We are doing everything we can … except making a difference.

By Lyle Dunne

Am I the only person who’s noticed something odd about the proposals for an “Indigenous  amendment” to the Constitution?

It’s pretty well known that there are very few political questions in Australia for which a Constitutional amendment is the right answer.

But this is the first time I remember a strong, apparently bipartisan clamour for a constitutional amendment – with almost no consensus about what it’s actually for.

The report Recognising Aboriginal and Torres Strait Islander peoples in the Constitution was presented to the Prime Minister on 19 January 2012.

There are various proposals for specific measures, as we’ll see, but it’s not clear that they have much in common. Certainly many go far beyond “recognition” in any usual sense, as David Flint has noted. They seem to have been combined opportunistically to pool support – which is likely to unravel as soon as the discussion moves on to specifics. Those who remember the “Republic” referendum will be familiar with the process.

Insofar as there is a consensus, it appears to be at the level of “something needs to be done for the Aborigines” – like the famous Yes Minister syllogism:

Something must be done. This is something. Therefore this must be done.

But there is a more specific, unacknowledged subtext: “something symbolic needs to be done for the Aborigines”.

Why? Because it’s much easier to provide symbolic benefits than real ones. Of course the novelty soon wears off, and people remember Aborigines’ actual conditions . But  you can just provide another symbolic benefit – with real electoral payoff.

In effect, we’re saying to indigenous Australians:

“Look, you’ve got Land Rights, there’s National Sorry Day, the National Aboriginal and Islander Day of Celebration; there’s that Paul Kelly song; we acknowledge the Traditional Custodians every time we have a meeting; Kevin Rudd apologised to you, for Heaven’s sake –  Kevin Rudd! And now we’re going to mention you in the Constitution!

“So what do you mean by complaining that you can’t find jobs, you’re dying young, your communities are rife with domestic violence, sex abuse and substance abuse?

“Can’t you see we’re doing everything we can?”

So now we have a grab-bag of sometimes-contradictory measures designed to demonstrate concern, and no clear message about what benefits they’re supposed to provide, or evil to remedy, apart from attempts to trump opposition through what Warren Mundine calls “playing the racist card”.

Perhaps the least controversial is the proposed deletion of Section 25.

S25 provides that, if a State excludes members of a particular race from voting in its elections, then those excluded will not be counted in determining the number of House of Representatives seats for that State. This provides a sanction against racist enrolment law (which Keith Windschuttle argues was the original intent), but the panel say it allows for the possibility of racist enrolment law, and has to go.

Something must be done. This is something. Therefore this must be done.

Still fairly tame is the proposal to make English Australia’s official language, while recognising indigenous languages.

Slightly more controversially, the report deals with its formal agenda,  “recognising” Indigenous Australians,  via a series of dangling participles in a kind of “internal preamble” to a new S51A (see below):

• Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
• Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
• Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
• Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples.

With the possible exception of the last (which we’ll touch on shortly), none of these statements is intended to have any real effect; we’re deep in the territory of the safely symbolic.

But it’s the “discrimination” provisions where the report threatens real changes – and ties itself in knots justifying them.

Some consider “discrimination” the greatest sin imaginable – without thinking too much about what it means. For example, there is a certain irony in seeing both proposals to repeal the Commonwealth’s race power, and the 1967 extension of it, as blows against discrimination.

(The latter was the principal effect of the 1967 referendum, which also repealed provisions excluding Aborigines from the census count.  The persistent ahistorical myth that it gave Aborigines Australian citizenship, or the right to vote, still bedevils discussion in this area.)

Apart from the prejudices of anyone with a smattering of twentieth-century history, there is a strong case for avoiding explicit race-based legislation, even to alleviate disadvantage. It risks equating membership of the race in question with disadvantage – and risks generating resentment of “preferential treatment” among other groups.

Of course, one can still assist disadvantaged groups (remote-area unemployed;  those with cultural and/or linguistic barriers to accessing services, or whose land use predates formal title arrangements) who might be disproportionately or exclusively indigenous, but on the basis of their circumstances rather than their ancestry.

Prior to the release of this report, there was a concern that the authors would try to have it both ways, eliminating racially-discriminatory provisions but allowing “good” discrimination (laws for the “advancement” or benefit of indigenous Australians).

In the event that was basically what happened — although “advancement” only appeared in an “internal preamble” statement as noted above. I’m not a Constitutional lawyer, so I don’t know whether this will be legally binding, but on the “vibe of the thing” approach of recent courts I wouldn’t rule it out.

Noël Pearson, a member of the panel, and generally the most lucid and practical commentator on indigenous issues, argued in The Australian that race-based legislation has been disastrous for indigenous Australians:

…In the past the race power was used as the means for adverse discrimination and exclusion. Since 1967 it has been primarily used as a means for positive discrimination and responding to mendicancy.

