatives on July 6. This will be a crucial meeting and a real test of political leadership.

After several years of inquiries and reports, Australians will be looking to Abbott to lead the country through the impasse and provide a clear path to constitutional recognition.

This opinion piece was first published in The Conversation.