Race Has No Place in Constitutional Reform

In 1967 Australians voted in favour of a constitutional referendum proposal in greater numbers than had ever been achieved before, and has ever been achieved since.

That referendum removed racial discrimination from the Australian Constitution, and helped to further include Aboriginal and Torres Strait Islander peoples in mainstream Australian life. 90.77 per cent of the eligible votes cast were in favour of the referendum proposal.

A number of factors influenced the result in 1967—the proposal was simple, it had a clear moral message, and it proposed to remove text from the constitution rather than adding it. But more important was the idea that underpinned the proposal. The idea was uncomplicated but enormously compelling—that Aboriginal and Torres Strait Islanders are equal to all other Australians. This is the key message that lies at the heart of the success of the 1967 referendum. The easily explained proposals were aimed at equality.

As a new constitutional referendum proposal relating to Indigenous Australians appears on the horizon, it’s important for modern political leaders to learn this crucial lesson of constitutional history.

Following former prime minister Tony Abbott and his extraordinary statement that he would ‘sweat blood’ over the issue of Indigenous recognition, Malcolm Turnbull has recommitted his Coalition government to the project of recognising Aboriginal and Torres Strait Islander peoples in the Australian Constitution. The Prime Minister and Leader of the Opposition Bill Shorten jointly announced in December 2015 the establishment of a bipartisan advisory council to consult on the best way of moving forward.

The current campaign for constitutional recognition revolves around proposals that are divisive, inappropriate for a liberal democracy and which go against eff orts to move away from the outdated concept of race. The best way forward is to ensure the nation’s founding document unites all Australians in the same way that Australians were unified in 1967— around the principle of equality.

While it is intended a referendum to make such a constitutional alteration should take place in 2017, the proponents are not united in their view of what form this change should take.

As the IPA’s Chris Berg noted in the ABC’s The Dr um last year in June, ‘constitutional recognition… is a conceptual, legal and political mess,’ and nothing has changed. T e lack of clarity of what proponents actually desire is predictably giving rise to various proposals. This ranges from the supposedly minimal— such as declaratory statements of recognition—to similarly vague but objectionably more dangerous proposals such as prohibitions against racial discrimination, in effect creating a one-clause bill of rights.

There is a compelling case to be made for changing the constitution. References to race, such as section 25 and the race power in section 51 are either out of date or inappropriate in a liberal democracy. Unfortunately, much of the passion from activists is directed towards substantive proposals. Even ‘preambular’ language—a declaration in the constitution of historical fact—is not typically supported in and of itself.

Most disappointing is that so many proponents continue to see the government as the fi x when government action, particularly from Canberra, has served the Indigenous community so poorly up until now.

The report Joint Select Committee on Constitutional Recognition (JSC) tabled in parliament in June 2015, proposes a number of changes from which we can gather would ultimately be chosen for consideration by the Australian people at a referendum. The JSC made the following recommendations:

Section 25 should be repealed; section 51(

  1. vi) (the race power) should be repealed, and in its place a new ‘beneficial’ race power inserted; and that as part of a new race power, a series of declarations of recognition should be inserted, recognising the Australian continent’s first inhabitants, acknowledging and respecting that Indigenous Australians have a continuing relationship, and continuing cultures, languages and heritage.

Section 25 is another provision that includes a reference to race. Despite being mischaracterised by most as somehow permitting governments to restrict voting rights on the basis of race, it was designed to actually to prevent that from happening. At the time of federation, Queensland, Western Australia and the Northern Territory of South Australia denied the vote on racial grounds (in the case of the Northern Territory, such as it was then, most immigrants were banned from voting but all British subjects, including Indigenous Australians could vote).

Section 25 would theoretically act to exclude those groups from being counted in the population of the states, which would reduce their allotment of seats in the House of Representatives. In effect, those states which had prohibitions on voting at the state level could be penalised by losing their entitlement to the amount of House of Representatives seats they might otherwise have claimed. But that is only part of the story. At the time and until 1967, section 127 of the constitution provided:

In reckoning the numbers of the people of the Commonwealth, or of a State or other part of a Commonwealth, aborigine natives shall not be counted.

