The idea all people are equal and must not be divided by their race, their religion or their gender is the legacy of liberal democracy and the foundation of our freedoms.
As well-intentioned as advocates of indigenous recognition in the Constitution are, they have difficulty overcoming the fundamental and principled objection that a country such as ours should not embed notions of racial difference in the law.
This is the "liberal" objection to constitutional recognition. The "conservative" objection is that changing the Constitution will have unintended and unforeseen consequences.
The emerging consensus this week from advocates of recognition, such as Noel Pearson and Graham Bradley, that constitutional recognition is fraught with risk is welcome. Constitutional conservatives are right to point out that while all acts of government are susceptible to unintended consequences, they have the potential to be doubly serious when enshrined in a nation's foundational legal document.
The change Australia should make to its Constitution is to remove all references to race. The so-called "race power" in section 51 (xxvi), which gives the parliament the power to make laws for "the people of any race", has no role in our modern, tolerant and diverse democracy. Section 25, which governs how to deal with state governments that restrict eligibility to vote on the basis of race, should also be removed.
A referendum to agree to a declaration of recognition outside the Constitution may be well-meaning but it will do nothing to improve the lives of indigenous Australians. The strongest argument its proponents make is that it will be non-binding and have no legal force. At best, it will recite historical facts no one disagrees with and contain aspirational platitudes everyone supports.
Advocates of indigenous recognition are right — symbolism is important. Entrenching in either the Constitution or in legislation special provisions for people according to their ancestry symbolises not that all Australians are equal but that we're different.
Pearson's proposal for a new indigenous body that the parliament would be required to consult when passing legislation that affects Aboriginal and Torres Strait Islanders is in some ways even more radical than constitutional recognition. It would foster the idea the national parliament does not represent all Australians.
If it is to be representative, indigenous Australians would choose an extra set of representatives in an election that no other Australian could participate in. It could result in competing mandates that would undermine the legitimacy of laws that are passed by one parliament but rejected by the other.
The energy and the effort devoted to constitutional recognition would be better devoted elsewhere. The worst outcome would be for a referendum on constitutional recognition to proceed and be defeated. Defeat would likely be portrayed by some as proof that the majority of Australians are racist, when in fact defeat would demonstrate Australians believe we should not be divided on the basis of race.
Our attention would be better directed to more practical questions that will make a real difference to the lives of all Australians.
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