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Why we need constitutional reform: Indigenous recognition and equality before the law

By Shireen Morris - posted Wednesday, 12 June 2013


What is the solution?

We should pursue constitutional reform on the basis of two principles: recognition and equality before the law. Constitutional reform is the only way to correct the undemocratic 'race' error that persists in law, policy and Indigenous affairs. And, an argument on the basis of recognition and equality is, I believe, capable of winning the required bipartisan support.

Reform for recognition requires constitutional recognition of prior and continuing Indigenous presence on this land, and recognition that Indigenous cultures, languages and heritage are an important part of Australia's national identity.

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Reform for equality before the law means that the racially discriminatory s 25 should be removed. The Race Power should also be deleted. It should be replaced with a new power which would still allow laws necessary for Indigenous recognition, including Native Title and Indigenous heritage laws. However, the new Indigenous recognition power should not be used for matters of public welfare or government socio-economic assistance.

Finally, Constitutional reform should include a prohibition of racial discrimination in laws and policies. This will ensure equality before the law with respect to race, ethnicity and colour. Such a provision is necessary to overturn the racially discriminatory precedent that has built up since 1901. The Race Power and s 25 established the wrong principle in our Constitution. The new, correct principle – equality before the law – needs to be set in place. Just removing the racially discriminatory provisions is insufficient.

Conclusion

Noel Pearson has long advocated the quest for what he calls the 'radical centre': the 'dialectical synthesis' that is the correct policy position in between competing philosophical ideals, or for example, between the political left and the political right.

Those on the left have argued that we should stop the adverse discrimination against Indigenous people. Those on the right often argue we should stop the perceived preferential treatment of Indigenous people. The 'radical centre' position, and arguably the correct position in a just democracy, is to eliminate both adverse and preferential treatment on racial grounds.

Pearson is right: we should assist disadvantaged people, whether black or white. But we should do so in the basis of need, not race.

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Recognition and equality are the right principles for constitutional reform. These are the principles that will enable us to become what we are trying to be: a reconciled indivisible democratic sovereign state, shared by the non-Indigenous Australian and Indigenous Australian peoples of this land.

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This post forms part of the Castan Centre's 2013 Reconciliation Week guest blog series. You can also read the post by Inala Cooper of Monash University, the post by Luke Pearson of AboriginalOz and Indigenous X, or that by The Koori Woman.



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About the Author

Shireen Morris is the policy advisor, constitutional reform research fellow at the Cape York Institute. You can follow her on Twitter at @ShireenMorris1.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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