While section 25 did act to exclude various groups from determining the population of a state, section 127 rendered section 25 redundant where the franchise of Indigenous Australians was concerned. As Professor Anne Twomey noted in 2012:

Section 25, therefore, did not apply to voting rights in the States for as long as s127 existed.

Section 127 was repealed, sensibly, in 1967, which reactivated section 25. However, by that point the franchise had been extended to Indigenous Australians, leaving it redundant.

The existence of section 25 points towards a darker time in Australian history, where many laws were passed which detrimentally affected certain racial groups. Thankfully, Australia has progressed beyond those views and, as a ‘dead letter’ clause in the constitution, section 25 should be discarded.

Of more significance is section 51(

  1. vi) of the constitution, which provides that the federal parliament shall have the power to make race-based laws. This is obviously discriminatory and illiberal, and gives the federal government the power to divide Australian people according to outdated concepts of race or ethnic background.

It should be a universal principle of governance that all humans are of equal worth; conversely, the concept that the state can treat individuals differently based on personal traits such as race, religion or gender, should be rejected. To his credit, one of the chief proponents of constitutional recognition shares this view to some degree. In his 2014 Quarterly Essay on the topic, Noel Pearson roundly rejects race in the constitution, wielding a conservative case:

Conservatives value national unity They disavow separatism, collectivism and division among citizens, preferring instead individualism bound by a common sense of national unity and patriotism. That is why they should support the removal of references of “race” that serve to divide citizens.

However, soon after Pearson enters into rhetorical gymnastics by arguing that the current race power can be replaced by a new race power, that somehow isn’t quite a race power:

Constitutional recognition could therefore include removal of the race clauses and the insertion of a replacement power to enable the Commonwealth parliament to pass necessary laws with respect to Indigenous peoples.

Th is forms the basis of all the JSC’s proposals. A so-called indigeneity power is a race power by another name. For the clause to have any meaning in law, the High Court would necessarily be required to define the clause in terms of the ethnic background of a person that can be traced to pre-colonial Australia.

Furthermore, an indigeneity power which promises to be ‘beneficial’ runs into an obvious practical problem: that is, how can a law be deemed beneficial, or when would a law ever be struck down as deleterious? These are political questions that ought to be resolved democratically. Handing power to lawyers and judges does nothing to empower the Indigenous community.

There are also a number of significant problems with even the symbolic recognition proposals. No one can be certain how a future High Court will interpret words in the constitution, but given its work in recent decades to radically redraw and expand the limits of federal lawmaking power, while also reading between the lines of the document’s ‘implied rights’, it is not so absurd to be pessimistic about how the High Court would treat symbolic words in the future.

Put simply, the proponents prescribe to our constitution a symbolic power or purpose that it does not (or should not) have. Australia is one of the world’s oldest and most successful continuing democracies, which is in large part due to a constitution that is purely functional.

Limiting the constitution to such core duties is more than likely a reason why the document has been so successful in establishing Australia as a free nation. The affixation of symbolic language would distract from this.

Most strange is that the current push for constitutional recognition is being billed as concluding the work begun in the 1967 referendum. Prime Minister Abbott famously called it ‘completing the constitution’.

Although at the time of the 1967 campaign some pitched the cause as offering Indigenous peoples full Australian citizenship, it was actually a campaign to remove two clauses which referred to race—and it was overwhelmingly successful.

Now, recognition advocates wish to adopt the spirit of 1967 yet rather than remove the remaining references to race in the constitution, they wish to insert provisions of race in. This is a step backwards.

Saddest of all, Aboriginal and Torres Strait Islanders taken collectively have fallen behind. Well-intentioned but misplaced government assistance has led to welfare traps in many communities, and the response is too often an ever-more paternalistic response from the federal government. Symbolic changes to the constitution will not remedy this

Four Reasons To Reject The Referendum Council Recommendations

Our new research brief is on the Four Reasons why the Referendum Council’s recommendations for Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples should be rejected.

