“Almost 50 years ago, Australians voted to recognise land rights over terra nullius, and to outlaw the policy of assimilation for Indigenous people. Although they seemed like small changes, they provided an impetus for real change in terms of reconciliation. Now there’s a groundswell of support for Indigenous heritage to be recognised in the Constitution. Frank Brennan is a leading thinker and commentator on legal and human rights issues, and his new book, No Small Change, is a vital contribution to our understanding of Indigenous affairs.”
That’s the blurb of the Sydney Writers’ Festival for a talk by Fr. Frank Brennan in the Kogarah Library this week. If you are not alarmed, you should be. If that is an example of mischievous propaganda we are going to see from proponents of an Aboriginal-centric referendum in 2017, we can be certain of the need to gird loins for a long fight against Recognise. Fortunately,Senator Cory Bernadi this week promised to vote against the amendment proposal in Parliament, which would trigger the requirement for the Government to publish the case for a “NO” campaign.
As everyone should know, the May, 1967, referendum said nothing about land rights, about terra nullius or a supposed policy of Aboriginal assimilation. What it did was erase discriminatory references in two sections of the Constitution, viz.:
‘the words “other than the Aboriginal people in any state” in Section 51. 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:
(xxvi) The people of any race, other than the Aboriginal people in any state, for whom it is necessary to make special laws. Removed the whole of Section 127. In reckoning the numbers of the people of the Commonwealth, or of a state or other part of the Commonwealth, Aboriginal natives should not be counted.
Two years away from a vote which the Prime Minister would like to see succeed, sentimentally, exactly half a century after that historic referendum, and with nothing at all agreed on the wording of amendments to be put, hysterics are claiming 75% of the population are in favour. In favour of what exactly?
On New Year’s Day, 2014, Tony Abbott said:
“I will start the conversation about a constitutional referendum to recognize the first Australians. This would complete our Constitution rather than change it.”
This was sufficiently vague for many people to agree with what seemed a motherhood statement, but as soon as it was examined in relation to the Constitution itself, difficulties arose. Aboriginal leaders may argue about what the amendments should contain, but they are adamant in seeking to establish the primacy of the Indigenous tribes of the mainland and the Torres Strait islands. Unwilling to accept equality with those whose forebears came to this land more recently, they want recognition of a special “Australian-ness.” This is not only an attempt to re-write history, but also to lay the legal foundation for special and favourably discriminatory treatment.
Father Brennan, a Jesuit, is Professor of Law at the Australian Catholic University. His latest in a series of books on Aboriginal questions is No Small Change, the centerpiece of his Sydney Writers Festival speech. Brennan heartily endorses the sentiments of Patrick Dodson and Mark Leibler, co-chairmen of the Expert Panel on Constitutional Recognition set up by Julia Gillard:
“The logical next step us to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognizing their continuing cultures, languages and heritage as an important part of our nation.”
But he goes further than acknowledgement. He wants Section 51(26) amended to allow the Commonwealth Parliament to make laws with respect to the distinctive Aboriginal matters of history, culture, language and land rights. If this should happen. and Australia gains a bifurcated constitution, endorsing two classes of citizens, democracy here is dead. But before that comes to pass, an angry “conversation” will erupt around the ears of Brennan, Recognise and Aboriginal leaders. They will be reminded that white settlement of Australia was not a sin, or a “bitter historical injustice for which the Australian people must permanently atone,” but the establishment of a core identity based on civilised structures of law, science and technology.
Further, they will be reminded that being first in the land counts for nothing when the Aboriginal tribes marked time for forty thousand years. They remained a collection of disparate cultures, primitive, uncivilised, Stone Age peoples whose claim to have been “guardians” of the land is amusing persiflage. The Aboriginal people and the Recognise campaign do not want equality, human rights or relief from oppression. They want privileges, and they demand those privileges be locked up in the Constitution.
The changes sought, but yet to be defined, represent the greatest threat to democracy the country has faced since 1901. Professor James Allan of Queensland University pointed out that democracy counts us all as equals. And instead of providing certainty, amendments will invite the wandering hands of meddling progressive judges. As Allan said: “I fear that this mooted change to our Constitution to insert some sort of recognition clause might be used by latter-day judges to do all sorts of things unimaginable or pooh-poohed today.”
The fightback has just started.
Geoffrey Luck, a frequent Qiadrant contributor, spent 26 years as an ABC journalist.