Recent columns about indigenous recognition in the pages of The Australian from self-described “constitutional conservatives” have lambasted the proposal to ban race discrimination in the Australian Constitution, labelling it a “radical” idea sure to lead to “judicial adventurism.” In reality, banning race discrimination is the smart, safe, and conservative choice when it comes to constitutional reform. Here are four reasons why.
First, the concept of banning race discrimination is not new, nor it is radical. The American Constitution banned race discrimination in 1868. A full decade ago, a breathtaking 97 % of written constitutions globally contained a specific ban on race discrimination or a general guarantee of equality. We all know that Australia is now the only democracy that has a written constitution but lacks a true bill of rights. If anything is “radical,” it is the current Australian approach.
Second, there are already, and always have been, some rights in the Australian Constitution: a right to just compensation for property taken by the government, a right to freedom of religion, a right to trial by jury, and more. There’s even already a right to be free from discrimination, but only on the basis of state residency. If “judicial adventurism” by “activist judges” interpreting rights were going to be a problem in Australia, it could have and would have manifested over the past 114 years.
Third, the decisions of our elected representatives in Parliament deserve our respect, but not our blind obedience. Does the Parliament of Australia have a perfect and unblemished record when it comes to matters of race? We know the answer because we know our history. Safeguards are necessary in a democracy, just as having health insurance is smart even when we’re not yet sick.
Finally, we should not hesitate to declare this truth as self-evident: adversely discriminating against someone on the basis of their skin colour or their ethnic heritage is a grave moral wrong. Full stop. Instead of asking why race discrimination should be banned in the Constitution, we should always ask the opposite. Why would we ever think that government needs to make people worse off because of their race? Somehow, almost every other country in the world manages to get by while constrained by a formal constitutional ban on race discrimination. Australia can too.
Changing a constitution can have ramifications. We should always be cautious and deliberate. But we need not give into paranoia, and we shouldn’t hesitate to do what is right. Banning race discrimination in the constitution is a tried, tested, and responsible way to balance the democratic voice of the majority with the fundamental rights of the minority.
Jeremy Patrick is a Lecturer at the University of Southern Queensland School of Law and Justice and co-editor of a forthcoming book on the recognition referendum.