Keith Windschuttle, Editor of Quadrant
Good evening ladies and gentlemen. Welcome to the Quadrant Constitutional Convention. This is an historic occasion. To date, the Turnbull government has staged twelve regional conventions around Australia to discuss the constitutional recognition of indigenous people, with the final national convention beginning at Uluru tonight, as we speak. However, all these conventions have been reserved exclusively for indigenous people. So far, no one in mainstream politics or the media has seen fit to query this exercise in segregation or to call for even one convention to be staged to represent the great majority of the Australian people. To fill this glaring defect in our political debate, Quadrant has invited here a genuinely diverse range of speakers—both for and against recognition.
This is not only an ethnically diverse convention—we have speakers of European, Eurasian and Aboriginal descent—but we are also the only one not funded by the government—we’ve not had a cent from the Commonwealth to put this show on the road. So, even though the great majority of the Australian people will have no formal convention of their own in the lead-up to a possible referendum, you are present tonight at the substitute convention for the one the Commonwealth should have organised itself.
Tonight we have a distinguished range of speakers, headed by our Master of Ceremonies for the evening, Professor David Flint. David reminded me tonight that as well as being a former chair of the Press Council of Australia, the Australian Broadcasting Authority and the Australian Council of Law Deans, as a young academic lawyer he was once a volunteer in the Aboriginal Legal Service—before it was government-funded.
National Convenor of Australians for Constitutional Monarchy, author of The Twilight of the Elites (2003), co-author of Give Us Back Our Country (2013)
I have, I’m afraid, some disappointing news. Unfortunately, we will be unable to have a Welcome to Country. I think it has something to do with global warming. But we do have a Welcome to Convention, which is central to this evening. It was also central to the decision of the Australian people in the nineteenth century, humbly relying on the blessings of Almighty God, to unite in an indissoluble federal Commonwealth under the Crown and under the Constitution.
This sixth great pillar of Australia was a close-run thing. Had it been left to the politicians we would probably today be something like South America—without the constitutional instability, but several countries in one continent. Instead, we are one country in one continent. The problem was with the colonial politicians. In 1891 they appointed a convention. The convention produced a constitution but it failed. It failed partly because it was a nominated convention but also because when the draft constitution went back to the colonial parliaments, they tore it apart and could never agree on the terms. Each parliament had its own view and it was obvious there would be no solution.
The solution appeared in 1893 at Corowa, New South Wales, in a private conference like tonight. During the course of that conference Sir John Quick—a man unknown to most school students today but who ought to be on the currency, and ought to be commemorated because what he did ensured that we became a country—moved a motion that became known as “the Corowa plan”. It proposed that, in future, instead of convention delegates being nominated by the politicians, they should be elected by the people. Moreover, when the convention came to a conclusion about a constitution, it should be then sent to the politicians for comment—not to tear apart or decide on, but just for comment—and then it should be sent to the Australian people to vote and make the decision.
It took another four years after Corowa for the politicians to act. In 1897, a convention was mainly elected. Over several sessions, a constitution was drafted and put out for comment by both politicians and people. This took the movement for federation out of the hands of the politicians. After the work of this convention and after two referendums, the constitution was taken to London, passed by the imperial parliament, given Royal Assent and, once the West Australian referendum came in, proclaimed by the Queen. This was all achieved in four years from 1897 to January 1, 1901—without jet planes, without the internet and without all of the technological advantages we have today. That is extraordinary—we can’t build a dam in four years; we are going to take fifty years to have a fleet of submarines—four years, and all because of the convention. This is the importance of tonight—it was the convention that Sir John Quick conceived at Corowa without which we might today be several countries.
In 2014, at the fifteenth Annual Conference of Australians for Constitutional Monarchy, I invited Prime Minister Tony Abbott to give the annual Neville Bonner Oration. During the Oration, Tony Abbott said this of constitutional monarchists: “As the constitution’s fiercest defenders, our temptation is to dismiss all change as constitutional vandalism.” He then invited ACM to support the constitutional recognition of the indigenous people. That was to make headlines.
