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October 13th 2014 print

James Allan

Recognise the Symbolism…and the Peril

What constitutes discrimination is a wholly amorphous and unclear matter, and the escalating rhetoric we can expect as the push to amend the Constitution gathers strength is unlikely to engender clarity. Here are a few points to keep in mind

recogniseForgive yourself if you’re finding it hard to keep up with what the ‘Recognise’ campaign, the ‘let’s amend our Constitution now’ proponents, are proposing.  The proposals change.  The justifications for the changes change.  It can be exceedingly difficult to keep it all clear in your head.

So here’s my short little guide to help you work your way around what might be described as the ‘pro-recognition galaxy’.  This will give you all the basics you need to know in order to be able to attend those inner-city Sydney and Melbourne dinner parties, where emoting and feeling morally superior are the sine qua non of a successful evening.  At these soirees, you need some gnashing and lamenting to go with the nosh.

First off, then, the core idea is to take ‘race’ out of our written Constitution, which as it happens is in my view one of the best-written constitutions going, and certainly better than Canada’s and also the American one from which we borrowed (OK, copied) our version of federalism and bicameralism.  Still, Section 25 mentions ‘race’ in the context of states potentially disqualifying certain races from voting.

Of course this is a dead-letter provision.  It’s been dead for eons and won’t now ever be used.  More to the point, in parliamentary sovereignty set-ups such as New Zealand the elected parliament can legally and constitutionally do anything; it is politics and a shared morality that stops all the off-the-wall imagined horror scenarios from being passed by statute into reality.  Politics, not a handful of unelected judges, is the final check in that sort of set-up.  And they don’t obsess about theoretical, and only theoretical, horror stories.

Still, if a simple repeal of  Section 25 were put to referendum, on its own, it would sail through.  Sure, the Americans still have far worse reminders in their Constitution of its origins in a land with plenty of slave-owners — things still there about ‘adding to the … number of free persons .. . three-fifths of all other persons’ when calculating a state’s number of congressmen.  That’s slaves they’re talking about.  The Yanks have yet to play this game of historical symbolism by eradicating the immoral past from view.

section 25

But as there are no downsides at all, zero, we can certainly vote to repeal Section 25 for symbolic reasons.  So next time you’re invited to that human rights barrister’s place for dinner, feel free to say you support doing away with it.

Next comes Section 51(xxvi).  This enumerates a Commonwealth head of power.   Again there is that word ‘race’, as in a power to make laws ‘for the people of any race for whom it is deemed necessary to make special laws’.  Repeal here is a bit trickier because if you just repeal this without any replacement that would throw this sort of power wholly over to the states.  That is not the aim of the ‘Recognise’ crowd.  Moreover this s.51(xxvi) was changed once before back in 1967 when ‘other than the Aboriginal race in any state’ was removed in a successful referendum.

SECTION 51

Removal of those eight words gave this power to the Commonwealth.  So a simple repeal of today’s leftover bits would have the unwanted effect of returning this power to the states.  If you repeal Section 51(xxvi) you need to replace it with something.  Provided the replacement provision gives the Commonwealth, and not a handful of top judges, the say on what those deemed-to-be-necessary laws will be, I can see no objection to this either.

Call the above the technical side of things.  In my view there is no practical need for either.  These do not represent any ongoing sort of racism; they are dead-letter historical references in the exact same way as the indirect references in the US Constitution invoke slavery.  Removing them is about symbolism.

But as this is symbolism without real world costs, I think any technical repeal-and-replace referendum put to the voters of Australia would sail through.

Then we move into what you might think of as symbolism-with-costs proposals.   They keep changing and mutating for that very reason, because they carry with them significant costs.

Take Mr. Shorten’s desire, and the wish of the former government’s Expert Panel,  for an anti-discrimination provision, maybe an addition to Section 116.  This would be nothing other than a mini bill-of-rights clause.  What constitutes discrimination, or, to be exact, unacceptable discrimination, is a wholly amorphous and unclear matter.  So something like this would transfer a whopping amount of power over to our unelected judges. They would strike down and invalidate Commonwealth statutes that they felt unwarrantedly discriminated.  We’d have the whole equality jurisprudence and lawfare come to our shores.

Luckily this has no chance of passing in a referendum.  Mr. Abbott would cause havoc if he accepted such a proposal.  But he won’t.  And if he did, it would lose.  Still, don’t gloat about that too much at your human rights barrister’s soiree.  You won’t get dessert.

Here’s another proposal that’s tossed around.  On this one we put in place a souped-up preamble to our Constitution.  This newby provision in some way or other recognises Indigenous Australians.  But again, this could well be a hand-hold for future judicial activism.  If you doubt me, just go and read those awful voting rights cases of Roach and Rowe in which the High Court, in my view, just made up for themselves a power to invalidate Howard government legislation, which it then used.  No one can honestly tell you this sort of preamble won’t make those activist tendencies worse.  Remember, it won’t be Mr. Abbott or Mr. Brandis doing the interpreting once you change the Constitution.

I think that path, too, will be rejected by voters.  Of course you could always pass some sort of symbolic ‘preamble statute’ type thing, for symbolic purposes.  That lets you avoid the voters in a referendum.  But that looks bad.  And no one knows what sort of effect some such ‘quasi-constitutional’ statute might have.

Given all those difficulties in the path of the Recognise campaign, we are now hearing about special reserved seats in Parliament for Aborigines.  Or maybe some body that will be staffed solely by Aborigines that will review legislation as regards Aborigines but will not have veto powers.

But seriously, why would a modern liberal democracy want to start distinguishing between its citizens based on race, which is what would have to happen to make these bodies or reserved seats work?  Will it be a self-identifying test?  Will we check bloodlines?  Could it mean that someone with 8 great-grandparents born here will lose out to someone else with 7 born overseas but one ‘of the right sort’ born here?

If Mr. Abbott puts up anything along those lines he’ll be in store for a long, debilitating campaign of opposition from across the ranks of his own party and its core supporters.  Plus, it will lose in any referendum.  And Mr. Abbott will have to fund the ‘no’ case equally to the ‘yes’ case.  (Were he not to do that I don’t think he’d win the next election, which he will otherwise win quite easily, in my view.)

Now after all that you might ask why is there this push for anything over and above the minimalist option?  It’s all about symbolism, apparently.  You make the grand gesture, you note its underlying moral significance, and you bask in that without doing the hard cost-benefit checking and calculating.

You see, you cannot escape the fact that Recognise proponents think they are morally superior to those who are against change.  They talk glibly about ‘waiting till the time is right’ as though it’s all about a little re-education here and there to win over the benighted masses.  For them, it couldn’t possibly be that others understand the issues as well as they do and nevertheless think the best bet is to say ‘no’.

There is ineluctable condescension and sanctimony running through all of this.  It reminds me of the recent campaign to try to enact a statutory bill of rights.  Proponents think they have a pipeline to God on what morality requires.

As it happens, they don’t.  Tell that to the other guests at your next inner-city soiree.  Meantime don’t expect any non-minimal option to prevail.

James Allan is Garrick Professor of Law at the University of Queensland