OPINION: Noel Pearson has injected an important new idea into the debate on recognising Aboriginal peoples in the Constitution. He argues that Indigenous Australians must have a voice in the lawmaking process, and that this should happen by creating a new body to advise the federal parliament.
Unfortunately, Pearson's proposal has a number of problems. Changes will need to be made if Indigenous voices are to have an impact, let alone if his proposal is to succeed at a referendum.
Pearson's advisory body would have no powers whatsoever, only a capacity to advise. The federal parliament would be free to ignore that advice. There is a good chance that this would occur.
Parliament has on many past occasions enacted laws detrimental to Aboriginal peoples, including over their vocal opposition. Recent examples include the winding back of native title rights and the Northern Territory intervention, both of which suspended the Racial Discrimination Act.
Political parties have learnt that acting contrary to the views of Indigenous people can be popular with the broader community. It is a perverse part of our political process that denying the rights of minority groups, such as Aboriginal people and asylum seekers, can have a political upside. It is hard to see how an advisory body could overcome this dynamic.
A further problem is that the body will advise on the making of laws not when they are drafted by government, but when they are debated in parliament. This is too late in the process. There is usually little point in providing advice at this stage because, once public debate has begun, governments are unlikely to shift. Indeed, party discipline is enforced to make sure legislation is passed. It is usually only a hostile Senate that can prevent this from occurring.
The task will be made even harder unless the advisory body speaks with one voice. If it does not, the government will be free to either ignore its advice on the basis that it is contradictory, or to pick and choose between the views in order to find support for its own preference.
It is unrealistic to expect Indigenous members on the body to act unanimously. As with the rest of the community, Aboriginal Australia contains deep divisions across political and ideological lines, and it is to be expected that these would be reflected on the advisory body.
The sum of these problems is that an Indigenous advisory body speaking with multiple voices is not likely to be effective in the highly partisan atmosphere of parliament. In particular, it is hard to see the body having much impact on the making of laws.
It is also hard to see Pearson's proposal succeeding at a referendum. The proposal is a hard sell already, made more difficult by the fact that Pearson and others have cast it is being championed by 'constitutional conservatives'.
Very few national referendums pass in Australia. Most failures can be attributed to the proposal appealing to a narrow political constituency, and not the broader community. In this light, it is hard to see why this model being owned by constitutional conservatives is a selling point. Instead, it is likely to alienate a large section of the population in the same way as if it had been owned by people at the opposite end of the political spectrum, such as constitutional progressives or the Greens.
More broadly, the Pearson proposal runs counter to community sentiment. Every process to date that has examined how Aboriginal people should be recognised in the Constitution has identified strong support for protecting people against racial discrimination. Indeed, this has been the single most popular part of the reform, yet the advisory body would not address this.
Among Indigenous peoples, one survey found 97 per cent in favour of an amendment to prohibit racial discrimination. Separate, independent polling of Australians at large found 80 to 90 per cent supporting such a change. The one group in the community conspicuously opposed to the Constitution protecting people from racial discrimination are constitutional conservatives.
Despite this, it is to constitutional conservatives that Pearson has turned. This is also reflected in his suggestion for fixing the power that enables the federal parliament to pass laws that discriminate against people on the basis of their race. He wants to replace this with a power to make laws for 'Aboriginal and Torres Strait Islander peoples'. These open-ended words contain no limitation, and so could also be used to pass racially discriminatory laws.
Not surprisingly, it has been said that rewording the race's power in this way is an exercise in 'semantics'. This is hardly a saleable proposition. Australians are unlikely to be inspired to vote 'yes' when this will continue the power of the federal Parliament to discriminate on the basis of race. Surely we can do better.
George Williams is the Anthony Mason Professor of Law at UNSW.
This opinion piece was first published in The Sydney Morning Herald.