My job that night was to give the vote of thanks. I had no notice that he was going to make such a proposal. I had no authority to agree to constitutional recognition. I had to think quickly. While I was listening to him I thought this was an occasion to argue the wider principle of making our institutions and processes more democratic. So what I proposed in the vote of thanks was this: Why not bring the Australian people in at the beginning at a convention? Why leave it to the Australian people at the end to vote on something that all the elites had designed? Why not bring the people in at the beginning through an elected constitutional convention? ACM would support that.
We later proposed to the Joint Select Committee of Parliament on Constitutional Recognition to have an elected convention. We suggested that members of the convention be unpaid and that much of the work be secured by modern methods, using the internet and Skype and so on through committees, with some general meetings in Canberra. When we put this to the committee, the only adverse comment we got was a strong objection to delegates not being paid.
We suggested that this should be done under the Corowa plan, and that the convention not only look at constitutional recognition, but also at the state of the federation, which anybody knows is in a terrible mess—it’s got into this mess because of the judges and politicians. It has to be corrected. We also suggested there were other things that could be looked at, for example, the marriage power within the constitution, the accountability of politicians and other questions.
But what I want to say before I introduce the other speakers is that this concept of a convention, which Keith has pushed, was something we proposed. The Joint Select Committee noted what we had said but made no firm recommendation, apart from a general recommendation that there be conventions. The government ignored us. The only conventions it has established are those for indigenous people only. It seems to me extraordinary that a government would do this, that we would have some major changes being made to the Constitution without the Australian people being involved from the beginning.
So I think we should congratulate Keith for his initiative in having the convention tonight, which recalls and is so much in the tradition of the Corowa conference, the conference which ensured we would be, unique in the world, one nation on one continent. So let us now begin our very important work.
Director of the Australian Institute for Progress, former Special Minister of State in the Keating government, author of Aboriginal Self-Determination: The White Man’s Dream (2011), editor of Recognise What? (2014)
When the Commonwealth government initiated debate on recognition of Aborigines in the Constitution I took them at their word. That is, Aborigines wanted to be recognised. For this reason, and for this reason alone, I have argued for an insertion into a preamble to the Constitution the fact: they were here first.
But there is a second sense of recognition that drives the debate. Noel Pearson and other Aboriginal leaders want a substantial form of recognition. They claim that Aborigines are special and, as a consequence, every relationship between Aborigines and government has to be special.
Well, are Aborigines special?
Because Australian Aborigines were isolated from centres of innovation, they made no progress in 40,000 years. The tyranny of distance was tyranny indeed. Any other people would have failed to progress in the same circumstances.
A measure of progress, indeed of civilisation, is the ability to address wrongdoing, particularly in interpersonal affairs, without recourse to violence. Let me tell you about the day civilisation came to Australia. In 1788, in the first civil suit heard in New South Wales, Henry Kable, a convicted burglar, and transportee in the First Fleet, won damages of £15 against the ship’s captain, for failing to prevent the theft of Kable’s property while in transit.
This was the rule of law, and the beginning of Australian civilisation. By contrast, this is what it replaced. Watkin Tench observed around Sydney in 1790:
When an Indian [his term for an Aborigine] is provoked by a woman, he either spears her or knocks her down on the spot. On this occasion he always strikes on the head, using indiscriminately a hatchet, a club or any other weapon which may chance to be in his hand.
Walter Roth observed in North Queensland in 1897 the gang rape and tearing episiotomy as part of female “initiation”. There is a debate about the “cultural” nature of the practice, but whether rape or initiation, both were a common occurrence in the treatment of Aboriginal women.
David McKnight observed at Mornington Island in 1966:
There were fights practically every day and on some days there were several. It seemed strange to me that there was so much fighting because the people were kind and compassionate with a rich sense of humour … violence would suddenly occur and the very people who seemed kind and compassionate became dangerously aggressive and struck one another so harshly that they frequently had to receive treatment at the Mission hospital.
