Where are the Arguments for Constitutional Reform?
January 23, 2012 – 11:04 amResponding to no public call whatsoever, a ‘Panel of Experts’ has prepared a proposal for constitutional reform. The proposal is for the Recognition of ATSI in the Australian Constitution. Given that Australia is hardly crying out for this amendment, and that the Constitution with the very small number of amendments that have been made since 1901 has given general satisfaction, one might think that the Panel of Experts would feel bound to begin by providing some argument in justification of the proposal. But this is not the case. The only arguments that we are offered for this alteration to the legal fabric of the nation are those which have been collected – as an incidental matter – from the submissions made to the Panel by those with an interest in the proposed changes. We are not told whether the Panel finds these to be cogent.
Before we go on to look at these offerings let’s remind ourselves of what a constitution is and what it is supposed to do. In general terms it is understood to be “The system or body of fundamental principles according to which a nation, state, or body politic is constituted and governed.” (OED, sv.) And the Expert Panel itself describes the Australian Constitution in its FAQ file as
[T]he set of rules by which Australia is run. It sets out how Parliament works, what powers it has, how federal and state governments share power, and the roles of Executive Government (that is, the ministers) and the High Court.
It is not, therefore, a set of aspirations, feelings, declarations of appreciation, cake recipes, TV schedules, etc. or anything else not relevant to the actual constitution of a state, nation, or body politic. Of course, it is possible to include anything at all into a document merely called a constitution, but the dangers of doing do should be fairly obvious: this is a document that is going to be used to determine the types of laws that may or must be made, and those laws will be as close to permanent as a legal regime can make it. It is essential that nothing goes in except what is absolutely required and that it says exactly and no more than what is explicitly intended by those who are to live under the laws thus authorized.
So, what arguments for amendment are offered? Well, on p. 68 we find these bullet points:
- Aboriginal and Torres Strait Islander peoples occupy a unique position in Australian society as the first peoples and original custodians of the land, and therefore should have special recognition in the Constitution;
This is a straightforward appeal to special treatment – but it makes no reference to the sort of special treatment that should follow from this special status. What sorts of laws follow naturally from the fact of that specialness? And why is that claim to specialness more significant than a claim that the British or some other group could make? The constitution is not the place to make ‘acknowledgements:’ the danger of harm from laws being interpreted in the light of such ‘acknowledgement’ is just too great. It’s especially inappropriate in the body of the Constitution, but the danger is not much less if it is put in the preamble, for, no matter what the proponents might say, it would be inevitable (and probably correct) for the judicial interpreters of the Constitution to take into account the framing material when trying to understand the intent of the laws in the body of the document.
- Aboriginal and Torres Strait Islander peoples should be guaranteed equality before the law, and the Constitution should be free from racially discriminatory clauses;
Quite right. And so should members of many other identifiable groups. But this is the role of a Bill of Rights. Australia is currently engaged in another uncalled-for debate on the possibility of a Bill of Rights, and it has not had general acceptance outside the political elites – for the quite obvious reason that they think they can use it to further their own agenda by getting judges (who belong to that elite and largely share their interests) to declare policies of which they approve to be fundamental law without the inconvenience of having to go to the people of the country or their representatives in the legislature. It is a profoundly undemocratic proposal in its intentions and in its likely application. This argument would be welcome to Bill of Rights proponents as a camel’s nose for further encroachment on the people’s ability to govern itself.
- constitutional recognition of Aboriginal and Torres Strait Islander peoples is overdue;
This is at best, a repeat of the first (quasi-)argument, with the added claim that recognition is overdue. Nothing unnecessary and dangerous is overdue.
- constitutional recognition will more accurately reflect Australia’s history and national identity; and
The constitution does not need to reflect Australia’s history: if anything it represents a break from the past. If the Constitution was supposed to be telling a story about the colonization of Australia or the cultural history of its peoples, this might be a cogent critique: but that is not the intended role of this document.
- recognising Aboriginal and Torres Strait Islander peoples in the Constitution is important for recognising and protecting their unique cultures.
Special pleading part two.
This section finishes with a bit of a grab bag of ‘other reasons’ on p. 70:
… furthering reconciliation [hardly a constitutional function,] updating the Constitution with contemporary values [such as?,] and improving democratic processes and citizenship [how?] Achieving better social and economic outcomes for Aboriginal and Torres Strait Islander peoples [special pleading of the most egregious sort,] as well as enhanced recognition of rights to lands and waters, culture and languages, and self-determination, [unnecessary, and even running contrary to the unity of the Commonwealth] ….
Further clues to the reasoning were given in the FAQ file of the Panel:
Why should Australians support constitutional change?
First, not all citizens are treated equally under the Australian Constitution. While racial discrimination is no longer accepted in our community, in our workplaces or in our daily lives, the Constitution permits laws that discriminate on the basis of race. For example, section 51 (the ‘race power’) states:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
… (xxvi) the people of any race for whom it is deemed necessary to make special laws …
As I say, removing the ‘Race Powers’ would be a good thing, but it is not good because it removes the word ‘race’ from the constitution, but because it removes the discriminatory power of the state with respect to illegitimate or unjustifiable distinctions amongst the people of Australia. The reintroduction of exactly that power by the other proposed amendments, with the proviso that discrimination is required for the advantage of one tiny minority above others is no great improvement.
Second, while Australians value and celebrate the unique contribution Aboriginal and Torres Strait Islander art and culture has made to our national identity, the Constitution, Australia’s founding document, gives no acknowledgment of the place of Indigenous Australians in our nation’s history or our contemporary society.
Nor should it.
Third, many people believe that constitutional recognition would serve as a powerful symbol of the nation’s desire to embrace Indigenous Australians in a spirit of true reconciliation.
The Constitution might be the single least ‘symbolic’ item in Australian life.
What benefits will constitutional recognition have for Aboriginal and Torres Strait Islander Australians?
Constitutional recognition would help create mutual trust and respect leading to stronger relationships between Aboriginal and Torres Strait Islander Australians and other Australians.
It would be a big step towards reconciliation, demonstrating the commitment of non- Indigenous Australians to acknowledge the place and contribution of Aboriginal and Torres Strait Islanders in our nation’s history and contemporary society.
Constitutional recognition would contribute to raising the self-esteem of Aboriginal and Torres Strait Islander peoples as well as improving their social and emotional wellbeing.
The Royal Australian and New Zealand College of Psychiatrists published a report noting that mental health benefits would result from constitutional recognition.
Constitutional recognition could include removing racially discriminatory provisions in the Constitution and enhance the legal protection provided by the Constitution for all Australians.
It would be tedious to continue to fisk this item by item, but a special mention for pure chutzpah has to go to the Royal Australian and New Zealand College of Psychiatrists. (Note that there is not even a gesture at support for the claim that Constitutional recognition in itself has mental health effects in the College’s Position Statement 68, Recognition of Indigenous People in the Australian Constitution, September 2011.)