Last week the expert panel chaired by Indigenous leader Patrick Dodson and national reconciliation advocate Mark Leibler presented Prime Minister Julia Gillard with its report titled Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution.
The panel proposes recognition of the prior occupation of Australia by Aboriginal and Torres Strait Islander peoples, and acknowledging their continuing relationship with their traditional lands and waters, and their cultures, languages and heritage.
The report reveals that many Australians do not even realise that explicit racism is among the principles and ideals in the Constitution, and how significant this is because they continue to provide the foundation for the work of our lawmakers.
Aside from the pointedly scant acknowledgement to the Indigenous Australians that were regarded as a 'doomed race', the most blatant example of racism in the Constitution — the exclusion of 'Aboriginal natives' from the census — was removed in the 1967 referendum.
But racism remains elsewhere, such as in the part of section 51 that gives Parliament the power to make laws for 'peace, order, and good government' with respect to 'the people of any race'.
Other traces of racism in the Constitution are more symbolic than practical, but this is significant because symbol can be as potent as practical possibility. There is section 25, which says people who are excluded from voting based on race cannot be included in the tally when seats in the Lower House are divided up. Removing that would have no practical effect, because nobody is excluded from voting on racial grounds any more.
It seems that those who've been aware of racism in the Constitution and prepared to tolerate it, have taken the same 'if it ain't broke, don't fix it' approach that is commonly used to justify maintaining the monarchy. This effectively blesses the attitude that it's acceptable to regard Indigenous Australians as second class citizens in theory as long as we treat them as equals in practice.
Perhaps we allow this because of a not always well placed pride in the pragmatism that we often think of as a laudable national characteristic. But it is racism.
Surely the right thing to do is to consult Indigenous Australians, as the expert panel itself has done.
As a sample of Indigenous opinion, last week's media release from the National Aboriginal & Torres Strait Islander Catholic Council (NATSICC) suggests the constitutional status quo does not even pass the pragmatism test. Chair Thelma Parker says justice for Indigenous Australians will be subject to political whim until their rights are enshrined in the Constitution.
'Currently we feel as if the goal posts are constantly shifting due to the ability to change Statute Law and legislation relatively easily via Parliament and often without consultation with Indigenous people. The Constitution, however cannot be changed without the will of the Australian people. That is the strong foundation that we are talking about.'
Unfortunately the implementation of the proposals of the expert panel will itself be subject to political whim, and opposition leader Tony Abbott has already indicated that, in broadly welcoming the report, he has 'some reservations about anything that might turn out to be a one clause bill of rights'.