During World War II the Allies established a Monuments, Fine Arts & Archives unit. Its mission was to save European culture. The MFAA found, protected and returned over 5 million works of art, archives, monuments and other items of historic or cultural significance. Its story was dramatised in the movie The Monuments Men. In one scene, the platoon’s commander speaks to his men on the eve of their mission and says:

‘This mission was never designed to succeed. If they’re honest they’d tell us that. They’d tell us that with this many people dying who cares about art. They’re wrong. Because that’s exactly what we’re fighting for. For our culture and our way of life.’ ‘You can wipe out a generation of people, you can burn their homes to the ground, and somehow they’ll still come back. But if you destroy their achievements and their history, it’s like they never existed.’

For centuries Indigenous Australians have feared that our achievements and histories would be destroyed; our culture and languages forgotten; that it would be like we never existed. British colonisation was built on the myth of terra nullius. Under 18th century law, Britain could only claim outright ownership of uninhabited territory. Australia was inhabited, but Britain assumed the inhabitants didn’t claim territory. They saw nomadic families with no recognisable civic or legal systems, who moved seemingly randomly over vast areas and didn’t manage the land. They were wrong. There were hundreds of established societies, each united by common descent, history and culture; with unique languages and country. They had trading routes and methods for distance navigation. They changed the environment to improve food sources and availability. They had complex kinship systems defining personal and civic rights and responsibilities. And each group knew which was their country and which was someone else’s. These were Australia’s first nations. They’re the oldest surviving nations in the world.

The Australian nation was founded in 1901 when 6 British colonies united as a Commonwealth. Federation brought all people of the colonies except ‘aboriginal natives’ together in a single nation. Australians voted to change this in 1967.

The Constitution refers to Britain and the colonies but not the societies before them. During the Republic referendum in 1999, Australians voted on a new Constitutional preamble which honoured Australia’s first peoples, their ‘deep kinship with their lands’ and ‘ancient and continuing cultures’. This vote failed.

In 2007, John Howard promised another referendum to recognise Indigenous Australians but couldn’t honour his promise, losing office 2 months later. In 2008, Kevin Rudd proposed that a Joint Policy Commission work on Constitutional recognition. In 2011, Julia Gillard appointed an Expert Panel to advise on the model. The Coalition took the baton in 2013 with the Joint Select Committee on Constitutional Recognition. Meanwhile, the campaign expanded from symbolic recognition; to removing race laws from the Constitution; to proposals adding race back in to substantive changes to national governance. So, after 8 years of bipartisan and popular support, we still don’t really know what we’re talking about.

A key focus is the Constitutional ‘race power’, originally included so the Commonwealth could restrict Chinese and other migrant workers and regulate ‘coloured or inferior races’. It wasn’t intended to apply to Indigenous Australians – and until 1967 expressly excluded us. But after 1967 the race power became a de facto head of power for the (then more progressive) Commonwealth to take Indigenous affairs away from the (then more regressive) States.

In truth, the Commonwealth hasn’t relied much on the race power. Those instances where it has include landmark native title and heritage protection reforms. Constitutional recognition that jeopardises these is pointless. It’s been proposed the race power be replaced with a power to make laws for, or even for the ‘benefit’ of, Indigenous people. I disagree. These are simply race powers by another name. I favour replacing it with a power to make laws on native title, languages and cultural heritage of first nations.

Noel Pearson recently proffered another model – a Declaration of Recognition outside the Constitution and an Indigenous representative body enshrined in the Constitution which would table advice in Parliament for consideration and debate on matters impacting Indigenous people. I’m open to such a Declaration, but oppose a Constitutional Indigenous body.

Let’s not kid ourselves. This is a proposal for a third chamber of government; one which puts race squarely back into the Constitution by demarcating our system of government on racial grounds. Every law impacts Indigenous people. Will this body table advice on everything: welfare, the environment, mining, the Budget? Will there be a list like section 51? This is being sold as ‘conservative’ because it would be merely consultative – in other words because Parliament could ignore its advice. So, on the one hand we’re told this is needed because Indigenous people don’t have a voice, on the other that it’s safe because nobody has to listen to it.

Since 1973 we’ve had 4 elected Indigenous bodies with mostly low voter participation and ineffectual government relationships. The first was a mere ‘advisory’ body but tried to grant itself real powers. Eventually the government shut it down.

A third chamber is a radical proposal. I’m unaware of any global precedent for it. It certainly has no foundation in traditional laws. Indigenous people aren’t one people but many nations. The idea of one body representing us all is about as far-removed from traditional ways as the Westminster system is. The various Constitutional recognition proposals are supported by extensive legal analysis. But the success of Recognition won’t turn on what lawyers say. Legal arguments can drive referenda to fail but don’t deliver their success. You must capture the hearts and minds of the Australian people. Australia is arguably the most diverse and successful multicultural society in the world. It’s one of the youngest nations and home to the oldest nations, something all Australians can be proud of. I’d expect Australians to embrace removing Constitutional remnants of racial bigotry and support recognising Australia’s ancient origins in its formal artefacts. But proposals that stray further will be divisive and at risk of failure, like the Republic.