My point is not that Aboriginal culture remains the same as it was 200, or 100, or fifty years ago, but that resort to violence remains an enduring part of Aboriginal culture. When I ask Aborigines for accounts of contemporary culture the story is no more encouraging. Either they fail to specify anything beyond “family” or they tell me tales of sorrow, tales of bad behaviour resulting from “humbugging”, sorcery or nepotism. Aboriginal culture may be special, but it is not a national treasure.
The movement to recognise Aborigines in the Australian Constitution is not uplifting. It is not a survivor’s lament. It is a descendant’s gambit. A more civil movement would give thanks for life and opportunity in modern Australia. After all, had the First Fleet not arrived, Aborigines would have remained isolated from centres of innovation, living short, brutish lives.
As for any proposals for recognition, our original question, outlined in the book Recognise What? still applies. There is still no official proposal on the table. Nevertheless, several are bandied about. These can be described as: “do nothing”, “minimalist”, “maximalist”, “a statement outside the Constitution”, “a constitutionally recognised Aboriginal council”, and “a treaty”.
I will oppose the maximalist position, favoured by the panel of experts, which would, implicitly or explicitly, create special rights for Aborigines.
I will oppose a statement outside the Constitution. While it may be designed to preserve parliamentary sovereignty, it would contain untruths, for example, that Aboriginal culture is special and deserving of recognition.
I will oppose a constitutionally recognised Aboriginal council (whether Pearson or Mundine designed). The council is a racist proposition. If it had the power to deny a law and thus override Parliament, it would be a travesty of democracy. If it did not, but merely privileged some citizens above others, it would do so at the expense of others. In addition, we must remember that there are sixteen Aborigines in parliaments around Australia, so why should Pearson’s unelected peers trump them?
I will oppose any treaty. Treaties within a nation are legal delusion.
Aborigines established their own representative bodies—for example, William Cooper’s Australian Aborigines League in 1936 and the Federal Council for Aboriginal Advancement in 1958. They barely had a penny, but they had integrity, which stemmed from the freedom of their association. By contrast, the present leaders are, almost to a person, living on the public payroll. The early leaders expressed the desire for equality, for a fair go, not a special go, in the Constitution.
The problems that some Aborigines endure are not because Aborigines lack a race-based national assembly, but because a vocal cadre of leaders misread history, and they cannot look beyond grievance and victimhood. They, like the minority of Aborigines whose lives are blighted by collectivist public policy, seem unwilling to embrace the competitive and technical challenges of the twenty-first century.
Modern leaders fail to recognise that much of Aboriginal culture is fatal to progress. New Zealand has had a treaty (Waitangi) between the Maori and the New Zealand state since 1840, and dedicated Maori seats since 1867. And yet, intergenerational dependence is rife among Maori. Maori women, for example, are far more likely than non-Maori women to be on a benefit and to have children while on a benefit.
Constitutional or, indeed, non-Constitutional recognition does not ensure good policy, but it would make it harder to achieve the abandonment of bad policy. Identity politics is at the heart of bad policy. It makes more difficult the necessity to escape bad culture, and it encourages the tendency to blame others.
If other than the minimalist case is proposed, I will support the No case in a referendum. Indeed, I have shifted ground, minimally, in the last two years. If the proposition to remove the word race from the Constitution were offered, then I would insist on removal of the Commonwealth powers to make laws for Aborigines.
For the betterment of Aborigines, it is time to smash the industry.
Institute for Positive Psychology and Education, Australian Catholic University, co-editor of In Black and White (2013) and contributor to Recognise What? (2014)
Good evening. I’ve got twelve minutes. Seven minutes of that was going to be a Welcome to Country but our MC has hit that on the head.
I don’t outright oppose constitutional change, nor am I a fan of it. But I do want to give some random thoughts about it. Certainly, I support a simple statement somewhere that acknowledges that Aboriginal people were the first people in this country. I don’t have a problem with that. I certainly support a change that would eliminate or prevent racist laws or acts occurring, so I think that’s good. When it comes to culture, which I’ll talk about a little bit shortly, I think there’s a problem there.