The proposal to entrench an indigenous ‘voice to parliament’ is a radical idea. Race should not be used as a qualification for participation in democracy.

The creation of a constitutional body to exclusively represent one group is divisive and elevates members of that group above others in our community.

The Constitution is fundamentally a rule book for the nation. Race Has No Place in the Australian Constitution.

Download the research brief here.

Race Has No Place In The Constitution

“The Coalition government’s decision to reject the divisive indigenous-only ‘voice to parliament’ is a win for equality and liberal democracy,” said Simon Breheny, Director of Policy at the free market think tank the Institute of Public Affairs.

“The decision made by the government today affirms the democratic values on which Australia was founded. The Australian Constitution should treat all Australian citizens as individual human beings, with equal rights and equal responsibilities.”

“The Coalition government’s decision represents a repudiation of a divisive ideology based on race. Race has no place in the Australian Constitution.”

“The next logical step for the government is to reject outright constitutional recognition. Recognition is not supported by indigenous or non-indigenous Australians.”

“If the Coalition chooses to pursue any changes it should remove the provisions that currently refer to race – section 25, and section 51 (xxvi),” said Mr Breheny.

To download the media release click here

For media and comment: Daniel Wild, Director of Policy; Morgan Begg, Research Fellow, via Evan Mulholland, Director of Communications, on 0405 140 780, or at [email protected].

Indigenous ‘Voice To Parliament’ Decision A Win For Liberal Democracy

This Article originally appeared in The Australian.

A recent decision of the Turnbull Coalition government has affirmed the bedrock principles of Australia as a proud liberal democracy.

The decision of the federal government to reject the proposal for a constitutionally enshrined “voice to parliament” for Aboriginal and Torres Strait Islanders was announced last week. The decision is a significant victory for the set of ideas upon which this country was founded.

The debate over the concept of the indigenous voice has been going on for some years.

A group of advocates, led by Noel Pearson, has pursued this idea as an alternative to the proposals for constitutional recognition that were put forward, first by the expert panel on constitutional recognition of indigenous Australians and then by the joint select committee on constitutional recognition of Aboriginal and Torres Strait Islanders.

But it was only after May 26 when the idea was adopted at the 2017 National Constitutional Convention, as part of the consultations conducted by the Referendum Council, that the proposal gained national prominence.

From that point the earlier proposals for constitutional recognitionwere essentially dead. The result of the discussion at the First Nations Convention was a document called “The Uluru Statement from the Heart”.

The Referendum Council delivered its final report to the Prime Minister and the Opposition Leader on June 30. The government’s official response is a clear enunciation of the principles that are the bedrock of liberal democracy. It is one of the most important documents published by this government because it ­affirms the values on which Australia was founded.

At the heart of the government’s reasoning is the idea that all Australians are equal: “Our democracy is built on the foundation of all Australian citizens having equal civic rights — all being able to vote for, stand for and serve in either of the two chambers of our national parliament”.

The government has based its decision in a democratic tradition that goes back at least to the time of Aristotle. It is a decision rooted in the idea that all citizens have an equal right to participate.

Conversely, the government’s decision not to proceed with the indigenous voice is a rejection of racial identity politics. It is a denunciation of ideologies that treat human beings not as individuals but as members of a group based on race, skin ­colour, or national or ethnic background.

The government is right to push back against such a dangerous and divisive ideology. The government also brought attention to the political reality — the voice to parliament was never going to succeed at a referendum.

It is famously difficult to achieve the requisite support for constitutional change in Australia. The double hurdle contained in section 128 of the Constitution — a majority of the national vote, and a majority in at least four out of six states — has been cleared just eight times in 44 attempts.

The suggestion by some ­commentators advocating for change that there is enough support to achieve this double ­majority is based on wishful thinking, not a rational assessment of the facts.

Back in August, Omnipoll conducted an online survey — the Australian Constitutional Values Survey — which generated 1526 responses. It found support for a voice to parliament at 61 per cent. The results were released this week following the government’s decision, attached to comments from a legal academic from UNSW making the brave claim that this online survey proved a referendum on the issue would be successful.

