Undemocratic, uncertain and politically unviable? An analysis of and response to objections to a proposed racial non-discrimination clause as part of constitutional reforms for Indigenous recognition

The aim of this paper is to further understand and respond to objections to the proposal for a constitutional prohibition on racial discrimination, proposed as part of constitutional reforms for Indigenous recognition. These common objections are: first, that a racial non-discrimination clause in the Constitution would be undemocratic; second, that its operation would be too uncertain; and third, that the proposal would be politically unviable in any case, and would fail at a referendum. I seek to respond to the three objections in the following manner. First, I argue that the undemocratic objection to the proposed clause is outweighed by the fact that the race clauses in the Constitution are in themselves undemocratic. In a liberal democracy, citizens should have an equal say via their equal vote, and should be treated equally by governments on the basis of individual circumstances, rather than on the basis of race, ethnicity or skin colour. I argue, therefore, that those who see the Constitution as a structural document which sets up the procedures of government and democracy - without supporting entrenchment of a broader bill of rights - should nonetheless support correcting the undemocratic 'race error' in our Constitution. While a restraint on government's power to racially discriminate would be judicially adjudicated, like the rest of the Constitution, this does not necessarily mean that such a clause is undemocratic. Rather, a reform entrenching a basic element of liberal democracy - equality before the law with respect to race - would be a democratic improvement on the current situation, which promotes and allows differential treatment of citizens on the arbitrary, unfair and unclear basis of race. Second, in response to the uncertainty objection, I argue that given the fact of racial discrimination in the Constitution, the proposed racial non-discrimination clause may be the most clear and certain way to address the problems at hand. Third, responding to the political unviability objection, I make the political argument that a stable and cohesive society requires a sense of national unity on the basis of equal citizenship that is free from racial differentiations, and that the racial non-discrimination proposal is capable of winning bipartisan and popular support by appealing to these ideals.