Let me just say at the outset there are some Aboriginal people who see constitutional change as an evil monster, and they oppose and slander any of the Recognise group. I oppose those who are so viciously attacking the Recognise campaign. They do not do any favours for the Aboriginal people. Having said that, I’m not a big fan, and I will explain why.
What is Aboriginal culture? It does get a bit grey as to what exactly is Aboriginal culture. Gary has touched on some of the bad bits. A more fundamental question: What is Aboriginal—who is an Aboriginal person? For someone whose great-great-grandfather was Aboriginal, do they count as Aboriginal? So you have those sorts of problems when it comes to culture. Kerryn Pholi in Gary’s book gives an excellent example of why culture is a problem. For example, if a couple of a black and white union have a child, and that relationship breaks down, you then have one parent with Aboriginal ancestry getting, on cultural grounds, a whole lot of advantages about rights to that child, and that child must be raised in that culture blah blah, and that sort of thing.
One of my major concerns with constitutional recognition is that there are people out there, an army in fact, who have said we as Aboriginal people cannot move on, or we as a country cannot move forward together, we cannot address the problems, unless we acknowledge history and acknowledge that we are the first people here. I think that sends a very disempowering message to Aboriginal people. First, there are many thousands of successful Aboriginal people in this country, and they’ve done what they’ve done without constitutional recognition. And to achieve their success they’ve basically followed the same rules that apply to every other citizen of Australia, and I’m going to read those rules out now. The rules for success, and these can happen without fiddling with the Constitution, are:
- First of all, don’t segregate yourself from society.
- Treat others with respect and see them as equals. You’re not special.
- Pursue an education, whether it be formal or informal.
- Make valuable contributions to the community in which you live.
- Be a role model for others to emulate.
- Don’t try to make yourself feel good by making others feel guilty.
- Make healthy choices and adhere to a personal moral code.
Now I readily acknowledge that those rules are easier to follow in some environments than others. If you’re living in a remote ghetto it is very difficult to adopt those rules, but that’s another issue for another time.
There are some people who say, “OK, you can have advancement without constitutional recognition, but it’s the right thing to do anyway, so for that reason it should be done.” I’m reminded of the apology by Prime Minister Kevin Rudd. It was done because it was considered by many to be the “right thing” to do. I think it created more problems than it was meant to solve. I admit that if it is the right thing to do and we do it, and things work out and it creates greater unity in this country and empowers Aboriginal people, I will gladly say it worked, and I was wrong. However, if it doesn’t work, and I suspect it won’t, I would then like to say, “OK, can we now get on with the business of getting kids into school, adults into jobs, ending the violence and dysfunction, all that sort of thing?” That’s got to be a question right at the front of discussions of constitutional recognition. Will it make better, more vibrant communities, and happier, healthier people? I don’t see how it will do that.
Now, the people that have gone to Uluru this week, and have had these dozen or so meetings around the place, they have been saying any change has got to be more than symbolic. It’s got to be substantive. I agree, so it’s good to hear them say that. However, my concern is that whatever change they are talking about, you do not need some sort of constitutional recognition meeting at Uluru or anywhere else to do that, that can happen right now, just under the normal processes and laws of the country. Many successful Aboriginal people have come from privileged backgrounds like myself, some from less privileged backgrounds like my father and his family, and they have succeeded without constitutional recognition. So it’s good to be thinking in terms of substantive things, but why tie that to constitutional recognition?
The other issue, which was touched on briefly before, is what would the next step be? Bill Shorten was quoted today saying this would be the next step or the gateway to a treaty. Gary has already spoken about that—that would be a huge problem. It comes back to the question I asked about who is Aboriginal. Who is this treaty going to be between? What would it look like? It’ll be a lawyer’s picnic. And, again, there are many successful Aboriginal people in this country who have got to where they are without a treaty.