Many constitutional reform proposals that have started with much higher levels of initial support than the alleged 61 per cent in this case have gone on to lose.

The government was also right to raise another problem with the proposal: that “it would inevitably become seen as a third chamber of parliament”.

Proponents of change have argued that the new body would have no veto power over the parliament. But if the “voice” is advisory only, then there is no need for it to be constitutionally enshrined because the Constitution is a document that establishes and distributes power between branches of government.

The significance of the decision should not be understated. At its core the decision was about whether the political structures set out in our Constitution are built on a foundation of individual rights and responsibilities. Every Australian should rejoice that our government has affirmed these foundations.


This Article originally appeared in The Australian.

Race Has No Place In The Constitution

“The radical attempt to divide Australians in our national constitution is wrong and it will be rejected by the Australian people,” says Simon Breheny, Director of Policy at the free market think tank the Institute of Public Affairs.

The Referendum Council today delivered its recommendations to Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten, that there should be a referendum to enshrine an indigenous voice in the constitution.

“The proposal to create a new constitutional arm of the Australian government that excludes all but one race is illiberal, undemocratic and divisive.”

“The suggestion that every indigenous Australian can or should be represented by a single body is also deeply patronising. Indigenous Australians deserve better than constitutionally enshrined condescension.”

“All Australians are equal under the Australian constitution.”

“The spirit of egalitarianism runs strong in the Australian community. For this reason any referendum proposal seeking to insert race into the constitution will fail.”

“Race has no place in the Australian constitution,” said Mr Breheny.

For media and comment: Daniel Wild, Director of Policy; Morgan Begg, Research Fellow, via Evan Mulholland, Director of Communications, on 0405 140 780, or at [email protected].

No Place For Race In Our Constitution

RACE has no place in the Australian constitution. Proposals to grant special legal rights to any group of Australians based on their race will be rejected. Australians are egalitarian. Fairness is a concept that runs deep in the Australian psyche.

This is why the two proposals contained in the Uluru Statement released last week — a treaty between indigenous and non-indigenous Australians and a new constitutional body to represent the interests of indigenous Australians — will not be accepted by the public. Both proposals would divide Australians by race. And Australians will not have a bar of that.

Indigenous Australians have made a significant contribution to the success of modern Australia.

The first British settlers of the 18th century, and the waves of migrants that have followed from all corners of the globe, have also helped to make Australia what it is today.

Australia’s story is a tale of diversity. Australians are right to be proud of the fact we are a successful, peaceful, prosperous country built on a respect for ethnic and religious plurality. But just as we recognise the contribution that has been made by individuals from so many ethnic backgrounds, we also recognise that race itself is an outdated concept.

We are all members of the human race. Civilised people know that differences between races are skin deep.

For that reason, race should never be used as a motivation for passing new laws, and it certainly shouldn’t be used to grant or to take away rights in our constitution.

The Australian constitution should be colour blind. It should treat every citizen equally, and it should not give the government the power to make laws that treat different groups differently because of their race.

This is why — if we are to make any changes to the constitution — we should ensure that any references to race are removed, not added.

Currently there are two sections of the constitution that refer to race. The first is section 25, which was designed to discourage state governments from banning people of any particular race from taking part in elections.

The second is section 51 (xxvi), which grants the Commonwealth the power to pass race-based laws.

If Australians are to be asked to change the constitution it is this change that should be supported — the deletion of the two provisions that make reference to race.

But anything that seeks to insert race back into the constitution is dangerous and divisive.

Leaving aside the principle that the constitution should be completely free of references to race are a series of practical problems.

The biggest of those problems is that indigenous Australians are individuals who don’t all necessarily think the same way about matters of public policy. The suggestion that Aborigines and Torres Strait Islanders can be represented by a single voice is condescending and paternalistic.

Every adult indigenous Australian has the vote and their ability to be heard at an election is the same as all other Australians. Treating indigenous Australians differently because of their race is wrong.

