With a vote delayed, where does this leave constitutional recognition of Indigenous Australians?

On Tuesday, the Referendum Council announced it was extending its timetable for consultations on the constitutional recognition of Indigenous Australians into next year. It will need until mid-2017 to deliver its final report.

Both Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten had hoped to hold a referendum by May 2017, but a vote before 2018 now seems unlikely.

The new timeframe is understandable given the complexity of the issues and the importance of giving Indigenous people and the wider community a chance to have their say on what recognition should look like. But it presents new challenges. The longer the process goes on, the more debate is likely to split and fracture.

One faultline that may widen concerns the place of race in the Constitution. In the past week, some within the Liberal Party have argued constitutional recognition would be divisive. Senator James Paterson declared:

There is no place for race in our constitution. There should be no negative references to race, there should be no positive references to race. [The constitution is] the rule book of Australia. I think there is a role for symbolism in public life but I’m yet to be convinced the constitution is the place for that.

And Western Australian Young Liberals president Aiden Depiazzi recently wrote:

We must resist the temptation to entertain a symbolic change that will entrench an insidious division of Australians into racial categories and put the fairness and openness of our society at risk.

This weekend the WA Young Liberals will put a motion to the party’s state conference calling on the federal government to oppose constitutional recognition and for WA MPs to campaign against it if a referendum is held.

Questions of race are central to many proposals for constitutional recognition. How does the Constitution deal with race? And how might a referendum change that?

The meaning of recognition

The Constitution makes no reference to Australia’s First Peoples. The push for recognition is in part about tackling this “constitutional silence”.

This could be achieved by inserting a statement that formally acknowledges Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

Many argue, however, that “recognition” would be incomplete if we did not also remove the two references to race in the Constitution.

Section 25

Section 25 of the Constitution provides that where a state excludes “all persons of any race” from voting in that state’s elections, the level of representation the state receives in the federal parliament will be reduced. This provision has a positive purpose: it applies a penalty to states that disenfranchise people on racial grounds.

Both the expert panel and a parliamentary committee on constitutional recognition recommended Section 25 be repealed. It is effectively a “dead letter” provision: it has no practical application in a country where race-based voting exclusions are a thing of the past.

Section 25 nonetheless recognises that discrimination of this kind is permissible, which is both concerning and jarring in a modern constitution. This is particularly so for Indigenous people, who were banned from voting in Queensland and WA into the 1960s.

The ‘races power’

The other constitutional provision that mentions race is Section 51(xxvi), the so-called “races power”. It initially gave the federal parliament power to make laws with respect to:

… the people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws.

This section was included to allow the federal parliament to discriminate against certain groups on the basis of their race – for example, by restricting their freedom of movement, or by confining them to particular occupations.

At the 1967 referendum the words “other than the aboriginal race in any state” were repealed to allow the Commonwealth to make special laws for Indigenous people.

By this point, there was a strong public feeling that the parliament should use the races power only for positive purposes, such as alleviating disadvantage. Since then, the power has been used as the basis for legislation on native title and the protection of sacred sites.

Many feel the concept of “race” has no place in a modern constitution and so have called for Section 51(xxvi) to be revisited.

One option is to repeal it. But this would remove the constitutional basis of those laws that have been enacted under the races power.

To get around this problem, the parliamentary committee recommended Section 51(xxvi) be recast as a power that supports lawmaking only with respect to Indigenous peoples.

Critics argue this would single out Indigenous people for particular treatment and thus embed racial division in the Constitution. The committee responded to these concerns by saying:

… making particular mention of Aboriginal and Torres Strait Islander peoples would not be done on the basis of race, but would be to recognise the unique role of Australia’s first inhabitants.

Racial discrimination

Even if the Constitution’s two existing references to race were removed, the federal parliament would still have power to pass laws that discriminate against Indigenous people.

With this in mind, both the expert panel and the parliamentary committee have recommended that proposals for constitutional recognition include a clause that protects against racially discriminatory law-making. The committee declared:

Racial discrimination has no place in modern Australia, nor in the decisions of its parliament.

Opponents of this reform argue it would create uncertainty because the High Court would ultimately be responsible for interpreting what “discrimination” means. Such matters, they say, are best left to parliament. Some also doubt whether voters would back such an ambitious reform at a referendum.

Prominent Indigenous leader Noel Pearson has proposed that substantive reform should instead be achieved by the creation of an Indigenous advisory body with constitutional status. This new entity would give advice to the government on laws and policies affecting Indigenous Australians, including on matters of racial discrimination.

What’s next?

All of these matters will be discussed at the Referendum Council consultations in the months ahead. The merits of a treaty will also be part of the conversation.

One of the council’s aims will be to forge consensus, rather than division, on these very complex issues. It faces a considerable challenge as it seeks to establish the groundwork for a successful referendum.