I think one of the driving forces—and this will sound cynical—among the treaty camp and the recognition camp is that a treaty or recognition is just another attempt to validate individuals’ Aboriginality. That’s what they are wanting, just further evidence that “I am Aboriginal, you’re not; I am special, you’re not.” I think that’s what a lot of them are in it for. They’ve lost sight of the real issues, but the real issues can be dealt with, and have been dealt with in some places, but we need to do a lot more. In a letter I had published in the Australian this week I said that if recognition, or a treaty for that matter, does not answer the problems of getting kids into school, adults into jobs, that sort of thing, then it just becomes a distraction from the real work.
To do the real work will mean making unpopular decisions. For example, just off the cuff, how do you help those indigenous people who are living in remote communities in squalor? A treaty or recognition is the perfect distraction from addressing the tough issues which often will ultimately come down to the other R-word, relocation—relocation from unsustainable run-down communities.
The lefties and others don’t like to talk about issues like relocation. They like to think of Aboriginal people “living on country”, on the land.
We should never lose sight of the serious problems facing Aboriginal people. If we get on top of those problems, if we get kids attending quality schools, good attendance, the unemployment rates will go down, and the rates of violence and child abuse will go down. After we get those things fixed, fine, then let’s talk about those symbolic things.
Associate Editor of The Australian, host of Heads Up on Sky News, former chief of staff to Foreign Minister Alexander Downer and Opposition Leader Malcolm Turnbull, author of Women’s Business (1996) and contributor to The Forgotten People (2016)
I’m here to argue my case in favour of indigenous recognition so I figure a lot of you will be opposed to my views. So it’s kind of like me appearing on Q&A arguing in favour of strong border protection or scepticism on climate change—Q&A in reverse.
As a rule, I think that symbolism and emotionalism in policy making and legislation are to be avoided. What we need is rational thought and pragmatism. Having said that, I think in the interests of reconciliation in this country—whatever that means to all of us individually—if we concede that there is any sort of a schism, at least of disadvantage, between indigenous and non-indigenous Australians then we ought to look sometimes at emotionalism and symbolism playing some sort of role in allowing Australians to work together, strive together and govern together. There is a role for some emotional input, some hand of friendship across the divide, no matter what over-claiming goes on in this area.
But even if we go back to my first premise of pragmatism and rational thought, we face a situation in this country where both major parties are committed to indigenous recognition. They are not going to stand back from that. Some of you will disagree with the Coalition going down that path, but none other than John Howard started that process. It was endorsed by Tony Abbott. So the practical situation is that you have major party consensus for some sort of recognition, and I think there’s a public expectation that it will occur. There’s certainly an indigenous expectation, and I think it’s a worthwhile thing to do if it’s sensible, if it’s final, and if it resolves these issues of recognition. I hear you laugh, but I think it’s a proviso, a big proviso, because this needs to be a settlement of the indigenous question in the architecture of our nation. If it’s not, then it’s not worth pursuing. If it leads to renewed calls for a treaty, for instance, then forget it.
So I suppose the good news for all of you who oppose this proposal is, it isn’t going to happen in a hurry. I don’t think the gathering at Uluru over the next few days is going to arrive at any sort of consensus position on its own, let alone one that’s going to be acceptable to the rest of the country. So I think this debate we’re having is going to go on for a while longer. And I think that’s a good thing. Some of you will think it’s a good thing because it will run into the sand. But if you think it’s worthwhile pursuing this end, at least it’s going to be thrashed out in detail until there is some sort of sensible outcome.
We’ve heard tonight about the extremes of debate. You have a minimalist position which a lot of people reject because it might be just a recognition in a preamble. You have also the over-claiming—as I would characterise it—of going for a treaty. I tend to look for some middle ground. I’ve been attracted to the Noel Pearson idea that Gary has dismissed. It can be reworked. It’s an idea that has already been modified to a degree. It was initially opposed by Warren Mundine but he’s now put up a kind of a modification that is not a bad option.