The proposal for a treaty makes even less sense. Treaties are legal agreements between two or more sovereign countries. But indigenous Australians are Australians. How can a country make a treaty with its own citizens? Some members of the indigenous community are open about the need for indigenous sovereignty to come before the negotiation of a treaty.

These members of the indigenous community do not accept the legitimacy of the constitution itself. This was why a group of delegates walked out of the Uluru summit last week, when a Victorian delegate said of her delegation: “We as sovereign First Nations people reject constitutional recognition. We do not recognise occupying power or their sovereignty, because it serves to disempower, and takes away our voice”.

This form of radical race politics sits at the heart of the constitutional change put forward in the Uluru Statement. It is a divisive ideology.

Our constitution is a rule book. It clearly sets out the way the Australian government should be organised. It is not an exciting document. But it treats all Australians equally.

Indigenous Treaty Would Divide Australia Into Two Nations According To Race

All Australians are equal. This principle is the basis of our freedoms and a cornerstone of the Australian constitution.

Our nation’s founding document should unify us – not divide us.

Any proposal that seeks to enshrine division between Australians on the basis of race should therefore be rejected. And it is why any suggestion of a treaty between Indigenous and non-Indigenous Australians should also be rejected.

Rarely has such a powerful defence of equality and the value of the individual been expressed as on a hot afternoon in Washington DC on 28 August 1963.

At 3pm that afternoon in front of the Lincoln Memorial, Martin Luther King jnr created history when he uttered the words: “I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin, but by the content of their character.”

These words are as real and as relevant in 2017 as they were 53 years ago.

It is this sentiment of equality that Australians should bear in mind when considering proposals to change the Australian constitution.

The most recent proposal for constitutional change is contained in the Uluru Statement, released last week.

The Uluru Statement is the culmination of three days of discussions amongst Indigenous leaders at Uluru last week. The meeting in Uluru follows six months of community consultations with Indigenous leaders held by the government-appointed Referendum Council.

The Uluru Statement is a response to the key issue these deliberations were established to address: whether Indigenous leaders support the proposal to “recognise” Aboriginal and Torres Strait Islanders in the Australian constitution, and if so what form the change should take.

The Statement calls for a treaty between Indigenous and non-Indigenous Australians, and also proposes the establishment of a new constitutional body to represent Indigenous Australians: “We call for the establishment of a First Nations Voice enshrined in the constitution.”

These are radical proposals that will divide Australians on the grounds of their racial identity. These proposals are the manifestation of radical identity politics.

Formally dividing Australians by law is a dangerous idea, doubly so when that division is done on the basis of race, skin colour, ethnicity or indigeneity.

The Commonwealth parliament represents all Australians. This is why an advisory body for Aboriginal and Torres Strait Islander Peoples enshrined in the constitution cannot be accepted.

A separate body, whether it is called an Aboriginal and Torres Strait Islander peoples advisory body, a new chamber of the Commonwealth parliament, an Indigenous parliament, or a First Nations Voice undermines the idea that all Australians are equal under our democratic system. All policy decisions are Indigenous policy decisions, because Indigenous Australians are Australians.

Treaty, which is sometimes referred to by the Yolgnu word for treaty, “Makarrata”, would divide Australia into separate nations. Aboriginal and Torres Strait Islander peoples are Australian. The idea that they are separate from Australia is dangerous, and a treaty between Indigenous and non-Indigenous would divide Australians according to race.

Australia is one of the oldest and most successful democracies because our constitution is based on the idea of the equality of all Australians.

If any constitutional changes are to be contemplated they should make the constitution truly colour-blind and remove all references to race in the document.

There are two current sections in the Australian constitution that refer to race – sections 25 and 51 (xxvi). Section 25 was intended to prevent state governments from restricting the right to vote according to a person’s race. Section 51(26) gives the Commonwealth government the power to pass race-based laws.

Section 25 is unnecessary because equal voting rights are already guaranteed under the constitution. Section 51(xxvi) is discriminatory and illiberal. Race-based laws are incompatible with the equality of all people.

