DAVID SOLOMON. Aliens in a racist Constitution.

Almost all the arguments against constitutional recognition of Aboriginal and Torres Strait Islanders went out the window on Tuesday, courtesy of a decision by the High Court (Love v The Commonwealth).

But that won’t make getting a referendum, and getting it passed, any easier. If anything, it will now be more difficult.

 At the same time, claims by many Aboriginal leaders that there needs to be a Makarrata, or treaty (like the Waitangi treaty in New Zealand) became less tenable.

 However the Court’s decision should add weight to the arguments of those who support the creation of an Aboriginal and Torres Strait Islander ‘voice’ to the Parliament.

 The High Court’s decision was in a case brought by two men that the government had decided to deport because of their criminal records. Both had Aboriginal lineage, and it was on this ground that they challenged the Government’s right to remove them from Australia, even though neither held Australian citizenship. They claimed that the relevant section of the Migration Act relied on the Parliament’s power to pass laws about ‘aliens’ They argued they were not aliens, because of their aboriginality.

 The Court split 4-3 in holding that the two men were not within the ‘aliens’ power conferred on the Parliament by the Constitution.

 The decision is all about race, as those who criticise it bitterly complain as they denounce it. They say that the High Court has created a special right for Aboriginal people, to be (if they wish or if the circumstances so dictate) non-citizens/non-aliens. True.

 However the majority (in separate judgments) essentially held that this special position flowed from the High Court’s decision in the Mabo case, the ground-breaking decision almost 30 years ago that recognised native title.

 As Justice Michelle Gordon put it:

 ‘One of the central pillars of Mabo [No 2] is that the assertion of sovereignty brought with it the common law and that, consistent with the legally unchallengeable fact of sovereignty, the common law can and does recognise that Indigenous peoples can and do possess certain rights and duties that are not possessed by, and cannot be possessed by, the non‑Indigenous peoples of Australia. Those who have these rights and duties are determined by Indigenous laws and customs. They include rights and duties with respect to land and waters within the territory of Australia. Those to whom Indigenous laws and customs give those rights and duties with respect to land and waters within the territory of Australia are, and must be recognised as being, part of the “people of Australia” and not aliens.’

 One of the Aborigines in this case was a native title holder, despite not being an Australian citizen.

 On the other hand Chief Justice Kiefel, in the minority, said ‘race is irrelevant to the questions of citizenship and membership of the Australian body politic’.

 But that has not always been the case.

 The Australian people in the 1890s approved a racist constitution for the new Commonwealth of Australia. It discriminated against Aboriginal people, and it gave the Parliament power to make racist laws. It allowed the use of the immigration power to enforce a White Australia policy that had near universal acceptance within the Australian community. And then legislation in 1902 ensured that Aboriginal people could not vote in federal elections, a disability that remained on the books for 60 years.

 The constitutional provisions aimed at Aboriginal people were removed from the Constitution in 1967 after a referendum in which the largest ever majority of the people voted ‘yes’. The race power remained, but was altered so that it could be applied to Aboriginal and Torres Strait Islander people – as happened later, to give legislative effect to the native title decision in the Mabo case.

 Both majority and minority members of the Court in this week’s case accepted two other aspects of the Mabo case that need to be recognised in the debates about the relationship between Aboriginal and Torres Strait Islander peoples and the government and all other Australians.

 The first is a test for Aboriginality – described as a tripartite test. First, the person must be biologically descended from Aboriginal people, second, they must self-identify as Aboriginal and third, they must be recognised as a member of an Aboriginal group by its elders or those with traditional authority to determine its membership. (There is a problem with that third step as two of the judges in this case pointed out: it gives power to elders or others who may not be representative or accountable to determine the issue. Nevertheless, the tripartite test is firmly established as THE test.)

 The second is the notion of sovereignty. This was squashed in the Mabo decision, and that was reaffirmed in this week’s decision in Love. Absent sovereignty, you can’t have a treaty between Aboriginal people and the Commonwealth. This no doubt is why calls for a treaty have diminished in recent years. The Uluru Statement from the Heart, drawn up by a convention of people appointed by the Prime Minister and Leader of the Opposition, and widely endorsed by other Aboriginal and Torres Strait Islander people, does refer to a kind of sovereignty, but does not require a formal treaty.

 Instead it seeks the establishment of a First Nations Voice enshrined in the Constitution and a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

 The Voice proposal suffered a major setback when characterised, ridiculed and rejected by some Liberal and National Party leaders as a third chamber of the Parliament. In the High Court judgment, Justice Gageler noted the Voice proposal and regretted that no voice representing Aboriginal people had informed the court of the possible ramifications of its decision.

 In fact the idea of any reforms advocated by the Voice obtaining constitutional status seem doomed, ruled out already by Indigenous affairs Minister Ken Wyatt who is aware of coalition parliamentarians who are prepared to campaign against it. They would be joined by smaller parties, no doubt including Pauline Hanson’s.

 There is no widespread political consensus favouring constitutional change (in this or any other area) such as existed in 1967. Then I recall the Victorian Premier, Sir Henry Bolte, boasting to me and some journalistic colleagues that he had voted ‘no’ in the referendum – but because of the general public support for it, he hadn’t been prepared to make his view public, let alone campaign against it.

 Rejection of constitutional change should lead to a compromise – the establishment of a representative Aboriginal and Torres Strait Islander body which would be given the opportunity to comment on legislative and administrative matters before they are enacted or implemented by the federal government. In fact it’s the sort of body that the Prime Minister could usefully consult if he is to reform the Closing the Gap process so that it delivers on its promises.

 David Solomon is a former political and legal journalist.