When you think about our Constitution, it gives us the architecture of this nation, and it is essentially six colonies getting together. Some were founded in similar ways, others were quite different. As a South Australian, I’m well aware of how different the colony of South Australia was from the rest of the nation. And when they came together, it was essentially six peoples coming together under a constitutional architecture for the common good. I think if we did that today we would include in some shape or form the people who were overlooked at that time, and that is indigenous Australians, who were here before European settlement. I think today’s sensibilities would see us include indigenous Australians in some way, recognise them in the Constitution. I think it can be a worthwhile thing to do.
I don’t deride where we were at the time of Federation. We too often overlook what were very enlightened procedures, policies and pieces of legislation in their time—the fact that indigenous Australians in South Australia, Victoria, other colonies too I think, had a protector or a protectorate looking after them. We might see this as patronising now but it was at least a recognition of care, responsibility and shared humanity. Crucially, one simple fact that might astound many Australians—we should all know this but I seldom hear people talking about it—but when you think about a place like South Australia that gave women the vote in 1894 it is worth remembering too that indigenous Australians had the vote in South Australia. So indigenous women living in outback South Australia had a franchise that European women would be fighting for decades to achieve. That’s quite a remarkable thing, and it’s those sorts of positive aspects of our constitutional history that we should embrace.
But with that sort of background and that justification, I think we need to protect the Constitution. I think some constitutional lawyers have suggested a preamble could be open to over-interpretation. I think the claim for a racial non-discrimination clause is a problem because it would embed a very limited and very elite bill of rights into the Constitution—what about everybody else’s rights?—so I am opposed to that. Other little constitutional tidy-ups of redundant and race-based sections are proposed that most people agree with.
You have heard discussion tonight about whether or not indigenous Australians are special. Well, they are special in that they were here first. This is recognised as a fact of law under Mabo—they have native title rights—and this is currently regulated under section 51 of the Constitution which details the federal powers. So any constitutional change needs to maintain those powers. I disagree with Gary. I understand his sentiment but I think the federal government needs to maintain those powers if for no other reason than to oversee native title, not to mention the indigenous heritage laws (which have been a problem as we saw at Hindmarsh Island—but I won’t go down that path). Still, I think we need to see Canberra maintain that power.
So what Noel Pearson and others have put up is essentially having some document of recognition or statement of national values that recognises indigenous heritage, British institutions and our migrant bounty. It would be one document we can all unite behind, outside of the Constitution. Then, simply, we would ensure the Constitution mandates an advisory body that advises the government on matters that it has the powers to legislate on in indigenous affairs.
Now I see you shaking your heads. At the moment we have an indigenous advisory body. The previous government had one. And the one before that. It’s unthinkable in the modern age that a federal government legislating on indigenous affairs would not have an indigenous advisory body. So this is why in many ways Noel Pearson’s ideas of mandating such a body is really not radical at all. You can argue all you like about who’s appointed to that body, who’s elected to that body, who it represents, and that’s where you get into the nitty-gritty. But the idea of mandating an advisory body to the parliament on the issues it clearly has the power to legislate on in indigenous affairs is a substantial change, a meaningful change, and leaves the Constitution intact. Those other issues, the symbolism, healing and poetic statements of national intent, can be dealt with outside of the Constitution.
Warren Mundine’s proposed modification is just to ensure that local indigenous groups are used to formulate this national advisory body; so that local indigenous groups can put their views to the government rather than one great national body which might sound a bit like ATSIC. So it’s a useful idea. We should keep talking about it. Practical reconciliation is much more important than symbolism. But to the extent that a change like this could aid in that process it is worthwhile that people of good faith continue the discussion and debate.