Taking out these sections removes the Commonwealth government’s constitutional power to divide Australians.

If these two sections are removed, no new references to race, or skin colour, or ethnicity, or indigeneity should be added.

The Institute of Public Affairs believes there should be no references to race in the constitution. The constitution should not divide Australians according to race.

Australia’s success as a free and prosperous country is founded on the idea that all humans are of equal worth. Regardless of race or ethnic background, all Australians must be treated equally by the government and by the law.

In the constitution, all Australians should have the same rights and should share the same responsibilities.

Race has no place in the Australian constitution.


This article originally appeared in the IPA Review.

Bill Shorten’s push for a treaty with Aboriginal Australians is as divisive as it is dangerous, writes Morgan Begg and Simon Breheny.

Debate over the constitutional recognition of Aboriginal and Torres Strait Islanders has consumed Australia’s political class for almost a decade. Ever since former Prime Minister John Howard promised to recognise indigenous Australians in the constitution if the Coalition government won the 2007 election, every prime minister and opposition leader has committed to deal with the issue.

What would a treaty with Aboriginal and Torres Strait Islanders look like? And is there any merit in the proposal?

But after years of debate, the door was opened to a far more radical solution on 13 June, 2016 when opposition leader Bill Shorten indicated that a future Labor government could support a ‘treaty’ with Aboriginal and Torres Strait Islander peoples. This is not a new idea, but support for a treaty has fallen away in recent years, partly due to the attention placed on, and bipartisan support for, constitutional recognition.

Now Shorten’s intervention on this issue has given rise to a growing chorus of support for the concept of a treaty, and shifted focus away from constitutional recognition.

But what would a treaty with Aboriginal and Torres Strait Islanders look like? And is there any merit in the proposal?

The basic idea of a treaty is simple: It is an agreement between two or more sovereign nations. The legal technicalities are outlined in the Vienna Convention on the Law of Treaties, in which Article 2 states: ‘Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation…’

Howard delivered a typically succinct statement on the possibility of an indigenous treaty back in 2000 when he said: ‘A nation does not make a treaty with itself.’ Howard had previously expressed his reservations on the issue in 1998, stating: ‘I don’t like the idea of a treaty because it implies that we are two nations. We are not, we are one nation. We are all Australians before anything else, one indivisible nation.’ Howard’s thoughtful commentary highlighted the most significant issue facing those advocating a treaty – sovereignty.

A treaty is not a legally coherent concept when one of its parties is not a sovereign state. And what this reveals in the context of the proposed indigenous treaty is perhaps the most interesting aspect of this whole debate. The more fundamental question is not whether to have a treaty, or what the terms of such a treaty might be, but whether there is a claim to indigenous sovereignty and statehood. Recognition of sovereignty must necessarily precede a treaty.

This is a very significant point. And it is of course feasible to advance such a proposal, and to make arguments in favour of it. However, the claim to sovereignty is very rarely put forward in such explicit terms. What is more common in the debate around an indigenous treaty is for the discussion to skip over this necessary precondition altogether, or for the discussion to revolve around a legal document which appears to bear little resemblance to a properly-defined treaty.

A good example of this prevarication can be found in the definition of a treaty provided by Australians Together, a reconciliation organisation with the aim of ‘bringing Indigenous and non-Indigenous Australians together’.

Calls for a treaty in Australia refer to a formal agreement between the government and Indigenous people that would have legal outcomes. A treaty in Australia could recognise Indigenous people’s history and prior occupation of this land, as well as the injustices many have endured. It could also offer a platform for addressing those injustices and help to establish a path forward based upon mutual goals, rather than ones imposed upon Indigenous people.

Other organisations and individuals promoting an indigenous treaty adhere to similar definitions.

The significance of a proposal in favour of sovereignty is one that requires very careful consideration. Sovereignty raises a very long series of questions. With whom is the Australian government negotiating? Does sovereignty mean the annexation of a proportion of the Australian landmass? If so, where? What qualifies a person for citizenship of the new sovereign entity? What will be the governance structure of the new sovereign entity? The lack of attention given to these questions is concerning given the issue’s complexity.