Whatever the motivation for special racial treatment, the results of both are dismal.

We need to address the social and economic disadvantage of indigenous peoples on the same basis as that of other citizens: on the basis of social need, not ethnicity, colour or origin.

However he goes on to argue that indigenous culture and identity should be recognised.

But he wants to do it in the constitution, which is where complications arise.

If we mean “culture” in the “common man’s” sense – arts, language, literature etc – then the idea of legislative, let alone Constitutional, controls on it sounds alarmingly Orwellian.

But Pearson’s call for the Constitution to recognise indigenous culture in the way it recognises mainstream culture only makes sense if we interpret “culture” broadly enough to include the subject matter of the Constitution: the system of law and government.

I’m certain Pearson does not mean to give tribal law and governance equal status to our common law or Westminster systems.  But I’m not certain what he does mean by using the Constitution to acknowledge culture and identity.

If we mean “culture” in the “common man’s” sense – arts, language, literature etc – then the idea of legislative, let alone Constitutional, controls on it sounds alarmingly Orwellian.

Second, Pearson’s logic implies “recognition” in, say, a preamble, without legal effect. But the report specifically rejects this approach, preferring

a new grant of legislative power with its own introductory and explanatory preamble [as quoted above] to replace section 51(xxvi) [the current “race power”]:

This new power is found in the proposed Section 51A:

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

This is emphatically not just about recognition of culture or identity.  And interestingly, it would take Commonwealth law-making power full circle, covering the following racial categories:

• pre-1967: all except Aborigines,
• currently: all including Aborigines,
• proposed: only  Aborigines.

It is, to say the least, not clear that this is less discriminatory.

Some may object to this categorisation: the proposed section does not mention the R‑word, so perhaps it intends “Aboriginal and Torres Strait Islander peoples” in some other sense, such as the Pearsonian-cultural sense.

OK, here’s a test for you. Hands up anyone who thinks that if this were passed, a court would find a person who was genetically Aboriginal, but raised exclusively in white society – say, a member of the “stolen” generation” — to be not Aboriginal?

So, genetics still trumps culture, then.

In fact the use of the term “peoples” is a dead giveaway here: not individuals of indigenous background, but Aborigines as a people.

Do you know the difference between a race and a people?

Neither do I. It seems we’re avoiding the word race – so far – but holding onto the concept.

But for anyone who remains unconvinced, consider the wording of the most radical recommendation, the proposed new Section 116A Prohibition of racial discrimination:

1. The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
2. Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Does this look like Pearson’s “race-blind” approach? Putting the word “race” back into the Constitution runs dead counter to his logic. Subsection (2)’s exceptions only make sense if the “groups” are based on “race, colour or ethnic or national origin” – and with indigenous groups, we can skip the last.

Moreover, “overcoming disadvantage” is not much clearer than “advancement”. Both seem to require positive outcomes. But the benefits of practically every measure in relation to indigenous Australians – placing them in settlements, or taking them out; removing “at-risk” children; allowing communities to exclude alcohol, or unwanted visitors; indigenous-specific employment and education measures; welfare reform; the NT intervention – have been questioned. Resolving such questions may involve balancing considerations of health, finance and personal liberties together with land rights and spiritual factors.

Are these decisions we want to entrust to the judiciary?

There is much more to be said in this debate:

• How does the provision empowering the Commonwealth to make laws in relation to “Aboriginal and Torres Strait Islander peoples” relate to the provision prohibiting the Commonwealth (and States) from discriminating on the grounds of “race, colour or ethnic or national origin”?
• Are “laws or measures for the purpose of overcoming disadvantage” to be identified in terms of their stated purpose, or their actual (predicted) effects?
• Why do we need the Constitution to duplicate existing State, Territory and Commonwealth anti-discrimination legislation?
• Is the plan to tie all the sub-proposals together merely a further attempt at brinkmanship, along the lines of the “racism card”?
• Will the revelation that the left see this as yet another opportunity to attack the legitimacy of Australia as a nation – like earlier “genocide” claims, and the myth of the myth of terra nullius, all comprehensively discredited by Keith Windschuttle and others — be enough to kill it off?
• Does the announcement that there’s not enough time to consider this referendum at the next election mean it will be allowed to die a natural death, or will Abbott’s respect for Pearson mean it will still have a serious chance of being resurrected later – in some form?

On the last at least, time will tell. The debate is far from over; as I put the finishing touches to this article, the Prime Minister and Opposition leader are being besieged by indigenous protesters in Canberra, apparently because Tony Abbot suggested that after forty years of the tent “embassy”, it was “time to move on”.  Clearly there are many in the community who are very threated by the prospect of “moving on” from their comfortable resentments and familiar demonology.

But we’ll continue to monitor developments. Watch this space.