Author of The Fabrication of Aboriginal History, Vols 1 and 3 (2002, 2009), The White Australia Policy (2004), and The Break-up of Australia (2016)
The Aboriginal urban political class has a clear agenda which, so far, few people want to discuss publicly. When members of this class discuss constitutional recognition among themselves in books, academic papers, and speeches to Aboriginal conferences, they don’t say, as Tony Abbott did as Prime Minister, that their aim is to make the Constitution complete or the nation whole. Indeed, ever since their success in gaining native title in 1992, they have sought to go one big step further. As well as getting their land back they now want to get their country back too. As the title of a recent book by Aboriginal academics Megan Davis and Marcia Langton says, “It’s Our Country” (their emphasis).
To these activists, recognition of Aborigines in the Constitution would simply be one more step towards their real, long-term objectives: political autonomy, traditional law and values, and sovereignty over their own separate state or nation.
They see themselves as “first peoples” and “first nations” whose ancestral status gives them ownership and jurisdiction over Aboriginal land. They do not regard the existing Australian nation as their true country. They describe the Australian nation as no more than a recently arrived “settler state” whose rule, according to Aboriginal film-maker Rachel Perkins, they have endured with a “burning resentment” ever since 1788.
While the concept of sovereignty has been absent from the mainstream media’s reporting of constitutional recognition, it has long been the principal objective of the Aboriginal political class, right across its spectrum—from gradual reformists to radical agitators. They argue that because Aborigines never ceded sovereignty in the colonial era, because they signed no treaties and were never actually conquered, as the first land owners they remain the Australian continent’s sovereign people.
They claim that, in restoring land rights in the Mabo decision, Australian courts recognised that traditional Aboriginal society was governed by its own laws. The existence of a legal system, they say, logically entails the existence of Aboriginal sovereignty which was supposedly never extinguished by the British Crown’s own declaration of sovereignty in 1770.
There is nothing new about the demand for sovereignty. The concept dates back to the 1970s and to the Aboriginal Treaty Committee, a body of white Canberra activists led by former Reserve Bank head Nugget Coombs.
Since then, all major federal bodies of Aboriginal people have supported this objective. In 1982 the National Aboriginal Conference declared: “we assert our basic rights as sovereign Aboriginal nations who are equal in political status with the Commonwealth of Australia in accordance with the principal … that sovereignty has always resided in the Aboriginal people”. In 2012 a survey by the National Congress of Australia’s First Peoples, the successor to ATSIC, found 88 per cent of its members identified constitutional recognition and sovereignty as the top priority of Aboriginal people.
Over this time, the supporters of sovereignty have included the well-known Aboriginal identities Pat Dodson (now Senator Dodson), Marcia Langton and almost every Aboriginal academic who has written on the subject, including all our professors of indigenous law and indigenous studies, who are now the most radical of the lot.
It also includes the more politically astute Aboriginal identities, Warren Mundine and Noel Pearson, who want separate statehood for their own “first nations”, that is, the territory of the clan from which they claim descent, in Mundine’s case the Bundjalong nation, in Pearson’s, the Bagaarrmuju and Yalanji nations. Rather than one big Aboriginal state, Mundine and Pearson both want constitutional recognition so the Commonwealth can negotiate separate treaties with each individual “first nation” on its own land, giving each its own internal self-government and its own laws based on their ancient customs and traditions.
So what the Aboriginal political class want to gain from a constitutional amendment is endorsement of a statement recognising their prior occupation of the continent and the survival of their ancestral languages and culture. They believe they would then be able to successfully argue for sovereign status before a friendly High Court.
Australia’s conservative political leaders have gone along with constitutional recognition without being aware of its full implications. As Prime Minister Tony Abbott argued: “We have never fully made peace with the first Australians. Until we have acknowledged that we will be an incomplete nation and a torn people.” His objective in holding a referendum was not to change the Constitution but to complete it, so that we can make our country “whole”.
In saying this, Tony Abbott provided the bipartisan support that is essential for any constitutional change in Australia to succeed. This doesn’t mean, of course, that it will inevitably succeed, as John Howard found in 1999 when his similar proposal was rejected by the electorate. But it does remove the most formidable potential barrier.