The description of treaty by Australians Together raises a second practical problem-content. The possible list of inclusions in a treaty is nearly limitless, and might include a separate indigenous parliament, additional rights to land, a significant expansion of social programs provided by government, new race-based anti-discrimination provisions or recognition of indigenous culture and language.

But none of these policies appear to require sovereignty, or ‘treaty’. With the possible exception of an indigenous parliament (depending on the structure and powers of such an entity), each policy prescription is a political claim within the normal parameters of public policy and, as such, ought to be debated and decided upon through the usual political process.

Putting that objection to one side, the practical effect of some of these policies would be a significant increase in the level of government involvement in the lives of indigenous Australians. Given the many problems associated with government policies directed at assisting Aboriginal and Torres Strait Islanders over recent decades, it is unclear how an expansion of these programs would lift indigenous Australians out of poverty, or increase health or education outcomes.

Treaties in other countries are frequently cited as examples that Australia could follow. However, it can be seen that the relevance and success of these treaties in countries such as New Zealand and Canada are vastly overstated, and that the living standards of their indigenous populations still significantly lag behind the rest of the population, despite the existence of a treaty or treaties.
New Zealand’s Treaty of Waitangi, so often put forward as an example that Australia should follow, was formed under very distinct and particular circumstances.

Signed in 1840, the Treaty of Waitangi was signed by representatives of the British Crown and several MÄori chiefs of the northern island of New Zealand. It was intended as a practical means of ending conflict between MÄori tribes and settlers, but also conflict between different Maori groups, in what was known as the Musket Wars. As western weaponry began to be circulated among the natives by European traders, the battles between the tribes became devastating, resulting in the deaths of tens of thousands of MÄori’s between 1807 and 1845.

Many MÄori chiefs signed the Treaty of Waitangi in order to secure peace (imposed by the newly sovereign British Crown). As a peace treaty between native tribes and a not-yet sovereign colonial force, the Treaty of Waitangi is of little relevance to Australia today.

While the imposition of peace was certainly beneficial for the MÄori people, the Treaty of Waitangi has not delivered improved living standards, as sought by advocates of an Australian treaty. According to the International Work Group for Indigenous Affairs, ‘MÄori life expectancy is still 7.3 years less than non-MÄori; household income is 78 per cent of the national average; 45 per cent of MÄori leave upper secondary school with no qualifications and over 50 per cent of the prison population is MÄori’.

The situation is not much different in Canada. In the 18th century, British America entered into a series of peace and friendship treaties with Indigenous groups to secure the neutrality or the alliance of those groups in Britain’s ongoing conflict with the French. Later treaties between the Canadian government and indigenous groups entered into post-confederation to allow for settlement and gave the Dominion large tracts of land in return for certain promises, such as the provision of food aid and education. Ever increasing sums of money spent tackling Canadian Aboriginal disadvantage – whether tied to treaty obligations or not – have outpaced the growth of the Canadian welfare state in general, and as the Fraser Institute notes, has resulted in little improvement in Aboriginal living standards or advancement.

Rather than continuing to divide Australians according to race or skin colour or ancestry, Australian governments must adhere, in all policy areas, to the liberal democratic principle that all citizens are equal.

At the heart of the push for a treaty is a deeply negative perspective on Australia, and the place of Aboriginal and Torres Strait Islanders within it. As University of New South Wales law professor George Williams wrote in 2014: ‘A treaty … could recognise the history and prior occupation of Aboriginal peoples of this continent, as well as their long-standing grievances. It could also be a means of negotiating redress for those grievances’.

While no one can doubt that certain discriminatory policies of past governments have negatively impacted indigenous Australians, the solution to the contemporary problems faced by Aboriginal and Torres Strait Islanders cannot be the perpetuation of the attitudes that have led us to the position in which we find ourselves today. Past injustices have been caused by a belief that indigenous Australians should be treated differently from other Australians. This is both unacceptable in moral terms, and catastrophic in practical outcomes.

