Flat White

Is constitutional recognition a good idea for democracy?

27 January 2022

4:00 AM

27 January 2022

4:00 AM

Janet Albrechtsen has a piece in Wednesday’s Australian concerning the proposed Voice to Parliament and constitutional recognition of Indigenous Australians. She rightly opposes the inclusion of the Voice itself in the Constitution:

The question is this: does parliament remain sovereign in Australia, or will there be a co-equal voice that is immune from abolition by parliament? In other words, if the voice becomes corrupt or ineffective like its predecessor, ATSIC, or if it is simply no longer necessary or appropriate, can parliament get rid of it? Not just modify, improve or suspend – but to abolish it and possibly without replacing the voice?

She goes on to say:

Australians might even happily live with the insertion of a facilitative power in the Constitution that authorises the parliament to legislate for the voice and enables it to amend or abolish the voice, with or without a replacement. That seems an elegant compromise. It gives the voice constitutional recognition while not compromising parliamentary sovereignty or establishing a two-tier society divided on racial lines.

Such a power already exists. It’s called Section 51 (xxvi):

The Parliament shall, subject to this constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to … the people of any race for whom it is deemed necessary to make special laws.

This provision is the result of the much applauded (at the time) 1967 referendum. It was specifically aimed at addressing the disadvantage suffered by Indigenous Australians.


However, today’s activists don’t want to be merely members of just any race. They would argue that the Voice is not based on their race but on their unique position as the original possessors of this continent. But the Voice is inextricably bound up with Section 51 (xxvi) because it is supposedly designed to inform legislation enacted under this provision.

Whilst a constitutionally enshrined Voice (a third chamber) is, as Albrechtsen points out, highly unlikely to gain the necessary support, constitutional recognition, which she apparently supports, is not merely a benign and overdue acknowledgement of the original inhabitants in our foundational document.

The Australian Constitution is not an aspirational document.

It does not define who we are or what values we espouse or what our history comprises. It is a very prosaic document – its third item covers the salary of the Governor-General. It is effectively a power-sharing agreement between seven entities, the Commonwealth and the six original self-governing colonies which became states under its provenance.

If we are to specifically include another political entity, in this case a group which calls itself ‘our First Nations’ and acknowledges its own flag – even by virtue of some innocuous acknowledgement in a preamble (which does not actually exist) – then we are inviting them to demand their own slice of political power unavailable to other Australians, and giving future activist High Court justices the constitutional lever to accede to their demands.

Constitutional recognition is a Trojan horse.

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