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February 15th 2013 print

Sebastian Tombs

Rousseau shouldn’t re-write our Constitution

Julia Gillard and Tony Abbott agree our nation's foundation document needs tweaking  to recognise Indigenous Australians. Having found common ground at last, they are both on the wrong side


In the House of Representatives this week, hostilities ceased briefly as the Prime Minister and Leader of the Opposition joined forces to sponsor an amendment to the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples in the foundation legal document of our Commonwealth.


Julia Gillard and Tony Abbott both made dignified and genuinely heartfelt speeches in support of the enabling Bill.  Abbott’s speech was particularly impressive because he drew on no formal text but relied on rough, handwritten notes.  Both Gillard and Abbott placed this amendment in a line of social evolution running through the 1967 referendum removing exclusions for Aborigines empowering the Commonwealth to make laws in relation to Aborigines, and Kevin Rudd’s 2008 national apology to the popularly-called “stolen generation”.

In moving this position jointly, both sides of politics are appealing to Abraham Lincoln’s beloved “better angels of our nature”, calling on us to do something worthwhile for Indigenous Australians.  They appeal to our sense of moral right, and to our compassion, but they are also appealing to an implied collective guilt that presumes we share responsibility for the wrongs done to Indigenous peoples since European settlement.

It may strike some as mean, but I fear going down the path of giving any one race specific and entrenched constitutional recognition would be a great mistake – even if done with the very best intentions.

Even if we are just talking about the preamble to the Constitution itself, recognising one Australian group over all the others sends a powerful message that its members are deemed to be above, and more special, than all others.  That Aborigines were here first is undeniable, but to single them out in our foundation document puts Indigenous Australians on a pedestal of which no other Australian is considered worthy.

It could be said that this is merely declaring Indigenous peoples as first amongst equals, but even if that were the case our Constitution should be blind to the colour of our skins, just as we in contemporary Australia strive (not always successfully) to be blind to the colour of the skins of those around us.  In that sense no race should be singled out in the Constitution – nor, I suggest, be given a near-feudal homage in public life by the obeisant “acknowledgements of country” that now take place daily in the federal Parliament and elsewhere.

Going down this path of  constitutional recognition is also meant to apply balm to the national conscience.  For decades we have been made to accept guilt for our predecessors’ social and cultural norms, and indeed for their deeds – especially the removal of Aboriginal children from their families. While such actions are considered repugnant when  judged through the prism of our own society and values, in the context of their time, more often than not, they were well-intentioned attempts to improve the life prospects and living conditions of men, women and children who were indeed marginalised in wider society.  Like the national apology of 2007, special constitutional recognition of Indigenous people might help the tone of the national conversation and policy agenda, but it would not undo or change the past.  We can only build the future as we would wish to build it, so let’s just get on with doing that.  Feel-good words in a legal document won’t make a jot of difference.

Then there’s the issue of highlighting Indigenous peoples’ contributions to Australian life over everyone else’s.  The Recognise movement’s website (it was their “R” badge prominently adorning the lapels of MPs during the debate on the recognition Bill) says

“while the great majority of Australians value and celebrate the unique contribution made by Aboriginal and Torres Strait Islander arts and cultures to our national identity, the Constitution, our founding national document, gives no acknowledgement of the place of Aboriginal and Torres Strait Islander peoples in our nation’s history or our contemporary society.” 

There is no reason why the first part of that statement, that most of us value the Indigenous contribution to what is modern Australia, depends on the second part, constitutional recognition.  It all seems very Rousseauian.

Put another way, this great melting pot of a country that is Australia draws on the skills, talents, cultures and social and economic contributions of people from all over the world, not just Indigenous Australians and those from the British Isles.  Shouldn’t this collective contribution be acknowledged, not just that of one particular group of Australians? Surely the only form of Indigenous recognition that matters is in our hearts and minds, and that is not something that can mandated by legislation. To single one group, Indigenous Australians, out in our Constitution from all the others who comprise our national mosaic might honour and celebrate them, but doing so implicitly relegates the social and economic contributions and capabilities of everyone else.  This is not right in a community where everyone should be equal in the eyes of each other, and certainly must be equal before the law.

Will constitutional recognition help to advance the social and economic conditions of Indigenous peoples any more than they are being advanced now?  The short answer is no.  Indigenous rates of unemployment will still be extreme and remote Aboriginal communities will still struggle with Third World living conditions. Problems with grog, nutrition and family violence will still challenge and, above all, there will still be an industry of parasitic bureaucrats, consultants, activists and lobbyists whose livelihoods depend on perpetuating Indigenous victimhood on the one hand and Middle Australia’s guilt on the other.  This only helps to promotes and entrench expectations of entitlement, dependence and hopelessness amongst Indigenous Australians, rather than self-reliance and pride.

Oh, to have more Noel Pearsons — Indigenous leaders who see that the way to redressing their people’s disadvantage is through nurturing individuals’ own efforts and self-reliance, and by a collective spurning of both the culture of dependency afflicting  many Indigenous communities and the paternalism endemic in government and the chattering classes.  Pearson gets this, but many in the wider Aboriginal industry do not.

If there are to be constitutional amendments of this sort, let them not be based on singling out one specific race.  Let them instead be practical recognition of the shared values across our society by declaring that the Commonwealth may not make laws that discriminate on the basis of race, gender or social status.  This would not stop governments developing appropriate policies and programmes to assist in redressing accumulated social wrongs and disadvantage, in which race and history undeniably play a part, but it also would send a necessary and powerful message that no one segment of society has a right to special treatment, or to discriminate for or against others.  Indeed, when it comes to Aboriginal poverty and disadvantage, there is much to be done, as John Howard’s policy of “practical reconciliation” culminating in the 2007 Intervention rightly recognised. Let’s just get on with it.

What is being proposed by our political leaders paradoxically would address discrimination by enshrining discrimination.  Even though positive and well-intentioned towards our Indigenous brothers and sisters, a strong but wrong message is being sent to all Australians that, while we are all equal, our Constitution should mandate that some Australians are more equal than others.

This debate will and should proceed, but let it do so with great caution.

Sebastian Tombs is the pseudonym of a former political operative who has advised on federal and state election campaigns