Constitutional Recognition for Indigenous Australians: What does this Policy Episode tell us About Policy Making

Part 2

The panel's proposals go beyond the recognition of Indigenous Australians in the constitution. They include substantive provisions that both grant and limit legislative power. They potentially affect the validity of Commonwealth, state and territory laws. They include a broad guarantee against racial discrimination which will not only protect Indigenous Australians but also people of other races, colors, and ethnic and national origins. If enacted, they would leave to the courts the important role of interpreting the scope of the federal Parliament's power to make laws with respect to Indigenous Australians and applying a constitutional prohibition on racial discrimination that affects both legislation and executive acts of all Parliaments and government across the nation (Attwood 2003).

The proposals are substantive and important and deserve an informed debate and rigorous analysis. There is a substantial risk, however, that their complexity and extensive reach will result in their failure if put to a referendum. Two members of the panel recently wrote that if the referendum was lost, this would brand Australians to the world as racists, and self-consciously and deliberately so. This appears to be going too far there are many reasons why such a referendum could fail other than racism. The vast majority of previous referendums have failed, without racism entering the equation (Attwood & Markus 2007).

The government has not yet formally responded to the panel's report, although it has indicated that it wishes to hold a referendum on the issue. The opposition has not yet determined its position, although it remains broadly in favour of the constitutional recognition of Indigenous Australians. Bipartisan support is regarded as essential for a referendum to pass. It is therefore likely that there will be much political negotiation before any proposals are put to a referendum.

The article emphasises a distinction between the formal constitutional arrangements for government and their practical implementation. The distinction is captured, broadly, in the difference between government and governance. The article does not focus on the need for a formal recognition of Indigenous government within the Constitution, although this may be an important part of any strategy to ensure Indigenous governance is properly accounted for in government law and policy. Instead, the article makes a case for law makers to recognise that Indigenous governance is already a constitutional reality in Australia and, as such, that it must be accounted for in developing laws to protect and maintain Indigenous social, cultural, and political rights. The argument is based on a broad concept of Australia's constitutional framework. It is concerned with how the relationships between groups and institutions operate within the laws of the nation, and not only how the Commonwealth Constitution implements a formal framework for those laws (Anderson 2003).

The article draws on two theoretical arguments and one practical argument to substantiate the claim that Indigenous governance needs to be taken seriously as a part of the constitutional framework of the Australian ...