Will the Australian voting public today support this kind of minimalist position? To date, opinion polls suggest that now they will. In May 2015, the government-funded body Reconciliation Australia found in an opinion poll that 75 per cent of all Australians and 87 per cent of Aboriginal and Torres Strait Islander people would vote Yes. Even two-thirds of Coalition supporters would vote Yes.
Of course, with no text of the amendment available at the time, these are only speculations, but they indicate what is possible if Recognition remains unchallenged. The voting public will see a minimalist constitutional amendment, which says the Aborigines got here first and they love their country, as a courteous symbolic gesture with no real consequences.
However, in the minds of the modern High Court it would send quite different signals. The first role of the High Court is to interpret the Constitution and if the people voted to amend the Constitution it would immediately open up the opportunity for the judges to re-examine all the constitutional consequences of the Commonwealth government’s power to make laws for the Australian people. In particular, it would sanction adventurism among judges of that inclination. The fact that the amendments were approved by a significant majority of the Australian people would tell them the national mood had changed in favour of amending laws and policies too. This would be so, whether the amendment is made to the Constitution’s existing provisions or even just to its preamble.
The amendments’ emphasis on original occupation and continuing relationships with land, water, culture, heritage and language would not just entrench existing concepts of land rights. They would also tempt judges to accept the more radical propositions long argued by the Aboriginal political class that they remain the true proprietors of the soil and that those of us descended from the more recent settlers need to re-negotiate our right to be here.
Some judges with a more international perspective could combine these sentiments with directives derived from Australia’s obligations under the growing number of United Nations treaties, covenants and, in particular, the UN’s declaration of indigenous rights, which was largely written by the Australian activist Mick Dodson, and endorsed by Prime Minister Kevin Rudd in 2009. Some Aboriginal activists even want the legitimacy of Australia’s occupation of the continent to be reconsidered.
In short, if a minimalist constitutional amendment of this kind was passed, the demands of the Aboriginal political class would very likely be met in substance. The High Court could decide that crucial sections of the Constitution should be reinterpreted anew. Even the more cautious members of the court could be emboldened to join this process if they had a constitutional amendment that demonstrates that the values of the Australian people have changed, which is what a successful minimalist amendment would do.
There is a direct international precedent for all this. In 1982 Canada changed its constitution on minimalist grounds, saying merely (i) “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”, and (ii) “The Aboriginal people of Canada are defined to include the Indian, Inuit and Metis (mixed race) peoples of Canada.” The Canadian political scientist Tom Flanagan points out that this minimalist amendment has effectively transferred the power to make indigenous policy from provincial and federal parliaments to the Canadian Supreme Court, which has given the more than 600 Canadian tribes, now known as “first nations”, not only land rights and fishing rights but the legal status of nations in their own right, with their own sovereignty and self-government. It has given the Canadian Inuit people a self-governing state of their own, Nunavut (the former North-West Territories). In 2000, the National Chief of the Assembly of First Nations declared, “I am not a Canadian”, and that all of Canada still belongs to the first nations. This is not a precedent that leads to reconciliation or the healing of national divisions. It only makes them much worse.
What the Canadian model also shows is that the more vague and minimalist a constitutional amendment is, the more power it would allow the Australian High Court to make policy. If that occurred, policy would be decided not by democratically-elected representatives or the traditions of the common law but by a High Court influenced by the demands of the Aboriginal political class and the interpretations of our past by left-wing academic historians and anthropologists.
If there was a supportive government in Canberra, like the Keating Labor government in 1993, which legislated the High Court’s Mabo judgment into effect, or a now-very-likely Shorten government in 2019, then the Australian people would have little say in the establishment of a sovereign Aboriginal state or states, in the internal operation of their governments, in the compensation due to them, or in the precise status of their relationship with the Australian Commonwealth.
So, to conclude: What is to be done about the proposed constitutional referendum? In my view, those of us concerned about the issues I have discussed here, should have a minimalist demand of our own. If the Commonwealth does go ahead with the referendum, it should at least address something that is not yet on the table: it should publicly fund and properly publicise a fully investigated, well-articulated case for voting No.