Rather than continuing to divide Australians according to race or skin colour or ancestry, Australian governments must adhere, in all policy areas, to the liberal democratic principle that all citizens are equal.

A treaty fails the test of equality. It would be divisive, dangerous and a prolongation of the mistakes of the past.

This article originally appeared in the IPA Review.

A Treaty With First Australians Is Divisive And Dangerous

This article orginally appeared in The Australian.

The concept of a treaty with Aboriginal and Torres Strait Islander peoples is illogical and divisive. The current push for such a document is misguided, and should be abandoned.

It’s difficult to think of another policy idea that has taken hold with so many people with so little thought.

Bill Shorten backed the idea on national television. University academics have endorsed a treaty. Newspapers have editorialised welcoming the concept. The striking thing about the discussion is that there’s so much of it but so little actual engagement with what it means that it has failed to grasp the fact that the most basic requirements for a treaty simply do not exist.

This is symbolism over substance at its absolute worst. Promising better prospects for some of Australia’s least well off without having any evidence that this proposal could achieve such a future is wicked. But the idea of a treaty does not just hold out false hope. It is also a highly divisive and dangerous idea.

You do not have to be an expert on the Vienna Convention on the Law of Treaties to understand that a government entering into a treaty with a group of its own citizens is legally nonsensical. Treaties are legal documents entered into by two or more sovereign states.

Individuals or groups of individuals simply do not have capacity to enter into this form of legal arrangement. Capacity is a legal term that many will be familiar with in the context of contract law. It is the legal concept which dictates that children are unable to sign a valid contract.

But capacity also has application in the area of treaty law because only sovereign states can enter into treaties. An individual may sign a treaty but only on behalf of a sovereign entity.

In the context of a potential treaty with Aboriginal and Torres Strait Islanders, there is no second sovereign state. We are all Australians – indigenous and non-indigenous.

The only way the concept of a treaty makes any sense is if it is coupled with secession. Although this part of the equation is not often talked about it was hinted at by an audience member when the Opposition Leader was on ABC’s Q&A before the election.

An Aboriginal sovereign state is not an idea that will gain much traction in Australia. Part of the reason for this is that Australians recognise that many of the problems faced by Aboriginal and Torres Strait Islanders have been caused by treating Australia’s indigenous population as separate from the rest of us. Rather than addressing Aboriginals as individuals, many policies have lumped them together and tried to apply one-size-fits-all solutions. No idea is more offensive to our egalitarian instincts than dividing Australia according to race or ethnicity.

Even setting aside the sovereignty question for the sake of the argument gets us no closer to resolving all the problems associated with this ill-considered proposal. Who speaks on behalf of Aboriginal people? Even if such a person or a group of people could be identified it is still unclear whether a single treaty covering all indigenous Australians would be sufficient.

Before European settlement in Australia there were a large number of Aboriginal nations – perhaps as many as 700 – that occupied the land mass now known as Australia. A not unreasonable question is whether separate treaties are required for each nation still in existence today.

These are the initial hurdles proponents must clear before we get to the central question at issue with any treaty: what goes in it?

Much of the discussion about the content of a potential treaty has involved a ramping up of existing indigenous policy areas – land rights, self-determination, and language and cultural issues. Apart from lacking any creativity, this approach fails to recognise that past policies have not achieved the outcomes they set out to.

Moreover, every policy area proposed as content to any treaty will be debated just as passionately as indigenous policies are debated today. A treaty doesn’t circumvent the democratic process.

Advocates for a treaty are attempting to solve a complex conceptual problem with an even more complex conceptual mechanism. It’s a recipe for failure.

As demonstrated here, a treaty makes no conceptual sense. The very idea is legally unsound. But there is an even more fundamental reason for abandoning the pursuit of a treaty: it seeks to divide Australia.

Both a treaty and constitutional recognition of Aboriginal and Torres Strait Islanders will be rejected for the same reason: they would entrench division, rather than seeking to unify us. Policies that separate one group of Australians from another are not ideas that represent the country that Australia is and should continue to aspire to be.

This article orginally appeared in The Australian.